The Biden administration is claiming that it has closed the gun show loophole, but the actual change they made is very minor and will make no difference.
What we typically call the “gun show loophole” is simply the part of federal law that allows individuals to sell their personal guns to other individuals without performing a background check. I said “sell” but this law also applies to any transfer between individuals, including transferring a gun to a friend or relative without any money changing hands. These legal firearm transfers would always be used guns, and they are still completely legal despite the Biden administration’s rule changes.
Specifically, the new rules require anyone who either:
- rents a table at a gun show and sells guns or
- places an ad announcing that they will be selling guns at a gun show
to have a Federal Firearms License. While this may change things hypothetically, my opinion is that it will not affect anyone; I will explain more below. The law states that you can sell your personal guns (any number of guns) without having an FFL. You just can’t engage in the business of selling guns without an FFL, nor can you sell new guns (you must go through an FFL to receive a new gun). However, the law is unclear about what it means to be “in the business” of selling guns, so that’s why there are executive branch rules that reflect how the Bureau of Alcohol, Tobacco and Firearms (for example) is interpreting the law.
Basically, the Biden administration is taking advantage of America’s lack of fluency in firearm law (which, to be fair, is quite convoluted) to create the impression that they’ve done something substantive here in this election season. Roughly 86% of Americans support universal background checks, so closing the “gun show loophole” (legal personal sales made at a gun show without a background check) might get Biden more votes in November. But the rule change did not close the “gun show loophole”. I’m putting that in quotes because it isn’t a loophole — it’s just part of the law.
Approximately 5000 gun shows happen in the US each year. At these gun shows, more than half of the vendors will be gun stores attempting to sell some guns in a market relatively far from their brick-and-mortar store. These guns stores have a Federal Firearms License. If you buy a gun from them, they will either do the instant background check on the spot or (more likely) they will help you locate a Federal Firearms License holder in your area so they can ship the gun there for you to pick up on the next business day. Your local FFL holder (gun shop) will do the background check and charge you between $20 and $30 for that service. I’ve also seen local vendors at gun shows, and they sometimes offer to put your name on a gun (reserve it) so you can pick it up at their store (after a background check).
At a gun show, there are also other vendors. There might be a vendor who sells army surplus (but not guns), or a vendor that sells knives (which are not regulated in most states). There’s definitely going to be a vendor selling “Let’s Go Brandon” merchandise. In addition to all these vendors (who have rented tables at the event), there are customers, and a few of those customers show up with a gun from their personal collection that they want to sell. The person at the door puts a zip-tie on it to make it inoperable, and they usually wear a sign on their back explaining that they’re selling this gun. This is completely legal, and the Biden administration’s rule change does not affect a person selling a gun in this way.
What the change does affect is a hypothetical (or, you might say, fantasy) vendor who has rented a table at the gun show, and is selling guns, but does not have a Federal Firearms License. Maybe this person exists. I don’t know. I have never seen such a person at a gun show. Gun control groups have a lot of “information” about these hypothetical illegal vendors — which were already illegal before this rule change happened — but it really seems like a very rare occurrence. It seems like gun control advocates are just using this narrative to create a lot of anxiety and justify their position. If these illegal vendors exist, why wasn’t the government doing something about them already?
Maybe the Biden administration rule change would make it slightly harder for this hypothetical (fantasy) vendor to do their nefarious illegal deed, but that assumes that the government is willing to kick the hornets nest of conservativism by showing up and making vendors prove they have an FFL. They could have done this already!
The new rules state that that anyone who rents a table at a gun show and sells guns or places an ad announcing that they will be selling guns at a gun show must have an FFL, so at best, a bureaucrat would be assigned to both contacting gun show organizers to ask them to provide information about the people who rented tables and looking for ads from individuals announcing that they will be selling guns at a gun show. Whether some federal agency will show up to arrest those suspected of violating these rules is unknown (again, nearly half the vendors are non-firearm vendors), but I think it is very unlikely. We don’t want a gun show Waco, after all.
The federal government is very concerned about causing a violent conservative freakout. Specifically, Waco and Ruby Ridge have become rallying cries for far-right psychos who think any government push-back against fascism is authoritarianism. While both of those events were clear law enforcement failures, the federal government learned the wrong lesson. Instead of coming up with better procedures for apprehending nazis who have broken the law, they decided to just not try.
One person it might affect — which, again, I’ve never seen at a gun show — is someone who suddenly needs to get rid of a lot of guns from their personal collection. Perhaps they just need some cash and have lost interest in their collection (or parts of it). Perhaps they inherited a bunch of guns and want to get rid of them without paying a commission to a middle man. Now that the rules have changed, that person will no longer be able to rent a table at a gun show to sell their guns. They can, however, walk around with a bucket full of guns and a sign on their back. They can still sell the guns, they just can’t be comfortable while doing it. They might have to leave some in their trunk until they’ve sold everything in the bucket; the bucket is only so big, after all.
If we get back to that hypothetical illegal gun vendor at the gun show, what’s to stop that person from having an associate walk around with a bucket of guns? Yes, I realize that it is technically illegal now, but, again, these supposed unlicensed gun vendors at gun shows were already illegal because they were engaging in the business of firearms sales without having an FFL. The obvious reason for the rule change is to create the illusion of action to win votes.
There it is. The Biden administration’s pretend closing of the gun show loophole is another example of Democrats in action… or should I say Democrats’ inaction? eh? eh?
There’s a lot more detail compared to what I’ve addressed, but it is all here in the White House fact sheet on the new rules:
https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/11/fact-sheet-biden-harris-administration-announces-new-action-to-implement-bipartisan-safer-communities-act-expanding-firearm-background-checks-to-fight-gun-crime/
Just keep in mind that for everything they’re mentioning as being addressed by the new rules, they were addressed by the old rules and could have been stopped by law enforcement making an effort to stop illegal activities at gun shows by physically going there. That didn’t happen and it isn’t going to happen.