Can Americans Buy ‘Whatever You Want’ Without a Background Check at a Gun Show?

Background checks are not required if the sale is performed by a private seller, but they are required when purchasing a gun from a federally licensed dealer.

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During a speech detailing his plans for new gun control actions, President Joe Biden said, “Most people don’t know: If you walk into a store and you buy a gun, you have a background check.  But you go to a gun show, you can buy whatever you want and no background check.”

This claim is untrue. While critics discuss a so-called “gun control loophole,” the phrase is an overgeneralization of what current law actually states. Section 922 of Title 18 of the U.S. Code outlines the law surrounding the import, export, and sale of firearms, and requires background checks to be performed when a sale is made by a federally licensed firearm vendor. Currently, background checks are not required if the sale is performed by a private seller. The setting of the sale does not matter: background checks are required when purchasing a gun from a federally licensed firearm dealer at a gun show just as they are at a store. Likewise, a private seller need not perform a background check on an individual to whom they’re selling a gun at a gun show or anywhere else.

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  1. Avatar photo
    Cogitatio

    It should be added that the idea of a "universal background check" would also mean that you would have to pay to background check your own relative if you were gifting them a gun. As a further point, if you inherited guns from a relative, the estate would have to background check you before handing over your inheritance. There are some serious issues with "universal" background checks, including how enforceable such a system would be.

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    Geoff

    What I believe a lot of people miss the gun control debate is that the Second Amendment restricts government from infringing on a legal capacity. If you haven't committed a crime should not be restricted. Thus most of the arguments for gun control amount to assuming you're going to do something wrong: "if only he didn't have a gun, he wouldn't have shot someone".... True, but he may have stabbed someone, or blown somebody up, or run through a crowd with his car (for those who object to weapons above single shot). Biden has long since been an active advocate and proponent of numerous, often truly stupid, gun control measures... This is nothing particularly new.

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  3. Avatar photo
    Doug Mitchell

    The Biden administration appears to be building on the platform set by Trump. Lying is seemingly just part of moving the agenda. The truly frightening part is the acceptance and winking and nodding in response.

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  4. Avatar photo
    Scarlette Tarte

    He is right, of course. If someone is selling something privately at a gun show, you can get it without a background check.

    Which is why we need ALL sales of firearms to be subject to background checks, including private sales and transfers.

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      Mike from Jersey

      That right. He did indeed make that distinction, using the word privately, but 60 minutes only took parts of the quote (for the sake of space on the website) and you only see what Alex quotes. Those evil white supremists over at CBS!

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    2. Jaybrown

      Most gun transfers to criminal elements will not comply with any law. If you want results, convince federal, state, and local prosecutors to go after straw buyers. But they won't.

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      Kevin C. Smith

      Why? What evidence remotely shows this would do any good whatsoever? It sounds nice. It just lacks any evidence, anywhere, that it would curb gun violence.

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  5. @fakeJohn

    "requires background checks to be performed when a sale is made by a federally licensed firearm vendor. Currently, background checks are not required if the sale is performed by a private seller."

    Can someone at The Dispatch explain what the advantages to being a federally licensed firearm vendor are? What does the license allow them to do that the private seller cannot? Also, are there any numbers breaking out how many firearms are sold via licensed dealer vs private seller? It would be nice to get a clearer understanding of this issue.

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      Chris Jenkins

      There probably are some private sellers that sell a significant amount of firearms, but the ATF has the ability to classify these private sellers as dealers if they determine they are in the business of dealing firearms, and to require them to obtain a license. If you're a dealer posing as a private seller in order to evade federal regulations, a gun show is a risky place to do business - it's the most likely place you'd get noticed by the ATF.

      The types of private sales that take place at guns shows are usually individuals who take a firearm to the gun show in order to sell it (they don't set up a booth, they just walk around, usually with a little sign advertising that they have a gun for sale), and vendors who are in the business of selling something other than firearms (military surplus, collectors items, etc.) that occasionally have a firearm for sale.

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      1. @fakeJohn

        Thanks for that explanation. It still doesn’t seem too onerous to me to have those sales go through the background check process. Seems like a potential new revenue stream for the licensed dealers to provide a background check service for a nominal fee, much the same way banks and others provide notary services for all sorts of private transactions requiring signature verification.

