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June, 6 2019
It's the Wild West Out There, Anywhere Anytime, Guns Without a Background Check!
The following is an opinion piece and as such is not legal advice. If you need legal advice you should seek out a competent attorney
The following does not include firearms covered by the NFA (National Firearms Act) that need ATF approval nor does it address international
transfers as both these areas of firearm transfers have a much more extensive set of legal requirements than regular firearm transfers
Why is there a special background check loophole for gun shows? Well, that's because...there's not. First, there are NO loopholes, exemptions are not loopholes, a loophole would be a LEGAL way of avoiding or dodging a requirement, an exemption is specifying that which is not legally required. Despite the misconceptions being spread, under federal law (Your state laws may differ), there's only one way for a person or entity without an FFL (Federal Firearms License or those who possess said license as Federal Firearms Licensee) to legally acquire a firearm without a background check, that would be via private sales and transfers, without the intent of profit, between nonprohibited individuals who are residents of the same state and must be conducted within said state, even at a gun show. This "gun show loophole" is a political trick referring to private sales between individuals who have gone to a gun show to buy items which may include guns or rented a table or space at a gun show just like one would at any flea market, to sell personal items that include firearms from their private collection, without doing so for profit. Let's be clear, if a crime is committed by either party as part of the sale, then the exemption doesn't apply or is moot, so it's not a loophole. It's a felony for a person or entity, FFL or not, to knowingly transfer a firearm to a prohibited person or that there is reason to believe they're a prohibited person and of course if a prohibited person attempts to or acquires a firearm by any method, they've committed a felony, even at a gun show. Nor is it legal to sell a firearm, FFL or not to a person or entity if you know or there is reason to believe that any part of the transfer is illegal or the purchaser's plans for the firearm are for other than a lawful purpose, even at a gun show. If a person or entity sells a firearm with the intent of making a profit that would be considered a commercial sale and transfer, if they do so without possessing an FFL they're committing a felony, even at a gun show. One example of committing this kind of felony is (I'm not going to list out every possible way), if a person or entity without an FFL buys or builds a firearm and then turns around shortly thereafter and sells the firearm above cost to earn a profit, then they have made a commercial sale and a felony case could be made against them for commercial sale of a firearm without an FFL, even at a gun show. For clarity, it's not the quantity itself that determines the need for an FFL, it's the intent to sell for profit. You can sell any number of guns without an FFL if you're just disposing of guns from your private collection (For any Libdorks reading this, a "private collection" is what you call an "amassed arsenal"). Any entity selling firearms for profit MUST possess a corresponding FFL for that type firearm and transaction and all FFLs MUST do a background check anywhere and anytime they transfer a firearm to a nonFFL, even at a gun show. They may without a background check transfer to other FFLs with the license for the type of firearm being transferred and government entities upon completing any legally required verifications. So, to sum up, there is no loophole when it comes to gun shows that would allow a person or entity to legally buy or sell a firearm without an otherwise required background check or conduct a commercial sale of a firearm without an FFL. A legal private transfer is always just that regardless of where or how it's conducted, YES, even at a gun show.
Wow, can I really buy guns online? Yes you can! Cool, and I can skip any background check requirement when buying online, right? No you can't! Again despite the misconceptions being spread, under federal law (Your state laws may differ), there's only one way for a person or entity without an FFL to legally acquire a firearm without a background check (see the fourth sentence in the above paragraph). Private sellers advertising in online want ads is what's claimed as being able to buy firearms online without a background check. Just like the "gun show loophole" this "online loophole" is just another political trick as there is no special loophole when it comes to online sales. Under federal law (Your state laws may differ) firearms sold online (not between private individuals who are residents of and transfer is conducted within the same state) must be transferred to a verified appropriately licensed FFL in the state the buyer resides (I'm not getting into selling to government entities), typically the buyer selects the receiving FFL, who, if the seller does not already have a copy of said receiving FFL's license on file will then provide the seller with a signed copy of their current applicable FFL for verification, after this the firearm can be shipped to that FFL's address as it appears on their license. Upon receiving the firearm, typically the buyer will be notified by the receiving FFL that said FFL has received the firearm and the buyer may now go there to have a background check conducted, once passed only then may the buyer take possession of the firearm. If the buyer does not go there for their background check in a reasonable amount of time or they don't pass the background check the firearm is sent back to the source. During this process, every receipt and disposition/transfer of the firearm is recorded in their logs by the FFLs involved in this transfer as required by law. If the buyer possesses an FFL that is for that type of firearm then it may be shipped directly to the address on the license and of course logged by the FFLs as required by law. So again, to sum up, there is no special loophole when it comes to online sales that would allow a person or entity to legally buy or sell a firearm without an otherwise required background check or interstate transfers to a nonFFL nor conduct a commercial sale and/or transfer of a firearm without the required FFL. A legal private transfer is always just that regardless of where or how it's conducted, YES, even when buying and selling online.
