Nine myths about gun shows, private sales and the loophole that is not one

Somewhere in America a convention center is hosting a gun show, and according to the coverage, it is also hosting a legal black hole. Walk through the doors, the story goes, and the law of the United States stops at the coat check. Dealers wave you past the background check, felons stroll the aisles, and a man in a camouflage cap hands you a rifle in exchange for cash and a handshake.

It makes for a vivid picture. It is also wrong in almost every particular, and the phrase that carries the picture, "the gun-show loophole," is a masterpiece of political naming. A loophole is a gap in a law. What people mean is a different thing: a policy choice that federal law makes about private sellers, which has nothing special to do with gun shows. Let me take it apart in the order a careful reader should, with definitions first.

Define the terms before you argue

Three terms do all the work in this debate, and most of the confusion lives in the space between them.

A licensed dealer (a Federal Firearms Licensee, or FFL) is a person the government has licensed to be "engaged in the business" of dealing in firearms. That phrase is defined in federal law, and I will come to how the definition changed in 2022. A licensed dealer must keep records of every sale and, since the Brady Handgun Violence Prevention Act of 1993 took full effect with the National Instant Criminal Background Check System in 1998, must run a check on the buyer through that system before transferring a gun. That duty applies to the dealer, not to the building. It follows him into a gun shop, a gun show, a parking lot and a church basement.

A private seller is anyone else: a man selling his late father's shotgun, a hunter trading a rifle to a friend, a collector thinning a collection. Federal law does not make a private seller keep a bound book or run a check when he sells to a resident of his own state.

A prohibited person is someone federal law bars from possessing a firearm at all. Section 922(g) of Title 18 lists the categories, among them convicted felons, fugitives, unlawful users of controlled substances, people committed to mental institutions or adjudicated as mentally defective, persons subject to certain domestic-violence orders, and people convicted of misdemeanor crimes of domestic violence. Section 922(d) makes it a federal crime to sell or give a firearm to someone you know, or have reasonable cause to believe, belongs to one of those categories.

Keep those three definitions in your pocket. Every myth below breaks on one of them.

The steelman, stated fairly

The strongest version of the case for closing the "loophole" runs like this. Background checks work only if they cover the sale. If a prohibited person can be turned away at a store counter and then buy the same gun from a stranger in a hallway, the check is a speed bump on one road and a wide-open shoulder on the other. Private sales at gun shows are convenient, anonymous and crowded, so a seller who does not know who he is dealing with can sell quickly with no paperwork. Supporters add that a universal check is a modest burden: a phone call or a trip to a licensed dealer, who can run the check for a fee.

That is a serious argument, and honest conservatives should concede its premise: the question of private-sale checks is a real policy question on which reasonable people, and different state legislatures, have come down differently. What conservatives should not concede is the vocabulary, or the many factual claims that have grown around it. So let us test the claims.

Four myths about the law as written

Myth one: there is a loophole that exists only at gun shows

The law draws no distinction between a gun show and any other place. A licensed dealer selling at a show has exactly the same obligations as that dealer behind his own counter: run the check, fill out the form, keep the record. A private seller at a show has exactly the same freedom, in states that allow it, as a private seller on a front porch or a classified ad.

The "gun-show loophole" is therefore a label for the private-sale rule, pinned to a location because a crowded show makes a better picture than a kitchen table. If you wish to change the private-sale rule, say so, and argue for it. Arguing that the rule is a defect of gun shows is like arguing that a speed limit is a defect of a particular highway.

Myth two: dealers at gun shows do not have to run background checks

This is false, and it is the claim most likely to be repeated by someone who has never been to a show. A licensed dealer at a gun show runs the check through NICS, usually by phone or tablet at the table, and records the sale. Many shows set up a table with a licensed dealer who will handle the paperwork even for private sales between two attendees, precisely so the sellers can comply with state law.

There is a narrower point worth being precise about. A person who holds a license may also keep a "personal collection" that he does not buy and sell for the business, and a sale from that personal collection is treated as a private sale. That rule existed long before gun shows were a political subject, and it is not a license to hide the stock in trade. A person who buys guns in order to resell them for profit is supposed to be licensed, which brings us to the heart of the issue.

Myth three: "anyone can sell anything to anyone, no questions asked"

This one should be retired. Federal law imposes at least four limits on a private seller.