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          Kevin C. Smith

          It may not seem onerous to you, but to me it seems entirely useless because gun violence isn’t perpetrated by individuals legally purchasing firearms from private sellers at gun shows.

          To answer your question about the benefit of FFLs, that allows you to buy guns from manufacturers and distributors for the purpose of reselling them to make a profit. Guns hold their value quite well. It’s difficult to buy a gun from a private seller and resell the gun for a higher price, at least for an amount and by volume necessary to make it a business.

          When I’ve brought a gun to a gun show with the sign to sell it like Chris explains above, my goal is to hopefully find a buyer that’ll pay me the full value so that I can turn around and buy another gun with that cash. Requiring me, John Q citizen to secure the information necessary from John P citizen that would allow me to conduct a background check (and then keep that information in case the BATF comes knocking) would only cause me not to sell my gun or lead me to offloading the gun for much less to a shady dude who is willing to avoid the process at a discounted price (aka, the black market). How that will stop violent gun crime baffles me.

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          Chris Jenkins

          Dealers already do this for online sales (either by online dealers, or private sellers whose sales cross state lines) - if you purchase a firearm online, you need to contact a local dealer who will accept delivery of your purchase, and they will charge you to run a background check when you come pick up your firearm, usually $25-$50, depending on the dealer.

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            Kevin C. Smith

            Dealers do this anyway. You, a private seller, can place an ad “online” in a local online-newspaper, agree to meet the buyer in-state wherever guns are permitted, and transact business. Your kitchen, a gun show, etc.

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    Victor Clairmont

    Yup.

    This is an old debunked canard that many not following the gun debate miss.

    It is far more rigorous getting a gun from a dealer than many wish to admit.

    But if Grandfather Bob from WWII wishes to hand his commandeered P.38 pistol that he in single combat smashed the head of a Nazi officer in with the butt of his rifle while protecting a French poodle between his legs during the liberation of Paris, then he should be able to hand his trophy down to his family without government interference.

    Heh.

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      Kevin C. Smith

      Agreed—but Grandfather Badass Bob can’t do this if his grand kiddos live in another state.

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      1. Avatar photo
        Victor Clairmont

        Why you gotta mess with my groove Kevin?

        Messing with mah groove.

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        1. Avatar photo
          Kevin C. Smith

          I was thrown off by wanting to meet this Grandpa! Sorry!

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  7. Raincheck

    This is just Biden. His level of accuracy is always very low. He could have said, “private sales, including private sales at gun shows, don’t require a background check. That’s a problem. We need to fix that. As my dad always said...”. He would have been accurate and a whole lot of Americans would have agreed.

    He’s just a real malarkey spreader, and it makes the points he is trying to make a lot less powerful.

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    1. JohnO

      Biden benefits in that way by following Trump. Trump's lying was/is on a different level than normal politicians or any kind of public figure anyone pays attention to. But Biden is more than typically full of crap and prone to making stuff up as he goes along by the normal standard for politicians.

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      Kevin C. Smith

      He could have said it, but saying “it’s a problem” would be equally wrong. It’s not a problem.

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      rlritt

      When making a speech, whoever is making it, the details often bog down what you want to say. Whatever your slant, a short speech wants to broadcast a few big ideas. All politicians do it, except for the ones no one listens to.

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        Kevin C. Smith

        I think the best idea is to speak with authority because you have a grasp on the relevant issues. Suggesting that gun sales at gun shows is a “problem” ignores the easily-provable and obvious fact that it, quite simply, isn’t a problem at all.

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    Kevin C. Smith

    This is a great fact check, Alec! It's absolutely correct that a purchaser of a firearm from a FFL at a gun show must do a background check. The "loophole" is that individuals that go to gun shows often buy and sell firearms to other private sellers doing the same thing at the gun shows. But this is the same as saying there is a "classified ad" loophole, or a "neighbor" loophole. Plus, there is basically no evidence whatsoever that violent criminals or mass murderers are purchasing firearms in this manner. What's crazy is that to "close" the loophole would require that every time a gun changes ownership, there would need to be a background check. How this would ever be enforced--until, perhaps, after a gun that was transferred without a purchaser's background check is used in a violent crime and collected as evidence--is beyond me. It's a non-existent problem seeking an unenforceable solution.

