Private Party Transfers And Gun Show Purchases

Private Party Transfers And Gun Show Purchases

In the third part of our ongoing series on how to buy and sell a firearm, we will be discussing gun shows. Even if you’ve never been to a gun show, you probably have already heard a lot about them from other gun owners, from friends and family, and maybe from the media. To some, “gun show” is a controversial word. In this article, we’ll cut through some of the rhetoric and misinformation and explain how sales at a gun show works. Firstly, what is a gun show? The simple answer is that gun shows are a place for guns to be sold or bought, and where new gun owners can learn more about firearms. Gun shows are widely attended and draw in all types of gun owners, including those interested in firearms for defensive purposes, for hunting, shooting sports, recreation, or for their personal collection.

These events are alive and vibrant with conversation, although a fair amount of visitors come just to get a glimpse of some rare or notable firearms on display. You’re not obliged to buy or sell anything at a gun show, but if you do, there are two types of sales: those that go through FFL dealers and private sellers. Despite what some may say, there is no such thing as a “gun show loophole.” Sales through FFL dealers and private transactions at a gun show function exactly the same as they would outside of a gun show. Everyone still has to comply with all federal, state, and local laws without exception. Gun control advocates who push for “closing the gun show loophole” are actually proposing to ban private sales entirely. This means expanding background checks to any sale or trade of a firearm, in some cases even involving gifts or temporarily borrowing a firearm. Could you imagine going to an FFL dealer to run a background check every time you wanted to borrow your brother’s rifle for deer season? Gun control supporters say that “closing the loophole” would reduce crime, but in actuality, gun shows only account for a minuscule amount of the firearms used in gun crime. According to the NRA’s Institute for Legislative Action (NRA-ILA), federal studies showed that less than one percent of inmates incarcerated in state prisons for gun crimes acquired their firearms at a gun show. The majority of firearms used came from theft, the black market, or straw purchasers. Also, consider the fact that any convicted felon who so much as touches a firearm at a gun show is already in violation of federal law. The same as it would be for your neighbourhood gun shop.
Gun Show Background Checks State Laws
Known as the “gun show loophole,” most states do not require background checks for firearms purchased at gun shows from private individuals federal law only requires licensed dealers to conduct checks. Under the Gun Control Act of 1968, federal law clearly defined private sellers as anyone who sold no more than four firearms per year. But the 1986 Firearm Owners Protection Act lifted that restriction and loosely defined private sellers as people who do not rely on gun sales as the principal way of obtaining their livelihood.

Some states have opted to go further than federal law by requiring background checks at gun shows for any gun transaction, federal license or not. The majority of these states require background checks at the point of transfer for all firearms. Alternatively, Hawaii, Illinois, Iowa, Massachusetts, Michigan, Nebraska, New Jersey and North Carolina regulate purchases by prohibiting private dealers from selling to individuals who do not have licenses/permits, which they obtain following background checks. Some states’ requirements are limited only to handgun purchases.
Buying Or Selling A Firearm In a Private Transaction
Chances are, you’ve probably purchased your firearms from a licensed gun dealer. You went to his or her shop, selected your firearm, checked it’s functionality, underwent the federally-mandated background check, paid for your gun, and took it home, after any municipal or state-mandated waiting period, if applicable. That being said, despite misconceptions to the contrary, you can also purchase a firearm from a private party if you so desire… Yes, in all 50 states, it is perfectly legal for one individual to sell a firearm to another in a person-to-person transaction. Typically, people do this to save a few dollars versus purchasing the gun at a dealer, or sometimes a person is seeking a unique or vintage gun that just cannot be found in stores. Whatever the motives, the transaction is perfectly legal. But, there are a lot of caveats to the private transfer process. In the world of firearms, the sale of a gun is a “transfer”, by the way. The buyer and seller must not be prohibited persons. Here in the US, the Second Amendment guarantees and acknowledges our right to keep and bear arms. Contrary to popular belief, the Second Amendment isn’t a “law” where the government grants us the right; it is a statement that says the government acknowledges our pre-existing right. However, as us gun owners know and complain about daily, the government has placed checks and infringements on that right throughout history, including laws such as the Gun Control Act of 1968, where the term ‘prohibited person’ is defined. In a nutshell, a prohibited person is someone who has been convicted of a crime where the prison term exceeds one year, is indicted for said crime, is a fugitive, is an unlawful user of any controlled substance, has been judged by a court to be mentally incompetent, is an illegal alien, was dishonourably discharged from the armed forces, has a restraining order placed against them from a spouse or partner, or has a domestic violence conviction. Typically persons with those “disabilities” (legalese term for someone who has those black marks on their record) is entered into one or more national, state, and local law enforcement databases. The FBI’s NICS system ties most of the bigger ones together for the background check. However, your average citizen cannot access the FBI’s NICS portal, or their state’s equivalent. As an aside, some states, including my home state of Florida, run their own gateway to the national crime databases, which actually helps take the load off of the Feds. Regardless, your average citizen cannot access these systems. So, in a private transaction, the best a citizen can do is be reasonably sure that the person they are selling a gun to, or buying a gun from, is not a prohibited person. Typically this is why most private transfers are amongst friends and family. In my experience, very few private transfers occur between complete strangers. However, sometimes it’s not that simple. This one comes up a lot in gun control chatter – the universal background check. Several states, such as California, New York, New Jersey, Colorado, Oregon, and Washington State have enacted universal background check laws as part of their incremental push for total gun control. Ostensibly, the idea behind these checks is to give citizens access to the background check system by requiring private sales to be done at licensed gun shops, where the dealer can perform the background check prior to the transfer being completed. Of course, there’s a few catches.

