Psst. Biden Didn’t Really Close the Gun-Show Loophole

“The ‘gun-show loophole,’ at least at the federal level, is unlikely to be closed anytime soon,” Business Insider’s Charles R. Davis reported confidently in April 2021. President Joe Biden just closed it. Or did he?

At Brady, the gun-control nonprofit formerly known as the Brady Center To Prevent Gun Violence, they’re calling the Bureau of Alcohol, Tobacco and Firearms’s newly-finalized regulation “the most significant measure” to strengthen background checks “since the passage of the Brady Bill” 31 years ago. (The bill and the organization are both named for James Brady, former press secretary to Ronald Reagan, who in 1981 survived being shot in the head by the would-be presidential assassin and singer-songwriter John Hinckley.)  Elsewhere, Gabrielle Giffords called the gun-show rule “bold action” on a matter that’s been “at the top of our agenda” for 11 years. Giffords, who founded a gun-control nonprofit called Giffords, was a Democratic member of Congress in 2011 when Jared Leigh Lochner fired a Glock 19 semiautomatic at her press conference in Arizona, killing six and injuring 19, including Giffords, who suffered severe brain injury. (Appallingly, the United States government continues to permit Austria to export Glock-19s into this country.)

The National Rifle Association’s position on the new regulation is a little hard to pin down. Remember Wayne LaPierre? Last January he resigned as the NRA’s 33-year chief executive in anticipation of losing a civil corruption case alleging that he took $5.4 million that didn’t belong to him. (LaPierre lost that case last month.) In 1999, LaPierre actually endorsed closing the gun-show loophole. “We think it is reasonable to provide mandatory, instant criminal background checks for every sale at every gun show,” LaPierre testified to a House Judiciary subcommittee. “No loopholes anywhere for anyone.” More recently, however, the NRA has taken the position that “There is no such thing as the Gun-Show Loophole.”

Huh? Much like the tobacco lobby before it stopped fighting regulation, the NRA speaks largely in epistemological riddles. When the NRA says there’s no such thing as a gun-show loophole here’s what it means: 

a.)  “Gun shows” only barely exist because 75 to 80 percent of the vendors at these events sell no firearms at all.

and

b.) To the pitiful extent guns shows do sell firearms, 75 to 80 percent of the sellers are professional vendors and therefore required already, under the 1993 Brady law, to conduct an instant criminal background check for every sale. 

This is highly disingenuous. The gun-show loophole is called a loophole because when Congress passed the Brady bill it neglected to require background checks for sales by people who aren’t professional firearms sellers. Also, “gun-show” is what your 9th grade English teacher taught you to call a synecdoche, wherein the part stands in for the whole. The loophole applies also to other gun sales outside traditional retail settings, such as online, out of your garage, or out of the back of your car. If you are an amateur, you can make such sales without conducting background checks. But who is an amateur? The Brady bill did not draw a very clear line between the professional firearms seller and the hobbyist. For example, if a professional firearms seller lost his license and wanted to unload his inventory all at once, he could say he was an amateur and, abracadabra, conduct his everything-must-go sale with no background checks.

The Bureau of Alcohol Tobacco and Firearms, or ATF, issued the loophole-closing rule claiming authorization under the 2022 Bipartisan Safer Communities Act sponsored by Senator Marco Rubio, Republican of Florida. It’s a matter of opinion whether this law directed the ATF to close the gun-show loophole. Although the bill does clarify, helpfully, who is and who isn’t a federally licensed firearms dealer and therefore required to perform background checks, the phrase “gun show” appears nowhere in the text. Senator John Cornyn, Republican of Texas, said through a spokesperson Thursday that he and Senator Thom Tillis will introduce a joint resolution under the Congressional Review Act to revoke the regulation as “lawless and unconstitutional.” He doesn’t have the votes, of course. When the rule was in proposed form Cornyn protested: “Our goal [in passing the Bipartisan Safer Communities Act] was to provide the American people with predictability and clarity in the law, not to give the ATF an opportunity to impose a gun control regime on law-abiding Americans.” 

Cornyn may be right. Before you despair, however, please know that the new regulation doesn’t actually closes the gun-show loophole. What it does is increase the proportion of firearms sellers who must be classified as professionals and therefore must perform background checks. That matter is addressed in the Bipartisan Safer Communities Act, rendering Cornyn’s objection beside the point. Indeed, the text of the regulation explicitly “recognizes that individuals who purchase firearms for the enhancement of a personal collection or a legitimate hobby are permitted … to buy and sell firearms for those purposes, or occasionally resell to a licensee or to a family member for lawful purposes, without the need to obtain a license.”

What’s “a personal collection”? What’s “a legitimate hobby”? What does “occasional” mean? Who’s a “family member”? Gun-sellers will now argue about these definitions in order to dodge making background checks. I don’t know how big a problem that is, but it’s a problem.

The NRA says there is no gun-show loophole. In fact, there is such a loophole, and Biden didn’t eliminate it. He shrank it. That’s a good start, but don’t act surprised in a year or two when you hear calls to close the gun-show loophole yet again. We’ll just have to close it and close it until it’s really gone.