Prepared by Alan Korwin, David Kopel and Linda Gorman
There is no gun show loophole. Guns sales at gun shows are currently subject to exactly the same laws as apply to gun sales anywhere else.
Research for the U.S. Department of Justice, by scholars, and even by Sarah Brady#39;s organization shows that gun shows have almost nothing to do with criminal gun acquisition.
The McCain-Lieberman bill contains numerous technical provisions which would allow federal officials to shut down gun shows completely, and require centralized registration on everyone who attends a gun show. In particular:
Imprisonment is mandated for any person who organizes, plans, promotes or operates a gun show without a special federal license, but — and this is one of the bill#39;s biggest loopholes — the government is not required to issue the license in any timely way, and there is no redress for failure to issue a license.
Anyone who wishes to operate a gun show must relinquish Fourth Amendment protections and specifically agree to warrantless searches by the BATF.
Every vendor at 4,400 gun shows annually to be centrally registered with the Treasury Dept., 30 days before the show begins, under penalty
of imprisonment for failure to comply. Every gun vendor must be registered again, 72 hours before the show begins, under penalty of imprisonment for failure to comply. Every gun vendor must be registered again (that#39;s THREE separate and required registrations), within five days of the close of every show.
The vendor registration even applies to the substantial number of gun show vendors who don#39;t sell guns, but who sell books, clothing, food, etc.
Because any individual who offers a gun to another person at a gun show would be an quot;unlicensed vendorquot; under the bill, subjecting the show operator to imprisonment, operators would be required to take the
precautionary measure of literally registering every attendee as a vendor. Because the bill specifically includes the quot;curtilagequot; of the event, this complex photo-ID registration would have to take place at
each parking lot entrance.
The Secretary of the Treasury is given authority to collect quot;any other informationquot; he wishes about gun show shoppers or vendors.
A gun show promoter who fails to register a single vendor is subject to imprisonment. Promoters are also subject to imprisonment if they they cannot prove they notified every person attending a gun show of the new rules, and obtained from attendees any information the Secretary of the Treasury mandates by regulation.
Regulations to be issued by the Secretary of the Treasury on the procedures, data collections, methods and implementation of the entire process to federally control gun shows, in addition to the requirements made by the proposed statute; such regulations will not be known, drafted or even suggested, until after the McCain-Lieberman law is enacted;
I. The Poison Pills Hidden in McCain-Lieberman
Senator John McCain claims that his gun show bill with Senator Lieberman, S.890, is a narrowly focused, single-purpose effort to close the so-called quot;gun show loophole.quot; This Issue Backgrounder examines that claim, finds it contradicted by the bill#39;s actual language, and details the differences and true nature of the bill.
A. Why All Attendees Must be Registered. First reason.
Suppose that a man who is attending a gun show runs into a friend from his shooting club. The men chat for a while. Then, the first man says, quot;Would you be interested in buying that old Remington I#39;ve got I hardly shoot it any more. You could come by my house in a couple weeks, and check it out.quot;
The second man replies, quot;Well, maybe, but I#39;m a little short on cash right now. Let me think about it.quot; The second man never follows up, and the gun is never sold.
Under McCain-Liebreman, both the gun show operator and the first man can be sent to prison because of this offer. Under S. 890, any person at a gun show who merely offers to sell a gun is a quot;special firearms event vendorquot; — regardless of whether a sale ever takes place, and regardless of whether the gun is even present at the gun show. [Sec. 102, proposed 18 U.S.C, 921(a)(39): Anyone who is not a federally licensed gun dealer and who quot;exhibits, sells, offers for sale, transfers or exchanges 1 or more firearmsquot; at a gun show is a quot;special firearms event vendor.quot;] No operator is going to run a gun show exposed to that kind of legal risk.
Under McCain-Lieberman, every gun show vendor must be registered with the federal government. To protect against being sent to prison because of a person transaction (or a mere offer for a transaction) between two attendees, the only way a gun show operator can safely run a show, is to pre-register everyone in attendance AS A VENDOR, not just as an attendee (which is also required by other language in the bill). That means personal ID and centralized registration at pretty much the level an FFL (licensed gun dealer) must endure.