One, the knowledge rule. Under 18 U.S.C. 922(d), a seller who knows or has reasonable cause to believe the buyer is a felon, a fugitive, an unlawful drug user or another prohibited person commits a federal crime by selling to him. The seller who shrugs and says "I didn't ask" is flirting with the "reasonable cause" half of that sentence.

Two, the straw-purchase rule. A person who buys a gun for someone who cannot lawfully buy one, and says it is for himself, commits a separate federal offense, at the dealer's counter or anywhere else that false statement is made.

Three, the age rules. Federal law bars licensed dealers from selling handguns to anyone under 21 and rifles and shotguns to anyone under 18, and bars any person from selling a handgun to anyone he knows or has reasonable cause to believe is under 18.

Four, the state rules. Federal law is a floor, and the Tenth Amendment leaves the rest of the field to the states. A number of states require a background check on all sales, including private ones, or require private sales to go through a licensed dealer. In those states a gun show is no different from anywhere else: the transaction goes through a dealer or it is a violation of state law.

So "no questions asked" is a slogan, and what the law actually says is "no federal paperwork for a lawful same-state sale between two people who are not prohibited and not in the business."

Myth four: you can buy a gun at a show and carry it home to another state

Federal law says otherwise. Under 18 U.S.C. 922(a)(5), a person who is not a licensee may not transfer a firearm to a person who is not a resident of his state, with narrow exceptions such as inheritance. Under 922(b)(3), a licensed dealer generally may not sell a firearm to someone he knows or has reasonable cause to believe lives in another state. A rifle or shotgun may be sold in person to an out-of-state buyer if the sale complies with the laws of both states, but a handgun for an out-of-state buyer must be shipped to a licensed dealer in the buyer's home state, who runs the check there.

This is the rule that stops a Texan from driving to a show in Oklahoma and walking out with a pistol that has never touched his own state's paperwork. These interstate rules are still on the books. If you hear that "you can buy a gun at a show in one state and take it anywhere," the person is describing what the law forbids and calling it a loophole.

Five myths about the reform and the motives

Myth five: the 2022 law created universal background checks

It did not. The Bipartisan Safer Communities Act, signed in June 2022 after the Uvalde school shooting, was a mixed package. It enhanced the background-check process for buyers under 21 by calling for a review of juvenile records, it created a new federal offense for gun trafficking and straw purchasing, it extended the domestic-violence prohibition to some dating partners, and it funded state crisis-intervention programs.

It also changed the definition of "engaged in the business" in 18 U.S.C. 921(a)(21)(C). Before the law, a person was engaged in the business if he devoted time and attention to dealing as a regular course of trade "with the principal objective of livelihood and profit." After it, the phrase became "to predominantly earn a profit." Congress thus lowered the bar for who must be licensed, which means more repeat sellers are treated as dealers and must run checks. It did not require checks on private sales between friends or neighbors.

In 2024 the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a rule applying the new language and listing circumstances in which a person is presumed to be engaged in the business. That rule has been the subject of litigation, so a reader who cares about its present status should check the Federal Register and the ATF's own pages rather than trust my summary or anyone else's. The point for this discussion is narrower: the 2022 change was about who counts as a dealer, not about creating a universal check.

Myth six: the ATF cannot touch a private seller who is really a dealer

It can, and it has always been able to. Dealing without a license is a federal felony under 18 U.S.C. 922(a)(1)(A). A person who buys fifty pistols and resells them at a profit, week after week, is a dealer whether or not he calls himself a "hobbyist," and prosecutors have long charged people on exactly that theory. The old definition of "engaged in the business" made those cases harder to prove because of the "principal objective of livelihood and profit" language; the 2022 amendment made them easier. Whatever you think of that, it is the dealer-versus-private question again, and not a gun-show question.

Myth seven: the gun show is where criminals get their guns

Here the best evidence is what criminals themselves say. The Bureau of Justice Statistics, part of the Justice Department, has surveyed state and federal prison inmates for decades. In its report on the 2016 survey, "Source and Use of Firearms Involved in Crimes," the large majority of inmates who had a gun during their offense said they did not get it from a retail source. The most common answers were the street or an underground market (43 percent) and family or friends (25 percent), and the share who named a gun show was under one percent (0.8 percent), far lower than the share who named a street purchase or a theft.

