At Sunday’s debate, when Donald Trump implied that Hillary Clinton would nominate a Supreme Court justice that would undermine the Second Amendment, Clinton responded, “I respect the Second Amendment, but I believe there should be comprehensive background checks, and we should close the gun show loophole and close the online loophole.”
There is no “gun show loophole.” There is no “online loophole.”
The same legal requirements apply to a licensed seller whether he is selling a firearm at a gun show, online, in his shop, or anywhere else. Likewise, the same legal requirements apply to an unlicensed seller whether he is selling a firearm at a gun show, online, in his home, or anywhere else.
Since the Federal Firearms Act of 1938, anyone engaged in the business of selling firearms must acquire a federal firearms license. To be “engaged in the business,” one must “devote time, attention, and labor 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.” Attorney General Lynch recently clarified that the number of firearms sold to be considered engaged in the business “can be as few as one or two, depending on the circumstances.”
Wherever a federal firearms licensee sells a firearm, the law is the same: the licensee must conduct a background check to get FBI authorization to make the sale. That requirement applies to sales at gun shows and online.
Under federal law, persons who do not sell firearms frequently enough to require a license are typically not required to conduct a background check prior to a sale. However, federal law still forbids the sale of a firearm to anyone the seller reasonably believes is prohibited from purchasing the firearm. (It is also illegal for a prohibited person to purchase the firearm.) Again, the requirements are the same wherever the sale takes place.
So the applicable laws for licensed and unlicensed sellers remain the same in all places. There are no special rules for gun shows, and there are no rules that apply everywhere else except gun shows. There are no special rules for online sales, and there are no rules that apply everywhere else except online. Thus, there are no “loopholes.”
It is a sad commentary on the media that a presidential candidate can get away with spewing the same falsehood ad nauseam throughout an entire 18-month campaign, virtually unchallenged. In fact, gun control advocates have been using these phrases to mislead the public for years. President Bill Clinton warned of the “loophole” at gun shows nearly two decades ago.
Instead of wanting to remove special rules, what Hillary Clinton wants is to impose special rules on online and gun show sales: FBI authorization for all sales, regardless of whether the seller is licensed or not. But why should a private sale at a gun show mandate stricter requirements than private sales elsewhere—especially since studies show that less than 2% of crime guns come from gun shows?
Because Clinton wants to require FBI authorization for all sales: whether that goal is achieved through “comprehensive background checks” or a gradual process starting with special burdens for popular avenues of lawful commerce, like gun shows and the internet.
When Congress first imposed the background check requirement on licensed dealers, it intentionally shielded private sales from this burden – it was not the result of some clumsy slip of the mind while drafting the bill. With the background check requirement, firearms became the most heavily regulated consumer product in America. Congress would not have passed the law had it included that requirement for every sale.
Nor would the current Congress pass such a law. Which is why gun control advocates feel the need to deceive the public with misleading phrases like “gun show loophole” and “online loophole.” Deception has always been essential to implementing gun control. Standard magazines are rebranded as “large-capacity”; low-power rifles become “assault weapons” based on cosmetic features; the firearms industry is called “the only business in America wholly protected from any kind of liability,” when like every other industry, companies are not liable when their products are misused; and “40 percent of gun sales are done without a background check,” based on a decades-old survey conducted before background checks were required for licensed dealers.
The former chairman of Handgun Control, Inc. (now known as the Brady Campaign, which is one of Clinton’s largest supporters) defined the group’s long-term plan: “The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition—except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors—totally illegal.” Background checks on private sales will help to accomplish the first two steps of the plan: they only needed to figure out how to sell it to the American public.
Perhaps the only phrase more disingenuous than “gun show loophole” or “online loophole” is, “I respect the Second Amendment, but…”