A gun show operator is subject to two years imprisonment (Sec. 103 (b)(7)(a)(1)(I)), unless the operator quot;verifies the identity of each special firearms event vendor participating in the special firearms event by examining a valid identification document (as defined in section 1028(d)(2)) of the vendor containing a photograph of the vendorquot; (Sec. 931(a)(1)(D)), and that person must sign quot;a ledger with identifying informationquot; (a)(2)(E)(i). The ledger must go to the Secretary of the Treasury (see (a)(2)(G)) within five days of the close of the gun show.]
B. Why All Attendees Must Be Registered. Second Reason
If a gun show operator cannot prove that quot;each person who attendsquot; the gun show has been notified of every requirement (see Sec. 931 (a)(2)(F)) in this 3,900-word bill, in accordance with regulations that are not even know at this time, the operator can be arrested and imprisoned (for 5 years) and fined and have the license to operate suspended or revoked.
For operators to meet such a requirement (and run the show without those legal exposures) they would need proof that each attendee was in fact notified, which will basically amount to your signature in a book or on a not-yet-designed form. This must be saved by the operator for an indefinite period and the federal authorities have unrestricted access.
A sign at a doorway, as some people have mistakenly interpreted this, does not provide legal quot;constructive noticequot; and would provide an inadequate defense.
The statute does not explicitly say that information must be collected on attendees — that would be way too inflammatory and make passage difficult or impossible.
Instead, it says operators must notify each person who attends quot;of the requirements of this chapterquot; (see (a)(2)(F)), subject to fines and long-term imprisonment of the operator for failure to do so, and that the operator quot;submits to the Secretary a copyquot; of the notice (see (a)(2)(G)) within five days. If the notice to all attendees is just some special sign that the government says must be posted, submitting it in five days would serve no purpose.
The legal challenges this forces on gun show operators are obvious. Imagine this. Agents of BATF claim you failed to notify Joe (a plant) who went to your show, they have photos of Joe inside, and they seek to close your show and arrest you, the operator (using the millions of new tax dollars allocated for additional enforcement). Go ahead. How do you prove they are wrong and that you notified Joe without his signature and some proof that it#39;s actually him But I could be mistaken. Maybe they#39;ll just take your word for it, and no documentation of any kind will be needed.
C. Even Book and Clothing Vendors Must be Registered
The gun sho
w operator must give 30-day notice directly to the Secretary of the Treasury, of all quot;the vendors planning to participatequot; (SEC. 103, Sec. 931(a)(2)(B)). This is not limited, as in the next paragraph, (a)(2)(C), where 72-hour advanced registration applies only to quot;special firearms event vendors planning to participatequot;. (Gun dealers are called quot;special firearms event vendorsquot; under the bill.)
This would require a book seller such as myself to pre-register or be in violation and subject to arrest (and jeopardize the operator too).
D. Limitless Regulations Can Be Imposed
Repeatedly throughout the bill are references to quot;in accordance with regulations the Secretary shall prescribequot; or similar. These regulations are
not known and will not be known until after the passage of the law. Because quot;any other informationquot; is required under the unwritten regulations, it#39;s anyone#39;s guess as to what that might include. Examples could include gun serial numbers, social security numbers, gun types and other elements of registration schemes. If the phrase quot;any other informationquot; (or similar) was used one time it would be a red flag.
E. Registration Records Would be Centralized
All of the new licenses and reports must be filed with the Treasury Department. In practice this would be delegated to the Bureau of Alcohol,
Tobacco and Firearms. Some of the record keeping starts out with records the show operators must maintain (quot;notifies each person who attendsquot;), but the federal government is granted unqualified access and it will be centrally recorded afterwards (quot;submits to the Secretary a copy of the ledgerquot; or quot;notifies the Secretary of the date, time, duration, and location of the special firearms event, the vendors planning to participatequot; and similar
It might be more accurate to say that some of the registration quot;handlingquot; is distributed, though they all end up centralized (even the attendee notice must be submitted to the federal government within five days of the end of the show, at (a)(2)(G)). Show organizers keep their own copies of some of it, under guidelines that are not yet known. Depending on the regulations that have not been written, authorities could easily require filing all papers that are not explicitly centralized under the statute, or create new paperwork. Certainly, nothing in this bill stops them or even pretends to protect the rights
of the innocent.
