James R. Balmforth: Gun Shows And The Second Amendment

The prospect of ordinary people making guns at home on their 3-D printers seems scary. Even President Donald Trump, a strong Second Amendment supporter, has tweeted that it “doesn’t seem to make much sense.” Attorneys general in eight states sued to stop the website of Defense Distributed from publishing instructions for printing out plastic firearms. A federal judge recognized the harm Tuesday night and issued a temporary restraining order. But the attack on freedom of speech is also scary here. Even as he acted to block the gun plans, U.S. District Judge Robert S. Lasnik recognized there are “serious First Amendment issues” at play. Under current interpretations of the Second Amendment, the government could almost certainly prohibit unregulated home manufacture of guns. The First Amendment, however, might well protect the distribution of the computer code that functions as the recipe for the 3-D printers. The threshold question is whether computer code is a form of speech at all. This question raises philosophical questions about whether computer code written in a programming language is effectively an object not ordinarily regulated by the First Amendment or is more like a set of written instructions from one person to another, which would typically be considered a form of speech. The U.S. Supreme Court has never definitively answered this tricky question. But the lower courts have mostly held that code counts as speech. In an influential 2001 decision to that effect, the U.S. Court of Appeals for the 2nd Circuit said that “a recipe is no less ‘speech’ because it calls for the use of an oven, and a musical score is no less ‘speech’ because it specifies performance on an electric guitar.” That brings us to the second legal problem: whether speech that instructs the public how to commit a crime is subject to free-speech protection.

Here, too, the Supreme Court has not given a definitive answer and the legal landscape in the lower courts is not that clear. In an important 2005 article, First Amendment scholar Eugene Volokh pointed out that some courts have held that free-speech law does not extend to cover “speech that knowingly facilitates bomb-making, book-making, or illegal circumvention of copyright protection.” Yet Volokh, who tends to prefer very strong free-speech protections, cast serious doubt on most of the rationales that could be used to prohibit speech that tells people how to commit crimes. In particular, he pointed out that such information often has other, noncriminal uses. And he strongly emphasized that the internet changes the landscape for such regulation, because sources outside the reach of law could almost always post the same information, which would then be available to American users notwithstanding any ban. The best way to think about the question is to ask whether the government should be able to ban “The Anarchist Cookbook” or other works that describe how to make Molotov cocktails or simple bombs. Logically, the answer is almost certainly not. How-to guides for criminal activity aren’t like classified information, such as how to build an atomic bomb or make a biological weapon.

Gun Show Loophole

Gun show loophole is a political term referring to the sale of firearms by private sellers, including those done at gun shows that do not meet federal background check requirements. This is dubbed the private sale exemption or “secondary market”. Federal law requires background checks for commercial gun sales, but not for private-party sales whereby any person may sell a firearm to an unlicensed resident of the same state as long as they do not know or do not have reasonable cause to believe the purchaser is prohibited from receiving or possessing firearms under Federal law. Under federal law, private-party sellers are not required to perform background checks on buyers, record the sale, or ask for identification, whether at a gun show or other venue. This is in contrast to sales by gun stores and other Federal Firearms License (FFL) holders, who are required to perform background checks and record all sales on almost all buyers, regardless of whether the venue is their business location or a gun show. Some states have passed laws to require background checks for private sales with limited exceptions. Access to the National Instant Criminal Background Check System (NICS) is limited to FFL holders. Since the mid-1990s, gun control advocates have campaigned for universal background checks. Advocates for gun rights have stated that there is no loophole, that current laws provide a single, uniform set of rules for commercial gun sellers regardless of the place of sale, and that the United States Constitution does not empower the federal government to regulate non-commercial, intrastate transfers of legal firearms between private citizens.

Provenance

Sometimes referred to as the Brady bill loophole, the Brady law loophole, the gun law loophole, or the private sale loophole, the term refers to a perceived gap in laws that address what types of sales and transfers of firearms require records and or background checks, such as the Brady Handgun Violence Prevention Act. Private parties are not legally required by federal law to: ask for identification, complete any forms, or keep any sales records, as long as the sale does not cross state lines and does not fall under purview of the National Firearms Act. In addition to federal legislation, firearm laws vary by state.

