The Loophole: On the Wide-Open Secondary Gun Market



  • John Perlock

The cover story in this week's issue of The City Paper is a trip through "the gun-show loophole." The commonly used term is imprecise in some ways (not all gun-show purchases are examples of the loophole) and misleadingly precise in others (examples of the loophole are not just found at gun shows).

Imperfect as the term is, what we're talking about when we talk about "the gun-show loophole" is the secondary gun market — sales between private individuals, typically at gun shows, and on the Internet — where up to 40 percent of firearms transactions take place. Because federal and state laws largely exempt private sales, these transactions occur beyond the scope of a number of regulations, including required background checks.

An excerpt, after the jump:

The often blurry distinction between the two groups — private sellers and licensed dealers — and the large gray area populated by those seemingly operating somewhere in the middle, has been a consistent pressure point in the debate over guns and gun control. Gun shop owners like [Eastside Gun Shop proprietor Bill] Bernstein and other professional dealers must obtain a Federal Firearms License (FFL), and are therefore required to comply with various rules and regulations, including mandatory background checks on all customers, whether at a gun show or in their shop. Due to what is known as the “casual sale exception,” however, background checks are not required on private sales, wherever they take place, as long as the transaction does not cross state lines.

Bernstein is not calling for stricter regulation of what he considers “unlicensed dealers” for the purpose of stronger gun control, but rather in the interest of general fairness. Simply put, they’re cutting corners where he can’t. But his complaint also lends credence to the primary argument against the legal exceptions that allow such activity.

Under the guise of a casual private sale, these unlicensed dealers are able to operate outside of rules and regulations, such as required background checks, that would typically govern sales of similar volume and frequency. On the flip side, they create a quasi-legitimate market where individuals who would otherwise be prohibited from obtaining a firearm can purchase one. It is a felony to knowingly sell a gun to a prohibited person, but without a required background check, the situation effectively becomes one of “don’t ask, don’t tell,” regardless of the intentions of the dealer.

The perceived gap in the law is the source of a commonly used, albeit somewhat flawed term — “the gun-show loophole.”

Gun-rights advocates recoil at the term for a number of reasons. Generally speaking, they reject the notion that more regulation is needed in an area where many among them already feel there is too much. They also point out that it falsely suggests an unintentional oversight in the law — indeed, whether or not one agrees that it is an oversight, the casual-sale exception is undeniably intentional. Moreover, like conservatives in debates over the tax code, they object to the negative connotation of the word “loophole,” which suggests an insult being hurled at citizens simply following current law.

But whatever you want to call it, the scenario paves a legal path to potentially illegal transactions. Just as the wrong gun in any hands can be illegal, so can any gun in the wrong hands. And the lack of required background checks for private sales at gun shows, or in other secondary markets, makes it at least possible for a person legally prohibited from owning a gun — such as a convicted felon — to obtain one.

Read the whole story here.

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