F. Biometric National ID
The term quot;biometricquot; does not appear in the McCain-Lieberman Gun Show Bill. You must read the cross-referenced statute for this term and
related requirements. That citation, 18 USC 1028, is made in (a)(2)(D), for mandatory inclusion of the federal government national ID
requirements (only for the gun vendors at this time).
The fears of national ID mandates are relaxed by many Americans when it#39;s quot;onlyquot; gun owners they#39;re after. The same way the Brady gun scare
got the quarter billion dollars in funding the FBI wanted for its centralized national citizen checking computer (NICS, in Clarksburg, WV), gun owners are, well, handy when pushing for a national ID card.
II. There is no quot;Gun Show Loopholequot;
Close the gun show loophole, demand Handgun Control, Inc. In fact, existing gun laws apply just as much to gun shows as they do to any other place where guns are sold. Since 1938, persons selling firearms have been required to obtain a federal firearms license. The federal Gun Control Act specifically states that a licensed dealer must comply with all laws, including record keeping, when making a transfer at a gun show. 18 U.S.Code 923(j).
If a dealer sells a gun from a storefront, from a room in his home or from a table at a gun show, the rules are exactly the same: he can get authorization from the FBI or a state equivalent only after the government runs its instant background check (which often leads to false denials based on inadequate records).
Conversely, people who are not engaged in the business of selling firearms, but who sell firearms from time to time (such as a man who sells a hunting rifle to his brother-in-law), are not required to obtain the federal license required of gun dealers or to call the FBI before completing the sale.
Similarly, if a gun collector dies and his widow wants to sell the guns, she does not need a federal firearms license because she is just selling off inherited property and is not engaged in the business. And if the widow doesnt want to sell her deceased husband#39;s guns by taking out a classified ad in the newspaper, it is lawful for her to rent a table at a gun show and sell the entire collection.
If you walk along the aisles at any gun show, you will find that the overwhelming majority of guns offered for sale are from federally licensed dealers. Guns sold by private individuals (such as gun collectors getting rid of a gun or two over the weekend) are the distinct minority.
Handgun Control, Inc., claims that 25-50 percent of the vendors at most gun shows are unlicensed dealers. That statistic is true only if one counts vendors who are not selling guns (e.g., vendors who are selling books, clothing or accessories) as unlicensed dealers.
Now, suppose that someone claiming to be a gun collector is actually operating a firearms business. He rents a table at a gun show 50 weekends a year, and sells 20 guns each weekend. Selling firearms at the rate of 1,000 per year, and conducting a business week after week, he appears to be engaged in the business of selling firearms. If this man does not have a federal firearms license, then he is guilty of a federal felony. Indeed, every separate gun sale constitutes a separate federal felony. (The federal laws are section 922 and 923 of volume 18 of the U.S. Code.)
In short, gun shows are no loophole in the federal laws. If a person is required by federal law to have a federal firearms license, then the requirement applies whether or not the person sells at a gun show. And if a person is not required to have a license, then the persons presence at a gun show does not change the law.
The gun prohibition lobbies express outrage that a person can buy a firearm at a gun show without going through the state background check, though this is only the case when the purchase is made from the minority of tables that do not have an FFL. However, even if the non-FFL gun collector sold his gun from his home rather than from a gun show, a federal background check still would not be required.
Why should the location of the sale determine whether a background investigation will be required
Denver Congresswoman Diana DeGette says that 70 percent of guns used in crimes come from gun shows. Arnie Grossman, head of the Colorado anti-gun group SAFE, which pushed the Colorado gun show initiative in 2000, claimed in the Denver Post that most guns used for criminal purposes are purchased at guns shows.
