Semi-Closing the Private Sale Loophole in the Brady Law

BBC5 called me yesterday – 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.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.