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Background checks aren’t perfect, as we all know. They can’t absolutely predict future behavior; the Blacksburg killer at Virginia Tech (summer, 2007) may well have passed one, for example.
No gun law, however, can claim to prevent future acts of violence. A universal check would be valuable in the sense that it would restrict access by those who go to private sellers knowing they’d fail the check at a gun shop, or at a gun show — irregardless of the “gun show loophole,” discussed later. The background checks don’t keep people with clean records from becoming violent. But they keep those with criminal+records" rel="tag">criminal records from evading the NICS check system we now have in place.
What a lot of observers have come to call the “Gun show loophole” is a term coined to describe the legal sale of firearms between private individuals at gun shows in states where this is legal.
When and where these sales take place at a gun show, some perceive a “loophole” in the National Instant Criminal Background Check System (NICS), although these laws have never applied to individual-to-individual sales of personal firearms.
Federal law requires persons engaged in interstate firearm sales, or who are simply in the business of selling firearms, to hold a Federal Firearms License and to perform a background check prior to transferring a firearm, but there is an exemption for private sales by individuals who are “not engaged in the business” of selling firearms, or who only make “occasional” sales, hence the loophole.
Unlicensed private sellers are permitted by law to sell privately-owned guns at gun shows, or at private locations, in 24 states (as of 1998) [see Wikipedia].
Although gun shows remain a point of concern, a 1997 Department of Justice survey of 3,959 inmates found that only 2% stated that they had bought a gun used in a crime from a gun show. The remaining 98% were obtained from other sources, in which the criminal had no direct connection with a gun show. The most common sources (35%) were family or friends!
Licensed gun dealers who sell at gun shows must, by federal law, strictly check backgrounds through the National Instant Criminal Background Check System. Additionally, some states and parts of states have laws requiring a purchaser to observe a waiting period before taking possession of a firearm from even private sellers, unless a CCW license is held by the buyer. These waiting periods typically range from 3 to 10 days depending on the state where the firearm is purchased. These waiting periods may not apply to firearms that fall under the “curio & relic” laws (firearms that are over 50 years old), depending on jurisdiction.
Another concern sometimes voiced is the possibility that a gun dealer, who might otherwise be required to be licensed, could pose as a private seller to circumvent federal law requiring dealer licensing and mandating background checks of firearms purchasers at a gun show. However, the criteria that would differentiate a person “in the business of firearms dealing” from a “private seller” has not been clearly defined under U.S. law.
Furthermore, such cases have yet to be tested in U.S. courts. Tom Mangan, of the Bureau of Alcohol, Tobacco and Firearms (ATF), has stated, “There is no limit to the amount of guns that a private collector can have. Some have 10; some have 1,000, if I go to a gun show and state that this is my private collection, I am not required by law to ask you for identification, ask you to fill out any paperwork or conduct a background check. It is simply cash and carry.”
The ATF has reported that between 50% and 75% of the vendors at these venues possess a Federal Firearms License. Remaining vendors may sell books, parts, collectibles, or food and drink. Individuals who are not in the business of selling firearms, and who are not required to possess Federal Firearms Licenses, may make legal private firearm sales to residents of their own states, subject to state law. Federal law does not require a background check on such sales.
Private sales between attendees or between attendees and non-dealer vendors are not uncommon at gun shows, though they make up a small fraction of the guns sold. Groups opposed to these legal private sales at gun shows contend that allowing them makes gun shows an attractive venue to persons prohibited by Federal law from possessing firearms (convicted felons, domestic abusers, drug addicts, fugitives from justice, individuals adjudicated as mentally ill, illegal immigrants, and others) who would be stopped by a background check.
Others question the point of laws that would make private sales at gun shows illegal, while the same private sales would be legal in the parking lot.
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