The true figure is rather different, according to the National Institute of Justice, the research arm of the U.S. Department of Justice. According to an NIJ study released in December 1997, less than 2 percent of criminal guns come from gun shows. (Homicide in Eight U.S. Cities, page 99; the report covers much more than homicide.) The same study found that twenty-five percent of crime guns came from gun stores, even though FBI permission is required for every purchase from a gun
A June 2000 federal study, Federal Firearms Offenders, 1992-98 likewise finds only 1.7% of federal prison inmates obtaining their gun from a gun show. (Plus 1.5% from a quot;flea market.quot;)
That finding is consistent with a mid-1980s study for the NIJ, which investigated the gun purchase and use habits of convicted felons in 12 state prisons. The study (later published as the book Armed and Considered Dangerous) found that gun shows were such a minor source of criminal gun acquisition that they were not even worth reporting as a separate figure.
At the November 1999 recent meeting of the American Society of Criminology, a Michigan State University study of youthful offenders in Michigan reported that only 3 percent of the youths in the study had acquired their last handgun from a gun show. (Sean Varano, Tracy O#39;Connell, Todd Bietzel, Timothy Bynum, quot;Patterns in Gun Acquisition and Use by Incarcerated Youthful Offenders in Michigan.quot;)
Even for the tiny percentage of criminal guns acquired at for gun shows (and the 25% figure for gun stores) does not mean that the criminal necessarily purchased the gun himself at that location. Many persons with criminal records use a straw man purchaser–someone with a clean record who buys the gun, and then transfers it to the criminal.
Straw man purchases have been classified a federal felony since the Gun Control Act of 1968; the federal law against straw purchases was strengthened in 1986 by the NRA-sponsored Firearms Owners Protection Act.
According to the Center to Prevent Handgun Violence (the legal/educational arm of Handgun Control, Inc.), the group#39;s own survey of major-city police chiefs found only 2 out of 48 who said that guns from gun shows (both legal and illegal sales according to the questionnaire) were a major problem in their city. According to the Handgun Control, Inc., website, SAFE is one of quot;the state groups we work with.quot;
At the command of the Clinton White House, the Bureau of Alcohol, Tobacco and Firearms produced a paper in early 1999 which said that 10% of gun traces (not crime guns) came from gun shows (included purchases made from licensed dealers, and purchases from private individuals). As the Congressional Research Service has explained, BATF gun traces reveal no meaningful information about gun use in crime; traces are initiated at the request of local police, and can be requested for all sorts of reasons (e.g., to aid the recovery of a stolen gun, for curiosity). Most BATF gun traces do not involve crime guns taken from violent criminals.
What about the other charges against gun shows, such as Denver Congresswoman Diana DeGettes highly-publicized charge that gun shows allow illegal assault weapon sales In fact, the 1994 Clinton assault weapon law bans the future manufacture of certain firearms based on cosmetic characteristics, such as whether the gun has a bayonet lug (as if criminals were conducting bayonet charges against convenience stores). The law imposes no controls on the pre-1994 supply of so-called assault weapons. It is perfectly legal to own, buy, and sell these pre-1994 guns. It is legal for a licensed federal dealer to sell such guns from his store, or at a gun shows; and it is just as lawful for a private individual to sell such guns.
IV. Columbine and other Notorious Crimes
Several months before the Columbine massacre, the killers obtained firearms from two suppliers. The first was a 22-year-old Columbine graduate named Mark Manes (ironically, the son of a longtime Handgun Control, Inc., activist). Manes bought a pistol at a gun show and gave it to the two killers (who were under 18 at the time). Colorado law prohibits giving handguns to juveniles, with certain exceptions, and Manes is currently serving time for this offense in a Colorado prison. The second supplier was an 18-year-old fellow student at Columbine, Robyn Anderson, who bought three long guns for the killers at a Denver-area gun show in December 1998.
Both Manes and Anderson were lawful gun purchasers and could legally have bought the guns from a firearms dealer at a gun store, a gun show, or anywhere else.
