Loopholes in House Leadership's Gun Show Proposal

Definition of "Gun Show" Guts Background Check Requirement

The definition of a "gun show" in H.R. 2122 includes only those events at which there are 50 or more firearms offered or exhibited for sale and 10 or more firearm vendors. This arbitrary definition exempts smaller shows and flea markets. More significantly, it would allow other gun show promoters to evade registration and background check requirements by simply restructuring their shows to have fewer than 10 so-called "exhibitors." As a result, any show with eight or nine "exhibitors" could sell hundreds, even thousands of guns without background checks. Such a broad exemption nearly eradicates the effectiveness of the entire background check provision. The stronger Senate-passed definition covers any event at which 50 or more guns are offered or exhibited for sale.

Interstate Sales of Handguns Would be Legalized

A bedrock component of America's gun laws is a prohibition on the interstate sale of handguns. This limit helps to curtail interstate gun trafficking and enables states with permit systems to enforce those requirements. Under current law, a licensed gun dealer may only do business at a gun show in his home state, and may only sell handguns to buyers who are residents of the state in which the gun show is held. H.R. 2122 would eliminate the ban on the interstate sale of handguns by allowing dealers to ship firearms purchased at a gun show to buyers in any state. This provision, which is not contained in the Senate bill, dramatically weakens current law.

Senate Bill's Crime Gun Tracing Requirements Are Eliminated

The Senate bill would require that information regarding firearms transferred at gun shows be forwarded to the Department of the Treasury. This would enable law enforcement authorities to trace these weapons if they are used in crimes. H.R. 2122 eliminates this provision, making guns sold at gun shows very difficult—or even impossible—to trace. Because the guns used in the Littleton, Colorado shooting were purchased at a gun show, they were extremely difficult for investigators to trace.

Shrinks Waiting Period for Incomplete Background Checks

Under the Brady Law, if the result of an "instant" background check is inconclusive, law enforcement officials have three business days to investigate further and ascertain whether the purchaser is a felon, a juvenile, or otherwise disqualified from buying the firearm. At the end of this period, the seller is allowed to give the gun to the buyer. H.R. 2122 would change this time period for gun show checks to 72 hours—a significant change since almost all gun shows occur on the weekend. For example, if a gun show sale were made at 10 a.m. on a Saturday, the authorities would have only until 10 a.m. Tuesday to check the buyer's records. Under current law, they would have until the close of business on Wednesday—a two-day difference.

The FBI estimates that, under the 72-hour rule, over 9,000 people who were stopped from buying guns in just the last six months would have received the weapons. Since many court documents are unavailable over the weekend, this seemingly small change will limit the ability of law enforcement to conduct a full background check—especially in cases where most records are not computerized, such as domestic violence misdemeanor convictions or mental health problems. The Senate bill would maintain the Brady Law's period of three business days.

Creates a New Class of "Instant Check Registrants"

H.R. 2122 would create a new type of gun seller's license for "instant check registrants," who would have access to the National Instant Check System. This provision would create a new bureaucracy to process applications, just as efforts to reduce the inflated number of gun dealers have begun to bear fruit. The Senate-passed bill simply requires that every transaction at a gun show be completed by a licensed dealer. This use of the existing system for gun show checks is both simpler and more secure than the House proposal.

Gun Show Dealers Would Be Immunized From Civil Liability

H.R. 2122 would immunize traditional licensed gun dealers as well as the new class of "instant check registrants" from civil liability. Under H.R. 2122 sellers at gun shows would be protected from civil liability for "negligent entrustment" or "negligence per se." The proposal would extinguish long-established state common law by prohibiting injured plaintiffs from offering any evidence that a gun show seller failed to complete a background check. To add insult to injury, the bill would allow gun show sellers to offer evidence that they did complete a background check to protect themselves from such suits.

Records Inspection Authority Would be Restricted

Under current law, the licensed premises of gun dealers, importers, and manufacturers may be inspected once a year to ensure that licensees are complying with recordkeeping requirements. H.R. 2122 exempts gun show promoters from such routine inspections, allowing the Department of the Treasury access to promoters' records only in the course of a criminal investigation or to conduct a crime gun trace. This provision, which would seriously undermine the ability of law enforcement to ensure that gun show promoters adhere to the background check requirements, is not included in the Senate-passed bill.