The "Gun Show Loophole" solution?

[pipoman]

Anyone can tell from my posts on the issue of firearms that I am a gun owner. I don't own anything that could be considered an "assault weapon" under any of the numerous descriptions I have heard about assault weapons other than I do own some semi-automatic hunting guns all over 40 years old, and semi automatic pistols I used in a previous profession. I don't have a ccw, I carried concealed for almost 20 years, licensed by the attorney general of my state long before the public could carry concealed, as a necessity of my previous profession. I tired of that career and carrying a gun everyday is one reason I made a midlife career change. I don't want felons or other prohibited people to access guns. Enough about me.

The "gun show loophole" as it has come to be known, really has nothing to do with gun shows. It has to do with sale of guns between two residents, private citizens not engaged in the business of selling guns, of the same state, within the borders of that state. These sales can take place at a garage sale, front porch, parking lot, a gun show, craigs list, or anyplace else.

Currently the law is...Every gun sold by a federal firearms dealer (FFL) is subject to a background check, without regard for the venue the FFL is selling the gun (gun show, kitchen table, etc.). Depending on the state, the background check is either done by the FFL calling (national instant check system) NICS and telling them the personal information of the buyer or by calling a state agency who does their own check on the buyer. Most states use the NICS method.

If I decided I wanted to sell a gun, I can sell it to a citizen of my state without an NICS check as long as the person isn't a felon or otherwise prohibited yo the best of my knowledge. Here's where a problem arises. I have almost no way of knowing if the buyer is lying to me about their residency or their eligibility to own a gun. I say almost because the only possibility of being sure I am selling to an eligible buyer is to meet the buyer at a FFL and beg the FFL to, for a fee, do a NICS check (free access for the FFL) for me. They are not required to do the check for me. That's it. That is the only way I can determine the buyer is eligible.

Why isn't a private sale within my state subject to a federal law requiring a background check? Because this is the Constitutional boundary of the federal government. Several times different bills have gone to committee in DC trying to make a law requiring a background check on private intrastate gun sales, and have never made it out of committee, even when the committees have been chaired by Democrats. This always runs up against the "commerce clause" prohibiting the federal government from regulating intrastate commerce of legal personal property.

I don't want to sell to a prohibited person and if there was a reasonable way for me to be assured I'm not, I would do that. I don't need the hassle of selling the gun and 5 or 10 years later getting a visit from the police wanting to know the disposition of the gun because it was used in a crime.

If intrastate private sales can't be regulated at the federal level, maybe it's time to get creative.

I believe that if the licensing requirements for FFLs were amended to require every FFL dealer to conduct NICS checks for private sales. These must be in a timely manner and for a low statutory fee, say $20. Offer a limit of liability to any person who sells a gun privately using the NICS system. If the gun is later used in a crime the seller who used the system is immune from prosecution criminally and immune from civil liability...no immunity for a person selling a gun without the system. Now a huge government sponsored public service campaign explaining the system and encourage people selling their gun to use the system. Set up transfer stations at all gun shows. Make it easy to use.

Once this system is firmly in place and is effective it would be much easier to encourage states to require checks on private sales. I firmly believe from years of studying and watching this issue, this or something like this is the best answer to the private sale issue. I believe this or something like this is the fastest, cheapest, and most likely to start getting closer to background checks on all private sales..

[Spryguy]

1. Solution:

The sale of firearms, any firearms, without an FFL should be illegal.

[jody]

2. That's what OP proposed. nt

[Spryguy]

4. Not quite.

He proposed a system where private citizens can use NICS to run background checks. I propose that private citizens should only be bale to buy or sell firearms to a license firearms dealer.

[pipoman]

5. Can't (Constitutionally) be regulated at the intrastate level...now what?

What you are suggesting is already true of virtually every other transfer of firearms...the feds don't have the jurisdiction to enforce it at the state level.

[jody]

8. "I believe that if the licensing requirements for FFLs were amended to require every FFL dealer to

conduct NICS checks for private sales."

What part of that don't you understand?

[NashvilleLefty]

3. You make an excellent point.

Whether we accept your specific proposal ( which I have no problems with) we have to address the issue of private sales.

I am afraid that the Pro-Gun lobby will seek a loop-hole.

[pipoman]

7. I really believe the gun lobby may agree

in return for the chance of immunity from prosecution if the check is done. As it is now, if a felon lies to me and then uses the gun to commit a crime, I am going to be paying for a defense and facing civil or criminal problems.

[LisaLynne]

6. Thank you for your post.

Thoughtful and informative.

[Squinch]

9. But it would have to be voluntary, right?

Seems like a start.

