About once a year, we hear a rush from the gun-control crowd about the “gun show loophole” and online gun sales. That talking point is used to distort and overstate how easy it is for bad guys to get guns, and it deceptively oversimplifies how easy it would be to keep guns away from criminals by signing on for “common-sense gun control.”
This column is meant to help you better understand the realities surrounding the so-called “gun show loophole” so that you can better explain it to skeptics. Note that I am not an FFL dealer or a lawyer, and I am not trying to give you legal advice on whether you need to be licensed. This is merely to help you with advocacy.
To sell guns commercially, whether from a store, at a gun show, out of your house or out of the back of your van, you need to be federally licensed as a dealer.1 This sales permit is called a Federal Firearms License, or FFL. Any sale an FFL holder makes must be to someone who passed the National Instant Criminal Background Check System (NICS) check on the day of the sale, and that is true whether the sale is in a store, at a gun show or out of the trunk of a car.
To buy a gun from a licensed dealer, regardless of the setting, you have to show a government-issued photo ID, you have to fill out a form that requires your identifying information, and you must answer a series of yes/no questions about your criminal background, whether you are the actual buyer and your citizenship status. The dealer will then call NICS to process your background check, which normally takes 10 to 90 minutes, depending on request volume and whether you have a common name.
If you go to a gun show, basically all of the tables showcasing guns are manned by FFL dealers who have to process background checks, as they are “engaged in the business of dealing guns.”2 If you are commercially selling firearms, you are “engaged in the business of selling guns,” and if that’s the case, you’re a dealer and therefore need to be licensed. So, in practice, there isn’t much of a gun show loophole — at least not the way gun-controllers want us to believe.
What about buying a gun online? This is a classic example of where the narrative is being manipulated. Yes, you can buy a gun online, but that is deceptively incomplete. You can pay for a gun online through a licensed dealer, but that dealer has to ship it to a licensed dealer in your state, where you have to pick it up in person after having passed a NICS background check that day.
If you are engaged in the business of selling lots of guns without an FFL and without background checks at a gun show or online, that isn’t a loophole; you’re committing a federal crime. It has been that way for my whole adult life, and nothing about it is really controversial. Some states add additional hoops — state licensing for buyers and waiting periods — but well-run states do not.
The real issue is person-to-person individual sales: I own a gun, I want to sell it, and I have a friend who wants to buy it. Under federal law right now, I don’t have to do much in order to sell it to my friend.3 Some states require a NICS background check for that sale; others don’t. Some states require a NICS check even if I am loaning it to you to handle right next to me at a shooting range or on a hunting trip — even if you are my spouse or child. Gun-rights advocates see that as pretty ridiculous. Gun-restriction advocates see that as not enough.
Further at issue is a scenario in which I own a gun and want to sell it; can I walk around with it at a gun show or post an ad on social media and sell it to someone that way? Many states require that sale to include an NICS check — and, in fact, require the seller to have a table at the show to process NICS checks on the spot. Some don’t, and federal law doesn’t say much about it.
The problem with closing that “loophole” is that, in the process, you likely also keep me from being able to sell or loan a gun to my best friend without having to drive to a licensed dealer to process the NICS check, and, as my pro-choice and anti-voter-ID-law friends will attest, having to drive some number of miles to do something is an onerous burden on the discharge of a fundamental right.
Just to muddy the waters further, what if I own a lot of guns and I want to sell some to buy some more? How many guns a year make me a dealer? Two? Ten? Twenty? I don’t know, and apparently neither does the Bureau of Alcohol, Tobacco, Firearms and Explosives. There isn’t a set threshold, but quantity is taken into consideration in licensing determinations.
Sounds Good on Paper, But…
Some polling suggests most people like and want background checks, especially in sales to strangers at gun shows and through online postings. But don’t let polling numbers fool you. I would bet that if the situation were explained better, those stats would change. What advocates like me are concerned with is an excessively broad rule that keeps someone from handing his or her daughter or niece a .22 to plink with at the range without making her get a background check — or making every single gun sale subject to having to ask permission. Never forget that if you have to ask permission to exercise a right, it isn’t a right.
Hopefully this will help you explain to friends, neighbors and family members why we squint and scratch our heads when we hear politicians talk about a “gun show loophole” that doesn’t really exist.
Jim is a concerned citizen and gunrights advocate. His opinions are his alone and do not reflect the official policy or position of his or any other agency. References and links to other gun-advocacy sites do not imply endorsement of those organizations. He can be reached at [email protected].
(1) Bureau of Alcohol, Tobacco, Firearms and Explosives. “Do I Need a License to Buy and Sell Firearms?: Guidance to help you understand when a Federal Firearms License is required under federal law.” U.S. Department of Justice. https://www.atf.gov/file/100871/download.
(2) That is the legal threshold for an FFL as described by the Gun Control Act and interpreted by the ATF.
(3) Bureau of Alcohol, Tobacco, Firearms and Explosives. “Questions & Answers.” U.S. Department of Justice. https://www.atf.gov/questions-and-answers/qa/what-recordkeeping-procedures-should-be-followed-when-two-unlicensed.