There is no gun show loophole.
Guns sales at gun shows are subject to exactly
the same laws as apply to gun sales anywhere else. Research for the U.S.
Department of Justice, as well as research by other scholars, and even research
by Sarah Bradys organization shows that gun shows have almost nothing to do with
criminal gun acquisition. Proposed gun show legislation would impose special
restrictions on meetings of gun club, target shooting matches, hunting traps,
and political meetings of Second Amendment organizations.
What the Bills Do: House
Bill 1220 makes it a crime for a person under 21 to buy a handgun at a gun show.
House Bill 1242 requires government approval for all firearms sales at gun
showseven if the buyer and seller would not be required to get approval for a
sale that took place anywhere else. Both House Bills define a gun show as any
meeting of a gun club, gun collectors, hunting clubs, and Second Amendment
organizations. Senate Bill 89 requires government permission for all firearms
transfers, whether conducted at a gun show, between neighbors, or by
inheritance.
I.There is no Gun Show Loophole
Close the gun show loophole, demands Handgun Control, Inc., and its Colorado
surrogates. In fact, existing gun laws apply just as much to gun shows as they
do to any other place where guns are sold. Since 1938, persons selling firearms
have been required to obtain a federal firearms license. The federal Gun Control
Act specifically states that a licensed dealer must comply with all laws,
including record keeping, when making a transfer at a gun show. 18 U.S.Code
923(j).
If a dealer sells a gun from a storefront, from a room in his home or from a
table at a gun show, the rules are exactly the same: he can get authorization
from the Colorado Bureau of Investigation for the sale only after the CBI runs
its instant background check (which often leads to false denials based on CBIs
inadequate records).
Conversely, people who are not engaged in the business of selling firearms, but
who sell firearms from time to time (such as a man who sells a hunting rifle to
his brother-in-law), are not required to obtain the federal license required of
gun dealers or to call the CBI before completing the sale.
Similarly, if a gun collector dies and his widow wants to sell the guns, she
does not need a federal firearms license because she is just selling off
inherited property and is not engaged in the business. And if the widow doesnt
want to sell her deceased husband's guns by taking out a classified ad in the
newspaper, it is lawful for her to rent a table at a gun show and sell the
entire collection.
If you walk along the aisles at any gun show, you will find that the
overwhelming majority of guns offered for sale are from federally licensed
dealers. Guns sold by private individuals (such as gun collectors getting rid of
a gun or two over the weekend) are the distinct minority.
Handgun Control, Inc., claims that 25-50 percent of the vendors at most gun
shows are unlicensed dealers. That statistic is true only if one counts vendors
who are not selling guns (e.g., vendors who are selling books, clothing or
accessories) as unlicensed dealers.
Now, suppose that someone claiming to be a gun collector is actually operating a
firearms business. He rents a table at a gun show 50 weekends a year, and sells
20 guns each weekend. Selling firearms at the rate of 1,000 per year, and
conducting a business week after week, he appears to be engaged in the business
of selling firearms. If this man does not have a federal firearms license, then
he is guilty of a federal felony. Indeed, every separate gun sale constitutes a
separate federal felony. (The federal laws are section 922 and 923 of volume 18
of the U.S. Code.)
In short, gun shows are no loophole in the federal laws. If a person is required
by federal law to have a federal firearms license, then the requirement applies
whether or not the person sells at a gun show. And if a person is not required
to have a license, then the persons presence at a gun show does not change the
law.
The gun prohibition lobbies express outrage that a person can buy a firearm at a
gun show without going through the state background check, though this is only
the case when the purchase is made from the minority of tables that do not have
an FFL. However, even if the non-FFL gun collector sold his gun from his home
rather than from a gun show, a federal background check still would not be
required.
Why should the location of the sale determine whether a background investigation
will be required
II. Gun Shows and Crime Guns
Denver Congresswoman Diana DeGette says that 70 percent of guns used in crimes
come from gun shows. SAFE head Arnie Grossman claimed in the Denver
Post that most guns used for criminal purposes are purchased at guns shows.