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    1. @fakeJohn

      This is what I don't get. Yes, every time a gun changes hands there would need to be a background check. So what? I sold my car to my sister and we had to write up a bill of sale which she then had to take to the DMV along with title and proof of insurance to legally drive the car. What's the big deal with requiring a background check regardless of who sells the firearm to whom? Your point about there being no way to enforce until after the fact, you are right but again, so what? There's no way to enforce speeding until after the fact either but I try not to speed because the consequences are unpleasant. Many laws work this way, that's partially why fines and prisons exist. I just don't see why saying everyone needs to follow the same procedures has to be such a divisive issue.

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        Kevin C. Smith

        First, there’s basically no evidence this would reduce gun violence. Second, it’s unenforceable. Third, it would require either anyone that wanted to sell a gun to secure a license and learn how to conduct a background check or force them to sell a gun by going to a FFL dealer and conduct a background check. Okay fine, I guess that’s something that can be done. The simple fact there is zero evidence it would do anything other than create an extra step for law-abiding gun owners to buy/sell guns, drive up the cost of legally-purchased guns, and expand the amount of guns sold on the black market (where criminals that commit gun violence buy/sell guns), not sure why this solution seeking a problem would be a good idea.

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        1. Fudrock

          I'll grant that the automobile analogy is imperfect, but I understand his point, and I imagine that you could come up with some system that maps better to the particulars of gun sales that finds a decent balance between onerous bureaucracy and executing background checks.

          I'll also take you at your word that there's no evidence that this policy would work, but I'm also inclined to ask if there's any evidence that it wouldn't work. If there's no evidence in either direction, what studies would we need to do to acquire it (and would there be willingness)? Would there need to be pilot programs, and how large should they be to divine a causal link to the policy? And if there were such programs, how would one guage if it's working? What data would be indicative? Total reduction in all gun-related injuries and deaths, including accidents and suicides? A reduction only in gun-related crimes (with a steady eye on other forms of violence)? An unlikely increase in failed background checks as a result of monitoring private sales? A concurrent reduction private sales and increase in sales from licensed sellers?

          These are mostly rhetorical questions that point to a broader one: what sort of policies could work at reducing the prevalence of gun violence in this country, which is outsized relative to other developed nations? I've had my civic antenna tuned to this debate for several years now, and my opinion has shifted. When my association with firearms was namely responsible, law-abiding people, I was generally pro-2A or, at the very least, indifferent. In the past few years, however, my proximal associations were worse.

          A great many of my friends were on the Jason Aldean crew during the Vegas shooting, and while they all mercifully survived, they did so while fleeing for their lives in abject fear and confusion, as so many others were killed or critically injured in the horror around them. They still live this trauma; it's indelibly linked to them, like a curse, and as they live it, I live a pale version of it. In another instance, a friend of mine was blindly shot by his roommate seven times, because he mistook him as an intruder. He also survived miraculously, but to say that his quality of life has decreased after having been shot seven times is a woeful understatement. And in two other cases, people I know killed themselves with firearms.

          I respect that these are anecdotal incidents, and that in the case of the Vegas shooting, an extreme outlier. I respect that policy motivated by or rendered through an emotional prism probably isn't effective. I also respect that there's no silver bullet, and that any realistic policy change is likely to make only marginal improvements. But I'm sorry, upon greeting those bereft and traumatized people after a long flight from Vegas, all the old arguments took on a new hollowness. Watching them struggle to reckon with the events and how one man could cause so much carnage, I found no satisfying answers, only the vague hope and imperative that there must be something we can do to decrease the likelihood of this, or any of my above examples, happening again (not limited to gun control, either).