Just because there are multiple settings and ways to conduct a legal private transfer doesn't make each of those ways a separate independent exemption and of course a lawful exemption is NOT a loophole, nor is it a loophole if someone involved can go to prison for doing it. Hence, there is no yardsale loophole, no garage loophole, no backyard loophole, no living room loophole, no alleyway loophole, no parking lot loophole, no in a boat loophole, no camping tent loophole, no friends house loophole, no up a tree loophole, etc, I think at this point you get the gist. Private transfers are a singular and narrow exemption and not any kind of loophole.
So as to not distract from the subject discussed above I didn't address the C and R (Curio and Relics) FFL when going over those points, however, I do think it should be brought up as it does relate to when a background check is needed. This is a license for individuals who are collectors of older firearms classed as Curio and Relics, in general, these are firearms 50 years or older. This type of license is issued by, has certain requirements for and requires the approval of, the ATF, who will conduct their own background check prior to issuing the license (State and local laws/requirements may vary). The licensee is required to maintain a physical log of all firearms bought under that license and their disposition if sold or transferred. Also, the ATF may inspect this log and the firearms where they are kept, that are as listed in the log as currently in your possession, without prior notice or warrant, and pretty much has all the same requirements and oversite as any other type of FFL. The tradeoff is It allows the licensee to purchase and receive that class of collectible firearms directly to the address on their license without the requirement of a background check prior to each transfer, again the same as any other FFL, but it does not allow the licensee to engage in the business of selling firearms regardless of its class. Some would say this license should not be allowed, while others say it's just another way for the government to keep track of you and your guns. I say it's a good tradeoff, greater ease of purchase of these type of firearms for being "on the radar" and "under the thumb" of the ATF. I would think gun control advocates should love this type of license as it puts greater control and tracking on privately owned firearms. I think there should be a frequent buyers license that would allow you to receive any firearm directly (maybe even NFA firearms once all other requirements have been met) with the same tradeoff of greater government scrutiny and control, I would think gun control advocates would support this as it's exactly the kind of government oversite of private firearms they want.
Private transfers should not require a background check since when examined that requirement is not common sense. This push for "universal" background check is nothing more than a political dog and pony show since there is only the narrowest way to legally buy or sell a firearm in a private transfer that doesn't require a background check. I'll start with, there are so few illegal transfers or crimes committed with firearms purchased through private sales, that a background check requirement would have no measurable impact on crime and illegal transfers. It's not rational to think that those prohibited persons who are breaking the law by acquiring a firearm are just going to not get one if this slim method of buying directly from a law-abiding person is closed to them. Yet if obeyed by the law-abiding in all legal transfers, it would burden the legal sale of private property between individuals with the involvement a third party to which a fee would be owed for services and it would add the unnecessary involvement of the government to approve the noncommercial sale or transfer of private property before the transfer of said private property could occur. This is a nanny state/big brother level of involvement into the private lives of the people and is the kind of government intrusion that most reasonable people find unacceptable and being a constitutionally protected item is even more so that it remains out of government control. At the same time it would overwhelm the current background check system and there is no way to monitor it on a national scale without it being a significate and overwhelming burden on the current federal system of tracking commercial firearm sales, there is not the money nor the manpower, nor would Congress allocate it, It would also require the creation of a currently prohibited and very unpopular invasion of privacy with a national registry. While prohibited possessors who are willing to continue their criminal ways of breaking the law, would basically laugh and continue to acquire firearms by theft, black market sales of stolen firearms, people willing to sell to them without a background check and/or regardless that it is illegal, said illegally sold firearm could even be reported as a theft by the seller, they could also use illegal straw purchaser for either commercial or private sales who can pass a background check or by any other method their criminal minds can think up. These are rational reasons why it has never been required nor should be. Basically, it would do nothing to stop crime and the illegal transfer of firearms, while to even be remotely possible would require great expense to the taxpayer with nothing to show for it.
The only way to improve the background check system would be to ensure all relevant information is in the system so no prohibited person can pass a background and to make the checks truly instant and without delay.