“U.S. Sen. Kirsten Gillibrand announced legislation on Sunday that would limit the flow of illegal firearms into New York City by closing the gun show loophole and giving authorities more power to prosecute gun trafficking rings,” theepochtimes.com reports. “The legislation comes on the heels of 10 arrests made by New York Attorney General Eric Schneiderman’s office on Nov. 30. The arrests were the result of an eight-month, gun show investigation that uncovered serious violations by several New York gun dealers.” Ah, yes, the eeeee-vil gun-show loophole. Time for a reality check . . .

1. There is no such animal as a gun show loophole
2.  Fewer than one percent of criminals obtain their guns at gun shows
3. If there were such an animal, New York state closed it eleven years ago

Every law that applies outside gun shows applies inside the doors. Federal Firearms Licensees (a.k.a., gun dealers or FFLs) at a gun show must fill out their ATF Form 4473s and do their FBI background (NICS) checks just as if they were at their shops (or their homes for that matter).

The purported loophole that Sen. Kirsten Gillibrand seeks to close: private firearms sales between private individuals. Not dealer to customer, or customer to dealer. Private citizen to private citizen. A transaction which does not require a Form 4473 or a NICS background check.

Another part of the loophole myth: a large percentage of people with tables at gun shows—somewhere between 25 and 50 percent—are unlicensed dealers and traders. They’re unlicensed because they aren’t selling guns. They sell ammo, accessories or books or memorabilia.

Expanding on Point 2, according to the ATF, 93% of criminals obtain their guns – wait for it – illegally! Yes that’s right, criminals don’t obey the law. Who’d-a thunk it?

According to On the Front Line: Making Gun Interdiction Work, a Center to Prevent Handgun Violence (a.k.a. The Brady Campaign) survey of 37 police departments in large cities conducted in February 1998 (by way of Gun Facts ver. 6.0), ninety-five percent of metropolitan police departments do not believe gun shows are a problem. I think we can take it as a given that the Brady bunch did not try to inflate that number.

Expanding on Point 3) New York General Business Law – Article 39-DD – § 895-§ 897 (which took effect August 9, 2000) required NICS checks by all sellers on all purchases. In other words, New York has no gun show loophole! In fact, the current version of the law requires gun show operators to post signs at all entrances, all ticket sale locations and at least four places within the show to make sure that everyone knows the law. Unfortunately there were about ten people out there who weren’t paying attention.

A quick perusal of the interwebz showed me 35-plus gun shows scheduled from early-November 2011 to early-July 2012 (which, for the mathematically challenged among us, is 8 months…don’t laugh, I had to do it on my fingers). So after an eight month investigation, covering 35 or more gun shows, with hundreds of dealers and thousands of private sellers, Eric’s investigators, after spending who knows how much money and who knows how many investigative hours, found ten private individuals who sold a gun without a NICS check. And not a single dealer or show promoter who broke the law.

Translation: the Attorney General’s office turned up less than a dozen poor yutzes who were trying to offload grandpa’s rifle for a couple of bucks.

Were these folks silly for not checking out the applicable laws? Absolutely. Hell, I’ll even call them stupid for not looking into the legal requirements for selling a gun. The thing is, though, most people still believe that they actually have to do something bad in order to break the law. On top of that, the antis never tire of telling people that their ‘reasonable, common-sense’ gun laws won’t affect the law-abiding. Just the criminals. I’ll give you two guesses which class those ten people thought they belonged to just before the cuffs snapped on.

Let us now address the ‘bait-and-switch’ where Eric’s office announced they’d arrested ten gun sellers for not doing NICS checks; but the linked article (and a whole bunch of others that I’ve seen) say that ten gun dealers were arrested. See the difference? By conflating sellers with dealers the antis can justify tightening restrictions against FFLs (yet again) despite the fact that no FFL actually committed a crime.