Nevertheless, shortly after the Columbine killings, the various gun prohibition groups began putting out press releases about the gun show loophole. This is an audacious lie, since there is no loophole involving gun shows. The law at gun shows is exactly the same as it is everywhere else.
Mark Manes committed a felony by obtaining a handgun for the young killers. He has never claimed that the existence of another law, regarding gun show sales, would have deterred him.
What about Robyn Anderson
On June 4, 1999, Good Morning America presented a kids and guns program. Anderson was flown to Washington for the segment. The first part of the program discussed various proposals, including background checks on private sales at gun shows. Immediately after the introductory segment, Diane Sawyer introduced Robyn Anderson and asked:
Anything you hear this morning [that would] have stopped you from accompanying them and help[ing] them buy the guns Anderson replied: I guess if it had been illegal, if I had known that it was illegal, I wouldnt have gone. On January 26, 2000, Anderson began claiming that even if the purchase were legal, but there had been a background check of her entirely clean record, she would not have purchased the guns.
Whichever version is true, the facts show that Anderson was not afraid to divulge her identity when buying a gun for her wicked friends. When Good Morning America asked, And they actually paid for the guns, or did you Anderson replied: It was their money, yes. All I did was show a drivers license. (The private collectors asked to see a drivers license to verify that she was over 18, even though there was no legal requirement that they do so.) Since Anderson did not mind revealing her identity to three separate sellers, is it realistic to believe that revealing her identity for an instant check would have stopped her The Colorado instant background check does not keep permanent records on gun buyers, so even with background checks on private sales at gun shows, there would have been no permanent record of Andersons purchase. And Andersons new and improved talking points claim only that the prospect of a permanent record would have deterred her.
Putting aside Andersons shifting stories, she is plainly an irresponsible, self-centered person. After the murders took place, she refused to come forward and help the police investigation. It took an anonymous tip for the police to find out about her. And in marked contrast to Mark Manes, Anderson has never apologized for her role in the Columbine murders.
Even if you accept the version of Robyn Andersons stories that is most supportive of gun control, no gun-show crackdown would have prevented Columbine. The older of the two killers could have bought his own guns in a store legally. Indeed, in a videotape made before the killings, the murderers said that if they had not obtained their guns the way they did, they would have found other ways. There is no reason to disbelieve them on this point.
The only law that would have some effect on Robyn Anderson and similar gun molls was introduced in the Colorado legislature this year by Colorado State Representative Don Lee, whose district includes Columbine. His Robyn Anderson Bill now makes it a crime to give a long gun to a juvenile without the consent of his parents. This law covers Andersons first version of her story, in which she told Good Morning America that the only deterrent for her would have been a law making her conduct illegal.
Whatever the other merits of proposals to impose special restrictions on gun shows, thes
e would not have prevented Columbine, and it is cynical for their proponents to use Columbine as a pretext.
Unfortunately, anti-gun lobbyists have also attempted to falsely exploit other tragedies by making bogus claims about gun shows.
The man who perpetrated the Oklahoma City bombing stole guns from an Arkansas gun store. He sold those stolen guns, as well as racist literature, at gun shows. Imposing more controls on gun shows patrons would have had no effect on the Oklahoma City perpetrator. He was a vendor, not a customer. His customers werent the criminals; he was.
David Koreshs Branch Davidian organization often rented a table at gun shows, where they sold novelty items, such as empty grenade hulls and ready-to-eat meals (army-type survival foods). One of Koreshs devotees, Paul Fatta, was a licensed firearms dealer who sold firearms at gun shows in full compliance with federal laws. The major source of the Branch Davidian arsenal came from purchases through another licensed firearms dealer: Hewitt Handguns. Purchased in full compliance with federal laws, these guns were registered by the dealer on the 4473 forms, which were made available to BATF agents when they began the investigation of Koresh.
The federal firearms crimes which Koresh and his group allegedly committed–illegal manufacture of machine guns and explosives without registration–were conducted entirely in private. Gun shows had nothing to do with them.
