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Old April 16, 2013, 10:38 AM   #51
Armorer-at-Law
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let's be careful who we point fingers at in this debate, especially when it's gun owners who are the ones breaking the law. just because the media shines a light on it doesn't make it go away. I have no doubt that this isn't an isolated incident and that these illegal gun transactions are going on across the country
What gun owners were breaking the law here? The sellers? What did the sellers do wrong?

The seller cannot knowingly sell the gun to a prohibited person. If the seller (gun owner) does not know the buyer, what obligation does he/she have? To ask? To demand to see ID? To be skilled enough to determine if the ID is valid or fake? How far down that road does he/she need to go? Granted, if the buyer states that he/she is a prohibited person, that is a different situation. But that is not what was being presented here.

The transaction was only illegal because the buyer was not a resident of that state. The buyer knowingly committed a crime; the seller (gun owner) committed no crime. How is this "shining a light" on "illegal gun transactions ... going on across the country"? The light was shined on biased reporters doing illegal acts and unethically reporting it to be something else.

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most of those are small time sellers with no ffl license that go and buy weapons from private sellers themselves. 1-5 a time at a gun show and have no need for a ffl license. but in the guns show promoters case they should ask for and have a copy of the sellers ffl license on file to make sure this doesnt happen. and the short time it takes to fill out a a 4473 and call the background check phone#(3-5 minutes) alot of this problem could be stopped. inexcusable to all licensed sellers who dont sell firearms right.
Are you saying that these were FFLs who sold the guns without a 4473 and NICS check? I don't follow your point. If the "small time sellers" are doing at regularly and repeatedly (buying guns 1-5 at a time and then reselling them), then they need an FFL and could probably get one if they would apply.
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Old April 16, 2013, 12:27 PM   #52
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Freedom of the press does not include the freedom to break laws to get the story.
Since David Gregory escaped prosecution, I imagine some in the media feel emboldened now.

FWIW, the term "gun show loophole" is nothing new. Sen. Lautenberg's been throwing it around since the 1990's. In fact, he proposes a bill to close it pretty much every year. The only difference now is the level of public awareness.
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Old April 16, 2013, 12:47 PM   #53
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My understanding is that if someone is buying and selling with the intent to make a profit, then they are doing so as a business and must have an FFL, and they must do background checks for their sales.

If someone at a show is breaking the law then the law needs to be enforced, again, not more laws being written, just enforcing the ones we have will take care of this.
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Old April 16, 2013, 02:46 PM   #54
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Originally Posted by lcpiper
My understanding is that if someone is buying and selling with the intent to make a profit, then they are doing so as a business and must have an FFL, and they must do background checks for their sales.
The actual regulations are a bit more subtle, but you hit one of the key phrases- intent to make a profit. It would be unreasonable to expect private sellers to sell personal firearms without ever earning a profit, but it would be equally unreasonable to expect a business to actually earn profits in order to be defined as such; after all, businesses lose money all the time.

It's perfectly legal for an unlicensed person to sell a firearm for a profit; the problem arises when the person engages in the "repetitive purchase and resale" of firearms with "the principal objective of livelihood and profit".

From the ATF Federal Firearms Regulations Reference Guide, 2005 edition (emphasis mine):

Quote:
The term "engaged in the business" means—
<(A) & (B) omitted>
(C) as applied to a dealer in firearms... a person who 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, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms...
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Old April 16, 2013, 04:11 PM   #55
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You guys are both right. The line gets fuzzy. How many guns and how often constitutes "repetitive?" Ultimately, I fear it would be up a prosecutor or jury.
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Old April 16, 2013, 04:23 PM   #56
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If someone at a show is breaking the law then the law needs to be enforced, again, not more laws being written, just enforcing the ones we have will take care of this.
But Tom, let's not jump the gun (LOL), don't we need this first?

