Ever Wonder What A Loophole Looks Like?

Should the government keep lists of people who exercise their constitutional rights? If you write a letter to a newspaper, or join a church, or possess a firearm, should your name be entered into a government database?

According to the gun prohibition lobbies, every gun and every gun owner must be registered by the government. They accurately recognize that confiscation of some or all firearms is very difficult without comprehensive gun registration. To get comprehensive registration, they must close the “loophole” that allows private transfers of firearms.

Legislation introduced in the U.S. Senate by Charles Schumer, D-N.Y., and vigorously promoted by Michael Bloomberg’s gun-ban group “Mayors Against Illegal Guns” would help accomplish the prohibitionists’ objectives. The House version of the bill, H.R. 1781, has 86 co-sponsors, nearly a fifth of all U.S. representatives.

And don’t count on the Supreme Court to stop any of this. Heller is one vote away from being overturned, and if President Barack Obama is re-elected, the odds of him being able to appoint a replacement for one of the five pro-Second Amendment justices are pretty strong. Justice Antonin Scalia is 76 years old, and Justice Anthony Kennedy is 75.

Make no mistake, the gun prohibition groups aim to close the “loophole” that prevents the government from creating lists of all guns and those who own them.

The existence of the so-called “loophole” starts with the fact that the federal government does not impose upon ordinary people the special laws that apply to federally licensed firearm dealers.

Let’s start with some basics. Most federal gun control laws are based on the power that the Constitution gives Congress “[t]o regulate Commerce . . . among the States.” Pursuant to this power, Congress enacted a statute (the Gun Control Act of 1968) that says private individuals may not sell (or otherwise transfer) firearms across state lines. In order to sell a firearm across state lines, at least one party to the transaction must have a Federal Firearms License (FFL). (“FFL” is the standard abbreviation for both the license itself and for the licensee.)

So an FFL is, by definition, a licensed person engaged in the interstate commerce of firearms. It is only an FFL, for example, who can buy guns from a wholesaler or manufacturer and then retail them to the general public.

Federal law imposes various requirements on FFLs. They must keep records of every sale they make, and these records are subject to inspection by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Before completing a sale, the FFL must contact the FBI’s National Instant Criminal Background Check System (NICS), or its state equivalent, and obtain authorization.

If you are “engaged in the business” of selling firearms, then you must have an FFL. Otherwise, every single sale would be a serious federal felony. Federal law defines “engaged in the business” as repeated transactions for profit. In contrast, a person is not engaged in the business of dealing in firearms if he or she makes “occasional sales, exchanges or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms. …” 18 U.S.C. §921(a)(21)(c). And if you aren’t “engaged in the business,” you can’t get an FFL.

So for regular people who occasionally sell guns (e.g., a person who sells one of his rifles to a friend in a hunting club), the special laws for firearm businesses do not apply. The seller does not need to keep a record of the sale, the seller is not subject to warrantless inspection by the BATFE and the seller does not need to get prior permission from the government for the sale. At the same time, the occasional seller does not enjoy the privilege, which FFLs have, of being able to buy or sell guns across state lines.

It’s just common sense that the special laws that apply to businesses with a federal license do not apply to ordinary people who are not in the business and therefore cannot obtain the federal license.

Regardless of whether you have an FFL or not, one federal law does always apply: It is a felony to transfer a gun to someone if you have “reasonable cause” to believe that the individual is a “prohibited person.” A prohibited person is someone who is prohibited by federal law from possessing a gun; examples include convicted felons, illegal aliens, persons who have been adjudicated mentally defective and so on.

The large majority of states have similar laws that distinguish between professional firearm dealers and persons who occasionally sell or give away a personal firearm.

The gun prohibition lobbies are not happy with this situation. One of the problems, from their point of view, is that when an individual sells a gun to his cousin or neighbor, there is no mandatory recordkeeping for the transaction. This means that there is no registration of the gun. And without registration, confiscation is much more difficult.

Pete Shields, who was then head of the group that now calls itself the Brady Campaign, 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 existence of private sales is not the only impediment to gun registration. Thanks to the NRA, several federal laws forbid the compilation of a federal gun registry—whether from the sales records kept by FFLs or through the National Instant Check System. However, the gun prohibition lobbies can always hope that the federal anti-registration laws will be repealed. Besides that, they can hope that the federal government will just start compiling instant check records to form at least a partial federal registry, as the Clinton administration tried to do.

Besides that, the gun prohibition lobbies have convinced a minority of states to collect data from licensed firearm dealers in order to create state gun registries. Usually, these involve only handguns. Two states—California and Rhode Island—have gone all the way, so that every firearm transfer, even between private individuals, will lead to the creation of a permanent government record.