V. Stopping Firearms Acquisition by Law-Abiding Citizens–but not by Criminals
When the Brady Act was being pushed in Congress, proponents claimed that it would save thousands of lives. This extravagant claim turned out to be totally. false. The Brady Act had no effect on gun homicide, report Jens Ludwig and Philip Cook in August 2 issue of JAMA (the Journal of the American Medical Association). The only benefit the authors could find was a reduction in gun suicide (but not overall suicide) among persons over age 55.
Yale Law Professor John Lotts more sophisticated research on the Brady Act is consistent with the JAMA study. (Lott controlled for variables such as law enforcement effectiveness, and the length of different state waiting periods, which the JAMA authors did not) Lott found no statistically significant effect on gun deaths, which were the focus of the JAMA study. Lott also looked at other violent crimes, which the JAMA authors did not. For most crimes, there was no statistically significant impact, except that rape rose 3.6% and aggravated assaults against women rose 2.5%–perhaps because the Brady waiting period delayed handgun purchases by five government working days, even for women who needed immediate protection against stalkers and similar threats. (The research is reported in Lott#39;s book More Guns, Less Crime.)
Despite the evidence that the Brady Act increased crime, gun control advocates want to spread the Act even further.
Various gun prohibition advocates brag about how many people have been denied the right to purchase a firearm under the state or federal background check system. From the point of view of a firearms prohibitionist, every denial is necessarily a good denial. But the public deserves to know that the very large majority of denials have nothing to do with real criminals. In Colorado, for example, only 11% of all denials for firearms purchases are based on criminal convictions. For these denials, the vast majority are for non-violent or low-level offenses.
The stream of Clinton administration press releases about how many hundred thousand people have been rejected under the Brady Act does not undermine the Ludwig/Cook study. Many of the Brady rejections are based on incomplete criminal justice records (e.g., the records show an arrest, but not that the case was dismissed). Another large group of people rejected by Brady is people who arent really dangerous; As for the small number of active violent criminals who actually attempt to buy guns in gun stores, nothing in the Brady Act could stop them from buying a black market gun.
VI. The Real Basis for the Campaign against Gun Shows
Gun shows are huge gathering points for people who are interested in Second Amendment issues. Gun rights groups frequently set up booths at gun shows to distribute literature and recruit members. Gun shows are places where Americans properly exercise their First and Second Amendment rights, and neither gun show patrons nor vendors deserve the mean-spirited campaign of abuse to which they have been subjected.
SAFE#39;s leadership has been captured on tape explaining that the quot;gun showquot; initiative is just an quot;incrementalquot; step towards the goal of requiring government approval for all firearms transfers, even between two private individuals.
In California, Handgun Control, Inc., has achieved its objective of outlawing all private gun sales. In California, you cannot give a .22 squirrel rifle to your cousin for Christmas, nor can you sell an old shotgun to a member of your hunting club. Instead, you must route the transaction through a licensed gun dealer, pay a fee for a background check, undergo a two-week or longer. waiting period, and have your sale registered by the California Department of Justice. The California black market in criminal guns continues to thrive, notwithstanding laws about secondary transfers that only affect law-abiding people.
Attacking gun shows is the first step to abolishing all privacy regarding firearms, en route to implementing universal gun registrationwhich is now being pushed in California.
And the step after that New York City, England, and Australia have already used gun registration lists to confiscate long guns. They are following the strategy enunciated by HCI founder and President Nelson Pete Shields, who explained in 1976:
The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition–except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors–totally illegal. (Richard Harris, A Reporter at Large: Handguns, New Yorker, July 26, 1976, p. 58.)
The mean-spirited campaign of vilification against gun show operators, vendors, and customers is unjustifiable. All available data about crime guns show that gun shows play virtually no role in criminal gun acquisition. The so-called gun show loophole is a fraud; laws at gun shows are already the same as everywhere else. To impose additional restrictions solely on gun shows is to make laws at gun shows more restrictive than at any other location. Such special legislation would entrap many people at target shooting events, gun club meetings, political meetings, hunting trips, and similar events into unintended criminal violations. The effect is to punish people for exercising their constitutional right to assemble and their right to arms at the same time.