The “Gun-Show” “Loophole” and Tort Law

The “gun-show loophole” is the popular name for the idea that people who wouldn’t be able to buy guns from federally licensed firearms dealers can go to gun shows and buy guns without background checks from non-FFLs.

I’ve been to several gunshows, and haven’t seen more than a handful of guns for sale by non-FFLs. The loophole—if it is a loophole—is, more accurately, a private-transfer loophole.

“Loophole” is a value-laden word; the rule allowing private citizens to transfer guns to each other without background checks is more accurately an exception—an exception that allows gifts between family members as well as sales between strangers.

How significant is the private-sale exception? The New York Times asserts that “Nearly 40 percent of all gun sales are exempt from the system.” I find that surprising, and would have to see the source of the statistics. Any interstate gun sale, even from one non-FFL to another, must pass through an FFL (and so requires a background check). I hunch that intrastate individual-to-individual sales don’t make up 10% of gun sales.

Why does it matter how big the private-sale exception is? Because any new rule has hidden costs, including opportunity costs. When we are rational, we don’t do “whatever it takes” to address our fears; instead we evaluate the costs and benefits of a new rule. For a new rule to be justified, the benefits have to outweigh the costs. If we are merely assuming benefits, we shouldn’t make the rule (even if the costs are also a hunch). The use of misleading labels suggests that there is no sound basis to the rhetoric.

So show me the numbers.

If the gun-show exception is not significant or of small significance, perhaps there is no problem, or maybe there are other solutions to the problem than the use of state violence—for example, tort law. Right now if I had a gun and I wanted to sell it I couldn’t do a background check through NICS—only FFLs have access to the system. Give gun sellers access to the system, and most of them will use it. If they don’t, and if they guns they sell wind up being used to commit mayhem, let the plantiffs’ lawyers at ‘em to hold them responsible for their negligence. It won’t take many kajillion-dollar verdicts to make background checks the de facto rule in private gun transfers.

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