Semi-closing the private sale loophole in the Brady Law

Update I’ll discuss this with John Hockenberry on The Takeaway (PRI/WNYC) Tuesday morning at 9:15 EST.


BBC5 called me today – instead of calling someone who really understands either law or gun issues – to comment on the President’s about-to-be-issued proposal to make it harder to get a gun without going through a background check. (Clip here, starting about 1:18:30.) After I finished scrambling to figure things out, the story actually looked interesting, so here it is.

1. You can buy a gun in the U.S. unless you’re disqualified: by age, by a felony conviction or a domestic violence restraining order, or by a court commitment for mental incapacity or mental illness.

2. If you’re “engaged in the business” of selling firearms (that’s the statutory language), you need a license fom the Bureau of Alcohol, Tobacco, Firearms, and Explosives (still referred to as “ATF.” That makes you a “federal firearms licensee,” or FFL.

3. If you’re an FFL, anyone who wants to buy a gun from you must fill out a form and show identification, and you have to run that information through an FBI website called the National Instant Criminal Background Check System. If the background check shows that the would-be purchaser is ineligible, you can’t sell him a gun.

4. However, anyone is allowed to sell guns from his or her “private collection” without registering as an FFL. Such “private-party sales” do not require background checks. Many such transactions take place at gun shows; the exemption of private sales from background checks is often, though inaccurately, called the “gun show loophole.”

5. As far as I can tell, there is no published estimate of what fraction of guns used to commit crimes were privately purchased by ineligible buyers (as opposed to being legally purchased, stolen, or bought by an eligible purchaser and then illegally resold to an ineligible one). Data from the crime-gun tracing system would support such an estimate, but Congress has forbidden the Centers for Disease Control from doing such studies. (Phil Cook and colleagues surveyed prisoners in the Cook County jail; gun shows didn’t appear to be a significant source of guns for them.)

6. The statute doesn’t further define what it means to be “engaged in the business.” That definition exrists in ATF regulations, and is far from clear. If you have a storefront or buy at wholesale from manufacturers, you’re clearly “engaged in the business.” Otherwise, there’s no limit on how many guns you can sell or how much money you can earn as an unlicensed private gun seller.

7. The President proposed some time ago to eliminate the private-sale exemption and require that all gun transfers go through background checks (which FFL’s could provide on a fee-for-service basis). That policy, which used to be the official position of the NRA, has massive (approximately 90%) public support. But it now has the fervent opposition of the gun lobby, and is going nowhere in Congress.

8. Now the President plans (as Hillary Clinton had previously proposed) to tighten the definition of what it means to be “engaged in the business” of firearm sales, in order to require those who habitually buy and sell guns to get federal firearms licenses even if they don’t have storefronts. As FFLs, they would have the same obligation to do background checks that gun store owners now have. It’s not clear yet whether the new definition will be based on number of transaction, number of weapons, amount of revenue, duration in business, promotional activity (such as renting space at a gun show or swap meet or putting up an internet posting (e.g., eBay or Craigslist) or some formula involving several of those and perhaps other factors.

9. Since the current definition is a regulation, it can be changed without legislative action, but it still has to go through the process laid out in the Administrative Procedures Act: publication in the Federal Register of a Notice of Proposed Rulemaking, a sixty-day period for public comment, review of those comments by ATF, publication of a Final Rule, and (inevitably) a series of court challenges.

10. The general rule (laid down in Chevron v. NRDC) is that the courts will defer to administrative discretion as long as the rule embodies “a permissible construction of the statute.” That principle – plus the fact that the DC Circuit is no longer stacked with Republicans – ought to give the rule a good chance of being upheld. Whether the courts will put a hold on implementation of the new definition while the process drags on, or instead allow it to take effect at once, is harder to predict.

11. Congress can try to stymie the change in various ways, including putting a “no-funds” rider on an appropriations bill forbidding ATF to spend money on this specific rulemaking. So expect some political drama.