There’s no doubt that gun registration records do get used for gun bans. That has been the experience not only in Canada and Europe, but also in the United States. For example, since 1966, all firearms in New York City have had to be registered. In 1991, then-Mayor David Dinkins rammed his version of an “assault weapons” ban through the city council. The 1966 registration law was used by the police to enforce the 1991 prohibition.

More recently, in June 1999, newspapers found documents from extremist anti-gun California Attorney General Bill Lockyer showing the intent to use registration lists to confiscate so-called “assault weapons,” which had been registered according to the request of the previous attorney general. After the documents were leaked, Lockyer’s office promptly denied they were drafted for any purpose other than “for discussion.”

For more than a decade, the gun prohibition lobbies have been concentrating, with success in some states, on the so-called “gun show loophole.” The prohibitionists, such as Mayor Michael Bloomberg, claim that gun shows are some sort of weekend Brigadoon, in which none of the normal gun laws apply and sales take place without any controls.

This is just the opposite of the truth. The laws about selling guns at gun shows are exactly the same as everywhere else. If you are “engaged in the business,” then all the rules about sales that would apply at your business premises also apply when you sell at a gun show. Conversely, if you are a widow who is selling her husband’s collection, then you are not engaged in the business and you can rent a table at a gun show without being subject to all the special rules that apply to business owners.

The attack on the “gun show loophole” is just the opening round in an attack on all private sales. The leadership of Colorado’s affiliate of the national gun-ban groups was caught on tape explaining that the group’s gun show initiative was an “incremental” step toward the goal of requiring government approval for all firearm transfers, even those between two private individuals.

Moreover, the anti-gun groups use the “gun show loophole” issue to perform their standard bait-and-switch. According to the Colorado law that was successfully pushed by the gun-ban groups, any time there are three people present, that’s a “gun show.” Thus, a “gun show” can be a gathering in Aunt Mary’s home for the purpose of distributing her recently deceased husband’s collection of firearms, even if the only people present are Aunt Mary, a nephew and a niece.

So the words “gun show loophole” are really a disguise for gun control laws that have nothing to do with gun shows. So, too, is the “private sales loophole.”

For example, Bloomberg’s flagship bill in Congress is the misnamed “Fix Gun Checks Act,” introduced by Schumer. Here are some of the things that the Bloomberg/Schumer bill, S. 436, would do in the supposed name of requiring background checks for private gun sales:

It would be a federal felony to temporarily allow someone to use or hold your firearm in the following circumstances:

• While a friend visits your home
• While taking a friend target shooting on your property, or on public lands where target shooting is allowed
• While instructing students in a firearm safety class.

The bill would also ban gun possession by anyone who has ever been ordered to receive counseling for any mental problem. This would include:

• A college student who was ordered to get counseling because the school administration was retaliating against him for criticizing the administration
• An adult who was ordered to receive counseling in fifth grade for stuttering, attention deficit disorder or mathematics disorder
• A woman who was raped in an elevator, and now has a phobia about elevators.

Also in the name of “fixing” gun checks, Bloomberg and Schumer would overturn the constitutional standards of due process and fair trial. Their bill would prohibit gun ownership based on any drug arrest rather than on convictions. Thus, S. 436 would make gun possession a felony for a person who was once arrested for marijuana possession and was later found innocent because a police officer mistook tobacco for marijuana.

The anti-gun groups sometimes claim that they are only asking for background checks on private transfers. But when they actually get that, they don’t want it, unless the background checks can be used for registration. For example, in June 1999, the U.S. House of Representatives was considering a comprehensive gun control bill. An amendment was added that imposed background checks on private sales at gun shows—but which forbade the FBI to keep registration records of law-abiding gun owners. The gun prohibition groups and their congressional allies were outraged, so they helped kill the bill.

It’s also interesting to note that should all private sales ever become subject to government approval through the background check system currently in place for FFLs, all legal gun sales in the nation could immediately be halted by the government simply shutting down the background check system, whether intentionally or by accident, for only a few hours or a much longer period of time. That’s an ominous scenario, indeed.

The gun-ban groups have learned a lot about persuasive language over the years. These days, they rarely use the phrase “gun control,” since “control” is not a popular term among the liberty-minded American public. Instead, the groups target uninformed people, including some gun owners, by describing various aspects of firearm freedom as “loopholes.”

But what they call a “loophole” is really your right to privacy—a right that helps protect your lawful firearms from the gun confiscation lobby.