          I've heard all manner of spaghetti slinging proposals from Democrats, some reasonable, some stupid or pernicious and blatantly unconstitutional, but none have managed to stick, regardless. And in general, I've seen less spaghetti slung at the wall by Republicans, short of positive reform in FL after Marjory Stoneman Douglas. Most it's been some form of the asinine and statistically dubious suggestion that a greater proliferation of guns would reduce violence. At worst, they are running forcefully in the wrong direction, as with my state, Tennessee, just passing permit-less open and concealed carry (we previously had concealed carry that required a training course to acquire the permit). However, what I have heard from Republicans are endless rebuttals that X, Y, and Z proposal just wouldn't work, or Policy A wouldn't have stopped Mass Murder B, so the proposed regulation is moot. I respect that politics are politics, but there has to be some middle ground here.

          That said, I'd like to ask you, as someone clearly well-informed and reasonable gun owner, what sort of policies might help bring these numbers down? Is this even desirable? Or is the cake already baked?

          Thanks.

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      2. Avatar photo
        Don S.

        I am going to be a little nit picky because I do not think you described the exact thing in the car buying scenario. First, you did not pick up the phone and call the FBI to see if your sister was legally able to drive. In fact, I'm not aware that any state requires a dealership to call law enforcement to check whether an individual is allowed to drive. They call the bank to see if they can pay for it, but that is different. The only time the title has really mattered to me is when I am trying to sell the car. You can drive a vehicle on private property without ever getting on a public highway and not have to provide proof of insurance or even get a license plate (at least in my state). Finally everything dealing with a personal vehicle is a state affair and does involve the federal govt.

        I get what you are trying to say, I just don't think your DMV scenario is a valid comparison.

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          Kevin C. Smith

          Selling a vehicle person-to-person does not require a license (like dealerships are required to obtain). Registering a car is only necessary if you plan to drive the vehicle on public roads. So the analog with guns would be allowing people to sell guns without a license but require a license to use a gun. Huge difference.

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      rlritt

      But how do you know someone is a mass murder until they buy a gun a shoot up a bunch of people?

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        Kevin C. Smith

        You don’t. So how do you know that your gun control legislation will stop them?

        This actually highlights the dirty secret that gun control advocates know but are good at concealing by focusing on useless policies like “cracking down” on pistol arm braces.... The dirty secret is that a complete ban on personal use couple with confiscation is the only way to prevent a “mass murder” by someone no one knows will happen until it does—assuming it’s completed with a gun (versus another weapon, or a car, etc.).

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          rlritt


          I don't think gun control stops mass murderers. I don't know how to stop Mass murder. I do think that the laws for shooting someone should be greater. I don't know how some idiot can shoot a teenager walking down the street because he "thinks" the kid has a gun and not go to prison. Or a guy can walk around the neighborhood armed and pretending to be a security guard and shoot a jogger without being charged with murder.. That person has a mental problem and shouldn't have a gun.

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            Geoff

            The problem with gun control as a solution to either the mentally unstable or criminally inclined, is that it attempts a form of "pre-crime" judgment where having the "thing" predisposes you to a crime... Which you have not committed yet.

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          2. Jaybrown

            Now do 800 gun murders in Chicago in the past 12 weeks.

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    3. Avatar photo
      Don S.

      Kevin, your comment raised an interesting question to me. At what point would a private seller step into FFL territory so to speak and need to become a licensed gun seller? I feel quite certain there is some kind of line which the ATF would consider the number of transactions makes you more than a private seller. Plus I would be willing to bet the FFLs would be none to happy about somebody trying to skirt around the rules that they went to the trouble to follow and cost them business. Was not sure if you knew. If you have someone who keeps showing up at all the gun shows around that region to sell, I would seriously question their status if they were listed as a private seller.

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      1. Zack Miller

        If you are "in the business of dealing in firearms" then you need a license. It essentially means if you are trying to profit from selling firearms.

        Some definitions:

        dealing in firearms - “devotes 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.”

        livelihood and profit- “the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”

        Your example of a person going around to regional gun shows is dependent on their motive as to whether or not a license would be required. The person in question may want to sell or improve their collection. They may not have been able to do so or didn't want to drag the entire collection out to one show.

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        1. Safety Cone

          Seems similar to states that limit the number of cars bought and sold in a calendar year, at a certain volume you become a dealer subject to state scrutiny. Similar as well with unique VINs. A car without a legal registration, is pretty useless to own. Your 2nd amendment goes as far as the front door. Beyond that? By what legal pathway are we allowed (or dis-allowed) to take it out into the public, if even only to transport it from one place to another? Purely long standing habit? Or at State's permission, revocable at any time.

