President Obama’s new gun control actions, background checks, and the tightening of loopholes

What impacts with President Obama’s recent executive actions have on the current loopholes for purchasing a firearm in both federal and state law?

Photo by Mandel Ngan, AFP/Getty Images.

Editor’s note: This is the second article in a two-part series covering the different aspects of President Obama’s executive actions. To view the first article in this series, please click here.

In a crusade to stop gun violence, President Obama has recently taken the offensive by signing 23 new executive actions.  Many legitimate concerns from liberals and conservatives take aim at the federal background check requirements when purchasing a firearm and the loopholes in both federal and state law.   Sometimes the background check requirement applies, and sometimes it does not.

[W]ithin the Brady Act lies a loophole within the private sale loophole

Before purchasing any firearm from a licensed dealer, the Brady Handgun Violence Prevention Act of 1993 requires that the dealer conduct a background check to make sure the potential customer would not be a threat to society with a firearm.  The Brady Act helped to establish the National Instant Criminal Background Check System, which is used to conduct the background check.  The NCIS has been in operation since November 30, 1998, and has processed more than 181 million firearm purchase applications.

Despite federal and state governments’ attempts to have firearm transactions covered by the background checks, a large gap still remains, as private sales of firearms between citizens of the same state are not subjected to any form of background checks.  Gun-control activists have referred this to as the “private sale” loophole.  However, within the Brady Act lies a loophole within the private sale loophole.

Any person, whether a licensed dealer or not a licensed dealer with the Bureau of Alcohol, Tobacco, Firearms and Explosives, cannot sell a gun to someone if the seller has reasonable cause to believe that purchaser: has been indicted or convicted of a crime punishable by imprisonment greater than one year, a fugitive, uses or is addicted to a controlled substance, has been adjudicated as a mental defective or committed to a mental institution, is an illegal alien, was discharged from the Armed Services under dishonorable conditions, renounced their citizenship, is under court order not to harass, stalk, or threaten an intimate partner or child of that partner, or has been convicted of a misdemeanor crime of domestic violence.

Another loophole that has brought massive confusion to the gun control debate is the gun showloophole

Another loophole that has brought massive confusion to the gun control debate is the “gun show” loophole.  Gun control advocates claim that citizens can buy guns at gun shows without background checks.  Gun rights advocates say that they cannot.  Both are half-truths.  If a private citizen registers for a booth at a gun show and sells a firearm, just like they would have done at their house, they are not required to run a background check on the purchaser, but they are subject to the restrictions mentioned above.

There is nothing in the Brady Act, or any other federal law, that allows a licensed vendor to ignore any part of the law if they sell a firearm at a gun show.  They have to abide by the law just as if they were selling at their own brick-and-mortar store.  The gun show loophole has nothing to do with gun shows; it is, in reality, just the private sale loophole.

David Kopel of the Cato Institute has written that private citizens selling firearms at gun shows tend to be a very small minority of vendors.  Unfortunately, there have not been any current and thorough studies on how many firearms vendors at gun shows are non-licensed vendors.  President Obama’s executive action to ask the ATF to make it more clear who is subject to these rules might decrease this number in the near future.

North Carolina has partly closed the private sale loophole as well, but only as applied to handguns

States are also allowed to beef up their background check requirements, and most have. California, Colorado, Delaware, New York, Oregon, and Washington have done their best to close the private sale loophole by requiring any sale of any firearm (some states only require special permits for handguns but not other types of firearms) to go through a licensed dealer who will conduct a background check.  North Carolina has partly closed the private sale loophole as well, but only as applied to handguns.

North Carolina law regarding the purchase of firearms deviates somewhat from the Brady Act.  The ATF has recognized that North Carolina’s pistol permit requirement is a valid alternative to the NCIS system.  Therefore, if you want to purchase a pistol or long gun from a licensed gun dealer in North Carolina, you do not have to go through the federal NCIS background program, but instead just need to get a pistol permit through the local sheriff.  The North Carolina requirements to receive a permit are stricter than the Brady Act, requires a background check, and gives the local sheriff leeway in denying a permit if he is not satisfied with the applicant’s background information.

Many have asked President Obama to take action to close the private sale loophole and were looking to his recent action on gun control to close the private sale loophole.  In the President’s list of executive actions taken last week, he does not seem to call for a close of the private sale loophole.  However, some of the steps that he has called on the ATF, FBI, NCIS, and Social Security Administration to take should help to make the system more reliable and accurate.  These steps include: asking federal and state agencies (including giving states monetary incentives) to communicate more efficiently in the sharing of criminal background information, overhauling the NCIS system by increasing personnel, and sharing mental health information from the SSA to the NCIS to make sure citizens with mental illnesses are not getting firearms.

A valid concern about the President’s executive actions is whether or not they will continue to exist if a Republican is elected President in 2016.  Because they are executive actions and not laws passed by Congress, the next President can easily eliminate these actions and proceed in his or her own manner.  Looking forward, we will see if President Obama’s plan is working and if it will persevere the test of politics and time.

Alex Rector, Staff Writer
About Alex Rector, Staff Writer (6 Articles)
Alex Rector is 2016 graduate and served as a Staff Writer for the Campbell Law Observer for the 2015-2016 academic year. He went to Campbell University and majored in Economics with a concentration in Pre-Law. Alex is originally from Hickory, North Carolina, and between undergrad and law school he worked at the Civitas Institute and the North Carolina General Assembly as the Clerk for the House Finance Committee.
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