Federal “gun show loophole” bills were introduced in seven consecutive Congresses: two in 2001, two in 2004, one in 2005, one in 2007, two in 2009, two in 2011, and one in 2013. Specifically, seven gun show “loophole” bills were introduced in the U.S. House and four in the Senate between 2001 and 2013. None passed. In May 2015 Carolyn Maloney introduced H.R.2380, also referred to as the Gun Show Loophole Closing Act of 2015. As of June 26 it has been referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. In March 2017, representative Maloney also introduced H.R.1612, referred to as the Gun Show Loophole Closing Act of 2017. In January 2019 she sponsored H.R.820 – Gun Show Loophole Closing Act of 2019.

History

In 1968, Congress passed the Gun Control Act (GCA), under which modern firearm commerce operates. The GCA mandated Federal Firearms Licenses (FFLs) for those “engaged in the business” of selling firearms, but not for private individuals who sold firearms infrequently. Under the Gun Control Act, firearm dealers were prohibited from doing business anywhere except the address listed on their Federal Firearms License. It also mandated that licensed firearm dealers maintain records of firearms sales. An unlicensed person is prohibited by federal law from transferring, selling, trading, giving, transporting, or delivering a firearm to any other unlicensed person only if they know or have reasonable cause to believe the buyer does not reside in the same State or is prohibited by law from purchasing or possessing firearms. In 1986, Congress passed the Firearm Owners Protection Act (FOPA), which relaxed certain controls in the Gun Control Act and permitted licensed firearm dealers to conduct business at gun shows. Specifically, FOPA made it legal for FFL holders to make private sales, provided the firearm was transferred to the licensee’s personal collection at least one year prior to the sale. Hence, when a personal firearm is sold by an FFL holder, no background check or Form 4473 is required by federal law. According to the ATF, FFL holders are required to keep a record of such sales in a bound book. The United States Department of Justice (USDOJ) said the stated purpose of FOPA was to ensure the GCA did not “place any undue or unnecessary federal restrictions or burdens on law-abiding citizens, but it opened many loopholes through which illegal gun traffickers can slip.”

The scope of those who “engage in the business” of dealing in firearms (and are therefore required to have a license) was narrowed to include only those who devote “time, attention, and labour to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” FOPA excluded those who buy and sell firearms to “enhance a personal collection” or for a “hobby,” or who “sell all or part of a personal collection.” According to the USDOJ, this new definition made it difficult for them to identify offenders who could claim they were operating as “hobbyists” trading firearms from their personal collection. Efforts to reverse a key feature of FOPA by requiring criminal background checks and purchase records on private sales at gun shows were unsuccessful. Those who sold only at gun shows and wanted to obtain an FFL, which would allow them to conduct background checks, were prohibited from doing so through question 18a on the ATF Form 7 (Application for Federal Firearms License)[48]. The April 2019 revision of the Form 7 removed this restriction, allowing them to obtain licenses. In 1993, Congress enacted the Brady Handgun Violence Prevention Act, amending the Gun Control Act of 1968. “The Brady Law” instituted federal background checks on all firearm purchasers who buy from federally licensed dealers (FFL). This law had no provisions for private firearms transactions or sales. The Brady Law originally imposed an interim measure, requiring a waiting period of 5 days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual. The waiting period applied only in states without an alternate system that was deemed acceptable of conducting background checks on handgun purchasers. Personal transfers and sales between unlicensed Americans could also still be subject to other federal, state, and local restrictions. These interim provisions ceased to apply on November 30, 1998.

Government studies and positions

Firearm tracing starts at the manufacturer or importer and typically ends at the first private sale regardless if the private seller later sells to an FFL or uses an FFL for background checks. Analyzing data from a report released in 1997 by the National Institute of Justice, fewer than 2% of convicted criminals bought their firearm at a flea market or gun show. About 12% purchased their firearm from a retail store or pawnshop, and 80% bought from family, friends, or an illegal source. An additional study performed by the Bureau of Justice Statistics, published in January of 2019, found that fewer than 1% of criminals obtained a firearm at a gun show (0.8%). Under Chapter 18 Section 922 of the United States Code it is unlawful for any person “except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms.” The federal government provides a specific definition of what a firearm dealer is. Under Chapter 18 Section 921(a)(11), a dealer is:
• any person engaged in the business of selling firearms at wholesale or retail,
• any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or
• any person who is a pawnbroker.