• The dealer will charge money for the background check, sometimes in excess of $50. This could very well negate any savings the buyer was hoping to get.
• Universal background checks only ‘work’ if there’s firearms registration, i.e. the dates and persons involved in all the transfers of said item are logged by the government. Firearms registration is incompatible with the ideals of the Second Amendment, as a registry makes it easier for the government to confiscate privately-owned guns. UBCs are a step in the overall gun control agenda, and serve no public utility.
• Criminals trade, steal and buy guns regardless of legality. UBC laws don’t stop them.
However, in those states, private transactions have to be done on the premises of a licensed gun dealer, and if private transistors want to remain within the bounds of the law, they have to do it. Now, as I noted above, the UBC law really doesn’t account for much without registration (yes, you could in theory check if a gun was manufactured after the UBC cut-off date…), but nonetheless, people in these states have an extra layer of compliance to worry about.
Private sales can only happen legally between residents of the same state
This is a federal requirement. Private transfers, whether the state has a UBC requirement or not, can only take place between residents of that state. For example, as a resident of Florida, I can privately sell a firearm to my cousin who lives in Orlando, but I cannot privately sell a firearm to my friend who lives in Texarkana, Texas. If my friend in Texarkana really wanted my gun, I’d have to box it up, ship it from my local gun store to a local gun store of his choosing in Texas. Essentially it’d be really inconvenient and he’d be better off finding the gun in-state or through a licensed dealer. A good reference for qualifying legal private sales can be found on the ATF’s website.
Is this the ‘gun show loophole’?
There’s no loophole. A loophole is defined as an oversight in laws which people take advantage of. Laws concerning the private sale of firearms transfers are crafted, for the most part, to explicitly allow for said private sales to happen. Some people are under the impression that gun shows are free-for-all arms bazaars. While that would be nice in a way, the reality is that the dealers at gun shows who are selling firearms have to comply with the same federal background check laws as if they were selling from their own storefront. Step into a modern gun show, and each and every dealer will have laptops and iPads out, conducting background checks and credit card transactions in the course of their business. Yes, there’s sometimes people wandering around a gun show looking to sell a gun in a private transaction. Yes, this is perfectly legal. However, most gun shows don’t allow the transactions to happen on the show floor, and 99 percent of these transactions are just some guy looking to move an old rifle or pistol that even a gun dealer won’t accept in trade. In other words, not worth crying over. If you are going to do a private transfer, Unless you are in a UBC state, whereby then you are required to do the transfer at a licensed gun dealer, there are some sensible precautions one can take to ensure a transfer falls within the bounds of state and federal law.
• Do it outdoors, during the day, in a public place. Most people choose somewhere obvious like a Wal-Mart parking lot. In some jurisdictions, the local police explicitly allow and recommend that private firearms sales happen in their parking lots. Someone up to no good isn’t likely to want to be in a public place with surveillance cameras, witnesses, and potentially, law enforcement officers.
• Generate a bill of sale. Google around for one, and fill out the relevant details. Make, model, calibre, and the full names and addresses of the parties involved. Again, someone legitimately wanting that gun you are selling on Arms list won’t hesitate to play ball.
• Document identification, on both sides. You have a smartphone, take a photo of the ID of the person you are buying the gun from, and vice versa. That way you both have records of whom is involved in the transaction.
While these procedures aren’t automated like NICS, conducting these willingly is a great indicator that the parties involved aren’t prohibited persons.