The true figure is rather different, according to the National Institute of
Justice, the research arm of the U.S. Department of Justice. According to an NIJ
study released in December 1997 (Homicide in Eight U.S. Cities, a report that
covers much more than homicide), only
2 percent of criminal guns come from gun shows. (The same study found
that twenty-five percent of crime guns came from gun stores, even though FBI
permission is required for every purchase from a gun store.)
That finding is consistent with a mid-1980s study for the NIJ, which
investigated the gun purchase and use habits of convicted felons in 12 state
prisons. The study (later published as the book Armed
and Considered Dangerous) found that gun
shows were such a minor source of criminal gun acquisition that they were not
even worth reporting as a separate figure.
At the November 1999 recent meeting of the American Society of Criminology,
a study of youthful offenders in Michigan reported that only
3 percent of the youths in the study had acquired their last handgun from a gun
show.
Even for the tiny percentage of criminal guns acquired at for gun shows (and
the 25% figure for gun stores) does not mean that the criminal necessarily
purchased the gun himself at that location. Many persons with criminal records
use a straw man purchaser–someone with a clean record who buys the gun, and then
transfers it to the criminal.
Straw man purchases have been classified a federal felony since the Gun Control
Act of 1968; the federal law against straw purchases was strengthened in 1986 by
the NRA-sponsored Firearms Owners Protection Act.
According to the Center to Prevent Handgun Violence (the legal/educational arm
of Handgun Control, Inc.), the group's own survey ofmajor-city
police chiefs found only 2 out of 48 who said that guns from gun shows (both
legal and illegal sales according to the questionnaire) were a major problem in
their city.
At the command of the Clinton White House, the Bureau of Alcohol, Tobacco and
Firearms produced a paper in early 1999 which said that 10% of guntraces
(not crime guns) came from gun shows (included purchases made from licensed
dealers, and purchases from private individuals). As the Congressional Research
Service has explained, BATF gun traces reveal no meaningful information about
gun use in crime; traces are initiated at the request of local police, and can
be requested for all sorts of reasons (e.g., to aid the recovery of a stolen
gun, for curiosity). Most BATF gun traces donot
involve crime guns taken from violent criminals.
What about the other charges against gun shows, such as Denver Congresswoman
Diana DeGettes highly-publicized charge that gun shows allow illegal assault
weapon sales In fact, the 1994 Clinton assault weapon law bans the future
manufacture of certain firearms based on cosmetic characteristics, such as
whether the gun has a bayonet lug (as if criminals were conducting bayonet
charges against convenience stores). The law imposes no controls on the pre-1994
supply of so-called assault weapons. It is perfectly legal to own, buy, and sell
these pre-1994 guns. It is legal for a licensed federal dealer to sell such guns
from his store, or at a gun shows; and it is just as lawful for a private
individual to sell such guns.
III. Columbine and Other Notorious Crimes
Although the horrible murders at Columbine High School have energized anti-gun
activists, no proposed federal law would have made any difference. The adults
who supplied the Columbine murder weapons (Robin Anderson and Mark Manes — the
latter a son of a longtime HCI activist) were legal purchasers.
And by the time of the crime, the older perpetrator (we refuse to give him
publicity by uttering this name) was already 18 years old. Thus, the perpetrator
himself could have legally bought firearms in a gun store, or anywhere else.
Before making unsupportable claims that punitive laws against gun show vendors
and customers would have prevented Columbine, gun prohibition lobbies made
similar, unsupportable claims about other notorious crimes.
The man who perpetrated the Oklahoma City bombing stole guns from an Arkansas
gun store. He sold those stolen guns, as well as racist literature, at gun
shows. Imposing more controls on gun shows patrons would have had no effect on
the Oklahoma City perpetrator. He was a vendor, not a customer. His customers
werent the criminals; he was.
