Background Check Compromise Would Close Nonexistent Online Gun Sale Loophole


Impact Guns

Today Sen. Joe Manchin (D-W.Va.) and Sen. Patrick Toomey (R-Pa.) are announcing a deal on background checks for gun buyers that is expected to be incorporated into the main gun control bill under consideration by the Senate. According to Reuters, "the measure would expand criminal background checks for prospective gun buyers to include sales made at gun shows and online."

That gloss is misleading on two counts. The current background check requirement applies to sales by federally licensed gun dealers, no matter where they occur. Whether the sale is initiated in a store, online, or at a gun show, a licensed dealer has to do a background check. Conversely, someone who is not a licensed dealer does not have to do a background check, whether the sale is initiated at a gun show, online, or in his kitchen. But contrary to what anti-gun commentators such as New York Times columnist Mark Bittman seem to think, you cannot buy a gun online in the same way you can buy a book or a laptop computer. Direct mail-order sales of guns have been prohibited under federal law since 1968. Iif you find a gun online that you want to buy, you still have to complete the sale in person through a licensed dealer, who still has to conduct a background check. The only legal way around that requirement is to arrange a meeting with a private seller who advertises a gun online and lives in the same state as you. As the San Francisco Chronicle puts it, "Online sales anger gun control advocates because shoppers can use them to exploit a long-standing loophole in federal law that allows unlicensed private gun sellers to skip background checks on prospective buyers in their home state." But this is no different in principle from arranging an in-person private sale after seeing a classified ad for a gun in a newspaper. So far I have not seen any proposals to close the "classified ad loophole."

Manchin and Toomey propose requiring private sellers to conduct background checks (which requires the help of a licensed dealer) to sell firearms at gun shows or via online ads. Several states already require background checks for all sales at gun shows, and that rule is relatively easy to enforce: The shows are advertised, and they include licensed dealers who can arrange background checks for private sellers. But a rule requiring background checks for private sales initiated online will be a lot harder to enforce. These transactions are indistinguishable from other private sales, and just as inconspicuous, except that the buyers are attracted by online ads. Would the law require that any gun advertised online can never be sold without a background check? If not, how could the government prove that any particular private, in-person sale resulted from an online ad rather than a print ad, a flyer, or word of mouth? Such a rule would create hassles and legal uncertainty for people trying to sell their guns, but it is unlikely to be much of a hindrance to criminals, who for the most part already obtain their weapons from people who do not worry about complying with requirements imposed by Congress.  

Update: USA Today reports that the legislation backed by Manchin and Toomey "would not require private citizens to keep records of gun sales" and  "would specifically ban 'the federal government from creating a national firearms registry.'"


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  1. Where would we be without GOP compromise?

    1. A lot more prosperous, and a lot more free.

    2. Saw the CNN crawler on the tv at the gym. Manshit- “it’s a start” “just the beginning of the debate”. Almost chucked something through it. And Toomey with his “I respect the 2A but…” just before he doesn’t. Pat, you think you can stop further infringements?? You just admitted you’re a whore, you’re just dickering over the price now.

    3. The GOP is the phoney opposition party. They exist to ensure there is no real alternative to democrats.

  2. Toomey is my senator. He will be receiving a message from me about his dim prospects of getting my vote at any time in the future.

    1. If brain eating aliens invaded tomorrow, some dumb ass Senator would announce he’d brokered a deal under which the humans would be sedated prior to the eating of the brain.
      “Just because we can’t agree on everything doesn’t mean we can’t agree on some things”

  3. Buying a gun without a background check is not a loophole. It’s the mark of a society that doesn’t believe in pre-crime.

    1. Can I use that sentiment without undergoing a background check?

      1. No. Pre-thoughtcrime is serious business.

  4. I already said it in AM links but Fuck Toomey.

    Regardless of the future of national universal background check, I think he just helped pass it in Oregon. There’s a key vote today on it and three other gun control bills. The swing vote is a normally pro-gun D who has said he’s on the fence. Good luck with that now that a Republican has come out for it. Thanks Toomey for giving him cover.

  5. The devil is in the details. Are these checks going to be erased within 24 hours as currently mandated under the Tihart Amendment?

    1. the legislation backed by Manchin and Toomey … “would specifically ban ‘the federal government from creating a national firearms registry.'”

      More details:

      What about merely *maintaining* a registry that had already been created?

      What about “57” *state* registries?

      What about calling it a *regitax* and charging to get checked out?

  6. Oregon’s background check system is run by the state police who charge $10 in addition to any dealer fees. Anyone, not just dealers, can call in for a check already. They also require more information than the federal one including the firearm serial number and check additional databases (sorry can’t remember those off the top of my head) for denial.

    At gun shows, gun show organizers set up a table for conducting checks for private parties so the selling dealers only need to do it for their own sales.

  7. I have a shotgun inherited from my grandfather and a WWII Japanese rifle from my father-in-law. Under the proposed law, I could not pass them to my son without a permit from the State – and those firearms would now be federally registered.

