The author is a J.D. Candidate at the University of Pennsylvania Carey Law School. The author remains anonymous out of concern that even a careful, fact-based discussion of firearms law might invite professional or social backlash. That the author has such fears within a law school environment, where open inquiry should be protected, reflects growing unease about the shrinking space for candid debate on important questions.
This post is part of a series written by students in the University of Pennsylvania Carey Law School’s The Second Amendment – A Modern and Historical Perspective class. The posts were written by students as an assignment for the class and edited by their professor, Jonathan Goldstein, in preparation for publication.
Within the popular discourse surrounding gun control, gun shows are often portrayed as conduits through which criminals gain easy access to firearms. The “gun show loophole” theory, advanced by gun control advocates, centers around the private sale exemption to the 1993 Brady Handgun Violence Prevention Act. Under federal law, commercial sales of firearms, conducted by an individual “engaged in the business” of selling guns – or a Federal Firearms Licensee (FFL) – must be preceded by a background check.[1] However, where a sale takes place between private parties who are residents of the same state, federal law does not require any formal background check or recordkeeping. Instead, such sales are legal so long as (1) the seller legally possesses the firearm and has no reason to believe that the buyer is barred from possessing a firearm; and (2) the buyer is not barred from possessing a firearm and has no reason to believe the firearm is stolen (although private transfers are subject to additional restrictions in certain states, such as Maryland and North Carolina).
Accordingly, gun control advocates assert that gun shows provide those who would otherwise fail a background check, and therefore be barred under federal law from purchasing a firearm, easy access to guns. The question, therefore, is what percentage of crime guns are actually acquired via the “gun show loophole?”
The 2016 Source and Use of Firearms Involved in Crimes: Survey of Prison Inmates, conducted by the Bureau of Justice Statistics, found that among the state and federal prisoners who reported that they possessed a firearm when they committed the offense for which they were serving time in prison, more than half (56%) had either stolen it (6%), found it at the scene of the crime (7%), or obtained it off the street or from the underground market (43%). Most of the remainder (25%) had obtained it from a family member or friend, or as a gift. Seven percent had purchased it under their own name from a licensed firearm dealer.
Of the 10.1% of prisoners who obtained their firearm from a retail source, 7.5% bought it from a gun ship/store, 1.6% bought it from a pawn shop, .8% bought it from a gun show, and .4% bought it from a flea market. These findings are substantially similar to those found by the Bureau of Justice Statistics two decades prior in its 1997 Survey of Inmates in State and Federal Correctional Facilities: Firearm Use by Offenders. In that study, 13.9% of prisoners reported obtaining the firearm from a retail source, with 8.3% purchased from a retail store, 3.8% from a pawnshop, 1% from a flea market, and .7% from a gun show.
The results of these government studies largely track the findings of studies conducted by those within academia. Gary Kleck and Shun-Yung Kevin Wang, for example, found that “[t]heft is central to criminal gun acquisitions” and “[m]ost gun theft is a by-product of residential burglary and other thefts from private owners.”[2] In interviews with inmates conducted by James Wright and Peter Rossi, “32 percent of felons reported that they personally stole the gun . . . . 46 percent stated that the weapon was ‘definitely stolen’ . . . [while] [a]nother 24 percent indicated the weapon was ‘probably stolen.’”[3]
Finally, of the small percentage of crime guns found by these corresponding studies to have been purchased at gun shows, there is no guarantee that such sales were not sold at the gun show by a FFL licensed vendor. Indeed, a 1999 study by the ATF found that 50 to 75 percent of vendors at gun shows held a federal firearm license.[4] One 2009 study suggests, albeit via rough estimate, that some two-thirds of gun sales are made by licensed vendors, and therefore subject to background checks.[5] This does, however, leave open the possibility of straw purchases, but such purchases are not unique to gun shows nor implicate the “gun show loophole.”
[1] See BATFE Form 4473.
[2] See Gary Kleck & Shun-Yung Kevin Wang, The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data, 56 UCLA L. Rev. 1233 (2009)
[3] See James D. Wright & Peter H. Rossi, Armed And Considered Dangerous 199–204 (1986).
[4] See Bureau of Alcohol, Tobacco, Firearms and Explosives, Gun Shows: Brady Checks and Crime Gun Traces (1999). But see Garen J Wintemute, Gun Shows Across a Multistate American Gun Market: Observational Evidence of the Effects of Regulatory Policies 13 Inj. Prevention 150 (2007) (comparing gun shows in California, Arizona, Nevada, Texas and Florida and finding that only 30% of vendors were licensed retailers).
[5] See Garen J Wintemute. Inside Gun Shows: What Goes on When Everybody Thinks Nobody’s Watching 35 (2009).