David Koreshs Branch Davidian organization often rented a table at gun shows,
where they sold novelty items, such as empty grenade hulls and ready-to-eat
meals (army-type survival foods). One of Koreshs devotees, Paul Fatta, was a
licensed firearms dealer who sold firearms at gun shows in full compliance with
federal laws. The major source of the Branch Davidian arsenal came from
purchases through another licensed firearms dealer: Hewitt Handguns. Purchased
in full compliance with federal laws, these guns were registered by the dealer
on the 4473 forms, which were made available to BATF agents when they began the
investigation of Koresh.
The federal firearms crimes which Koresh and his group allegedly
committed–illegal manufacture of machine guns and explosives without
registration–were conducted entirely in private. Gun shows had nothing to do
with them.
IV. The Real Basis for the Campaign against Gun Shows
Gun shows are huge gathering points for people who are interested in Second
Amendment issues. Gun rights groups frequently set up booths at gun shows to
distribute literature and recruit members. Gun shows are places where Americans
properly exercise their First and Second Amendment rights, and neither gun show
patrons nor vendors deserve the mean-spirited campaign of abuse to which they
have been subjected.
As Rep. Ken Gordon has acknowledged, requiring government permission for every
transaction at a gun show is simply a first step to requiring government
permission for every other firearms transaction. After all, if it should be
illegal for a widow to sell a gun without a background check at a gun show, then
it should also be illegal for her to sell the same gun through a classified ad,
and it should likewise be illegal for her to sell the gun to her neighbor.
In California, Handgun Control, Inc., has achieved its objective of outlawing
all private gun sales. In California, you cannot sell a .22 squirrel rifle to
your cousin. Instead, you must route the transaction through a licensed gun
dealer, pay a fee for a background check, undergo a two-week waiting period, and
have your sale registered by the California Department of Justice.
Attacking gun shows is the first step to abolishing all privacy regarding
firearms, en route to implementing universal gun registrationwhich is now being
pushed in California.
And the step after that New York City, England, and Australia have already used
gun registration lists to confiscate long guns. They are following the strategy
enunciated by HCI founder and President Nelson Pete Shields, who explained in
1976:The first problem is to slow down the number of handguns being produced and
sold in this country. The second problem is to get handguns registered. The
final problem is to make possession of all handguns and all handgun
ammunition–except for the military, police, licensed security guards, licensed
sporting clubs, and licensed gun collectors–totally illegal. (Richard Harris, A
Reporter at Large: Handguns, New Yorker, July 26, 1976, p. 58.)
Commendably, H.B. 1242 and S.B. 89 require that CBI records be destroyed with 48
hours of an approval of a sale. But in practice, the 48 hour period means that
at least two daily computer back-up tapes will be created, and these will be, in
effect, permanent records which could be accessed by a future government
interested in gun confiscation.
Also, H.B. 1242 and S.B. 89 have no enforcement mechanism to prevent the illegal
retention of records. A better system would be to require that records of
approvals be destroyedimmediately; if the records are supposed to be destroyed
eventually, there is no reason for them to be kept for 48 hours. Also, a legal
cause of action should be created, allowing the recovery of civil damages from
all government employees who participate in the illegal retention of records.
V. Defining Hunting Trips as Gun Shows
When a person hears the phrase gun show, he naturally thinks of weekend events
where dozens of people rent tables at a specific location, to sell firearms and
firearms-related accessories, books, and clothing. But all of the bills before
the Colorado legislature define gun show much more broadly. H.B. 1220 and H.B.
1242 define gun show as any event sponsored by gun clubs or gun organizations.
This would include the monthly meeting of a local gun club, a competitive target
shooting event, a political strategy session of National Rifle Association
members, or a hunting trip sponsored by a gun club.
Indeed, if two people become friends through membership in a gun club, and,
years later (not at a club meeting), one person sells the other a gun, then they
are both criminals, because Any transfer of a firearm that occurs as a result of
contacts made at a gun show shall be deemed to be a transfer at a gun show.
Even more ridiculous is the H.B. 1242s definition that gun show even includes
private events (such as birthday parties) sponsored by almost any gun owner.