But just to be sure I am understanding: the federal government doesn't have jurisdiction in intrastate sales between individuals. So you are saying, for those individuals who choose to do so, the dealers MUST provide background checks for a nominal fee. If the individual seller goes through this process, they get some benefits with respect to immunity against problems arising with the future use of the gun. Do I have that right?

In this system, is there any way to implement voluntary licensing? Because it seems like a lot of other control measures would depend on licensing. Like safe storage laws, etc. (THe NICS system is just about background checks, right, not licensing?)

This does seem like a start, and it's the kind of thing that we need to begin to implement. But it wouldn't have prevented Lanza. Is there any provision within the background checks that deals with other members of a gun buyer's household?

[pipoman]

12. Yes it would start out voluntary..

I believe one of the reasons most states don't have a requirement for background checks is because, as it is now, they would have to fund the system somehow. There isn't a mechanism for this to be easily accomplished without a lot of expense at the state level. If the system was in place and could be implemented by the state without cost, more states may require it.

Second paragraph..correct

Third..This is an answer to the complex question of intrastate private gun sales. Every real or perceived problem would require it's own discussion IMO.

I don't believe it will stop any event necessarily. If it does, we'll never know it, huh? I don't believe it is possible to limit the rights of people who have been convicted of nothing...maybe a felon could be prohibited from living in a home with a gun...again a whole other discussion with it's own nuances.

[Squinch]

28. Thanks. I do think this is just the kind of thing that is needed to begin to work on this, and it

seems like this would actually have an effect and could be enacted fairly readily.

And yes, I agree that we need to go at this from a lot of angles and pick at it from the edges of each problem until we start making a dent.

Thanks for posting this. Happy holidays to you and yours.

[Jenoch]

10. I believe your idea is a sound one.

I have mentioned much the same on other sites. I have never sold a gun to anyone I did not already know personally so I knew they were legally qualified to own a gun.

[DanTex]

11. The "it's not the Federal Government's jurisdiction" talking point is simply inaccurate.

First off, the Commerce Clause doesn't prevent the Feds from regulating intrastate commerce. It gives the Feds the power to regulate interstate commerce. There's a difference.

And, the way the clause has been interpreted, there is a lot of leeway. There is tons of evidence that private sales of guns contribute to interstate trafficking of illegal guns, which right there provides constitutional cover.

On top of that, there are plenty of legal methods that the Federal Government can use in order to invoke laws like this. For example, machine guns are regulated much more tightly than just a federal background check by NFA -- licensing and registration -- and there aren't any constitutional issues. If the Feds can require you to undergo an extensive licensing procedure to buy a machine gun, even from a private seller, then they can require you to go through a background check to buy a handgun.

The problem with closing the private sales loophole is political, not constitutional.

[pipoman]

13. Yes it does..well, regulates, not necessarily prevents..

First off, the Commerce Clause doesn't prevent the Feds from regulating intrastate commerce.

The problem with closing the private sales loophole is political, not constitutional.

Except the group exempted really doesn't have a collective political voice. The NRA would likely challenge any attempt to require background checks for private intrastate sales, I believe a challenge of such a federal law would stand a good chance of prevailing in the end. I believe this is why those charged with vetting the constitutionality of new proposed laws (bills) have failed to act.

[Squinch]

29. While I like your suggestion and I'm adding it to my list of what my legislators are going to hear

until they want to shoot ME, I do think DanTex has a point. Yes, in the past the interpretation might have favored the NRA position, but public opinion has a lot to do with constitutional interpretation. I am sure that there are arguments that can be made (and I don't know the law, so forgive my naive wording) on the basis of the danger to the citizens of one state from the policies of another.

I think it's worthwhile to also push for the case to be made for Federal regulation of intrastate sales. If we lose we lose. If we win, it's a lot of time saved against the plan to enact smaller, incremental measures.

[pipoman]

35. Thanks...

Attempts at bills allowing federal regulation of intrastate transfers have been considered in DC, they have never made it out of committee even with Democratic committee leadership...it always comes back to a fight they don't believe they can win. Even if it were to make it out of committee to a vote and passed, there would be many constitutional challenges...which is normal...but also the system to handle the volume would have to be in place. Putting the system in place prior to trying all of this would remove a major objection by the states, IMO.

[rwheeler31]

14. How do pawn shops handle the sales? Do licencsed dealers take consignment deals?

If business people can do background checks on potential employees it mut be avalible. I am so confused.

