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Obama’s rhetoric doesn’t match reality of gun laws

As President Obama announced his administration’s new gun control measures Tuesday, two of his stated objectives were to “close the gun show loophole” and to “restrict Internet gun sales” because a “dangerous felon” can currently buy a gun at a gun show or over the Internet “with no background check, no questions asked.” However, the president’s contention that background checks are not required either on sales of firearms at gun shows or over the Internet is materially misleading – if not entirely false.

Under federal law, anyone “engaged in the business” of selling firearms must obtain a Federal Firearms License. Federal law also requires that all Federal Firearms Licensees (“FFLs”) gather the personal information necessary to conduct a background check on any person attempting to buy a gun by requiring the purchaser to fill out a ATF Form 4473. The FFL then contacts the National Instant Criminal Background Check System operated by the FBI out of Clarksburg, W.Va., which performs the background check. It does not matter where the FFL is conducting business – in a “brick and mortar” store, at a gun show or over the Internet, the requirement to conduct a background check on every gun purchaser remains the same. Thus, the belief of many that “buying a gun at a gun show or over the Internet does not require a background check” is false as applied to any purchase made from a dealer.

As to Internet sales, the federal requirement to conduct background checks means that any firearm bought from a dealer over the web may be shipped only to another licensed gun dealer. As a result, a gun purchased over the Internet is shipped to a dealer, the purchaser goes to that dealer, fills out a form 4473, undergoes a background check and receives his or her gun (assuming a successful background check). Even private individuals are prohibited from selling or shipping guns to other individuals across state lines by federal law (over the Internet or by any other means).

The only exception to the requirement to conduct a background check as part of the sale of a firearm relates to transactions between private individuals who reside in the same state, absent state law to the contrary. And while it is true that some sales of firearms are legally conducted at gun shows – as well as many other locations – between private individuals, it is not true that such transactions are completely unregulated. For example, in Indiana it is illegal for any person to sell a gun to someone the seller has reason to believe is a felon, mentally incompetent, intoxicated, an alcohol abuser, a drug abuser or underage.

In addition, it is illegal for anyone “engaged in the business” of selling firearms to do so without having a Federal Firearms License and without performing background checks, whether at a gun show or anywhere else. Federal law already defines the term “engaged in the business” of selling firearms as “a person who devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” That definition excludes a private individual “who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

Nothing that Obama or the Bureau of Alcohol, Tobacco, Firearms & Explosives did on Tuesday changes federal law as to who is – and who is not – “engaged in the business” of selling firearms.’ In fact, Obama did not even issue a true executive order on these issues. The Bureau of Alcohol Tobacco, Firearms & Explosives simply issued a guidance document that explains how the agency interprets and intends to enforce existing law. That document does not in any way “expand background checks” or otherwise change the law with respect to how guns can and cannot be legally sold at gun shows, over the Internet or anywhere else. It simply discourages people from illegally “engaging in the business” of selling firearms without first obtaining a FFL and performing background checks on prospective purchasers in order to avoid prosecution under existing law (and to avoid a potential penalty of five years in jail and a $250,000 fine).

Ironically, this means that the Obama administration did not actually implement new gun control measures to restrict the so-called “gun show loophole” or to limit Internet gun sales – the president simply announced his instruction to federal agencies to vigorously enforce existing laws, something gun rights activists have been calling on him to do for years.


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