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If someone at a show is breaking the law then the law needs to be enforced....
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Old April 16, 2013, 07:31 PM   #57
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But Tom, let's not jump the gun (LOL), don't we need this first?
Nah, as advocates of new laws (including the Vice President of the United States) have said, it's not about enforcement. They don't have time for that.

It's far easier to enact new laws in hopes of snagging a few harmless folks in convenient statutory violations.
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Old April 16, 2013, 07:32 PM   #58
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You don't need an FFL license to be a seller at a gun show. You can sell accessories, optics, jerky, pins, old medals andpatches, etc. You can also sell some of your private collection at your table. You can buy a gun one week, shoot it, not like how it feels and sell it the next. As stated above, if your intent is not to sell for profit as a business, all is good.

The "loophole" as the antis so named it, is a private seller is under no obligation to run an NICS check when selling his guns. His only obligation is determined by the state laws in place where his table is and any federal laws such as not selling a handgun to someone under 21 years of age. Every state has their own laws in handling a "private sale" like this is considered.

Also, I'm sure everyone has seen the guys walking around the shows with rifles with For Sale signs sticking out of the barrels. A meeting is set up outside to complete the sale and it is a private sale.

The contention is that people who cannot legally buy a firearm seek out gun shows to purchase their firearms. They look for the guy who won't ask/won't tell or the guy who only wants the cash when they meet in the parking lot. They go from table to table and when/if the seller asks for an ID they claim they left it in the car and will be right back. They then move to another table. This is the 'gun show loophole" where they claim the "40%" of the illegal transfers occur.

Now, I am not in favor in any government intervention. Any intervention is bad intervention. Sellers who deliberately look the other way are the ones who are hurting our cause. They are the ones making it difficult for the law abiding gun owners. They are trying to ban all private sales to stop the few that are "illegal" and it's a way of punishing the masses to stop a few.
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Old April 16, 2013, 07:48 PM   #59
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The contention is that people who cannot legally buy a firearm seek out gun shows to purchase their firearms. They look for the guy who won't ask/won't tell or the guy who only wants the cash when they meet in the parking lot. They go from table to table and when/if the seller asks for an ID they claim they left it in the car and will be right back. They then move to another table. This is the 'gun show loophole" where they claim the "40%" of the illegal transfers occur.
Except it's not 40%. That number came from a tortured reading of a 1997 NIJ survey [pdf], in which 2,568 households were surveyed, but only 251 respondents answered the question about the origin of their gun.


Congresswoman DeGette was claiming in 200 that the figure was 70%, but wouldn't give data at all.

A more realistic and (somewhat) verifiable number? 0.7%. That's directly from a Department of Justice study [pdf].

So, are criminals buying their guns at gun shows? Yeah, a few. Is it enough to be considered a serious problem? No.
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Old April 16, 2013, 08:04 PM   #60
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You and I know it's not 40%. We also know that 90% of gun owners don't favor UBCs but these stats are spewed by politicians and the media as facts. This has become a full blown propoganda war waged by our government against us. Pure and simple, they are lying to create dissention and to sway public opinion to get their way. The general, non-gun owning public takes these stats as gospel and then joins the ranks of the "popular vote". They don't want to be considered "radicals" or "extremists" so they take the path of least resistance. Make no mistake about it, the government is waging an all out war against gun owners and will not stop until they sign that NATO treaty banning all small arms. Wars take years, one battle at a time. They know that and are attacking us one state at a time. One bill at a time. One day at a time.
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Old April 16, 2013, 08:49 PM   #61
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Spats said:
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IMO, a loophole is an unintended consequence of some ambiguity in a law. Private sales being exempt from background checks are not a loophole.
Im going to play devil advocate for a minute.

Lets just go with your definition of a loophole. Its good enough for me.

What appears to be gaining traction in .Gov is that private sales between immediate family members would be exempt. Gun shows; not.

In an immediate family member transaction, you would be pretty dang sure of the age and criminal history.

At a gun show, you would not be sure at all.