[pipoman]

15. If a pawn shop sells guns

they must have a FFL and they do NICS checks on all of their sales.. Yes, some shops will do consignments and if a ffl sells a gun consigned to them they must do an NICS check. NICS is akin to NCIC. It contains information compiled from many sources. It isn't available, but I agree that there is no excuse for not making it a requirement on FFLs to conduct private transfers for a fee reasonable for their timem and in a timely manner.

[Jenoch]

19. If you have ever watched Pawn Stars

on the History Channel you will see that they only buy and sell gns made in 1899 or earlier. Those guns can be bought and sold by a business (pawn shop) without an FFL.

[spin]

16. Your idea sounds good to me. (n/t)

[krispos42]

17. There would have to be action on a state-by-state level.

I believe California already mandated that private gun sales (or perhaps only private handgun sales) have to go through an FFL.

There is no reason that other states can't do the same thing.

The federal government could help by creating a type of FFL that can be used by people that just want to act as a private-transfer enabler, rather than as a stocking gun dealer. I bet there are people out there that would like to raise some extra money doing background checks in their spare time.

[pipoman]

26. I believe

to get states to even consider mandating private checks, there must be a system they can mandate without having to foot the bill at the state level. Once there is a system in place, and people were using it voluntarily, states would be more likely to enact requirements for private transfers.

[Squinch]

30. Very smart.

[Recursion]

18. Even post-Brzonkala, it's not clear to me how the court would rule, particularly...

... if the Congress asserted this as an excise authority.

[pipoman]

25. It wouldn't be a manditory system unless or until the

individual states mandated it. It would be more akin to the 'drive 55' or drinking and driving public service announcements only in places likely to impact the most gun owners..magazines, gun shows, and carefully selected TV spots.

[SpartanDem]

20. I think initiatives like this would do very well at the ballot box

[Angleae]

21. 2 problems

#1: What if the FFL dealers refuse to do it for only $20
#2: What do people do if there is no nearby FFL (Chicago, D.C., etc)

[pipoman]

23. The first

would be a condition of licensure for all FFLs. There are many requirements upon them already, this would just be another. They might bitch a little at first, but ultimately it would be no different than any other requirement placed on them.

As for the 2nd, I suspect most people live reasonably close to a ffl. There are a couple of places as you mentioned, I still think it has to be in the high 90% of people could pretty easily comply.

[davidpdx]

22. I'm glad to see someone providing constructive ideas

I had a severe clash on Facebook with someone who thinks any limitation is against the 2nd amendment and you should have no right to an opinion if you don't own a gun. It just made me shake my head and think nothing is going to get better.

We need people like you to speak up loudly to at least propose these ideas as gun owners to show that rational ideas can be had and that those who don't want to solve the problem are the problem.

[pipoman]

24. I and others have floated this and similar ideas before..

those who are strong gun control advocates always determine it is better to nay this in favor of unconstitutional demands which will never happen. At the same time those on the other side complain about slippery slopes and such. Neither side has ever been too interested. I believe if there is going to be improvement, it is going to look something like this.

[Kolesar]

27. Used gun sales should be through real "bricks and mortars" stores...

...even though the Michigan Militia would object.
We don't let private citizens sell whiskey or medical devices, either.

[dsc]

31. that is not what SCOTUS says the commerece clause says

I can't sell marijuana grown on Colorado to an Coloradan. I see no difference between that and the guns. If the feds can ban the first, and SCOTUS said they could, then they can ban the second.

[pipoman]

33. The difference, of coarse,

is that pot isn't legal to grow, own, sell, or possess at the federal level and hasn't been legal at the state level medical or otherwise for a decade yet. Regardless of whether it should or shouldn't be legal, it isn't.

[Hoyt]

32. Don't disagree. But gun owners can go to FFL right now, most choose to take fistful of cash

and don't care what might happen later. If gun owners were truly responsible, a lot of the problems would not occur.

Registration would help too. If gun is used in crime, could check back and find out if supposedly responsible gun was not so responsible (which is often case) . If previous gun owner was irresponsible, go after them too.

[pipoman]

34. "Most"...Yeah, most FFLs are not interested in doing inhouse transfers..

There will never, in our lifetime, be federal registration...but again, a whole other issue, with a whole other list of impossibilities.

[Hoyt]

36. Good excuse to sell to unknown for cash. That is what irresponsible gun owners do.

[pipoman]

37. Some will always prefer to be part of the problem..

[Spryguy]

38. Dont be so sure...

We can make that happen. We relentlessly plaster the faces of th e Newton victims on t.v. and in print, and paint guns as evil death machines and gun owners as irresponsible criminals. Yes. We. Can!

[pipoman]

39. Help yourself..insure nothing happens..