Brian Linse follows up his original post on the (still non-existent) “gun show loophole” with a far more detailed post, one in which he essentially concedes that the “problem” with private gun show sales (insofar as such a problem exists — statistical evidence suggests none does, but Brian is arguing potentialities) is one of enforcement:
[…] personally, I would describe someone who sells regularly at gun shows with the objective of ‘livelihood and profit’ to be a dealer of the ‘itinerate peddler’ type. And if said dealer chooses not to be licensed, then they are able to sell at gun shows without requiring background checks. Brother Goldstein at PW points out that such a person is simply violating the law, and not taking advantage of a loophole. And Glenn Reynolds wrote in an e-mail to me that: ‘Well (and I had a post on this somewhere) if it’s a loophole at all it’s a loophole in enforcement, not in the statute, since you’re basically arguing that there are people who *are* in the business, and ought to have licenses, but don’t.’
But how is law enforcement supposed to know that any given person at a gun show is making a livelihood or profit at multiple gun shows without expending great resources to follow each and every seller throughout the year? The answer is, they don’t, and that’s where the loophole, ‘an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded,’ comes in.
It is instructive to note the rhetorical maneuver here; the “ambiguity or omission in the text through which the intent of a statute…may be evaded” (the definition Brian employs earlier in his analysis to characterize a “loophole”) is here used to turn an intended omission (and so not an “omission” at all, but rather an “exemption”) into a “loophole” by dint of equating the difficulty of the law’s enforcement with a flaw in the law itself. Beyond pointing that out, however, I haven’t much more to offer, I’m afraid.
Listen: I don’t believe gun shows represent any special risk to national security. Statistics seem to bear this belief out. Pointing to one instance (a Lebonese man who tried to ship arms he obtained at a gun show to Hezbollah and was caught doing so) doesn’t persuade me of the need to do away with private-seller exemptions. Private sellers, after all, are not prevented from seeking background checks for potential buyers. And that’s good enough for me.
Jeff:
Thanks for the follow up. I have a couple of clarifications:
1)The “exemption” in FOPA was clearly intended to protect private owners, but the “omission” I refer to is the omission of a specific definition of what constitutes a dealer. This is where the loophole resides, but you are correct to point out that it is a problem of enforcement on the practical level.
2)The guy trying to ship gun show weapons to Hezbollah was caught only because an informant ratted him out. He was successful in purchasing the weapons at a gun show, but was caught trying to export.
3)As I’ve said before, statistics don’t apply to a preemptive position on this. Domestic crime stats are irrelevant, and the impact of a single incident of terror using gun show weapons should be obvious. The fact that someone was already caught trying, and we have evidence that bin Laden trained his followers to try to obtain weapons in this way is enough for me.
We’ll always disagree on this, but it’s been informative and fun. Thanks, bro!
“<i>But how is law enforcement supposed to know that any given person at a gun show is making a livelihood or profit at multiple gun shows without expending great resources to follow each and every seller throughout the year? </i>”
Perhaps in the same way that they are to find terrorists on American soil?
Linse thinks that the lack of a definition like “three guns per year” makes it impossible to prosecute dealers. ATF and the courts disagree. (The current rule allows ATF to nail folks who haven’t sold a single gun.)
Linse likes some form of the private sales exemption, yet there’s no room for it in his argument against private sales at gun shows. (The terrorist can just as easily buy from someone who is just selling one gun this year as from someone who Linse thinks is actually in biz.)
BTW – I wonder where Linse is shopping. He lives in CA, which outlawed all private sales several years ago. Unless he also has legal residence in another US state, he can’t legally buy except through a licensed CA gun dealer.
Andy:
I buy my firearms in CA at licensed dealers, and have managed to arm myself quite nicely. I don’t fear the government, and have no need of owning unregistered weapons. I have friends, however, that buy at shows elsewhere so they can have guns that Uncle Sam doesn’t know about. My friends may be a little weird, but I don’t worry about them. It’s the possibility of terrorists doing the same thing that bothers me. Anyone who is an avid gun owner knows that this is where people who fear confiscation go to buy unregistered weapons. Pretending otherwise is disingenuous. We both know what the deal is here. I’ve had this same debate with my gun nut friends, so I know who I’m talking to here. At least my friends recognise that my position is ultimately for the purpose of protecting gun rights, even though they, like you, don’t agree. I think I’ve made my point, as have you. Thanks again.
>> At least my friends recognise that my position is ultimately for the purpose of protecting gun rights
I appreciate the goal, but is the plan likely to help achieve it?
I’m sure that Brian doesn’t think that any of the gun banners are going to back off. Does he really think that it’s going to get many points with folks like Welch?
One thing about gun debates is that there’s little new. I note that Brian’s “let’s volunteer” tactic has been tried in the past, and it didn’t work as he wants. Why will this time be different?