According to the bill,
Gun show means an event or a function sponsored by:
A national, state, or local organizationor
person involved the sale, collection, competitive use, or sporting use of
firearms; or
An organization, association, or person that sponsors functions involved in the
sale, collection, competitive use, or other sporting use of firearms in the
community.
(H.B. 1220 has a similar definition, but omits the word person.) In other words,
if a person is a hunter (and therefore is a person involved in thesporting use
of firearms) and he sponsors an event or function, then the event or function is
a gun show, according to H.B. 1242. So if a wife who hunts throws a birthday
party for her husband, the party is a gun show. If a man who collects guns
organizes the office Christmas party, the office party is a gun show.
The effect of this extremely broad definition is a bait-and-switch.Although
sold to the public as legislation about gun shows, H.B. 1220 and H.B. 1242 would
bring every firearm saleeven sales by persons who have never been inside a real
gun showwithin their control.This
definition is inconsistent with the Colorado Constitutions requirement that the
subject matter of every bill be clearly expressed in the title.
Under current law, persons aged 18-20 may not purchase handguns from Federal
Firearms Licensees (at a store, or at a gun show), but they may purchase
handguns privately. Although purporting only to affect handgun purchases at gun
shows, H.B. 1220 would criminalize almost every handgun purchase by an 18-20
year old (e.g., a 19-year-olds purchase of a handgun from someone in the hunting
club he belongs to). Again, if the objective is to completely strip
18-to-20-year-olds of their civil right to purchase a handgun, then the
objective should be clearly stated in the bills titleand not created obliquely
by calling events gun shows that are not really gun shows. How are young people
supposed to comply with the law if the law calls things what they are not
Of course most people participating in target shooting competitions, gun club
meetings, gun rights group meetings, birthday parties for gun owners, or
club-sponsored hunting trips would not think of themselves as participating in a
gun show. Failing to comply with the special restrictive laws that H.B. 1220 and
1242 create for gun shows, the participants at target shooting events, hunting
trips, NRA meetings, and the like would be turned into criminals. For example,
if a gun club held a target shooting match, one participant might offer to buy a
gun belonging to another participant. The participants would not know that they
were legally required by H.B. 1242 to (somehow) get the Colorado Bureau of
Investigation to perform a background check before consummating the sale. Both
participants would become criminals.
The false definition of gun show also creates huge privacy risks for everyone,
regardless of whether they own a gun. If any gun club meeting, hunting trip, or
birthday party can be a gun show for which the CBI is required to perform
background checks at anyones request, then anyone can call CBI, claim to be at a
gun show (since gun shows would be ubiquitous, with hundreds per week, under the
statutory definition). The caller could then order CBI to run a background check
on any target of the callers choosing.
So if you show your drivers license to a clerk in order to write a check, the
clerk can wait a few hours, claim to be at a gun show, and call the CBI to get
them to run a background check on you.
The problem with defining gun shows shows why gun shows, however
defined, should not be subject to special punitive legislation. The laws about
gun sales should be the same, no matter where the sale takes place.To
the extent that public opinion polls suggest approval for restrictive laws
targeted at gun shows, the opinion is based almost entirely on the false,
media-fostered perception that laws about gun shows are currently less
restrictive than laws about gun sales anywhere else.
Conclusion:The
mean-spirited campaign of vilification against gun show operators, vendors, and
customers is unjustifiable. All available data about crime guns show that gun
shows play virtually no role in criminal gun acquisition. The so-called gun show
loophole is a fraud; laws at gun shows are already the same as everywhere else.
To impose additional restrictions solely on gun shows is to make laws at gun
shows more restrictive than at any other location. Such special legislation
would entrap many people at target shooting events, gun club meetings, political
meetings, hunting trips, and similar events into unintended criminal violations.
The effect is to punish people for exercising their constitutional right to
assemble and their right to arms at the same time.
Prepared by David B. Kopel, Research Director, Independence Institute January
21, 2000
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