The original Not Bad Dude, Brian Linse (always game for a gun debate), concludes a recent post on the so-called “gun show loophole” with this rather remarkable statement: “pretending that there is no such thing as a gun show loophole diminishes the credibility of those of us who want our gun rights made stronger.”
Implicit in this challenge are the dual charges that 1) there is in fact something called a “gun show loophole,” and 2) those who argue that there is not a gun show loophole are merely “pretending” as much (and in fact would have to be, or else Mr. Linse has just begged his own question).
As a way toward outlining his position, Brian raises the following set of scenarios:
[…] if I am not a licensed dealer, then I may sell guns at a gun show without requiring my customers to pass a background check. But, if I make my living as an unlicensed dealer, going from gun show to gun show, are there any limits as to how many guns I can sell in a year? Kopel suggests that the law is allowing small time collectors to execute three gun sales a year in his home state. Is this the limit?
The reason I ask is that I know for a fact that several close friends go to gun shows for the specific purpose of purchasing guns without having to go through the background check. I also know for a fact that there are many unlicensed dealers who make their living at gun shows. Flying under radar year-round.
…Hmm. “Flying under the radar.” Is that code for breaking already existing laws…?
These same friends have also purchased kits at gun shows that allow them to convert semi-auto to full auto. Now how can these friends of mine go to gun shows knowing they can find these items if the vendors at these shows are just selling three guns a year?
I confess I don’t follow the reasoning here. Asking, “how can these friends of mine go to gun shows knowing they can find these items if the vendors at these shows are just selling three guns a year is a lot like asking (to my way of thinking, at least), “how can these friends of mine go to the movies knowing they’ll find a showtime between 10am and 10pm if the individual ticket sellers only work 6 hour shifts.“
It seems to me, that a person who wanted to deal at gun shows as an unlicensed dealer could do quite well. My mom had a friend who put three children through college by buying junk at garage sales and reselling it at a profit once a month at her own sale. In fact, an unlicensed dealer could likely do rather well without leaving the confines of his home State. Hmmm.
So what I don’t understand is: How is this not a LOOPHOLE?
Well, to begin with, Brian, you’ve just changed the terms of the argument. That is, you’ve dodged your own question. Stated properly, it would look like this: “How is this not a GUN SHOW LOOPHOLE?”
And the answer is, this same unlicensed dealer could sell these same guns legally at garage sales or through classified ads — which would mean s/he’s exploiting the “Classified Ads Loophole” or the “Garage Sale Loophole” — animals that, like the mythical “Gun Show Loophole,” aren’t “loopholes” at all, really, but rather refer to transactions that don’t come under the purview of the federal interstate commerce power that regulates gun sales. Of course, should this seller exceed the number of sales allowed before a Federal Firearms License is required of him or her, s/he is breaking the law.
Prof Reynolds or Dave Kopel or Prof Volokh are far more qualified to make these arguments than am I, but for what it’s worth, it seems to me that debating the wisdom of laws that allow firearms to change hands without the benefit of a criminal background check is one thing, whereas suggesting that gun shows are magical places where certain gun laws don’t apply is quite another.
As Glenn has put it:
Federal firearms law was designed to treat guns as normally as possible where ordinary people are concerned, permitting the sorts of casual trades and sales that have historically gone on. Anti-gun groups, who want to stigmatize guns, hate that. The ‘gun show loophole’ is part of a drive, largely admitted, to require that any transfer of firearms, anywhere, be run through the federal system. This may or may not be a good idea — I don’t think it would do much to prevent crime, for several fairly obvious reasons — but regardles of whether it’s a good idea or not, talk of a nonexistent ‘gun show loophole’ is either ignorant or dishonest.
[update: Tres Producer’s Eric Olsen responds here; Dawn Olsen of Up yours doesn’t respond per se, by she does write to ask me to remind people that she’s sexy, no matter what some silly poll says…
update 2: many of you have probably seen this already, but I hadn’t. Courtesy of R. Addison, a short flash film on the “Gun Show Loophole”
update 3: Armed Liberal responds to Mr. Linse here; he addresses the “loophole” as it exists in practice (and so is probably more in keeping with the spirit of Brian’s original post) and offers a nice analysis of the largely symbolic push to close said “loophole”; more thoughts from Rand Simberg
update 4: Croooow Blog points to some Neal Boortz quips on the “loophole” from late April…]
<I>Of course, should this seller exceed the number of sales allowed before a Federal Firearms License is required of him or her, s/he is breaking the law.</I>
So even though there are people who sell considerable numbers of guns at gun shows and out of the trunk of their car without a federal firearms license, technically there’s no loophole because doing so is against the law, even though actually prosecuting someone under that law would be extraordinarily difficult if not impossible. What a comfort that is.
