Many in the Repressive Lobby have been calling for “universal background checks” to close the “gun show loophole.” These efforts have intensified in recent weeks and President Biden has jumped on the bandwagon. This leads many to ask, “Why not?”
The federal Brady Act requires a federally licensed firearms dealer to run a background check on a person before transferring a gun to that person. The law does not apply to people who are not licensed gun dealers – private individuals who occasionally sell a gun from their own private collection. The distinction between licensed dealers and private sellers is an important one, because dealing in firearms without a license is a federal felony.
The law applies to dealers who sell guns at guns shows. That is, there is nothing different about the law at gun shows than at any other location in the country. Dealers must run background checks and private sellers who are not dealers are not required to do so. The distinction makes sense. The federal government maintains regulatory control over its own licensees – the gun dealers. There is no direct federal regulatory control over private party sales (although certain private gun transactions can be federal crimes).
The repressive lobby likes to call this deliberate, common-sense policy choice made by Congress the “gun show loophole.” This is a gross misnomer for several reasons. First, as noted above, there is nothing unique about sales of guns at gun shows. Gun shows generally consist of vendor booths, a majority of which tend to be occupied by licensed gun dealers (the remainder are occupied by others whose product or service is expected to appeal to people who attend gun shows). Attendees walk by the booths and “window shop.” A gun show has the feel of an indoor farmer’s market or art festival. Any sales by a gun dealer at a gun show are covered by the Brady Act.
An attendee of a gun show may occasionally bring a gun or related item to a gun show with the hopes of selling the item to another attendee – that is, to engage in a private sale. Any such sales between private parties are not covered by the Brady Act. Thus, as already noted, dealer sales require a background check and private party sales do not.
Second, the word “loophole” implies a lawful way to circumvent the purpose or intent of the law. The scheme purposefully created in the Brady Act is to impose a background check requirement on federally licensed gun dealers, but not on private party sellers. There is no “loophole” in this scheme. There is merely a different application of rules to differently situated people. A grocery store owner is subject to different rules from the gardener who sells from his bumper crop of corn.
The push for “universal background checks” is to close the “gun show loophole” and require all sales of guns, including private party sales, to include a background check. The hope is that criminals would thus be thwarted from obtaining guns. The problem, of course, is that this concept ignores the existence of a considerable black market in guns. States such as New York already complain about guns being bought (from gun dealers) in southern states and then taken to New York for sale on the black market. New York reports that many guns used in crimes in New York are traced back to “legal” sales from gun dealers in the South. Universal background checks would do nothing to this illicit trade in guns. In fact, as discussed below, it would exacerbate it.
Still, some may ask, what’s the harm? Why not impose a background check on private party sales with the hope that some gun trafficking might be thwarted, or some crime might be averted?
First, there’s no indication that universal background checks would have any effect on crime rates. There is supposition that they would, but there is no conclusive evidence.
Second, universal background checks would lead to gun registration and would greatly facilitate gun confiscation. Here’s why: After there had been a private party sale requirement for a period, we would have a situation where the large majority of licitly transferred guns have been transferred with a background check.
A gun on which there was no background check history or a gun in the hands of someone outside the available background check history would be probable cause to believe the gun had been transferred illegally (i.e., without the universally required background check). The gun would be contraband and subject to seizure and civil asset forfeiture (if not criminal forfeiture).
Moreover, if there ever were any kind of gun ban, there would be records of who had all the (lawfully owned) guns, because of the background check records. Law-abiding citizens would be subject to confiscation of their guns (for which there are transfer records). Criminals would be able to keep their guns. We thus would have the self-fulfilling prophecy, “If guns are outlawed, only outlaws will have guns.”
Universal background checks would lead to a more robust black market for guns, would not demonstrably benefit society, and would be tantamount to gun registration.