Substantively, making it a little bit harder for people with felony record to illegally arm themselves seems like a good idea, though it’s impossible to say how many shootings it would prevent. It wouldn’t do much about accidents, but you’d expect it to prevent some homicides and suicides. Politically, it seems extremely astute of the President to force the issue on the single gun-related question where the gun-control position enjoys the highest level of public support.

Update Garen Wintemute of UC Davis provides some data and analysis.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

3 thoughts on “Semi-closing the private sale loophole in the Brady Law”

  1. As someone who's followed this since the Clinton administration, limiting the exception for private sales could be done in more or less acceptable and useful fashions: here are some key questions.

    1) What does having an FFL require? The more minimal and safety-focused the requirement, the more acceptable. An FFL used to require just a background check, and audits of the paperwork. Requiring FFL's to be actual businesses (with business licenses, in commercially-zoned buildings) and to waive all rights to limits on search was hugely controversial, and partly dropped after being proposed.

    2) How are loans handled? It's absolutely typical for gun owners to let other people handle and shoot their guns; if loans count as transfers, it makes training much harder (there was a good piece on the Volokh Conspiracy recently on this.)

  2. 1. Yes, it is after all a civil liberty. In fact, it's more than a bit dodgy that the court commitment exception doesn't require proof beyond a reasonable doubt, and the right to a jury trial, in that light.

    2. Basically right, and obnoxiously vague. Today you're a legal dealer. Tomorrow you're prohibited from being a dealer because you do it out of your home instead of owning a dedicated building. The day after you have to get a license to sell off your collection. Essentially arbitrary, and constantly changing.

    3. Again, basically right.

    4. Essentially true, though not so many private sales at gun shows as you might think. Unless you're doing considerable buisness, renting a table will eat your profit, so private sellers generally won't do that.

    5. "but Congress has forbidden the Centers for Disease Control from doing such studies."

    Bzzzt! Not exactly. The CDC had produced some really rank propaganda pieces, and Congress wanted them to stop it, and concentrate on studying diseases. The statutory language reads, “None of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.” The CDC didn't see any point in researching guns if they couldn't do so in a manner that advocates or promotes gun control. Go figure.

    Note that the law didn't actually prohibit any other agency from researching firearms. The FBI would be perfectly free to study this sort of thing.

    6. Like I said, obnoxiously vague.

    7. Yup, used to be the official policy of the NRA, which then demonstrated that it's a genuine membership organization by changing it's policy in response to the membership complaints.

    8. I'd like to see a *statutory* definition here, that doesn't change with each new administration. (BTW, the requirement for a storefront was how Clinton put most of the nation's gun dealers, who worked out of their homes, out of business.)

    9. Again, civil right, we need to stop having each administration pulling it's regulations out of someplace dark and stinky, and make any rules statutory.

    10. A regulatory topic which impinges on a civil right, which means the Supreme court might have something to say on the matter. The regulatory agencies aren't quite so free to do what they want where civil rights are implicated.

    11. And will.

    "Substantively, making it a little bit harder for people with felony record to illegally arm themselves seems like a good idea,"

    Doesn't this go right back to your question of how crime guns are actually obtained? With the added question of how easy substititon from the black market is. And the cost to legal buyers.

    It's a cost benefit analysis, don't dismiss the cost.

    Final point: I don't like the idea that one guy gets to make these decisions. This is the sort of thing that legislatures exist to do. That the democratically elected legislatures won't do what you want done? More feature than bug, I think.

  3. "Appropriations bill" (he says with a smile)? The President and the Congress have already signed off on the appropriations bill through September, 2016. It is likely that there will have to be a "continuing resolution" come September or even some sort of supplemental appropriations bill before then, but it is very unlikely that there will be sufficient firepower on this issue to defund the regulations at those choke points. In essence, the regulations will likely be in place until President Clinton is challenged on them

    Yet another example of "No Drama Obama" outfoxing the GOP.

Comments are closed.