The 'Gun Show Loophole' or the 'Federalism Loophole'?

The “Gun Show Loophole” refers to the right of individuals in some states to sell firearms without conducting background checks. The term itself is somewhat misleading. A better term would be the “Federalism Loophole” because states, not the federal government, set requirements for gun sales within their borders. Sellers (and buyers) at gun shows must follow all state and federal laws. If a state requires background checks for all gun sales, background checks must be conducted irrespective of where the gun is sold.  If a state doesn’t require background checks, licensed dealers must still perform checks but non-dealers are exempt.

The problem in discussing the Gun Show Loophole is that it can quickly become a kitchen sink debate without limits or coherence. Several related but distinct topics surrounding gun shows are as follows.

•    Should non-dealers be allowed to sell firearms without conducting background checks?
•    Should the state enforce background checks for non-dealers in all places, e.g. homes, or only at gun shows?
•    Should dealers and/or non-dealers be allowed to sell firearms without the government creating a permanent record?
•    Should states or other local governments have the power to ban gun shows altogether?
•    Would requiring background checks for legal sales deter criminals from getting guns?
•    Would rules that deter criminals from getting guns impose unacceptable risks to personal liberty or collective security?

Additionally, each issue can be examined from at least two positions:

•    Is the proposal legal/constitutional?
•    Would the proposal be effective in stemming unauthorized access to firearms?

Even before considering these points, consider what gun shows are and are not:

A Gun Show is not…

A gun show is not bazaar offering machine guns, hand grenades, or other “destructive devices” commonly used by Mexican drug cartels and other criminal gangs.  Gun shows are not places where guns may be sold in violation of state or federal law.    It’s universally illegal to knowingly sell firearms to convicted felons, illegal aliens or anyone else barred from owning a firearm, but non-dealers in many states don’t have to vet their customers (though still could be held liable for selling a gun to a convicted felon). Federal Firearms Licensees (FFLs) must always perform background checks prior to sales.
Private ownership of fully automatic weapons is significantly restricted by the 1934 National Firearms Act and the 1986 Firearms Owners Protection Act’s Hughes Amendment. Legal transfers of automatic weapons require special licensing.

A Gun Show is…

Gun shows are places to buy guns. Gun shows are also giant seminars where hunters, military and law enforcement personnel, history buffs, collectors and political activists meet to exchange knowledge. There is arguably no comparable place where firearms knowledge and the culture of responsible gun ownership is so shared and preserved.

The Gun Shows Argument

The argument from those opposed to non-uniform state laws is that nothing prevents felons from states requiring background checks from driving to states that don’t and then buying guns from non-FFL dealers. The specific objection to gun shows is that they may facilitate connecting unauthorized buyers (felons, etc.) with non-dealer sellers willing to sell guns to anybody.

Those opposing background checks for private sales have many reasons, including additional cost and hassle, but the real argument boils down to the belief that mandatory background checks lead inexorably to gun registry databases which enable gun seizures and totalitarianism.  Examples such as the required registry of all Jewish-owned firearms in Nazi Germany prior to the Holocaust are cited to support such arguments.

Gun show opponents don’t see themselves as Nazi-enablers any more than gun show proponents see themselves as enabling muggers. But that’s exactly how the two sides view each other, and bridging the gap between each side’s “freedom vs. safety” arguments is unlikely.

The right of individual states to maintain gun sale registries has been bolstered by the 2008 Supreme Court Decision of Heller vs. DC. This case is often cited as a victory for gun rights advocates because in it the Supreme Court ruled that governments cannot absolutely forbid the ownership of firearms, including handguns, within the home. However, Justice Scalia, writing for the majority, said: “The Court’s opinion should not be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.”

Scalia’s exposition implies that states may require background checks and maintain ownership registries if citizens allow it. But where we go from here depends as much on our cultural values as on our developing legal framework.

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