Background check loopholes

[cdoc42]

I have not been clear about the call for improving the background check and making it "Universal." What needs to be improved? Why can't the current check be amended to do it?

I was under the impression that in PA I can sell or transfer a rifle or shotgun to another individual (friend, relative, or interested person) but any handgun or sale at a gun show had to go through a federally licensed dealer and have a background check.

As I looked into this further I became aware that some states don't require gun show sales or any gun transfer other than those sold through a licensed dealer to have a background check.

The other loophole that I see is when a gun is purchased as a gift, the person who receives the gift has not gone through the background check. This opens the path for a criminal to have his non-criminal wife purchase the gun and give it to him. The 4473 form should include the name of the recipient of the gift and that person checked when the purchaser is checked.

I can agree with that type of improvement of the background check.

Does anyone reading this have an opinion on this?

[Aguila Blanca]

Originally Posted by cdoc42

Does anyone reading this have an opinion on this?

My copy of the 2nd Amendment doesn't make any mention of background checks.

If people can't be trusted to possess firearms, why are they allowed to be free in society?

[MC 1911]

It's not a "loophole" if it's legal to sell in your state without a BG check to a private party. Paperwork does absolutely nothing to prevent a person from getting a firearm.

You know what they say about opinions & I disagree with yours.

[ballardw]

Originally Posted by cdoc42

I can agree with that type of improvement of the background check.

Does anyone reading this have an opinion on this?

That a certain amount of brainwashing has been accepted is my opinion.


Your "strawman" sales example is a "strawman". Buying a firearm for someone you know is a prohibited person is an offense. If the wife doesn't know the husband is prohibited then that brings up other issues.

Why should the "law" be different at a gun show than otherwise? There is no "gun show loophole". The laws at guns shows are the same as elsewhere (unless some local ordinance has been written to specifically address "gun shows", likely with poor definition of what a gun show might be) regardless of what talking heads for some organizations say.

"Why can't the current check be amended to do it"? The national check is not set up for non-licensed individuals to initiate a check. In the states requiring "universal background checks" the state has to implement, pay for and charge fees, to cover such.


If anything resembling a reasonable rate of prosecutions by prohibited persons had actually been done based on background checks I might reconsider. But when there is essentially no prosecution then what is the purpose of this check? President Obama at one time claimed something on the order of 12 million prohibited persons had been prevented from getting firearms due to the background checks. Since every one of those, if actually a prohibited person, would be a felony, where were the 12 million arrests?

[Bob Willman]

The problem I see with Universal Background checks is that there is no way to enforce that requirement unless the government knows where every firearm is now located. If that condition is ever met, freedom is over forever!

NRA Benefactor Golden Eagle Looking forward to Indianapolis

[dogtown tom]

cdoc42 I have not been clear about the call for improving the background check and making it "Universal." What needs to be improved? Why can't the current check be amended to do it?

"Universal background checks" would require that every transfer of a firearm be subject to the Brady Law. That means a background check conducted by a licensed dealer.

The various calls for improvement are really about the quality of information and how quickly that information is sent to the FBI. High profile shootings have occurred where the shooters would have been denied the sale if their disqualifying information had been sent to the FBI as required by law.

I was under the impression that in PA I can sell or transfer a rifle or shotgun to another individual (friend, relative, or interested person) but any handgun or sale at a gun show had to go through a federally licensed dealer and have a background check.

All private party transfers of handguns must be processed through a licensed dealer, or at a county sheriff's office. In either case a background check is required.
A gun show is just a venue and licensed dealers selling at one have to abide by the same federal laws as if they were at their business.

As I looked into this further I became aware that some states don't require gun show sales or any gun transfer other than those sold through a licensed dealer to have a background check.

Correct.

The other loophole that I see is when a gun is purchased as a gift, the person who receives the gift has not gone through the background check.

Correct. Purchasing a firearm as a bona fide gift is completely legal.
And its not a loophole.
The recipient of the gift cannot be prohibited from possessing a firearm.

This opens the path for a criminal to have his non-criminal wife purchase the gun and give it to him.