So a law was made to allow private sales with the unintended consequence that sellers at gun shows would/could sell to strangers that are underaged or other legally prohibitive persons.


Switching gears.....

Im sure could think of other examples, but selling my own privatly owned pack of cigs to a minor is illegal. If I asked for ID to make sure the buyer was 18+, there really wouldnt be a problem.

We must not make this a 'personal property sale' issue.

Selling some personal property is regulated. For example, selling your personal house is regulated. Selling your personal car is regulated.

This is a 2A issue.

Its not a selling personal property issue. Its not a 'tool' issue.

Its a 2A issue.
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Old April 17, 2013, 08:50 AM   #62
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Im going to play devil advocate for a minute.

Lets just go with your definition of a loophole. Its good enough for me.

What appears to be gaining traction in .Gov is that private sales between immediate family members would be exempt. Gun shows; not.

In an immediate family member transaction, you would be pretty dang sure of the age and criminal history.

At a gun show, you would not be sure at all.

So a law was made to allow private sales with the unintended consequence that sellers at gun shows would/could sell to strangers that are underaged or other legally prohibitive persons.
this is where I sit in this debate. I think if you're in a public domain such as a gun show a private sale is no longer private and you should be subject to do an NICS background check along with FFL's. If an FFL holder has to do it why shouldn't you? a private sale to me denotes selling to a friend or family member, in private.

the only comparison I can make is to liken it to buying tobacco or alcohol. anytime you go to the liquor store or gas station your state ID is swiped through their system and i'm sure it'll send up red flags if something isn't right. the only difference would be that an ID swiping system for guns would should flag those who have a history of mental illness and/or convicted felons.
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Old April 17, 2013, 08:54 AM   #63
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I think if you're in a public domain such as a gun show a private sale is no longer private and you should be subject to do an NICS background check along with FFL's. If an FFL holder has to do it why shouldn't you? a private sale to me denotes selling to a friend or family member.
Totally disagree. A gun dealer, with the required FFL is engaging in a COMMERCIAL activity of the BUSINESS of selling guns. A private individual selling a gun or two at a gun show is not engaging in commerce, but selling PERSONAL property, legally to another person that legally can buy a firearm. By limiting to friends and family you are limiting the private seller and buyers rights. What are friends legally anyway? If I sold a gun to you, you'd probably become my friend, right?
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Old April 17, 2013, 08:58 AM   #64
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and any federal laws such as not selling a handgun to someone under 21 years of age
This federal law only applies to FFLs. State laws on sales of handguns to persons under 21 vary.

Quote:
So a law was made to allow private sales...
Laws are not made to allow anything. Laws only define what is not allowed. Private sales were not mentioned in the law because the intent was to not affect them.
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Old April 17, 2013, 09:06 AM   #65
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Originally Posted by danez71
Quote:
Originally Posted by Spats McGee
IMO, a loophole is an unintended consequence of some ambiguity in a law. Private sales being exempt from background checks are not a loophole.
. . . . So a law was made to allow private sales with the unintended consequence that sellers at gun shows would/could sell to strangers that are underaged or other legally prohibitive persons.
There were no background checks required until 1993 (?), so the exemption for private sales was not an "unintended consequence." It was simply preserving the way sales had been handled for private sellers since the invention of the firearm. What changed was requiring a background check for sales through FFLs.


Quote:
Originally Posted by gaseousclay
. . . .this is where I sit in this debate. I think if you're in a public domain such as a gun show a private sale is no longer private and you should be subject to do an NICS background check along with FFL's. If an FFL holder has to do it why shouldn't you? a private sale to me denotes selling to a friend or family member, in private.
I have to wholeheartedly disagree. Even if we assume that gun shows are in the "public domain," and not truly private events, why should my character change from that of private citizen to federally-regulated entity, based simply on my crossing the threshhold of a doorway?
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Old April 17, 2013, 09:17 AM   #66
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I have to wholeheartedly disagree. Even if we assume that gun shows are in the "public domain," and not truly private events, why should my character change from that of private citizen to federally-regulated entity, based simply on my crossing the threshhold of a doorway?
it's pretty simple - as a private citizen I don't know if you're Mother Theresa or the next Adam Lanza.