I want to be fair about what that does and does not show. A survey of inmates describes the people who were caught and who agreed to answer, and "friends or family" covers a lot of ground, including sales that a universal check would reach. But the survey also contradicts the picture of the gun show as the central supply line. If the gun show were the great marketplace for criminals, the people who run the criminal market would know it, and they say otherwise.

I would add one observation of my own, which is an argument and not a statistic. A law that works by asking criminals to submit to paperwork has to rely on the criminals' cooperation. The person who steals a gun, or buys one from a dealer who is breaking the law, or borrows his cousin's, will not be stopped by a rule about private sales, and the survey is a reminder of that. The checks that catch people are the ones at the counter of a licensed dealer, and those already exist.

Myth eight: closing the "loophole" would end the problem

Three considerations should temper that claim. First, as the survey suggests, most crime guns do not come through the sale that the proposal would regulate. Second, enforcement of a private-sale check depends on records, and a private sale with no record is nearly impossible to detect; the law can require the check, but it cannot easily prove that a check was skipped. Third, the burden falls on law-abiding people. The retiree who inherits a revolver and gives it to his grandson must now find a dealer, pay a fee and fill out a form.

None of those points proves the policy is unwise. A state legislature can weigh them and decide that the benefit is worth the burden, and several have. But the claim that a universal check is a cure, as opposed to a measure with costs and uncertain benefits, is exactly the sort of claim a serious reader should treat with suspicion. Conservatives who are asked to support one should ask for the evidence that the check reaches the guns used in crimes, and a clear rule that a check is processed quickly and at a reasonable fee, and without creating a registry of lawful owners.

Myth nine: conservatives defend the status quo because they do not care about crime

This is the myth of motive, and it deserves a straight answer. The case against federalizing private-sale checks has never been that criminals are charming. It is a case about the structure of the Constitution and the cost to ordinary people. In Printz v. United States (1997), the Supreme Court held that Congress cannot commandeer state officers to run the federal background-check system. In Heller (2008), the Court held that the Second Amendment protects an individual right, and in Bruen (2022) that restrictions must be consistent with the nation's historical tradition of firearm regulation. A check on every private transfer would be a condition on exercising an enumerated right, which does not make it unconstitutional, but it does mean it is subject to the same scrutiny as a licensing fee on a newspaper.

The practical question is how to protect the public without taxing the lawful. I would argue that the best targets are the ones the record points to: enforce the laws against straw purchasers, prosecute people who lie on the form, and make sure the records that feed the system, including disqualifying mental-health and criminal records from the states, actually reach it. A check is only as good as the data behind it, and the data have gaps no private-sale rule can fix.

What a fair reader should take from this

Gun shows are not lawless. They are regulated exactly as other places are. A licensed dealer at a show runs the check, an out-of-state buyer must go through a dealer in his own state, and a private seller who knows his buyer is prohibited commits a federal crime. What remains is the private-sale rule: a lawful same-state sale between two non-prohibited residents needs no federal check. You may wish to change that, and states are free to, and many have. But call the thing by its right name, because a fight over a policy is a fight a free people can have in good faith, while a fight over a loophole is a fight over whether the law exists at all.

For readers who want the wider legal frame, see ninety years of federal gun law in the dates that changed the rules, and for the case about who may be drafted to run federal checks, Printz v. United States and the sheriffs who refused to be drafted by Washington. For why the vocabulary matters so much to this fight, assault weapon, ghost gun, arsenal, how news vocabulary does the arguing takes the same approach to the words themselves, and conservatives disagree about red-flag laws, and both sides deserve a hearing shows how conservatives argue honestly about a different measure. The text of the Constitution is at the Constitution page.

The case in brief

1. A "loophole" is a gap in a law; the private-sale rule is a deliberate policy choice, and it applies to a kitchen table exactly as it does to a gun show.
2. Licensed dealers must run a background check wherever they sell, and interstate sales must go through a licensed dealer in the buyer's state.
3. The 2022 Bipartisan Safer Communities Act changed the definition of "engaged in the business" and did not create universal checks.
4. Inmate surveys by the Justice Department show that gun shows are a very small source of crime guns compared with family, friends and street markets.
5. Whether to require checks on private sales is a legitimate question for state legislatures, to be settled on evidence, cost and the rights of the law-abiding, not on a slogan.

What you can do: read your own state's private-sale rule on your legislature's website before you repeat anything you have heard about gun shows, then tell your state legislator which version of the rule you support and why.