I-594: Background Check “Loopholes”? Much Ado About Nothing

This is the second post in a three-part series on I-594, a Washington State ballot initiative that would require background checks on all state gun sales and transfers. The first post delved into commentary regarding several implications of the proposed law, and can be found here. Later this week, part three will cover various philosophical aspects of gun ownership in general, and how I-594 would impact it.

In geometry, the shortest distance between two points may in fact be a straight line, but in political discourse, the shortest distance between everything wrong in America and Shangri-La are those dreaded “loopholes”.

And why not? For if there’s a culprit in every injustice, for some, “loopholes” fill that role quite well indeed. Warren Buffet purportedly pays less tax than his poor secretary? “Loopholes”, they cry. Burger King gobbling up Canadian coffee and doughnut store Tim Horton’s to skirt fiscally chilling U.S. corporate tax rates? Confounded loopholes again! Criminals finding a way to obtain firearms? If it weren’t for those meddling loopholes!

It’s on the subject of that last scenario whereby advocates in favor of I-594 have rested much of their argument. There exists a dangerous background check loophole at gun shows and online that criminals take advantage of to obtain a firearm, they say. In viewing several TV spots that have aired, the perception is that the state is awash in guns being purchased from these venues by criminals who have exploited the loophole, which creates the impetus for tighter regulation of gun sales.

An honest reading of I-594 reveals that it bites off quite a bit more than simple restriction of gun sales, as I’ve pointed out earlier, but for the purpose of the present exercise, we’ll focus on the supposed loophole.

As it relates to an explicit mechanism whereby a miscreant can perform an end-around in order to get a gun, supporters of I-594 have largely resorted to overstating–in two key ways–not only the practical scope of the background check “loophole” itself, but also the extent to which it is capitalized on.

Firstly, advocates have stated that as a result of loopholes, criminals can simply go online or to a gun show to get a firearm, all without being subjected to a background check. At worst, this is bollocks, and at best, verifiably murky. It is certainly not the whole story.

The Gun Control Act of 1968 (which repealed the Federal Firearms Act of 1938 while reenacting many of its provisions) was passed by President Johnson after a series of infamous assassinations throughout the Sixties, and required that all individuals and other entities “engaged in the business of selling firearms” must obtain a federal firearms license (FFL) in order to sell guns, and required that interstate sales of firearms be facilitated through a licensed dealer. In 1993, the Brady Act required all such transactions through a licensed dealer be accompanied by a federal background check through the National Instant Criminal Background Check System (NICS) maintained by the FBI.

To recount, any vendor “engaged in the business of selling firearms”, be it an individual or a business, must possess an FFL and must perform a background check through the FBI. This applies equally to sales conducted at a permanent brick-and-mortar location, or at a temporary venue like a gun show. To the extent a background check “loophole” exists, it pertains to private individuals–who are unaffected by federal legislation–who are not otherwise in the “business” of selling guns.

While this may be viewed as a vindication of the pervasiveness of the loophole, circumspection before pumping one’s fists in victory is appropriate. Some suggest that between 25 and 50 percent of vendors at gun shows are unlicensed dealers who don’t perform background checks, but as Cato Institute’s David Kopel states, this is only true “if one counts vendors who aren’t selling guns (vendors who are selling books, clothing or accessories) as “unlicensed dealers.”’ Private individuals occasionally flaunting a few pieces from their own collection are a noticeable minority. The overwhelming majority of dealers at gun shows are licensed and bound by background check requirements.

Secondly, the presence of a background check loophole itself amounts to very little if criminals don’t actually exploit it. Various and sundry government studies and reports over the last two or three decades have, indeed, found just that. A 2013 Bureau of Justice Statistics survey of state and federal prison inmates found that, of those who had a gun at the time of their offense, only a scant 0.8% of them obtained it from a gun show, as opposed to the 40% who got the gun off the street or from an already illegal source. Other surveys have found similar numbers.

Put other way, criminals are up to 50 times more likely to obtain a gun off the street–practically impossible to enforce via background checks–or from an already illegal source. It makes sense. In choosing the path of least resistance, they overwhelmingly find it easier to steal a gun from Peter, as opposed to paying him for it and exploiting a legitimate means that puts them in the sphere of a legal apparatus that could thwart their intentions.

Passing I-594 will simply push a greater number of malefactors–who by definition don’t adhere to the law–to utilize one of these underground methods, leaving the law-abiding to be disproportionally affected.

If Washington were in fact being flooded with guns being obtained for ill purpose, certainly the consequence of which would be elevated state gun crime. But the numbers simply don’t bear this out. In recent years, murders in Washington caused by firearms have been less than half the national average (in 2011, Washington had 1.25 per 100,000 people, compared to 2.75 nationally, down from the year prior). Robberies and aggravated assaults involving guns also take place at almost half the national average.

Washington has some of the lowest gun crime in the country, despite having comparatively fewer gun regulations. Many other states share similar stories. If background check loopholes are truly causing the waves supporters of I-594 say they are, it’s rather difficult to find where they’re breaking on shore.

What loopholes do constitute are ready scapegoats that play well to those inclined to believe that increased background checks will be an effective deterrent to criminal gun activity. Spin a tale of malevolent loopholes putting the populace at risk, and it makes for a good TV spot. Reality, meanwhile, says those in favor of closing them are, qualitatively, making much ado of nothing.


About Michael Haugen

Michael Haugen is a full-spectrum conservative and recent graduate from Eastern Washington University (BS Biology). His main interests in politics and public policy center around health care, education and tax reform. He'll be returning to EWU in 2014 to complete a Master's degree in Public Administration. Follow him on Twitter: @HaugenTRA

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