The “Gun Show” Loophole: Myth or Fact? Is it Real?

Myth 1: The gun show loophole allows anyone to simply buy a gun at any gun show.

Myth 2: The gun show loophole doesn’t exist and is completely fabricated.  There is no gun show loophole.

Fact: In most states, private sellers (unlike federally-licensed dealers) aren’t required to conduct background checks. The transaction doesn’t have to be at a gun show and therefore, what’s being labeled as a loophole isn’t specific to gun shows. Nevertheless it’s indeed possible to legally purchase guns without a background check in most states. A more precise label would be “private seller loophole.”


Clearing the Chamber on misleading semantics

The tragic and recent school shootings in Florida and Maryland have reinvigorated the debate over gun laws.  The gun show loophole remains one of the more hotly debated topics.

Is the gun show loophole real?  The debate seems largely grounded in semantics.   For example, “the private seller loophole” would probably be a more accurate name (because private sellers aren’t under the same standards as federally-licensed firearm dealers).  Hence, many political pundits and authors purporting to expose “the gun show loophole myth” focus on the idea that the loophole is specific to gun shows (and that it applies to gun shows everywhere).  Arguably this is a straw man depending on how important one considers the semantics versus the spirit of the claim.

Nevertheless, these private sellers/occasional dealers often sell specifically at gun shows and this is likely WHY it’s been named so.  It’s important to note that the loophole doesn’t exist in states that have gone further than the federal law and have effectively rendered the loophole non-existent in that state.  This leads to confusion for people who live in states with these restrictions.

Is the Gun show Loophole Real?

From Governing.com

Known as the “gun show loophole,” most states do not require background checks for firearms purchased at gun shows from private individuals — federal law only requires licensed dealers to conduct checks.

Under the Gun Control Act of 1968, federal law clearly defined private sellers as anyone who sold no more than four firearms per year. But the 1986 Firearm Owners Protection Act lifted that restriction and loosely defined private sellers as people who do not rely on gun sales as the principal way of obtaining their livelihood.


From Politifact

“There is a huge loophole in federal law, but it isn’t for gun shows,” UCLA law professor Adam Winkler said. “What is called the gun-show loophole is misnamed. It should be the ‘private sale loophole’ or the ‘background check loophole.’ … The reason people talk about gun shows is that they are easily accessible marketplaces for people who don’t want to be subject to a background check to find non-licensed gun sellers.”

crazed gunman

From SmartGunLaw.com

According the U.S. Department of Justice, because federal law does not require universal background checks, “individuals prohibited by law from possessing guns can easily obtain them from private sellers and do so without any federal records of the transactions.”2 “The private-party gun market,” one study observed, “has long been recognized as a leading source of guns used in crimes.”3 Although the private sale loophole is frequently referred to as the “gun show” loophole (because of the particular problems associated with gun shows), it applies to all private firearm sales, regardless of where they occur.4

More info from Media Matters

Consequently, unlicensed sellers may sell firearms without conducting background checks or documenting the transaction in any way. In addition, because federal law does not require private sellers to inspect a buyer’s driver’s license or any other identification, there is no obligation for such sellers to confirm that a buyer is of legal age to purchase a firearm. As a result, convicted felons, minors and other prohibited purchasers can easily buy guns from unlicensed sellers.

According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the current definition of “engaged in the business” often frustrates the prosecution of “unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons.” A June 2000 ATF report found that unlicensed sellers were involved in about a fifth of the trafficking investigations and associated with nearly 23,000 diverted guns.

From About.com

“In 33 states, private gun owners are not restricted from selling guns at gun shows. Buyers who purchase guns from individuals are not required to submit to the federal background checks in place for licensed dealers. Critics say that firearms can be obtained illegally as a result, calling it the “gun show loophole.” Proponents of unregulated gun show sales say that there is no loophole; gun owners are simply selling or trading guns at the shows as they would do at their residence.”

 

“There is no Gun show Loophole”

One common method of denying the gun show loophole’s existence is simply deny that it exists and leave it at that.   This is invariably followed up with scare tactics regarding government take overs.  Nevertheless, some forms of denial have taken on more creative tones.

Here is an example from The Federalist

In reality, the so-called “gun show loophole” is a myth. It does not exist. There is no loophole in federal law that specifically exempts gun show transactions from any other laws normally applied to gun sales. Not one.

If you purchase a firearm from a federal firearms licensee (FFL) regardless of the location of the transaction….

This article omits the scenario whereby a person obtains a firearm from an unlicensed seller in a state that doesn’t require that private sellers conduct a background check.  Hence, it presents false choices.  It suggests that in order for the gun show loop hole to be real, it must be a “federal law that specifically exempts gun show transactions.”  It then presents another option, (purchasing a gun from a federal firearms licensee), as if this is the only other option.

Even more blatantly false is a video by YouTuber “Colion Noir” who simply claims there is no gun show loophole, not by citing false choices but by, well, saying it doesn’t exist.

There is no gun show loophole. It’s a red herring. It’s made up. It’s all conjecture. It’s the, if you don’t eat all your vegetables, the monster under the bed is gonna get you story,

On the other hand, in this bizarre video below, a YouTuber claims there is no gun show loophole, and then proceeds to explain how the loophole works in states like Ohio.

Louder with Crowder Video “exposing” the “gun show loophole myth”

One such creative attempt to portray the gun show loophole as a myth includes videos of people unsuccessfully trying to randomly buy guns (often in a silly and provocative manner) and with no indication of whether the potential seller is a federally licensed seller (in which case the loophole would not apply to begin with).  Purporting to answer if the gun show loophole is real, the video in question even has Steven Crowder quickly running into an actual gun store and asking if he can quickly purchase a gun.  As the gun store is clearly not part of a gun show and is certainly federally licensed its unclear how this supports the video’s allegation that the gun show loophole is a myth.


This video is understandably convincing to those who believe the term gun show loophole somehow means that anyone can visit any gun show and purchase a gun with no background check.  This is clearly not the case.  The loophole only exists in states that allow private sellers to sell without a background check, and even then the seller can certainly choose to only sell to a buyer who undergoes some sort of background check.  As in most viral “gotcha” videos, such context and explanation is missing, and there is no attempt to explain the issue the video alleges to address.

Are 40% of guns sold without background checks?

The actual number of guns purchased without background checks is another subject to debate.  Some politicians cite the “40% of guns are purchased without background checks” line.  However, this is based on a highly outdated poll which may have been true before certain laws were put in place.  A more accurate current percentage would be between 13% and 22% depending on the criteria used.

Loophole or just Law?

gun show loophole

One common objection to calling this a loophole is the argument this is simply the law, and therefore not an actual loophole. However, there are a couple of things wrong with this objection. First, it IS a loophole given the structure of the law (or lack thereof) regarding private sellers and background checks. The second is that, to advocates of stronger gun control at least, it doesn’t matter whether the lack of need for background checks for private sales in these states is due to a loophole or exists as an actual statute. It’s the fact that guns can be purchased without a background check that matters, not whether it’s due to assertion as opposed to omission in state and/or federal law.

Read More on the Gun Show Loophole

 

 

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