Quote:
Totally disagree. A gun dealer, with the required FFL is engaging in a COMMERCIAL activity of the BUSINESS of selling guns. A private individual selling a gun or two at a gun show is not engaging in commerce, but selling PERSONAL property, legally to another person that legally can buy a firearm. By limiting to friends and family you are limiting the private seller and buyers rights. What are friends legally anyway? If I sold a gun to you, you'd probably become my friend, right?
now we're getting into semantics. business is still business whether you're a commercial entity or not. gun sellers, commercial and private, attend gun shows to make a profit, which is the very definition of commerce. also, since 'private' sellers aren't required to do an NICS check how do you know beyond a reasonable doubt iif someone is legally able to buy a firearm? you don't, and that's the crux of the issue. buying or selling a gun to a known family member is one thing, buying and selling to a complete stranger is another

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Old April 17, 2013, 09:52 AM   #67
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Originally Posted by gaseousclay
gun sellers, commercial and private, attend gun shows to make a profit, which is the very definition of commerce.
Actually, no. To the extent that private sellers are selling guns in order to make a profit, engaging in commerce if you will, they're on shaky ground vis à vis federal licensing law; specifically, if they are trying to earn some part of their livelihood this way, they're breaking the law. Private sellers may or may not make a profit selling a gun. I'd bet that most of the time, they don't -- they're just trying to get some money out of the thing, to fund their next purchase, pay the mortgage, whatever.

As to your public vs. private distinction, how is a gun show a more public place than, say, an IHOP parking lot? If I were selling a gun to a stranger, I would never invite him into my home; I would only do such a transaction in a public place, for my own safety. I think this is common practice; whither private transactions, then? It's the status of buyer and seller that matters, not the venue.
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Old April 17, 2013, 10:01 AM   #68
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Actually, no. To the extent that private sellers are selling guns in order to make a profit, engaging in commerce if you will, they're on shaky ground vis à vis federal licensing law; specifically, if they are trying to earn some part of their livelihood this way, they're breaking the law. Private sellers may or may not make a profit selling a gun. I'd bet that most of the time, they don't -- they're just trying to get some money out of the thing, to fund their next purchase, pay the mortgage, whatever.
I would disagree, especially given the current political climate. semi-auto firearms and ammo prices have gone through the roof. there have been numerous threads discussing price gouging by both commercial and private sellers, so yes, a lot of gun owners are making a profit.

Quote:
As to your public vs. private distinction, how is a gun show a more public place than, say, an IHOP parking lot? If I were selling a gun to a stranger, I would never invite him into my home; I would only do such a transaction in a public place, for my own safety. I think this is common practice; whither private transactions, then? It's the status of buyer and seller that matters, not the venue.
a gun show probably draws hundreds, maybe thousands of attendees depending on where it's held. comparing an organized event like that to a personal transaction in an IHop parking lot is reaching. you also state you would never invite someone to your home and only do a transaction in public for your own safety -- you're basically illustrating the very reason why NICS background checks should be done on private transaction, precisely because you don't know who you're dealing with
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Old April 17, 2013, 11:19 AM   #69
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No, my point is that private sales of firearms are not the same as commercial ones. The federal government regulates those, insofar as they involve interstate commerce. (They justify regulating private, interstate sales on the same grounds; whether they should is questionable, IMO, but they do.) There's no constitutional basis for the feds to regulate private, intrastate sales. Whether or not anyone thinks it's a good idea is irrelevant. It's already a crime to sell a firearm to someone you have reason to think is a prohibited person; many private sellers voluntarily go beyond that, by asking for ID, refusing to sell to anyone who doesn't have a carry permit, etc. That's great -- but mandatory federal background checks for face-to-face sales would be a violation of constitutional rights.
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Old April 17, 2013, 12:15 PM   #70
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Vanya, I agree with you on this...
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That's great -- but mandatory federal background checks for face-to-face sales would be a violation of constitutional rights.
We do still have Congressmen that think this way too. They are not all power grabbers who believe it is their remit as Congressmen to usurp State rights.