The upshot is that it’s correct that there’s no “gun show loophole,” if by “loophole” you mean a gap in a comprehensive law such as, for example, the laws requiring registration of motor vehicles or dispensation of pharmaceuticals by a licensed pharmacist. There is no loophole because gun sales are in significant part not meaningfully regulated.
<I>[Sales from classified ads and in garage sales are] transactions that don’t come under the purview of the federal interstate commerce power that regulates gun sales.</I>
Not correct. Not under <I>Lopez</I>; not under any post-WWII Supreme Court jurisprudence. <I>See, e.g., <A HREF=”http://laws.findlaw.com/us/315/110.html”>U.S. v. Wrightwood Dairy</A></I>, 315 U.S. 110 (1942). Not even close.
It’s difficult to prosecute lots of offenses, Alkali. I wasn’t asked to provide comfort, just to explain the falsity of a so-called gun-show loophole.
As to the second part of your comments—I was referring to sales similar in kind to those in-state firearms sales that take place by unlicensed purveyors at gun shows; that is, a limited-number of sales before the federal government assumes regulatory jurisdiction. I’m no lawyer, but as I read <i>U.S. v. Wrightwood Dairy,</i> the operation in question was a commercial one, and at least partially intrastate in scope:
<i>”the marketing of intrastate milk which competes with that shipped interstate would tend seriously to break down price regulation of the latter. Under the conditions prevailing in the milk industry, as the record shows, the unregulated sale of the intrastate milk tends to reduce the sales price received by handlers and the amount which they in turn pay to producers. Study of the order which we have summarized makes clear that the unregulated handler selling fluid milk can pay producers substantially less than the minimum price set in the order for milk of that class, and yet pay as much as, or more than, the ‘uniform price’ prescribed by the regulatory scheme for all pro- [315 U.S. 110, 121] ducers, which is based upon the average price for the several classes of milk combined. Such a handler would have an advantage over others in the sale of the class of milk in which he principally deals, and could force his competitors dealing in interstate milk to surrender the market or seek to reduce prices to producers in order to retain it.”</i>
I suppose a better person to ask about this would be Prof. Volokh or Prof Reynolds or Dave Kopel, but I’ve done my best with it for now.
>> Sales from classified ads and in garage sales are] transactions that don’t come under the purview of the federal interstate commerce power that regulates gun sales.
Almost correct. Current federal law does not regulate such transactions. Under typical interpretations of the commerce clause, there is doesn’t seem to be any constitutional obstacles to such a law, but there isn’t one now.
As to “meaningful regulation”, feel free to point out how well it works wrt drugs. They are very regulated, yet readily available outside the system. The only significant “benefit” has been a severe hit to civil liberties.
On the federal law point, note that the power to regulate interstate commerce is the constitutional basis for the federal narcotics laws. If the interstate commerce clause permits the DEA to go after someone selling drugs out of their garage, it permits the federal government to regulate someone selling guns out of their garage.
(Some might contend that there’s a Second Amendment problem with some federal regulation of guns. However, whether you buy the notion of a self-executing individual right under the Second Amendment is another debate altogether; it’s not an argument about the scope of the interstate commerce clause.)
Alkali and Andy–
Thanks for the input re: interstate commerce. I’ll do some more poking around about this.
<I>[Drugs] are very regulated, yet readily available outside the system.</I>
No, they aren’t. That’s not to say that there isn’t a reasonable argument that the costs of at least some (or even all) drug regulations outweigh their benefits in terms of efficacy. But it’s just hyperbole to say that drugs are “readily available.”
Whether or not it is hyperbole depends on your definition of readily available. My siblings seem to have no difficulty aquiring drugs.
Drugs are readily available, its not hyperbole at all.
Go to a bar and make a casual reference to some funny anecdote back when you were younger that involves smoking pot. Five people in that bar will invite you out to the alley when they fire up a spliff later. That’s readily available if you ask me.