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          Kevin C. Smith

          There we go! Someone with the statutory knowledge! Good stuff. Where the Biden admin should be focusing its attention is investigating and prosecuting "straw buyers" and shoring up the black market. It floors me that the gun control debate seems to always just allow one side to begin from the premise that guns used in violent crimes are purchased legally. Of course many are purchased legally, like many firearms used in mass shootings. But the bulk of violent, gun-related crime is more likely to be committed with guns acquired in violation of existing law. Adding new laws that only law-abiding, non-violent citizens will follow will, unsurprisingly, have little impact on "gun violence."

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          1. @fakeJohn

            How do you investigate straw buyers and why haven't we done it well so far? I'm asking an honest question because I have no idea. My assumption is a straw buyer is someone who goes to a lot of firearms dealers, buys a lot of firearms, and then sells them to felons?

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        3. Anonymous

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          1. Zack Miller

            There is probably some room to improve the NICS as well. If I remember correctly, the Sutherland Springs church shooter passed his background check after the Air Force failed to record his domestic violence conviction. In Indiana, a legally insane person with multiple felony convictions, purchased two handguns after lying on the 4473 form and giving a fake social security number. Six hours later he tried to kill his landlord.

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        Kevin C. Smith

        Hey Don! This is a good question. I don't have the statute in front of me but FFL are intended/required only for those regularly engaging in commerce. But a person that owns a gun and wants to sell the gun is not required to have a FFL. Now, if you want to sell the gun to someone in another state, you'll have to ship it to a FFL who will then do a background check. But in-state, private sales do not require a FFL. If you are purchasing a gun intending to resell it, then you need a FFL. And, I believe, gun manufacturers and distributors are required to sell guns to FFLs. This is certainly not artful and I'm sure I'm missing something or a particular nuance, but this is the "gist."

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          Don S.

          I believe you answered my question in one sense - "If you are purchasing a gun intending to resell it, then you need a FFL". And I think Zack answered it also. Plus Zack helped answer a question I had from an estate sale aspect. Thanks guys for the responses.

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            Geoff

            This is often up to the discretion of the ATF agent involved, and whether or not he can show, by a preponderance of the evidence, that the individual is involved in commerce. You have to be able to sell that to the AUSA in order to get him to take the case (which, unless you have a pretty solid case, he won't: assistant US attorneys don't like losing cases... Which is why federal conviction rates are pretty darn high :-)

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          Kevin C. Smith

          So I guess, theoretically, you could acquire used guns from private sellers and turn around and resell those guns to other private sellers in an effort to profit. But I don't think this practically would be a problem. It'd be tough to try to have this kind of "business" and actually profit based on the value of used-guns. I mean, you'd buy it for x dollars and basically have to resell it for the same price. The money is buying it from a manufacturer or a distributor and then selling it retail. And to do that, you need a FFL.

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  9. Michael

    Regulating private gun sales would be like trying to regulate a weed dealer selling dime bags.

    I really think the gun control advocates should aim their efforts at curbing straw purchases nationwide.

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      Kevin C. Smith

      Correct—and it would be as effective in curbing gun violence as regulating weed dealers selling dime bags has been at reducing the distribution/sale/use of marijuana.

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    Xaveria

    The Jim Crow thing was a big enough an exaggeration as to count as a lie. This one not so much.

    I don’t know, for sure, so please correct me if I’m wrong, but I imagine that most gun shows have a decent number of private sellers. I imagine that the law provides a decent incentive for small-time gun merchants to not get a federal license.

    If there a lot of private sellers selling a lot of different guns at most gun shows, then what Biden said was true in every practical sense, even if he wasn’t precise about the legal loophole created the situation.

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      The Bell Tower

      No. Gun show itself is a debatable description but I’ve attended plenty of gun shows even in my fascist home state of Florida and never seen someone not require a background check.

      That’s anecdotal of course but I have seen no evidence proving the claim Democrats make about this issue either. Certainly there must be some examples but these are likely the exceptions - especially given all this absurd animosity towards gun sales. Nobody in their right mind would sell guns without requiring one unless they are looking for bad press and mobs of black underoos at their door.