The wife purchasing as a gift isn't a crime, but her handing it to the prohibited person is.
It's also a straw purchase if she is acquiring a firearm on behalf of another person. The crime is lying on the Form 4473 as to the identity of the actual buyer.

The 4473 form should include the name of the recipient of the gift and that person checked when the purchaser is checked.

No, it shouldn't.
First, the recipient of the gifted firearm would need to appear in person. So much for a surprise gift.
Second, its already a federal crime and a state crime to transfer possession of a firearm to a prohibited person.

You really believe that a person intending to obtain a firearm and give it to a criminal will put the name of that criminal on the 4473? Thats why the criminal doesn't go buy it himself!

[dogtown tom]

Aguila Blanca
My copy of the 2nd Amendment doesn't make any mention of background checks.

You need to read the rest of that book.
In there buried deep inside is the one weird trick to who decides if background checks violate the Second Amendment.

If people can't be trusted to possess firearms, why are they allowed to be free in society?

Because the law says so.
And not all prohibited persons are criminals.

[dogtown tom]

ballardw

If anything resembling a reasonable rate of prosecutions by prohibited persons had actually been done based on background checks I might reconsider. But when there is essentially no prosecution then what is the purpose of this check? President Obama at one time claimed something on the order of 12 million prohibited persons had been prevented from getting firearms due to the background checks. Since every one of those, if actually a prohibited person, would be a felony, where were the 12 million arrests?

This.

[dogtown tom]

A research report funded by the DOJ on Enforcement of the Brady Act in 2010 reflected the following:
76,142 FBI referrals of NICS denials to ATF
62 ATF referrals to DOJ for prosecution

Of the 62 cases referred for prosecution:
18 were declined by prosecutor
15 were dismissed
4 complaints filed
12 pending action by prosecutor
13 guilty pleas by defendant

Given that there are MILLIONS of FBI NICS checks run each year......its clearly a waste of time.

I'm sure that many criminals choose to get their guns from someone other than an FFL because of the Brady Law. But not for one minute do I believe the Brady Law reduces crime in any shape, manner or form.

[Aguila Blanca]

Originally Posted by dogtown tom

And not all prohibited persons are criminals.

I understand that. That's one of the major problems with the existing system, but delving into that takes us out of legal and into political, so I'm reluctant to start a deep dive or I'll have to issue myself a warning.

The existing legal structure imposes a lifetime prohibition on gun possession for non-violent crimes -- even misdemeanors rather than felonies -- and temporary (maybe) prohibitions on the basis of mere accusations ("red flag" laws). My personal opinion is that that ain't right. But ... that's what is.

It is within the scope of this forum to discuss the legal situation in order to help our members understand it. As long as we steer clear of politics, we're good.

[44 AMP]

First point, obeying the law is NOT exploiting a loophole. Ever. Period....

It becomes being called a "loophole" when you obey the law but are doing something someone else doesn't like or want you to be able to do, DESPITE it being completely legal to do so.

When discussing the entire background check process, it is necessary to understand that Federal law and various state laws DIFFER. And those differences matter in what you are required to do, depending on what your circumstances you are.

There are still some states that do not have a state requirement for any background check. There are some states that require an FFL to perform a background check for ALL firearm transfers.

.. the call for improving the background check and making it "Universal." What needs to be improved? Why can't the current check be amended to do it?

The only answer to this is dependent on WHO is calling for the changes, and WHAT changes THEY think need to be made.

Usually people who want "universal" background checks are calling for a (Federal) background check on every firearm transfer, every time, prior to approval for transfer being granted. They want it made law that anyone transferring a firearm go through an FFL dealer. But, to be certain of what it is they want, specifically, you'd have to ask them, and get an answers that isn't just a repetition of some "talking point".

"Enhanced" background checks? What does that mean?? NO ONE (apparently) knows, other than the general idea of doing something more than what we currently do. ASK that person calling for an enhanced background check what they mean, specifically, I doubt they know, or have a clue what one would be.