I would say that although some Congressmen resist this new legislation on the basis of supporting the 2A, that others claim they are doing it in support of the 2A, but in fact they simply believe this is not something the Federal Government should be trying to control and it should be left up to the States to regulate.
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Old April 17, 2013, 02:11 PM   #71
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Originally Posted by gaseousclay
Quote:
Originally Posted by Spats McGee
I have to wholeheartedly disagree. Even if we assume that gun shows are in the "public domain," and not truly private events, why should my character change from that of private citizen to federally-regulated entity, based simply on my crossing the threshhold of a doorway?
it's pretty simple - as a private citizen I don't know if you're Mother Theresa or the next Adam Lanza.
That doesn't answer the question. What you've said is that if I sell a firearm in a "public domain," I should use some kind of background check. You have not pointed out any relevant characteristic of a "public domain" on which to base requiring me to follow a different procedure in my sale than if I were selling a rifle out on a farm ("private domain").
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Old April 17, 2013, 04:12 PM   #72
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This discussion sheds light on the current national discussion. There is a lot of "confusion" on what we can or can't do or actually what we should or should not do.

I am not in any favor of any type of government gun control laws. Any involvement on their level is too much and really messes up something very simple and just. They get involved, we get screwed, pure and simple.

This brings the pressure to us, the gun community. Private sales have been around since we've been on this land. It is part of who we are. I don't believe any one here would knowingly sell to a mentally disturbed or someone with a record of violence but there are those out there who don't care and just want the money. The criminal element also knows that private sales only involves a lie about being prohibited from owning a firearm and I'm pretty sure they have the lying part down pat. So, we have the bad gun sellers and the bad gun buyers getting together to make a sale.

However, there is an element in society who don't care about laws and have no desire to follow them and some are legal gun owners and some are prohibited gun owners and it is no different than society as a whole. Legislating private gun sales is to prevent the very few from doing wrong but as we've seen with all the laws already in place it won't matter to the prohibited buyer. if he wants a gun he will find a gun. The black market has plenty of them. We should not pay for the crimes of a few here or anywhere else. Enforce the laws in the books now and leave the rest of us alone.
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Old April 17, 2013, 08:41 PM   #73
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Totally disagree. A gun dealer, with the required FFL is engaging in a COMMERCIAL activity of the BUSINESS of selling guns.

A private individual selling a gun or two at a gun show is not engaging in commerce, but selling PERSONAL property, legally to another person that legally can buy a firearm. By limiting to friends and family you are limiting the private seller and buyers rights.

What are friends legally anyway? If I sold a gun to you, you'd probably become my friend, right?

Its not uncommon to see the same seller at the gun shows. Those guys arent "selling a gun or two". They have to have enough gross profit money to pay for the fees to be a seller.

A lot of cities have laws that say if you have more than 4 garage sales, you need a business license. As I said earlier, if you sell a car or a house, its regulated. The ' But its personal property' angle is weak and isnt covered by the 2A.

As to your comment about if you should me a gun, Id probably be your friend, let me just quote Vanya.

Said by Vanya:
Quote:
I would never invite him into my home; I would only do such a transaction in a public place, for my own safety.
Doesnt sound like the start of a friendship now does it? Nope. If fact, Ive never seen a thread about how someone just made a new friend when the bought a gun from him at the gun show. I'm not saying it hasnt happened, but it has to be pretty dang rare.



Quote:

There were no background checks required until 1993 (?), so the exemption for private sales was not an "unintended consequence."