Sen. Gillibrand’s Gun Trafficking Prevention Act of 2011 won’t be introduced until this coming week, but Representative McCarthy’s Gun Trafficking Prevention Act of 2009 proposes up to 20 years in prison for ‘traffickers’, ups the ante for FFLs from one year in prison to three years for paperwork violations, and adds a new section of the law for “Cracking Down On High Risk Gun Dealers.” As always, the devil’s in the details, such as: “How exactly will the government determine who is a High Risk Dealer?”

At least once every year, the Attorney General shall identify licensed firearms dealers who have a heightened risk of firearms being diverted to criminal use based on criteria determined by the Attorney General which may include 2 or more of the following:

(A) Short time-to-crime for crime guns traced to a dealer.
(B) Incomplete crime gun trace results for firearms sold by a dealer.
(C) Significant or frequently reported firearm losses or thefts by a dealer.
(D) Violations of Federal firearms laws by a dealer.

And here’s the kicker:

(E) Any additional criteria determined by the Attorney General.
So we have set criteria to make the determination. Well, we have set criteria which may be used to make the determination. Okay, so we have some set criteria and one or more undefined criteria which may or may not be used to make the determination. So in fact this “definition” is one of the classic movable goal posts the antis are so fond of, which makes even more frightening the last sentence of the article:

In a significant change, the bill, for the first time, levies significant penalties on corrupt gun dealers.

Since the 1980s the antis have been trying to squeeze off the supply of guns by squeezing off the supply of gun dealers. Increasing fees, increasing paperwork, increasing penalties for paperwork violations, eliminating “kitchen table” dealers and so on. Now we have “significant penalties” threatened against FFLs for undefined violations of amorphous criteria, all because ten non-FFLs violated New York’s malum prohibitum gun sales law.

The country has gone from about 284,000 FFLs in 1993 to less than 56,000 today. We would be well advised to ferociously guard our few remaining dealers.

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30 COMMENTS

  1. And this Senator was somehow touted as pro 2A when she got in. She’s new, took over Hillary’s seat, doesn’t remember the beating democrats got for gun control votes.
    Hopefully this will help put her seat in play.

  2. It is obvious as it is depressing that people such as these do not make new gun legislation any more than they simply re-name the last failed bill and add more restrictions. The anti-rights lobby has publicly stated their goal is total disarmament , and it is that goal that motivates failed people and their failed policies thereof. Crime prevention has nothing to do with it.

  3. Some time ago, the political class (yes that includes high ranking law enforcement officers) decided to abandon the age old legal concept of Mens Rea. Mens Rea – latin for guilty mind – was a principle from English common law that said: a key element of a crime is that the person commiting the crime must have the intent to commit a crime.

    Today, politicans love to tout tough on crime laws/actions when all they really did was throw a bunch of people in jail for commiting a crime they had no intention to commit.

    How many times have we read on this very blog about some gun owner, trying to obay the law, getting arrested and thrown in jail in a series of unfortunate events. There was Revell v. Port Authority. A man from Utah with a legal gun, checked in his bag, flying from Utah to Penn, gets stuck in Newark overnight. He gets his bag and tries to check the gun back in the next day and gets thrown in jail for not having a pistol permit in NJ. This poor guy did EVERYTHING he could to not break the law and still NJ just about ruined his life.

    According to the political class, this was a proud moment for the govt, getting a dangerous criminal off the street. Some state govt might as well pass a law banning the letter ‘e’ from appearing in your name, then pat itself on the back for getting “dangerous criminals” off the street in a ID checking sting opperation. The same logic applies.

    • #1: Polititians are exempt/absolved from logic requirements.

      #2: Great article, Bruce!

      #3: I’m just going take this opportunity to say how much I appreciate TTAG and look forward to each day’s new posts. I would like to thank all of you for each day’s enlightenment that you provide.

    • The “political class” didn’t do this – we, the people, their bosses, demanded that they do it. Usually in the form of a group of aggrieved citizens shrieking “Won’t somebody please think of the children?”

      Politicians only have the power that we, the people, give them.

  4. I was at the Hauppauge show. The NICS signs were prominently displayed, and you had to walk past the NICS table to get in/out.

