In case you're unfamiliar, the gun show loophole refers to the fact that individual gun sales are not subject to the same background checks as sales from a brick-and-mortar gun store. Under Federal law, if you sold your gun at a garage sale or off Craigslist (or yes, at a gun show) as just one private citizen to another private citizen, you would not need to do a background check on them.** In a way, this makes sense. Imagine the garage sale that has Post-it note prices, deals exclusively in cash, and yet also randomly has the capability to process a Federal background check on the spot. Unless you're an employer or a weird kind of stalker that isn't satisfied with Facebook, there's a decent chance that you've never had to run one. But in another way, we should acknowledge that it's sort of a weird exception. If the goal of background checks is to prevent bad people from getting weapons and is thus directed at the buyers, it doesn't make sense that some buyers should be exempted based on who's doing the selling. It's an odd exemption, but it is the law.
The purpose of closing the gun show loophole is to require background checks more or less across the board. This is typically branded as common sense gun control by its supporters. One of the major purposes of background checks is to identify ex-felons and prevent them from getting a gun, even if their crime was nonviolent. On its face, this may seem like a good thing. But aren't ex-felons more likely than most to live in poor and high-crime areas? If so, isn't it also likely that some of them would have a legitimate interest in having a weapon for self-defense? By making gun possession illegal for them, we have another law that can send people back to prison even if they didn't harm anyone. Maybe the risks justify that policy, but it is also contributing to the world-leading prisoner population in the US. Ultimately, whether a particular background check plan is reasonable probably depends on the details, but the issue is not as black-and-white as its proponents would like to suggest.
Let's move on to the details of the executive action itself, which is designed primarily to close gun show loophole mentioned above. I've copied the relevant section of the White House fact sheet below for reference (underlined portion is my emphasis):
Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. Background checks have been shown to keep guns out of the wrong hands, but too many gun sales—particularly online and at gun shows—occur without basic background checks. Today, the Administration took action to ensure that anyone who is “engaged in the business” of selling firearms is licensed and conducts background checks on their customers. Consistent with court rulings on this issue, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified the following principles:
- A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted. For example, a person can be engaged in the business of dealing in firearms even if the person only conducts firearm transactions at gun shows or through the Internet. Those engaged in the business of dealing in firearms who utilize the Internet or other technologies must obtain a license, just as a dealer whose business is run out of a traditional brick-and-mortar store.
- Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.
So let's quickly recap the highlights here:
- There are criminal penalties for failing to comply with these requirements. A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.
- If you're "engaged in the business" of selling firearms, you must be licensed and conduct background checks on your customers
- If you're "engaged in the business" but fail to get a license, you can be sentenced to five years in prison and/or a $250,000
- And most importantly, there's no way to know for sure if you're "engaged in the business" at all, because there is no specific threshold.
The definition of "engaged in the business" is so obviously vague, that it's impossible for a private citizen abide by unless they either a) stop transferring guns to anyone or b) get a license before doing anything at all.
Of course, this is precisely the point. The government appears to have left it so open-ended that it could prosecute virtually any unlicensed person under this new action. In public, they can still claim that it's not technically illegal for a private citizen to transfer guns as long as they aren't "engaged in the business" of doing so. But in practice, they can make it effectively illegal if they interpret the language broadly enough.
This is precisely the kind of legal semantics that all liberals rightly hated under President George W. Bush--enhanced interrogation techniques (torture), unlawful combatants (prisoners of war, except we didn't want to follow the Geneva Conventions), etc. But Obama has doubled down on this same approach--kinetic action (war), imminent threat (a threat that is not at all imminent), targeted killing (assassination), militant (somebody hit by one of our missiles, probably brown), and now this. And many liberals are cheering for it. On principle, it seems self-evident that we should oppose laws that rely on deliberately confusing the issue to garner support, especially when they are passed arbitrarily by an Executive Order.
But if that principle isn't sufficiently compelling, we should also recognize that ambiguous language like this is ripe for abuse. If they don't have a license, there's no clear way to know whether someone has violated the law or not. That leaves it entirely up to the discretion of law enforcement. In addition, since no satisfied customer is going to report their possibly illegal gun seller, law enforcement must use even more discretion to decide where and how they will find these bad people. We know what happens when law enforcement has this much discretion. Disproportionately, the laws get enforced against minorities and other marginalized members of society. Can't you already imagine the random innocent black person getting labeled as a gang-banger, thug, whatever for selling one gun? I can.
We shouldn't kid ourselves that these rules are going to be enforced primarily against the powerful and connected lobbyists that run the NRA. They're going to be enforced against people that don't have any power to start with, same as always. And thanks to the vagueness of these rules, if they do get brought up on charges, they won't stand a chance.
So even if you support more gun control in general, you should think twice before supporting this form of gun control.
*By the way, I am not a gun owner, gun enthusiast, hunter, or anything of that sort. I personally have no interest in them. The most powerful gun I've shot was a pellet gun, and it didn't go well. Of course, it shouldn't matter for the discussion above. But in case it does, just know that I don't have a dog in this fight, which coincidentally, is an appalling way to express objectivity.
**Technically, they do need to be a citizen of the same state as you, presumably to prevent issues where one's state's laws are more strict than the other.