Thoughts on gun violence Part 6: Background Checks and "The Gun Show Loophole"

Another oft-proposed solution for the gun violence problem is closing the alleged "gun show loophole." The hype is that you can go to a gun show and buy a gun without going through a background check.

For the record, the background check laws in the USwere proposed by and supported by the NRA! The current system, called NICS (National Instant Criminal background check System) was implemented by the FBI in 1998. The system is mandated for FFLs (Federal Firearmss License holders) to use at the point of transferring a firearm to an individual. The system determines whether an individual is a "prohibited person."

A prohibited person is one who:

• Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
• Is under indictment for a crime punishable by imprisonment for a term exceeding one year;
• Is a fugitive from justice;
• Is an unlawful user of or addicted to any controlled substance;
• Has been adjudicated as a mental defective or committed to a mental institution;
• Is illegally or unlawfully in the United States;
• Has been discharged from the Armed Forces under dishonorable conditions;
• Having been a citizen of the United States, has renounced U.S. citizenship;
• Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner;
• Has been convicted in any court of a "misdemeanor crime of domestic violence"

A prohibited person cannot buy a firearm. So criminals, people with serious mental illness, substance abuse issues or domestic violence problems are prohibited. In general the system works well. Let's talk about the corner cases, though.

First off, the "gun show loophole." It doesn't exist. At a gun show all federal and state laws still apply. If I wanted to go to a gun show and buy a firearm, I would have to go through the same NICS check as if I went to the local gun store or any other firearms dealer. Furthermore, I cannot purchase a hand gun in a different state, and if I want to buy a rifle or shotgun in a different state, the seller must follow all of the laws of his own state plus all of the laws in my home state.

Private sales (for instance, if I want to sell my rifle to my hunting buddy) do not require a NICS check. So in theory, a person could go to a gun show and sell a rifle to another individual without a NICS check taking place. Why a person would want to go to a place crawling with cops to conduct a sale to a criminal I don't know, but I guess it's possible.

No, when someone says "gun show loophole" what they really mean is banning all private sales of firearms. And this is a problem for a number of reasons. It means, first off, that a citizen needs government permission to dispose of his own private property. It also means that the government would be illegally compiling a complete registration of all firearms in the US. It also would stifle the gun market, economically. For instance, if I buy a rifle for $200 and want to sell it, I have to pay FFL transfer and NICS fees (which are on the order of $75), meaning my $200 rifle is only worth $125, even brand new in the box.

But let's step back. What problem is this trying to solve? In November 2017 the Government Accountability Office (GAO) published this memo outlining how GAO agents attempted to purchase firearms illegally. On the dark web they were able to purchase illegal firearms that had been illegally modified illegally two times. On the "regular" internet, out of 72 attempts to buy guns, they were completely unsuccessful. This points to the fact that law abiding gun owners (the majority) are unwilling to sell guns to a shady person.

This is backed up by an analysis of how criminals get guns. A study on how criminals acquire guns concluded that criminals do not legally buy guns anyway. According to the article it is important that they "trust" the seller. From the study:

In discussing the underground gun market in their neighborhoods, most respondents emphasized the importance of connections—prior relationships that could create sufficient trust to reassure the seller that the transaction would not create an unacceptable legal risk.

So it is unlikely that expanding background checks would have any effect on crime. Criminals are already going around background checks. On the other hand it wold have a big impact on legal firearm owners.

There are some problems with the existing NICS system that should be addressed, however. At a recent FBI senate hearing, Senator Dianne Feinstein (D-CA) asked about a rumor that some 500,000 fugitives were deleted from the FBI’s NICS database.

Dianne Feinstein: “It’s my understanding that under federal law fugitives cannot legally purchase or possess guns. We’ve heard from local law enforcement that the Justice Department has issued a memo that forced the FBI NICS background check database to drop more than 500,000 names of fugitives with outstanding arrest warrants because it was uncertain whether those fugitives had fled across state lines. Mr. Bowdich, can you describe why this determination was made by the Justice Department?”

David Bowdich: “Yes, ma’am. That was a decision that was made under the previous administration. It was the Department of Justice’s Office of Legal Counsel that reviewed the law and believed that it needed to be interpreted so that if someone was a fugitive in a state, there had to be indications that they had crossed state lines. Otherwise, they were not known to be a fugitive, under the law, and the way it was interpreted.”

Another issue recently focused on is that some states and federal organizations (like the US Army) are not submitting complete data to the NICS system. For instance, the murderer in the Sutherland Springs Church mass shooting was a prohibited person, but the Army never submitted that information to NICS. This is not a new situation either. The NRA has been calling for years for this situation to be fixed.


Of course background checks sound like a good idea, and they are "common sense", but one could ask, do background checks even affect the firearm homicide rate? If you look at my last post in the series at the data from 1998 to the present the firearm homicide rate dropped from 4 to 3.4 in those years. It is hard to say whether any of that was due to background checks. So why are we talking about expanding a system that may or may not have any effect, in order to solve a problem that doesn't exist?

To find the rest of the posts in this series click here.

Posted in: America,Gun Control,Second Amendment