    I suspect the guy selling hot sauce didn’t have an FFL. A pity, as it was some good sauces.

  6. Wait, weren’t these arrests done through the enforcement of previous laws closing the gun show loophole? It seems to me that no further legislation is needed. A few people will always break the law, no need to make something illegal twice.

    • I guess if NY had TWO laws requiring NICS for private sales they would have only arrested 5 people?

      Makes you wonder why NY doesn’t have politicians spouting about needing more anti killing laws, they must support murder.

      Perhaps they should require a license to exercise 1A rights. Deny a license to everyone = no more suicide notes = no more suicides, yeah, that makes sense.

  7. They’ve already fixed this “loophole” in California with another illegal gun law. Since 1991, all private party transfers (except long guns over 50 years old) must go through a dealer for background checks plus 10 day waiting period.

    Don’t let this happen in your neck of the woods.

    • Bingo. “Close the Gun show loophole” is a lot more media-friendly than saying “outlaw all private firearms transfers.”

      But the latter is a more accurate representation of what the supporters of the so-called “close the loophole” laws are seeking.

  8. She blew smoke (and then some ) to get the job. Now she just wants to make her position seem to have value. She opened the bottom drawer of her desk found something from some ex-politician and not capable of having her own idea she rehashes someone elses failure. All to make themselves relevant. Politicians pick whatever it is that has the most effect, no matter the logic or inane lack of it.

  9. What gun show loophole? There is no loophole. Its amazing how this myth has been perpetuated by the Brady B1tches, anti-2A politicians & the media.

  10. Good piece. I don’t see the political upside for her as a Senator in this, given a lot of the “rest of New York” won’t like it. Since we have to have the NICS thing, it seems like you should be able to get a card or something, which would make person-to-person sales legal, kind of like the table at gun shows. In Oregon, with a CHL, you can buy a gun. I would think the buyer would be more important than the seller – if you’re legit to buy a gun, who cares who the seller is?

  11. I don’t know much about this Lady, but it seems like I remember reading about a Law she wants passed that allows members of Congress to be involved in insider Trading . If this is the same Woman she is pretty dang evil and believes if your in Government you should not be tried for any crimes you commit, to include Bank Robbery, and Murder.

    • I go to gun shows several times a year and there are very few private sellers. They usually walk around with a rifle with a price tag flag in the barrel or on the grip of a holstered handgun. I have never witnessed a sale although I am sure they happen.

      As pointed out in the article a majority of gun show exhibitors don’t sell firearms. They sell accessories, ammo and memorabilia. There are specialized gunshows and swap meets where antiques guns are sold by private sellers but those aren’t the kind of weapons used by criminals.
      Most private sellers use newspapers, online sites and word of mouth.

  13. Why not close up this “loophool” (as small as it is) to end the private selling of guns without background checks? Yes, as research has shown, it is a very small percentage of crime resulting from the exchange of private to private deals in guns but isn’t it worth it to eliminate even a small amount of crime and perhaps death for a little extra paperwork? Isn’t it sensible to ensure guns don’t end up in the hands of someone who is possibly mentally incapable or unstable to possess such weapons? (By the way, I do support the 2nd Amendment…I’m a hunter and a supporter of protective rights but this country has a problem that shouldn’t be ignored)

  14. Reasonable? Your Car (a machine with some capacity for injury) Buy private or dealer – register with state and obtain title – obtain insurance – use with responsibility. Your Gun (a machine with some capacity for injury) Buy private or dealer – register with state – obtain insurance – use with responsibility. Where is this model flawed. The back-round check for gun purchases is already on the books; no more is needed.

    • A car is a piece of machinery for the purpose of fast private transportation. There are many alternatives to a car and to car ownership. There are very few requirements for renting a car, and it is easy to get someone to drive you when needed, as in taxi or limo service.
      A gun of any sort, however, is for self defense. That defense is rarely anticipated as to time or place and one can only be very lucky if an alternative means of protection exists. The most likely alternative is becoming a victim of a crime.

