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.'"