Gun control advocates have focused for some time on what they call the “gun control loophole”. In actuality, there’s no loophole there – it’s just that the phrase “gun control loophole” sounds good and works as a marketing term. The loophole is the US Constitution.
This “loophole” exists because the Federal Government doesn’t have jurisdiction to regulate the sale of an item between two private citizens where the transaction doesn’t cross state lines. In the same way that I might sell a used lawnmower to my neighbor, I might sell them a used shotgun. If I want to sell a hunting buddy one of my rifles, it’s within my right to do so. If there were enough interest in lawnmowers, we might have lawnmower shows where I meet other lawnmower collectors or aficionados and buy lawnmowers from or sell lawnmowers to them. There is enough interest in guns in the United States to generate a fair number of gun shows where locals meet to buy and sell guns (and lots of other stuff too – books, clothes, you name it).
As long as the two parties involved in the transaction are residents of the same state, meeting by chance and selling a gun to someone in this context is perfectly legal. Private citizens usually don’t rent tables at gun shows, since if they sold guns in any volume they’d be registered as a Firearms Dealer. One example where there might be a non-Dealer exhibiting at a show would be someone selling off an estate that contained a few guns, or a private collection being liquidated. Otherwise, the fees themselves aren’t worth it.
Gun restriction advocates love to add in “sales from people’s trunks in the parking lot” as a part of this “loophole” but there is simply no evidence to support this claim. Yes, it is possible that two random people could just happen to meet each other at a gun show and one could just happen to offer to sell the other a gun that they just happened to have in their trunk and the other could just happen to accept it, but think about how plausible this scenario is. If you were at a jewelry show, with licensed and reputable dealers around, and someone approached you and said “hey, if you like that ring you’re looking at in that case there, I have one even better in my car. Want to come to the parking lot and see it?” would you even consider it? What about at a car show? Is there any place where that situation makes sense? If people are willing to do that, no law will fix their stupid.
Granted that the Second Amendment doesn’t stipulate the right to keep and bear, and sell arms. The impossibility of this proposal should be clear to see, though – unless the state supervises every single transaction, they have no ability to measure, verify, or account for every private sale that occurs. If the state supervises every transaction, it is no longer private. In essence, they would be requiring every private citizen, even if they have one gun to sell in their lifetime, to become a Federal Firearms Dealer.
In order to make this proposal have any teeth, the Government would need to know the state of every owned rifle, gun, or other covered weapon that exists in the country as of the day the legislation went into effect. If we don’t know where it started, it’s impossible to prove that it changed hands. That means every owner would have to register every weapon they own that’s covered under the law.
If it cannot be proved that a transaction occurred, it cannot be proved that the law was broken. Requiring background checks on private sales is an exercise in wishful thinking. If expanded background checks are mandated, through executive order or legislation, one of two things will occur: absolutely nothing, if registration isn’t required and people simply ignore the mandate; or absolute non-compliance – when they revolt, if it is.
Experience has shown that attempts to force registration on the population will be met with civil disobedience up to and including simply ignoring the law. If the Government has no idea you own a gun, they have no ability to presume you’ve broken the law by not registering it. Those laws also prove pointless, and while they are nice political gestures designed to mollify the voting masses they never seem to produce the outcome the politicians who passed the law told constituents they would. Politicians are virtually never required to defend the lack of results, either.
Obama has made it patently clear that he intends to find some way to expand the background check requirement using available executive orders. Since sales made by licensed firearms dealers are already covered, and private sales across state lines, the only possible option would be to try regulating private sales. While not only unconstitutional based on the Second Amendment, any step in this direction by way of an executive order would also be a significant overreach by President Obama.
Should he be successful in finding a way to implement these expanded checks, Americans can look forward to our politicians taking some or all of these next steps to continue making it more difficult for gun owners to exercise their rights (once they’ve finished registering their existing rifles and handguns that is):
Background Check fees – the background check agency can charge exorbitant fees for each background check, or purposefully make the process difficult to complete, which discourages people from using it and motivates them to find another way to dispose of the weapon instead.
Registration fees – If the Government can require registration, they can surely require the gun owner to “share in the administrative expenses”. The trick to this one is making the owner re-register the gun every few years, creating regular opportunities for the process to go awry. Can’t afford the fee, or late on re-registration? Turn in your gun or sell it, of course.
Inspection fees – Once the gun is registered, the government can more easily require inspection at regular intervals like they do now for automobiles.
Insurances – Once the gun is registered, the government can more easily enforce legislation that requires gun owners to carry insurance. If you can’t afford the insurance, sell the gun or turn it in (or go to the poor house for daily fees incurred for each day the gun isn’t insured?). If you don’t provide evidence of the gun’s disposition, expect a visit from the “Department of Uninsured Gun Recovery”.
Transfer Taxes – when the transaction is visible, the state can enforce transfer taxes and/or sales tax on each transaction, costing the buyer money and inherently reducing demand.
So picture this – someone buys a shotgun for $750, uses it for a few years, and sells it to a friend for $450. It’s not a $300 loss, it’s probably breaking even, assuming they got $300 in value out of it. In today’s world, the buyer paid $450 for that shotgun. Once background checks are implemented, the shotgun now needs to be registered, inspected, and insured. The buyer needs to pay a 5% transfer tax. The seller needs to pay a fee to process the background check, and waste a bunch of time navigating a system they may never need to use again (which will surely require them to input significant amounts of personal information, subject to hacking). The shotgun now costs a LOT more – it would be easy to have fees that exceed 100% of the value of the piece being sold.
Slippery slope? If we allow expansion of background checks (with any expectation of it working) then we have to expect registration to come with it. It’s a vertical pitch at that point – legislators will pull out every stop to continue increasing the difficulty in being a compliant gun owner. It certainly won’t be confiscation in the classic sense, but it will be a major step in the progressive erosion of gun rights in America.