Buyback schemes are an anathema to gun owners. The term alone is pretty incongruous, as it implies the State ‘owned’ your firearms at some point. No matter how old or useless the gun is, there’s always a dealer or a private party willing to pick it up. You just have to look around, and you’ll get more than you would from some taxpayer-funded money-wasting scheme.

What Is The Gun Show Loophole?

Talk of the gun show loophole emerged in the 1980s and 1990s, said David Chipman, a retired ATF agent who now works for a gun control advocacy group called the Giffords Center. “People were selling guns through newspapers and classifieds,” he said. “And gun shows, which were primarily just flea markets, became more popular because they allowed private sellers of guns to go to locations where buyers of guns would be. What you had was this interesting circumstance where … a licensed gun dealer set up next to a private party. Both would be selling the same gun, but they would have to abide by different laws.” That circumstance where private sellers are exempted from conducting the background check required of gun dealers with a federal firearms license became known as the “gun show loophole.” Gun stores, whether a local mom-and-pop or a giant chain, must obtain a federal license as a gun dealer. Gun advocates have long claimed the gun show loophole is a myth. A “fact sheet” from the National Shooting Sports Foundation, an industry trade group, declares flatly: “There is no gun show loophole.” The organization correctly notes that the rules for selling guns aren’t any more lax at gun shows than they would be in most parking lots. It’s also true that most vendors at gun shows are licensed dealers. But many gun shows allow people who aren’t licensed dealers to rent tables too. Some exhibitors are gun collectors who aren’t considered to be selling firearms as a business, but have plenty of guns to sell as they consolidate their collection. Then there are people like Nelson, who walk around trying to sell guns. At the Tulsa Arms Show, many private sellers are essentially walking billboards, advertising their guns on a backpack or by sticking a flag down the barrel of a rifle slung over their shoulder. The “gun show loophole” might be more aptly termed the “private sale exception.” While the vast majority of guns sold in the U.S. — some estimates say more than 75 percent are sold by licensed dealers, sales between private citizens can be arranged online or in person at any place and any time.
When Are Background Checks Required?
Whichever term you prefer, or even if you think the loophole doesn’t exist, the phrase represents a real phenomenon under federal law: Not every gun sale is preceded by a background check. The laws vary, but in most states private sellers only break the law if they knowingly sell to a prohibited person. For example, Nelson is not supposed to sell a gun to convicted felons, or to people who live outside of Oklahoma. He doesn’t, however, legally have to ask about those things. In the absence of required formal background checks, Nelson, a retired police officer and Air Force veteran, said he developed his own system to judge who to sell his guns to. If they look younger than 21, for instance, or if they look “thuggish,” he says he won’t sell. “I don’t want to have any of the guns that are in my name fall into the wrong hands,” Nelson said. In comparison, when a gun dealer sells a firearm they must conduct an FBI background check regardless of where the sale takes place. And if they sell to an out-of-state resident, the gun must first be transferred to a licensed dealer in the resident’s home state.

Who Is Policing Illegal Gun Sales?

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) is tasked with policing gun sales across the country. Chipman, the retired ATF agent, spent part of his career investigating firearm trafficking at gun shows and elsewhere. He said the agency sometimes has undercover agents at gun shows, but usually only in response to a specific tip. “Rarely, if ever, did we do ‘fishing expeditions,’” he said. “I think the public doesn’t understand how small ATF is. ATF has 2,600 special agents … I think the Capitol Police Department here in [Washington, D.C.] has 2,200 sworn officers.” Both the Trump and Obama administrations have taken steps to target gun crimes, but prosecutions for illegal gun-dealing remain rare.
Is There Support For A Solution?
Over time, federal legislation that specifically targets gun shows has been replaced by proposals for universal background checks, which would cover almost all gun sales. So far, none of the proposals have garnered enough Republican support to become law. Republicans aren’t completely opposed to the idea of background checks for more guns, said David Kopel, a gun advocate, researcher and University of Denver law professor. Rather, he said past negotiations broke down over disagreements about how to implement the change: Force all gun sales to go through the current dealer-based background check system? Or let private sellers access the system themselves? The key difference is that gun dealers have to keep permanent records of every transaction, which the ATF can later use to trace guns that are ultimately used in crimes. Kopel believes the underlying motive is about “registering all guns and gun owners,” which could make it easier for gun seizures at some point in the future.

Utah Gun Lawyer

When you need a Utah Gun Lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
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