      It’s typical misleading rhetoric from a party that traffics in overblown rhetoric the way Tommy Lee’s drug dealer traffics in cocaine.

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      Kevin C. Smith

      There are not many private sellers at most gun shows I’ve ever attended. The “private seller” is just a customer, someone shopping at the dozens of licensed dealers at the gun show (that have paid for the space, the tables, etc.). They bring their own gun (or two) they wouldn’t mind selling so they can afford the nice new gun from one of the licensed dealers. Because, unsurprisingly, licensed dealers will not pay you the market price for your used firearm (ala car dealerships versus private car sales). There is no “legal loophole” and there is no problem. This is why the language is imprecise—because saying things like “gun show loopholes” is an easier sell then “kitchen loophole” or “neighbor loophole” or “sell your gun like you sell any other piece of tangible property loophole.” It helps that those deadest on knowing this is a “good idea” and Biden should be forgiven for his inartful speech have zero idea about how gun shows operate, how background checks work, or what types of guns (and how those guns are purchased/sold) are used in violent crime.

      Feels good though.

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      Chris Jenkins

      "I imagine that the law provides a decent incentive for small-time gun merchants to not get a federal license."

      The ATF has the authority to classify these small-time merchants as dealers, and require them to be licensed, if they determine they are in the business of selling firearms. If you're one of these small-time merchants who's straddling the line between private seller and dealer, a gun show is a risky place to do business - it's the most likely place where you'd attract attention from the ATF.

      If there are private sellers who are selling significant numbers of firearms at gun shows, the solution is for the ATF to better enforce their rules that are already in place.

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      rlritt

      My neighbor told me he has 16 guns. He's a Democrat btw. He could feasibly take all 16 guns and sell them at a show as a private seller.
      However, this is a moot point, there are a lot of crazy guys getting guns, and there are a lot of innocent people being killed by these crazy guys.

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        Kevin C. Smith

        Yes, he could sell them all as a private seller. If he passes away, his estate could sell them at an estate sale. He could sit in his front yard and put a sign up that says: “16 guns for sale here.”

        But yea, crazy guys do get guns and kill innocent people. Almost none of them purchase the guns at gun shows or by some other legal means aside from those that purchase them from licensed dealers following a background check. In other words, gun violence is perpetuated by those that buy the guns legally from dealers or on the black market. So Biden’s point is the moot one.

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          rlritt

          I agree. He probably would agree as well but, he the President he gas to something.

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        Xaveria

        I agree. I would go further and say that we should be making a real effort to keep guns out of crazy people's hands, and I personally don't have a big problem with restricting -- even outlawing -- private gun sales.

        But it's not a moot point. Correct treatment depends on correct diagnosis. If those crazy guys aren't getting those guns at gun shows, then half-truths and/or lies by the POTUS is more looking for easy political wins than trying to really solve the problem.

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          rlritt

          I think they have sound like they are confident about a solution, because there really isn't an solution.

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            Xaveria

            That's certainly possible, and it's better to be positive than defeatist. I still think that sensible gun control measures are possible without really meaningfully even encroaching on second amendment rights. And to be honest, I think we'll get farther by taking a really serious look at how we just don't take proper care of the mentally ill in this country at all.

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    5. Harry

      I have been to numerous gun shows and the overwhelming sales are from dealers who need to do background checks. Usually there are a few private people trying to sell a specific firearm.

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        Xaveria

        I appreciate it, thank you! Would it be accurate to say that, if you really do your research and you're willing to travel long distances, you can find almost whatever gun you want eventually sold privately at a gun show? If so, I upgrade this to at best a partial truth. If not, this is pretty much just a lie.

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          Kevin C. Smith

          Yes, if you really want to find a gun and are willing to research and travel, you can eventually find a gun for sale somewhere by someone that you can purchase legally.

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          Chris Jenkins

          The private sales that occur at gun shows are usually very common firearms, or antiques. Also, the individuals who are conducting private sales at gun shows aren't advertising anywhere, so I'm not sure what kind of research you could do to find a specific weapon sold by a private seller at a gun show.

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            Kevin C. Smith

            This is a good point.

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