No... the unintended consequence is exactly what I said. Private sales were intended. People selling to underaged or otherwise prohibitive person is the unintended consequence. I'll quote myself.

Quote:
So a law was made to allow private sales with the unintended consequence that sellers at gun shows would/could sell to strangers that are underaged or other legally prohibitive persons.

Quote:
As to your public vs. private distinction, how is a gun show a more public place than, say, an IHOP parking lot?
Well lets see here.. IHOP advertises for and sells pancakes and gun shows advertise advertise for... well you get the picture. A gun show is a venue for selling guns. While both are public spaces, one is specifically a venue for selling guns. You dont go to IHOP to buy a rifle and ammo and you probbaly dont go to the gun show for breakfast.

Quote:
It's the status of buyer and seller that matters, not the venue.
I agree to an extent. The gun shows have fees to rent a space/booth and sell. People arent renting booth space to sell guns and loose money. Especially when they sell at multiple shows a year.

If 2 random people met at a gun show and made a transaction... I agree.

But when you have sellers going to venues that advertise guns for sale, rent booth space to sell guns... thats where I think the general public determines in their own mind that the seller is in the business of selling guns and its no longer a 'private sale'.



Quote:
There's no constitutional basis for the feds to regulate private, intrastate sales.

As Armorer-at-Law pointed out:

Quote:
Laws are not made to allow anything. Laws only define what is not allowed.
Does the Constitution say the Feds CANT regulate private party intrastate sales?




Again, I'm playing some devils advocate here. Personally, I feel if a bad person want to do bad things with a gun... he's gunna get a gun. However, I also feel that gun shows are just like a Swap-Meet in that the sellers are renting space for the purpose of selling guns. That also means the have over head to cover. If some one want to do it a couple of time to get rid of some of their own guns.. fine. But Ive also seen posts saying they see the same sellers time and time again.

I dont know where the line is exactly but I do think that the general public opinion is that gun shows are not strickly personal face to face sells.
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Old April 17, 2013, 08:52 PM   #74
Spats McGee
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Quote:
Originally Posted by danez71
Does the Constitution say the Feds CANT regulate private party intrastate sales?
It doesn't have to. The Constitution specifically enumerates those powers that the federal government has, and specifically reserves any other powers for the States, or The People. If the Constitution doesn't grant a power to the federal government, it doesn't have that power.

Quote:
Originally Posted by danez71
Well lets see here.. IHOP advertises for and sells pancakes and gun shows advertise advertise for... well you get the picture. A gun show is a venue for selling guns. While both are public spaces, one is specifically a venue for selling guns. You dont go to IHOP to buy a rifle and ammo and you probbaly dont go to the gun show for breakfast.
Actually, IHOP is private property, held open to the public for business. A gun show may be on public or private property, but it is a private event, organized by a private (non-governmental) entity. One is a venue for buying breakfast, but only from IHOP. The other is a venue to shop for a gun on the one side, and to display guns (& beef jerky) for sale, by either private individuals or businesses which hold themselves out to the public. You do not actually buy a gun from "the gun show."
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Old April 17, 2013, 09:56 PM   #75
danez71
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Quote:
Actually, IHOP is private property, held open to the public for business. A gun show may be on public or private property, but it is a private event, organized by a private (non-governmental) entity. One is a venue for buying breakfast, but only from IHOP. The other is a venue to shop for a gun on the one side, and to display guns (& beef jerky) for sale, by either private individuals or businesses which hold themselves out to the public. You do not actually buy a gun from "the gun show."
I realize that.

But you skipped the analogy of swap-meets. You dont buy from the 'swap-meet'. You buy from the private seller... whos there because the swap meet is a venue for buyers and sellers.... sellers that are in business of selling things; things that are the sellers personal property.

THATS what joe public believes. And its joe public that votes.


Make no mistake. IMO, requiring NCIS checks at gun shows wont make a measurable difference in terms of guns getting into the wrong hands.

But we're fighting public perception.
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