By Dave Kopel
May 21, 2002 9:55 a.m., National Review Online. More by Kopel on anti-gun groups.
The new radio ads from the misleadingly named "Americans for Gun Safety" feature John McCain and Joe Lieberman making a variety of bogus claims as part of their campaign against gun shows.
McCain states: "A few years ago, Congress passed a law to make sure people undergo a simple background check before buying a gun." Lieberman chimes in, "That's right, John. That law has stopped 700,000 criminals from buying a weapon."
But that's not true. The 700,000 figure is simply the number of initial denials under the National Instant Check System and its predecessor, the Brady waiting period. The figure includes people who were initially denied a gun because they had the same name as a criminal, but who appealed and were later authorized to purchase. It also includes people denied for improper reasons, such as unpaid traffic tickets.
McCain continues: "Problem is, there's a dangerous loophole because right now the law doesn't cover most of America's gun shows." Lieberman then adds, "That means criminals are getting around the law and buying guns with no questions asked."
These quotes create the entirely false impression that gun shows are some kind of Brigadoon, where the normal gun laws do not apply for a weekend at a county fairground. To the contrary, federal gun laws apply at gun shows precisely as they apply anywhere else. If you are "engaged in the business" of selling guns, you must have a Federal Firearms License (FFL). Your customers must fill out the federal registration paperwork, and you must put your customers through the National Instant Check System (or its state equivalent). This is true whether you sell from a retail store, from a home-based business, or at a gun show.
Conversely, if you are not engaged in the business, then the federal paperwork laws do not apply to you — nor should they, since federal power to regulate gun sales is based on the interstate commerce power, and a collector who sells three guns a year to people in his home state is not engaged in interstate commerce.
The legal status of a small-time collector remains the same whether he sells his three guns a year to friends at work, at meetings of his hunting club, or at a gun show where he rents a table one weekend.
In other words, there is no "gun-show loophole." The phrase is an audacious lie, invented by people who want to abolish privacy for firearms owners. Indeed, the figure of 700,000 gun purchasers who were turned down includes people who were turned down when attempting to buy at gun shows from federally licensed firearms dealers.
AGS is simply using Fabian tactics. Its own internal strategy documents state that its top long-range goal is the licensing and registration of every gun owner in the United States. But AGS doesn't have the honesty to admit that goal to the public. Instead, AGS/McCain/Lieberman offer mendacities about a "gun-show loophole" — a warm-up for claiming that any gun which isn't registered by the federal government was obtained through a "loophole."
Lieberman concludes by claiming that the McCain/Lieberman anti-gun-show bill "respects the rights of law-abiding people to own firearms." Given that Senator Lieberman spent years telling his constituents that the Second Amendment does not protect an individual right to own guns, his assertion that his bill is protective of gun rights should be taken with many grains of salt.
And, in fact, McCain-Lieberman does far more than impose federal registration and background checks on small-time, non-business vendors at gun shows. As I detail in the Issue Paper "Should Gun Shows Be Outlawed?" McCain-Lieberman is a cornucopia of poison pills which would allow a future anti-gun executive branch to shut down gun shows entirely.
In particular, the bill makes it illegal for a person to operate a gun show without a federal license, and structures the license application process so that licenses need never be issued. The bill indirectly requires that people who attend gun shows must be registered. The bill even requires that people who don't sell guns (e.g., the numerous book, food, and clothing vendors at gun shows) be registered; and it would allow the Bureau of Alcohol, Tobacco, and Firearms to demand a list of every book being sold by a book vendor. Finally, McCain-Lieberman authorizes BATF to create additional, limitless gun-show regulations, which could be used to make it nearly impossible for gun shows to be held.
Not one of the McCain-Lieberman bills is necessary to mandate background checks by the small-time gun collectors who occasionally sell guns at gun shows. Colorado enacted such a law by initiative in the 2000 election. The Colorado law simply defines "gun show" and then requires a background check by all gun sellers at a gun show.
The overwhelming share of money to support this Colorado ballot initiative came from AGS (which is based in D.C.), and McCain did AGS-funded television commercials touting the initiative. Thus, AGS and McCain are hardly ignorant of the contents of the Colorado law. If they really wanted only to impose background checks at gun shows, they could propose a federal version of the Colorado law. But while the Colorado law contains just a few paragraphs, the AGS/McCain/Lieberman bill fills dozens of pages.
The fact that AGS, McCain, and Lieberman fail to describe their own bill accurately suggests that — regardless of what opinion polls might say about the abstract issue of gun shows — they recognize that their covert agenda does not enjoy the support of the American public.
— Dave Kopel is research director of the Independence Institute.
More writings from the Independence Institute on gun shows.