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AG Garland Closes a Gun Show Loophole That Never Existed

Fictional loopholes and the anti-Second Amendment push.

Attorney General Merrick Garland held a press conference late this week announcing the Biden administration’s latest gun control efforts. The event promised that the administration’s new policy would close the widely-touted gun show loophole. The administration will alter US law through a rule change to the federal register by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Defining a firearm seller as a dealer will be easier, requiring those involved to submit to strict regulations, record keeping, and massive criminal liability should they fail to comply. But why such measures for a “loophole” that never even existed?

Ending the Gun Show Loophole That Never Was

There is no gun show loophole, and there never was. Gun prohibitionists have, for a generation and with a compliant big-box anti-gun media, espoused this terminology with great success. Nevertheless, no federal law (or state law, for that matter) concerning guns has any exemption or exclusion for gun shows.

The term is used by those who want to end private gun sales – that is, gun sales where the government and its databases are not part of the transaction. The announced rule change will make it easier for the federal government to call any casual seller a dealer who must be licensed. “Today, the Justice Department is issuing one of the most significant gun regulations in decades,” Garland said. “These black market guns are found at crime scenes, and too often these black market guns are responsible for heartbreaking tragedies.”

Suppose you own a gun in the United States and want to transfer ownership to another person by selling or giving it to them. For most people, federal law only prohibits you from knowingly transferring the weapon to anyone under 18, who lives in another state, or who you know (or should know) is not legally allowed to possess a firearm, such as felons, fugitives, addicts, etc. Licensed gun dealers, on the other hand, are hyper-regulated, subject to hundreds of pages of federal laws, the Code of Federal Regulations, and ATF agency rulings.

More Dealers, Less Freedom

By broadening the definition of what constitutes a “dealer,” the administration has effectively narrowed the universe of people free to buy and sell a gun without the government being party to the transaction. The new rule accomplishes just that by changing the definition of who is considered a dealer. The change redefines what it means to be “engaged in the business” of selling guns by a “dealer in firearms other than a gunsmith or pawnbroker.” It removes the phrase “with the principal objective of livelihood and profit,” which suggests someone who has an actual gun-selling business, and replaces it with “to predominantly earn a profit,” which can be interpreted much more loosely.

The new regulation explains:

“As now defined by the BSCA [Bipartisan Safer Communities Act of 2022], the term ‘to predominantly earn a profit’ means that the person who engages in selling or disposing of firearms has a predominant intent of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”

There is no legal way to be a gun dealer in the United States without first obtaining a federal license to do so. That has been the law since the passage of the Gun Control Act of 1968. Also, the law doesn’t allow anyone to obtain such a license without an actual business location – meaning there aren’t any licensed dealers who only operate at gun shows. So, anyone selling firearms as an “unlicensed dealer” or “gun show dealer” was already guilty of felony crimes under this federal law – and quite likely some state laws, as well.

The rule change will attach criminal liability to those who exploit the law to aid criminals, leading to more street crime, including homicides – some of which have been very difficult to prosecute. But for those in the gun culture, the people who attend gun shows and buy and sell guns as commonly as car enthusiasts might attend shows and trade cars, it represents a threat to essential liberty. This gives the Biden-Garland DOJ – and all future administrations, for that matter – a broadened rule to potentially weaponize against pro-gun Americans should they choose to do so. The rule change goes into effect on May 10.

Read More From Scott D. Cosenza, Esq.

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