      So I would not say that the two are as similar as one can superficially propose. Additionally there is something of a philosophical angle to guns, as every tyranical regime of the past 100 years or more, took away all firearms first and foremost, allowing the regime to concentrate and keep power quickly and efficiently. It is not to say that America is in imminent danger of succumbing to a tyranical government, but that is one of many reasons firearms, rather than modes of transportaion are mentioned in the Constitution. An armed population will give any potential tyrant pause.

  15. When I came accross your website I was amazed. I used to fight against propaganda in the old Soviet Union and I see the hallmarks of the self same propaganda all over this website.

    The old Soviets used to show their citizens how much better life was by saying how much things had improved in the Soviet Union. They were very careful to avoid any comparisons with other countries. I see the same here; and the same lack of any type of validation. (Comparing laws from state to state is only meaningful if there is customs control between the states – but we do not have that.) If I buy a gun in Georgia, I can use it in California with little chance of it being detected. But I see you are careful to avoid country to country comparisons.

    “survey of 37 police departments in large cities conducted in February 1998 (by way of Gun Facts ver. 6.0), ninety-five percent of metropolitan police departments do not believe gun shows are a problem.”

    Now imagine reading this:
    “survey of 37 departments in of Political science departments of Soviet universities conducted in February 1978 (by way of Washington Post USA), ninety-five percent of Political science departments do not believe the Soviet Union has a human rights problem.”

    So we polled the people who love guns, carry guns, and are the least educated in the law enforcement area. That’s who we want to poll?

    “Jordan, a 49-year-old college graduate, took the exam in 1996 and scored 33 points, the equivalent of an IQ of 125. ” He was not interveiwed because he was too inteligent to be a policeman.
    http://abcnews.go.com/US/court-oks-barring-high-iqs-cops/story?id=95836

    So shall we poll some of the more Intellgient members of our society? Like perhaps the AMA, or perhaps those cops’ bosses. You know, the educated ones, the Prosecutors? Guess what? Not what you guys want.

    Here is the reality: The US is NOT the only country on earth nor is it the “greatest” other than in size of the military. Most of you reading this can not describe a single “right” you have that a German or Frenchman does not have(And yes, you can own guns in both Germany and France, If you wish to argue this point I will switch the conversation into their national language to find the extent of YOUR knowledge on these countries.) The US is the only 1st world country with a huge gun violence problem. The rest of the world laughs at us. I am laughing at this site and I only do so because I hold a passport that allows me to live somewhere else where there are not a bunch of Walter Mittys running around thinking possession of “metal courage” makes them “a man.”

    The idea that simply holding a gun gives one the ability to defend themselves is laughhable. People carry guns because they are purposfully putting themselves in dangerous positions (Soldiers, policemen) or because thy are scared shitless and can not defend themselves. This is like the hypochondriac carrying a scalpel with him “in case I get appendicitis.” As someone who spent his life in some very dangerous places internationally, I find this pitiful actually. Sad.

    They imagine that a piece of metal will make them “a Man” and suddenly able to “defend themselves.” Now again, experince teaches us otherwise. Iraq under Saddam was one of the few places on earth with less gun restrictions than the US. (we see how scared Saddam was of guns) Where the Iraqi citizen could own even fully automatic weapons. Now we all know how safe Iraq was.

    I used to ask the old SU citizen a hard question, “why can’t you just leave?” Really easy question, no good answer for the convinced Soviet. You guys have a similar question, “If guns make us safe, why do places with large numbers of guns in private hands have higher rates of violent crime than places without? Where is the place where guns are making people safe? Anywhere in the world?”

