The Gun Show "Loophole:" More Gun Control Disguised as Crime Control

Brief Analyses | Crime

No. 349
Friday, February 23, 2001
by H. Sterling Burnett

Numerous studies have shown that gun shows are not a significant source of guns used in crime. Ignoring this evidence, some gun control activists claim that 70 percent of the guns used in crimes come from shows. And Handgun Control, Inc. asserts that "25-50 percent of the vendors at most gun shows are unlicensed dealers."

Thus, they argue, requiring background checks on all buyers at gun shows - whether they purchase from licensed or "unlicensed" dealers - will deny children and criminals access to firearms. During the past year, state legislatures and Congress were flooded with bills to further regulate the sale of firearms at gun shows; most would require background checks on all such sales. While gun show bills ultimately failed in the U.S. Congress, some cities have banned gun shows entirely, and Oregon and Colorado approved referenda requiring background checks.

This argument has some appeal to those seeking an easy fix to mass public shootings. But mandating background checks at gun shows will not reduce crime significantly. Rather than closing a loophole in current law, mandatory checks will be a step towards banning private firearms sales between individuals.

Current Law Governing Gun Sales

The National Instant Check System (NICS) took effect November 30, 1998, creating "a national database containing records of persons who are disqualified from receiving firearms." Under NICS, dealers must clear every firearms purchase through a background check of the prospective buyer by the FBI. The dealer calls NICS and provides an operator with: (1) his Federal firearms license number and unique password; (2) the potential buyer's name, date of birth, sex and race; (3) and the type of gun to be transferred, handgun or long gun.

The operator checks the data against NICS's database of prohibited persons and either approves or delays the sale. A delay indicates that the check turned up information that requires further review by an analyst, who by law has up three business days to approve or deny the sale - longer than the duration of most gun shows, which last over a weekend.

Gun Shows Are Not "Arms Bazaars" for Criminals

A mid-1980s National Institute of Justice (NIJ) study of convicted felons in 12 state prisons found that criminals purchased firearms at gun shows so rarely that those purchases were not worth reporting as a separate category.

The evidence indicates that criminal demand for firearms did not shift to gun shows after the 1994 Brady Law mandated background checks for all gun purchases from licensed dealers.

  • An NIJ study released in December 1997 said only 2 percent of criminal guns came from gun shows.
  • A study of youthful offenders in Michigan, presented at a meeting of the American Society of Criminology, found that only 3 percent had acquired their last handgun at a gun show - and many of the purchases were made by "straw purchasers" (i.e., legal gun buyers illegally acting as surrogates for criminals).
  • A 1997 report by the U.S. Bureau of Justice Statistics on federal firearms offenders said only 1.7 percent of crime guns are acquired at gun shows [ see the figure ].
  • According to a report issued by the educational arm of Handgun Control, only two of 48 major city police chiefs said that gun show sales were an important problem in their city.

There Is No Gun Show Loophole

The claim that a quarter to half of the vendors at most gun shows are unlicensed dealers is true only if one counts vendors selling items other than guns (e.g., books, clothing, ammunition, knives, holsters and other accessories) as unlicensed dealers.

Federal law requires that any person "engaged in the business" of selling firearms possess a valid Federal Firearms License. This is true whether one is selling guns for a living at a gun store or at a gun show. Licensed dealers must conduct an NICS check prior to the transfer of any firearm - regardless of where that transfer occurs. The majority of sellers at gun shows are licensed dealers and do conduct checks.

Individuals who occasionally sell or trade guns from their personal collection need not be licensed nor are they required to conduct a NICS check prior to the sale - whether the sale occurs at a gun show, at their home or out of the trunk of their car. Congress never intended a person who wants to sell a spare hunting rifle to a friend, a father who wishes to give a .22 rifle to his son or a widow who wishes to dispose of her late husband's firearms through an Internet auction or an ad in the local paper to undertake a NICS background check.

Thus, the same laws apply to gun shows as to all other gun transactions.

The Inherent Flaws with NICS

A General Accounting Office report, "Gun Control: Implementation of NICS," was issued on February 29, 2000. It documents many NICS failures. With a congressional allocation of more than $300 million since 1995:

  • Through September 1999, NICS had 360 unscheduled outages amounting to more than 215 hours of downtime, during which firearms retailers may have suffered millions of dollars in lost sales.
  • The system failed to provide instant checks 28 percent of the time, delaying sales for 1.2 million legal purchasers from hours to days.
  • Of the 81,000 sales denied by the FBI under NICS, nearly 14,000 people appealed, claiming that they were wrongly denied; of cases adjudicated at the time the report was issued, 2,710 denials had been overturned.
  • 3,353 felons and others prohibited by law from purchasing firearms were allowed to buy guns over the counter after being mistakenly approved by NICS; but only 3.3 percent of these prohibited individuals were being investigated by the federal government for violating federal firearms laws by purchasing guns.

Since private individuals cannot obtain access to the NICS system, some proponents of gun show legislation have proposed allowing or requiring licensed dealers to conduct the checks for occasional sellers or private collectors at gun shows for a nominal fee. This would be like requiring individuals who wish to sell their used cars to conduct the sale through a used car dealer. It would take time away from the dealer's business and put him at risk of losing sales to a third party selling a substitute product at a better price.

Conclusion

Gun control advocates are seeking to close a nonexistent loophole. Logically, this will lead to calls for closing other nonexistent loopholes until all private firearms transfers - even those between family and friends - are under government regulation. California has already banned all private gun sales, requiring that a licensed gun dealer handle them. There is also a fee for the background check, a two-week waiting period and the sale must be registered with the California Department of Justice.

Tightening gun show requirements might make sense if NICS worked as it should and if background checks on private gun sales reduced violent crime, but there is no evidence that either is the case. Rather than expanding the flawed NICS to cover the small number of private sales at gun shows, money could be better spent fixing the NICS and prosecuting the felons who have already purchased guns illegally.

H. Sterling Burnett is a senior policy analyst with the National Center for Policy Analysis.


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