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Originally Posted by Hugh Damright
I think what they call a "loophole" is actually a lack of federal jurisdiction ... if I sell a gun to my neighbor, that is not a federal matter ... if a person wants to sell a gun to someone in his own state, regardless of whether it is at a yard sale or a gun show, there is no federal jurisdiction ...
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Under a conservative, largely pre-WWII interpretation of the Commerce Clause, you would be correct. However, in recent decades, the courts have interpreted the Commerce Clause in ways that give the Feds
very broad discretion to regulate the sale of consumer products under almost all circumstances.
Whether this is a
correct or proper interpretation of the Commerce Clause is a whole different topic that has been debated to great length on this forum and elsewhere.
Private sales are not exempt from NICS checks because Congress
can't pass a law requiring it; they're exempt because Congress
hasn't done so. One of the main reasons is that some degree of left-right consensus is required, and the battle lines on this issue have never been easily drawn.