According to a 1999 report by the ATF, legal private party transactions contribute to illegal activities, such as arms trafficking, purchases of firearms by prohibited buyers, and straw purchases. Anyone selling a firearm is legally prohibited from selling it to anyone the seller knows or has reasonable cause to believe is prohibited from owning a firearm. FFL holders, in general, can only transfer firearms to a non-licensed individual if that individual resides in the state where the FFL holder is licensed to do business, and only at that place of business or a gun show in their state. The January 1999 report said that more than 4,000 gun shows are held in the Utah annually. Also, between 50 and 75 percent of gun show vendors hold a Federal Firearms License, and the “majority of vendors who attend shows sell firearms, associated accessories, and other paraphernalia.” The report concluded that although most sellers at gun shows are upstanding people, a few corrupt sellers could move a large quantity of firearms into high-risk hands. They stated that there were gaps in current law and recommended “extending the Brady Law to ‘close the gun show loophole.’”

Proposals put forth by Attorneys, which were never enacted, include:
• Allowing only FFL holders to sell guns at gun shows, so a background check and a firearms transaction record accompany every transaction
• Strengthening the definition of “engaged in the business” by defining the terms with more precision, narrowing the exception for “hobbyists,” and lowering the intent requirement
• Limiting the number of individual private sales to a specified number per year
• Requiring persons who sell guns in the secondary market to comply with the record-keeping requirements applicable to Federal Firearms License holders
• Requiring all transfers in the secondary market to go through a Federal Firearms License holder
• Establishing procedures for the orderly liquidation of inventory belonging to FFL holders who surrender their license
• Requiring registration of non-licensed persons who sell guns
• Increasing the punishment for transferring a firearm without a background check, as required by the Brady Act
• Requiring gun show promoters to be licensed, maintaining an inventory of all the firearms that are sold by FFL holders and non-licensed sellers at gun shows
• Requiring one or more ATF agents be present at every gun show
• Insulating unlicensed vendors from criminal liability if they agree to have purchasers complete a firearms transaction form

Facts about Gun Shows

Close the gun show loophole,” demands Handgun Control, Inc. The major obstacle to Congress’s complying with HCI’s wishes appears to be the desire of many Democrats to preserve gun shows as a campaign issue in the 2000 election. But if the voters learn the facts about gun shows, they will discover that there is no guns show loophole, no gun show crime problem and no reason to adopt federal legislation whose main effect would be to infringe on First and Second Amendment rights. Despite what some media commentators have claimed, existing gun laws apply just as much to gun shows as they do to any other place where guns are sold. Since 1938, persons selling firearms have been required to obtain a federal firearms license. If a dealer sells a gun from a storefront, from a room in his home or from a table at a gun show, the rules are exactly the same: he can get authorization from the FBI for the sale only after the FBI runs its “instant” background check (which often takes days to complete). As a result, firearms are the most severely regulated consumer product in the United States — the only product for which FBI permission is required for every single sale. Conversely, people who are not engaged in the business of selling firearms, but who sell firearms from time to time (such as a man who sells a hunting rifle to his brother‐in‐law), are not required to obtain the federal license required of gun dealers or to call the FBI before completing the sale.

Similarly, if a gun collector dies and his widow wants to sell the guns, she does not need a federal firearms license because she is just selling off inherited property and is not “engaged in the business.” And if the widow doesn’t want to sell her deceased husband’s guns by taking out a classified ad in the newspaper, it is lawful for her to rent a table at a gun show and sell the entire collection. If you walk along the aisles at any gun show, you will find that the overwhelming majority of guns offered for sale are from federally licensed dealers. Guns sold by private individuals (such as gun collectors getting rid of a gun or two over the weekend) are the distinct minority. Yet HCI claims that “25−50 percent of the vendors at most gun shows are unlicensed dealers.” That statistic is true only if one counts vendors who aren’t selling guns (e.g., vendors who are selling books, clothing or accessories) as “unlicensed dealers.” Since every gun show takes place entirely within the boundaries of a single state, Congress has no legitimate constitutional basis, under its “interstate commerce” power, to attempt to control gun shows. Nevertheless, both houses of Congress have passed gun show legislation. The House bill does only what the gun control advocates claim to want: the imposition of federal background checks on personal sales at gun shows.