    Total American Casualties from the first casualties in the battle of Lexington 1775 to recent operations in Afghanistan – 1,171,177. (230+ years)

    The number killed by firearms in the US, since 1968, according to the Centres for Disease Control and Prevention and the FBI, – 1,384,171. (45 years)

    Death from Terror actions on US soil since 9/11
    20
    Death from firearms on US soil since 9/11
    364,000+ [CDC]

    Percentage of Crimes where the victim uses or threatens to use a gun. < 0.8% [FBI]

    • Mr Kirkpatrick, I would love to hear your stories about your “fight against propaganda in the old Soviet Union”, particularly as I and my parents emigrated from the Soviet Union back in the 1970s. I have to say I am a bit stumped by how you went about doing so there, since judging by your name you would not be a Soviet citizen and as a result would have been very closely watched by plain clothed KGB agents, since several were attached to every foreign visitor. But I am sure your heart was in the right place when doing whatever you were doing vis a vis the Soviet propaganda. Unfortunately you seemed to have imbibed some of that propaganda, so your views are a bit slanted and your means of justifying those views seem to be as well founded on facts as Soviet propaganda ever was.
      I would love to answer you point by point, but it is difficult to figure out what some of those points are, so let me take a stab at it:
      You do not like the lack of comparison with other countries on TTAG. Of course comparing with other countries on superficial statistics can be quite meaningless, since the differences are not just between laws on guns but all kinds of laws and societal norms. Some comparisons can be made on relative terms within countries at periods of time when gun laws were similar enough. Early in the 20th century, neither America nor Britain had strict gun laws. Yet America was far, far more violent than Britain, what does that tell us? Hard to say really, other than the fact that the two countries had very different societies. So let’s see how various introductions of gun laws affected both countries. Britain went through several phases in the latter 20th century of more and more restrictions on guns, and is now in a situation where guns can only be owned by the police, the military and the more violent criminals who can get guns on the black market. So while “gun violence” did not disappear, it has definitely been reduced to a low level. Of course the ultimate goal is to reduce violent crime and murder, not just determine whether that crime is committed using a gun. How did that statistic change? It did not. Britain has not been a violent place for a long time, and it became no less and no more violent after the gun laws went into effect, only the means of violence changed. Recently as Britain absorbed a much larger number of immigrants from all over the world, its crime rate has gone up to where London is now no safer than NYC. Clearly that’s not because of guns, but because of societal changes.
      What happened in America, again crime has on average decreased, but not monotonically, there was a big surge of crime in the 1960s and 1970s, after which it started ebbing away. During the 1960s, along with many other idiotic ideas from that era, gun control came into its own in America, or at least some parts of it. One could then ask if that gun control reduced rates of violence. The answer is it did not in any easily observed way. Then it clearly became uncorrelated because in many states gun laws were relaxed, while crime rates continued to decline. Then the AWB of the Clinton era had no effect on crime, which is not surprising since AR 15s are not used in all that much violent crime. Anyway that’s the story of two countries that at least share a fair amount of common culture and where one simply cannot observe any correlation between anti-gun laws and reduction in crime. One can however say that being able to protect oneself, effectively or not, is a choice available in America, but in Britain the only thing you can use is a Cricket bat.

      You mention France and Germany as also having gun ownership. They do allow guns to a limited degree. Clearly some parts of their populations quite like using AK 47s to kill cartoonists, but overall their populations are fairly nonviolent and what gun control laws they do have have not made any difference. These are old societies, but ones that have gone through violent political upheavals. In Germany the democratic/republican institutions are very young, while France is on its 5th republic since 1792. Are they as free as Americans, that depends on one’s definition of freedom and one’s desire for freedom. In absolute liberal (original meaning) terms they are definitely less free. Their freedoms of speech are much more curtailed (as are Canada’s next door), the police are much more aware of people’s movements and are more intrusive. The countries are strongly socialist so that one’s life is to a significant degree controlled by the state. Of course with the current administration in America, we are also trending in that direction, where I think the Democratic party has now become America’s Fascist party (no, fascists are not right wing, that was Soviet propaganda you fought against) so not surprisingly they are more and more anti-gun while violence as a whole keeps decreasing.

  16. Great info.
    Just to play devils advocate here….

    at what point does a ‘private’ citizen [should] become a dealer??

    IE….a guy selling 5 guns (person to person) at a gun show? 10?? 20?? 100?

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