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Ask the Expert: What Exactly Is the So-Called ‘Gun Show Loophole’?

By: Teresa Mull

The “gun show loophole” is a favorite political term gun control advocates like to use to make gun owners and sellers sound as if they’re lawless gun runners.

You’d probably be hard-pressed to find an anti-gun activist who can tell you what the “loophole” really is, what it does, and why it’s supposedly so dangerous.
James Bardwell, in-house attorney for the National Association for Gun Rights, explains below what is meant by the “gun show loophole”:

The so-called gun show loophole refers to the federal law that regulates sales of firearms. Since 1938, federal law has disqualified certain people from legal firearms ownership. Originally, the law prohibited people convicted of certain violent felonies from owning firearms.

Over the years, that list of disqualifications has expanded. The greatest expansion was with the enactment of the Gun Control Act in 1968. Between 1968 and 1994, firearm buyers had to fill out a form stating whether or not they fell into a category of persons that were prohibited from owning firearms.

A few states required background checks, typically by requiring a person to get advanced permission to buy a firearm (sometimes the requirement only applied to handguns, for a few other states it applied to all guns). However, insofar as federal law was concerned, the buyer was basically promising that he was qualified. There was no check before the sale on whether the prospective firearm buyer was lying or not.

The technology to do such a check “instantly” evolved, and the political momentum to require such a check also evolved. A requirement for a background check first came into law at the Federal level in 1994. Since then, firearm buyers who are buying from a dealer have had to either obtain advance permission to buy a firearm under a state law scheme the federal government has approved, or they have to pass an “instant” background check conducted by the federal government before the sale.

Federal law only regulates firearm sales by persons in the business of firearms sales. Such persons have to obtain a license from the federal government. Sales by persons who are not in the business of firearms sales are not regulated by the federal government. Again, a few states have more comprehensive schemes. But insofar as federal law is concerned, sales of firearms by people who happen to own a firearm they want to get rid of are not required to have a background check conducted on the buyer before the sale. No paperwork or form is required for the sale. A seller who is not licensed under federal law can only sell to a resident of his own state.

A gun show is an event where people who like firearms meet up to buy and sell firearms. People who attend the show who are in the business of firearms sales have to conduct background checks on sales they make at the show, just as they would if the buyer had come to their shop. People who just want to sell a firearm they happen to own do not have to get a background check performed on their buyers. They can just hand the firearm to the buyer in exchange for another firearm, or money, or perhaps a combination of both.

So, proponents of gun control call the fact that federal law does not require a background check on sales by persons who are not licensed as dealers a gun show loophole. In reality the “loophole” refers to sales by unlicensed sellers anywhere they are conducted, whether at a gun show or elsewhere.

If you have a question for a firearms policy expert, gunsmith, shooting instructor, etc., send it to teresa@gunpowdermagazine.com.

Teresa Mull is editor of Gunpowder Magazine. Contact her at teresa@gunpowdermagazine.com.

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect those of Gunpowder Magazine.