Clearly you aren’t going to easily score peyote buttons but hell that’s more supply and demand. Stores selling fully legal products run out of certain high demand, low supply products all the time as well.
Alkali said:
<i>…if by “loophole” you mean a gap in a comprehensive law such as, for example, the laws requiring registration of motor vehicles…</i>
In my state, and others should be similar, this example fails. Because there is the “off-road loophole”. Anyone can buy a vehicle and as long as it is not operated on the public highways (defined to include streets, roads, etc) it does not have to be registered. No matter if it is a brand new Lexus or a home-made dune buggy. This might also be called the “museum loophole” or the “Jay Leno loophole.”
See Title 28, Arizona Revised Statutes.
<a href=”http://www.azleg.state.az.us/ars/28/title28.htm”>http://www.azleg.state.az.us/ars/28/title28.htm</a>
1. Budweiser is readily available. Illegal drugs are not available unless you take some pains to ingratiate yourself with criminals, either by searching out users, soliciting strangers in sketchy neighborhoods, or the like. The quality of the product is unpredictable, ripoffs are common, and the risk of personal injury or arrest is substantial. Obviously, circumstances vary considerably: you’ll have much better luck finding marijuana in Madison, Wisconsin than you will finding heroin in Duluth, Minnesota. But to claim that the narcotics laws are wholly ineffective is just absurd. Clearly those laws have a very substantial effect in reducing the availability of drugs; the question is whether the benefits are worth the costs, which are not insubstantial.
In any event, the analogy is not a good one. Narcotics users must periodically replenish their supply; if the narcotic is addictive, users will go to great pains to do so. Consequently, the risk of selling narcotics is offset by the presence of a steady flow of customers in a limited geographical area. The same would not be true for a gray market in guns for the obvious reasons.
That’s not to say that there wouldn’t be a gray market in guns if there were a more comprehensive registration or background check law; for that matter, there’s one now. But our experience with narcotics doesn’t give us any reason to think that such a law would be completely ineffectual.
2. To DP: Of course, those are loopholes. 99+% of motor vehicle possession and use involves operating of motor vehicles on public ways, but if you use motor vehicles in very narrowly defined ways, you don’t have to register them.
Reynolds et al. assert that it is “ignorant or dishonest” to assert that there is a “gun show loophole.” This is misleading, because their basis for this claim is either that (1) a loophole you can drive a truck through really isn’t a loophole, or (2) there’s technically no loophole because there are nominally laws preventing people from selling lots of guns at gun shows without doing background checks (though in fact this law is hard to enforce, and people do sell lots of guns at gun shows without doing background checks).
The Gun show “loophole” does not exist in the State of California. All gun purchases in California, by law, must be transacted through a federally licensed dealer or police agency. Even at gun shows. Even between close personal friends. Even between close personal friends at gun shows. As such they are also subject to the same background checks as any other gun purchase. All California gun sales are recorded in the Dealer’s Record Of Sale (DROS) system which is a state registration database.Many states do not have gun registration, and to them, buying a gun form a private individual that they meet at a gun show, while obeying all of the laws of their state, is not a loophole either. In my opinion, the need of citizens to buy firearms without the knowledge of the government (any government) goes to the heart of the Second Amendment’s intent and purpose, which is to enable the people to defend their God given and constitutionally protected rights from government-gone-bad.
“<i>Reynolds et al. assert that it is “ignorant or dishonest” to assert that there is a ‘gun show loophole.’ This is misleading, because their basis for this claim is either that (1) a loophole you can drive a truck through really isn’t a loophole, or (2) there’s technically no loophole because there are nominally laws preventing people from selling lots of guns at gun shows without doing background checks (though in fact this law is hard to enforce, and people do sell lots of guns at gun shows without doing background checks).</i>”
Are there other kinds of laws besides “technical” and “nominal ones”? What’s misleading, Alkali, is to continue to insist something is a mistake (a “loophole,” as Rand Simberg suggests in his post, is a gap in the law that allows for people to bypass its intent) when in fact it’s <b>an intended exemption for non-dealers.</b> Again, you may disagree with the law, but to suggest that it is somehow a mistake that needs fixing is disingenuous, unless you wish to show how the exemption written into the law was put there mistakenly.