One state I know has a law requiring both the seller and the buyer (and the gun) physically present themselves to an FFL dealer (at the same time, during business hours) so the check can be run. The same law also caps the FFL fee for the process at $35. That particular law is under legal challenge, being so poorly written that "transfer" could mean you handing a gun to your friend to look at in your living room, and then him handing it back to you being two (2) "transfers" done without the mandated background checks. Currently, none of the law enforcement groups in that state are enforcing that law, and have stated that they won't, absent clarification from the state, which has not been provided in the several years since the law was passed. People who comply are doing so voluntarily. It's a bit of a mess...

If you're in PA, you need to find out what, exactly, PA law requires, what Fed law requires and what the differences between them are.

[cdoc42]

All the opinions are educational and welcomed and I thank everyone.

Everyone makes common sense dominate the issue, as usual. But the continual virtually daily shootings being reported last week and today give me cause for concern that it will wear down any appreciation by the general public and they will fall in line with the demand by the political forces (sorry for including that) who call for "universal," "increasing," "improving," etc., without definition.

I constantly get into discussions with medical colleagues who insist that any kind of ban that might be helpful is better than nothing and accuse those of us who oppose it for any reason at all of just hiding behind the Second Amendment and as such are not worth discussing the issue (thereby escaping the discussion). They exit with the phrase that we can more about our guns than we care about our children, which of course, requires that room be made beside the grannies that have been thrown off the cliff.

[raimius]

Tell them they must "first, do no harm" and actually examine BOTH the costs and benefits of gun control. Then, have them look at the correlation between gun laws and violent crime rates (hint, it's a VERY low and inconsistent correlation).

[MC 1911]

I'm guessing your colleagues don't know that John Hopkins states that medical malpractice
is ranked 3rd in the US for cause of deaths. Guns aren't in their top 10. The fact that they won't even discuss it with you is their ignorance on the subject.

At least you try and have a conversation.

[Aguila Blanca]

Originally Posted by cdoc42

I constantly get into discussions with medical colleagues who insist that any kind of ban that might be helpful is better than nothing and accuse those of us who oppose it for any reason at all of just hiding behind the Second Amendment and as such are not worth discussing the issue (thereby escaping the discussion).

The key to that statement lies in the "that might be helpful" part. Your medical colleagues obviously don't know how regulated the firearms industry and hobby are already, and also obviously don't have any comprehension that thugs and gangstas don't buy guns at gun shows (generally), they buy them on street corners from other thugs and gangstas. Bans, restrictions, and background checks on law-abiding citizens don't make any difference whatsoever to people who operate outside of the laws.

If you're interested, PM me and I'll send you a story ...

[44 AMP]

When one doesn't have a valid argument to put forward, a frequent tactic it to attack the PERSON arguing the opposing viewpoint.

That or simply dismissing the discussion, because you are "hiding behind" what. a Constitutionally enumerated right???

How would your doctor friends feel if they had to pass a mandatory background check on their medical credentials EVERY TIME, before seeing a patient?? oh, and they had to PAY for that check from their own personal pocket, as well??

A few points to consider about background checks and the rash of violence today....

First one is that some of the violence splashed on the headlines 24/7 is being done by people who DO NOT have any prior criminal record.

Another point is that a lot of it is done by people who are ALREADY legally barred from possessing a firearm.

why is it that when we look at buying stocks and investments we are constantly told that past history is no guarantee of future performance, but a firearms background check supposedly is a rock solid method to prevent violence?? (hint, its NOT)

Another point to consider, IF, as we are repeatedly told, that the point of the check is to keep guns from the hands of people who should not have them, then what benefit to society exists from a check on anyone who ALREADY owns a gun?? (or several??)

Additionally, consider how the administration (and law enforcement at all levels) treats a denied check. An actually prohibited person is committing several actual Federal crimes if they attempt to buy a firearm.

Is there prosecution for that? almost never, it seems. If the check denies them the purchase, that seems to be all that matters to the govt.

Our current President, when he was VP was asked "why aren't there more prosecutions for people breaking the law trying to buy a gun"? and his answer was "we don't have time for that".....

Just some things to think about.....

[cdoc42]

I think what troubles me the most about conversations with medical colleagues is the disparity in the use of "evidence" to establish the validity of opinions on social issues like gun control versus the support of medical approaches to care.