    1. Ding! Winner! It’s a back door to registration.

  8. A old friend is part of a Utah gun exchange. The funny thing is that half of the sales are by dealers (LICENCED!) who are just expanding their costumer base.

    1. expanding their costumer base

      Guns as part of costumes?

  9. So we get legislation that specifically prohibits a national registry in exchange for closing a “loophole” that never existed in the first place??


    Part of me wonders if the gun lobby invented the “gun show loophole” soundbyte as a wild goose chase for gun grabbers.

    1. I still don’t trust it. Any system that requires entry of the serial number and buyers name is a defacto registry. There is no way around it. The government call claim they won’t retain the data all they want until it comes out that they do.

      1. Indeed. I have no doubt that the ATF already keeps track of every background check that goes through.

    2. I agree…A FFL dealer was already needed for these transactions so now it is more codified…basically status quo…

      it allows everyone to appear like they are “doing something” while prohibting a national registry…

      That’s a win for Toomey but it wont be reported that way…

  10. So, since we’re all about compromise, what do 2nd amendment supporters get if they sign on to this? Increased limits on what can exclude you from buying a gun? A cookie?

    1. Nonono, “compromise” means that Democrats only get some of what they want, and Republicans get to show that they can compromise! There’s no actual give and take; that’d be irresponsible to the children.

    2. They get the Axe of Whiterun

      1. The Axe of Whiterun sucks (and all the [Weapon] of [Hold]s except the Shield of Solitude).

  11. So, firearms means all guns, including long guns and shotguns?

    So if I want to sell my 12 gauge, I’ll have to go to a dealer to do the background check before the buyer gets it?

    1. No, you’ll just go ahead and break the law. Let’s be realistic.

    2. What exactly is a firearm anyway? Do bb guns count?

      1. PA law has a couple, depending upon the law. This is in the definitions section of our uniform firearms act:

        Firearm.” Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.:

        Basically, pistols.

        However, in the section prohibiting felons from owning guns, firearm is this:

        Firearm.–As used in this section only, the term “firearm” shall include any weapons which are designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon”

        That’s long guns as well

      2. Federally, it’s (roughly, and variable by context – this definition is from 18USC921, but it’s very close to this and the exceptions are irrelevant in context, everwhere else I’ve looked in the USC and CFR):”any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive“.

        And also receivers for said guns, and suppressors and explosives.

        (Because a tube with some baffles in it, with holes in said baffles?

        Is obviously “a firearm”. Thanks, Congress!)

        So, no. Under Federal law, a BB gun is not a “firearm”.

        I’m not sure even California or Massachusetts are stupid enough to include BB guns as “firearms”, but I wouldn’t lay money on it.

        1. Not speaking to Cali/Mass but air guns of a certain power level are considered by some states to be Firearms.

          Don’t recollect what the level is, but Illinois is one of those states.

  12. They’ll pass this, Obama and the D’s will declare victory, the moderate Rs will feel smug, the media will applaud and we’ll move on.

    Next year there will be another mass murder, because this weak crap isn’t going to stop anybody, and where are we then? Take this up again? In an election year and precursor to 2016?

  13. …the legislation backed by Manchin and Toomey “would not require private citizens to keep records of gun sales” and “would specifically ban ‘the federal government from creating a national firearms registry.'”

    So how exactly can it be determined whether a gun was sold with or without a background check?

    1. The only situation they’ll be able to do so is in the case of a sting operations. I predict that will become a cottage industry for certain PDs.

    2. You mean, besides checking the registry that “won’t” exist?

      “No that’s not a gun registry, that’s a background check verifying database.”

      /ATF in the near future

      1. The ATF already has the potential to break the law and have a registry from NICS check calls.

        There’s zero evidence I’ve ever heard of that they actually do have such an illegal registry; so if they do they’re super-hush-hush about it and never use it. Which seems unlikely considering how utterly incompetent they are.

        (Also remember that there is a gun registry in the US, for NFA weapons.

        It’s also notoriously inaccurate.

        An “every gun” database would not be any more accurate than the NFA database, I imagine; they’re really serious about NFA registration and they still can’t maintain the NFA registry correctly.)

    3. At this point, the feds have no clue what guns I own. And they never will until I sell one and go through the background check. Will they need to know the type and serial number of the gun being sold?

      1. No, NICS does not include – currently – a gun type let alone serial number. The system is verifying the buyer only.

  14. Background checks: they’re magic!

  15. USA Today reports that the legislation backed by Manchin and Toomey “would not require private citizens to keep records of gun sales” and “would specifically ban ‘the federal government from creating a national firearms registry.'”

    There already exists a national firearms registry, so this may be technically correct. However, there is legal precedent at the state level (PA) that a law prohibiting creation of a registry does not prohibit an existing registry from being operated.

  16. So far I have not seen any proposals to close the “classified ad loophole.”


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