>> Illegal drugs are not available unless you take some pains to ingratiate yourself with criminals, either by searching out users, soliciting strangers in sketchy neighborhoods, or the like.
In my experience, just standing around seems to be enough. Those that I’ve asked have the same experience. Note that I did not mention the neighborhood.
>> But to claim that the narcotics laws are wholly ineffective is just absurd.
Unless you’re going to point out where there’s unmet demand, it’s not absurd, it’s true.
Yes, there are differences. Drugs are consumed while firearms are durable AND can be readily manufactured. (My favorite example is the United Airlines mechanics in SF who used their employer’s equipment to both manufacture and distribute machine guns.) Guns can also be shared and, even without sharing, it would take very few guns to completely satisfy usage.
Those differences suggest that gun control as crime control is even less likely to be effective than drug control. That may explain why gun control laws haven’t had that effect.
The issue here is not really whether a loophole exists—because there is clearly no agreement on the definition of “loophole” in this context.
Consider: Relative to conditions experienced by ordinary humans on Planet Earth, “black holes” are weird cosmic anomaliies—let’s call them “black loopholes” in the laws of gravity as we commonly understand them.
But if you consider the entire cosmological system that includes singularities, quasars and dark matter—then there ceases to be any such thing as a “black loophole.” It’s just a universe that, incidentally, contains some particularly esoteric phenomena.
Back here on Earth, what exists is an assortment of gun laws, various exemptions to those laws, and a weak enforcement mechanism. If that’s your universe, then there are no loopholes. Or, if you consider “exemptions” and “weak enforcement” synonymous with “loopholes,” then there be loopholes aplenty. End of story.
Any further discussion of the argument would be better served if we simply drop the word “loophole” from our vocabularies—unless, of course, we’re just enjoying the purely semantic aspects of this exercise.
<i>there’s technically no loophole because there are nominally laws preventing people from selling lots of guns at gun shows without doing background checks (though in fact this law is hard to enforce, and people do sell lots of guns at gun shows without doing background checks).</i><br>
So If people don’t obey these “nominal” laws; the solution is to pass laws against breaking the law? Is there a finite number of laws that need to be passed before they become effective?
Jay–
So what are you suggesting, then? You write: “<i>Back here on Earth, what exists is an assortment of gun laws, various exemptions to those laws, and a weak enforcement mechanism. If that’s your universe, then there are no loopholes. Or, if you consider ‘exemptions’ and ‘weak enforcement’ synonymous with ‘loopholes,’ then there be loopholes aplenty. End of story.”</i>
Sorry, but that’s just plain wrongheaded. Here on earth, intentional exemptions don’t count as loopholes, no matter what Federation you belong to. I know there are people who like to suggest exemptions are loopholes, but just because there are two well-defined positions doesn’t mean both are equally valid.
Again, the onus is on those who wish to say all transfers of firearms should be federally regulated (under interstate commerce), to make that case. Because the exemption as it now stands was intended as such, and so is in no way a loophole.
But Jeff…
If the intended exemption allows people to essentially function as dealers without being regulated in the manner that the law intends “dealers” to be regulated, then it seems to me that the term loophole is descriptive of the situation even if it can be argued that it is not technically the best term. I agree with Jay that the word loophole is bogging down the debate. The problem I see is: how to attend to this particular problem without implying that ALL private transactions should be regulated?I’m still struggling with that one, since my instict is to keep private exchanges unregulated. I’ll be posting a follow-up on my blog sometime this weekend.
“<i>If the intended exemption allows people to essentially function as dealers without being regulated in the manner that the law intends ‘dealers’ to be regulated, then it seems to me that the term loophole is descriptive of the situation even if it can be argued that it is not technically the best term.</i>”
Well, again—those willing to break the law break the law. Presumably, they can break the law anywhere; it’s unclear why gun shows are of special concern.
Your formulation—“if the intended <b>exemption allows</b> people to…function as dealers without being regulated”—is problematic. Because it’s not the exemption that allows people to function in such a way, but rather their willingness to ignore the rules set out in the exemption (coupled with the difficulty of enforcing private sales) that is operative on the descriptive level.
Your options, then, should you continue to see a problem (and it’s not clear statistically that there <i>is</i> a problem—and in fact the statistics seem to argue against one) are to call for better enforcement, or to call for an end to the exemption.