There were claims of no evidence about the use of hydroxychloroquine and ivermectin for Covid treatment, but there seems to be no such requirement when one asks for reasons why the user, rather than the gun, should draw attention to the solution.

[MC 1911]

It's easier to blame an object than accept the possibilty that they are wrong in their beliefs. Laws are for honest people. Those intent on doing harm too others don't care about laws.

[zukiphile]

Originally Posted by cdoc42

I constantly get into discussions with medical colleagues who insist that any kind of ban that might be helpful is better than nothing and accuse those of us who oppose it for any reason at all of just hiding behind the Second Amendment...

I "hide behind" the words of the law for all my important legal rights. I recommend it.

Originally Posted by cdoc42

... and as such are not worth discussing the issue (thereby escaping the discussion).

That's an interesting way to leave a discussion. Some people conclude that about people who would restrict the right described in the 2d Am. too.

Originally Posted by cdoc42

They exit with the phrase that we can more about our guns than we care about our children, ...

I'll prefer the existence of rights to speak, publish, assemble, worship, travel, vote, have due process and be free of unreasonable searches by the state to the illusion that making people less free of government until risk is eliminated actually makes them safer.

[Recycled bullet]

We should petition our local politicians to draft a law to make murder illegal.

[Aguila Blanca]

Originally Posted by Recycled bullet

We should petition our local politicians to draft a law to make murder illegal.

Nah. It would never work. [Quod erat demonstrandum]

[44 AMP]

Such a law would absolutely work, just as the same law against murder we've been using since the Code of Hammurabi works. Legal justification for the punishment.

What does NOT work is the idea that the law's threat of punishment WILL prevent the crime. It does not. Never has.

Even total disarmament won't stop human on human violence. Never has, anywhere I've ever heard of. The idea that it will is another "Big Lie"....

[Recycled bullet]

Preventing the crime starts in your childhood- your parents teaching you how to act respectfully for yourself, and for others.

NOT in a FBI NCIC check, NOT in the courtroom when you're a grown man because you crippled somebody 'cause he was rude and your ego could not handle the injury from an insult so you beat him with your hands then got arrested yourself.

When you mature you realize agency for your own actions and words and you complete who you want to be .


When I see an adult male screaming in his car because the car in front of him won't go faster a background check won't prevent him from committing vehicular homicide.

He is unwell.

These mass murderers we see on TV are unwell to say the least!!!


We carry arms because a percentage of people never learned how to act. A background check does not inspect the dark parts of your heart for evil, it only looks if you've been successfully arrested and charged on file.

We understand the whole point of legislation or prohibition around criminality or anti social behavior is probably rooted in a desire for a safer community.

What I don't understand is the constructive ignorance surrounding politics and politicians who seemingly go out of their way to avoid addressing the problems society faces.

[44 AMP]

What I don't understand is the constructive ignorance surrounding politics and politicians who seemingly go out of their way to avoid addressing the problems society faces.

You might consider the possibility that, if the politicians actually FIXED something, then we wouldn't need them anymore.....

[Spats McGee]

Originally Posted by 44 AMP

First point, obeying the law is NOT exploiting a loophole. Ever. Period....

It becomes being called a "loophole" when you obey the law but are doing something someone else doesn't like or want you to be able to do, DESPITE it being completely legal to do so.

When discussing the entire background check process, it is necessary to understand that Federal law and various state laws DIFFER. And those differences matter in what you are required to do, depending on what your circumstances you are.....

I had a very long, lawyerly response laid out to the OP, but I really couldn't have said it any better than 44 AMP did. If I'm accused of getting through a "loophole" in the law, that probably means that whatever I did was legal. If it wasn't, I'd be accused of breaking the law.

And just so we're all clear: There is no "gun show loophole" under federal law. Most basic (as in non-NFA) firearms transfers are covered by 18 USC 922, which makes no mention of gun shows. If I buy a gun from an FFL, it doesn't matter if it's at the gun show, in his place of business, or out on the back 40. A NICS check is required. If I buy a gun from a private party, at the federal level, no NICS check is needed. State law may vary.