In U.S. politics, the gun show loophole (or the private sale exemption) is the absence of a federal requirement for background checks for private sales of firearms. Federal law requires that all commercial sales of firearms conduct a background check of the buyer. There are also local and state laws regulating background check requirements for the purchase of firearms. The rules regarding commercial sales and who is "engaged in the business" of firearms sales have also been subject to debate and have changed since 1993 when the Brady Handgun Violence Prevention Act, commonly known as the Brady Bill, established the background check system for transfers other than private, instate transfers.
According to a statement by the United States Department of Justice in 2024, unlicensed dealers are a significant source of firearms that are illegally trafficked into communities. Twenty-two U.S. states, the District of Columbia, and all U.S. territories have laws that require background checks for some or all private sales, including sales at gun shows. In most of these states, such non-commercial sales also must be facilitated through a federally licensed dealer, who performs the background check and records the sale. In other states, gun buyers must first obtain a license or permit from the state, which performs a background check before issuing the license (thus typically not requiring a duplicative background check from a gun dealer).
History
The Federal Firearms Act of 1938 (FFA) established the requirement that gun manufacturers, importers, and those in the business of selling firearms have a federal firearms license (FFL), and prohibited the transfer of firearms to certain classes of people, such as convicted felons. For firearm sales or transfers by private individuals, federal law does not require background checks.
In 1968, Congress passed the Gun Control Act (GCA), under which modern firearm commerce operates. The GCA mandated FFLs for those "engaged in the business" of selling firearms, but not for private individuals who sold firearms infrequently. Under the Gun Control Act, firearm dealers were prohibited from doing business anywhere except the address listed on their federal firearms license. It also mandated that licensed firearm dealers maintain records of firearms sales. An unlicensed citizen was prohibited by federal law from transferring, selling, trading, giving, transporting, or delivering a firearm to any other unlicensed person if they knew or had reasonable cause to believe the buyer did not reside in the same state or was prohibited by law from purchasing or possessing firearms. Out-of-State disposition of firearms by nonlicensees
In 1986, Congress passed the Firearm Owners Protection Act (FOPA), which relaxed certain controls in the Gun Control Act and permitted licensed firearm dealers to conduct business at gun shows. Specifically, FOPA made it legal for FFL holders to make private sales, provided the firearm was transferred to the licensee's personal collection at least one year prior to the sale. Hence, when a personal firearm is sold by an FFL holder, no background check or Form 4473 is required by federal law. FFL holders are required to keep a record of such sales in a bound book. The United States Department of Justice (USDOJ) said the stated purpose of FOPA was to ensure the GCA did not "place any undue or unnecessary federal restrictions or burdens on law-abiding citizens, but it opened many loopholes through which illegal gun traffickers can slip". The scope of those who "engage in the business" of dealing in firearms (and are therefore required to have a license) was narrowed to include only those who devote "time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms".
FOPA excluded those who buy and sell firearms to "enhance a personal collection" or for a "hobby", or who "sell all or part of a personal collection". According to the USDOJ, this new definition made it difficult for them to identify offenders who could claim they were operating as "hobbyists" trading firearms from their personal collection. Efforts to reverse a key feature of FOPA by requiring criminal background checks and purchase records on private sales at gun shows were unsuccessful.
In 1993, Congress enacted the Brady Handgun Violence Prevention Act, amending the Gun Control Act of 1968. "The Brady Law", which went into effect in 1994, instituted federal background checks on all firearm purchasers who buy from a dealer who has a federal firearms license (FFL). The Brady Law originally imposed an interim measure, requiring a waiting period of 5 days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual. The waiting period applied only in states without an alternate system that was deemed acceptable of conducting background checks on handgun purchasers. Personal transfers and sales between unlicensed Americans could also still be subject to other federal, state, and local restrictions. These interim provisions ceased to apply on November 30, 1998.
Provenance After the Brady amendment passed, the gun show loophole was also referred to as the Brady bill loophole, the Brady law loophole, the gun law loophole, or the private sale loophole.More private sale loophole sources:
The "loophole" characterization refers to a perceived gap in laws that address what types of sales and transfers of firearms require records or background checks. Private parties who are not engaged in the business of selling firearms are not legally required by federal law to: ask for identification, complete any forms, or keep any sales records, as long as the sale is not made in interstate commerce (across state lines) and does not fall under purview of the National Firearms Act (originally of 1934 and revised in 1968, which governs machine guns, short-barreled rifles, sawed-off shotguns, suppressors and destructive devices).*
In 1999 the Bureau of Alcohol, Tobacco and Firearms (ATF) reported that the definition of who is "engaged in the business" of firearms sales is overly narrow and that the Brady law did not help private sellers identify prohibited persons seeking to purchase firearms, while also allowing habitual arms traders to claim that they fall within the private sales exemption.
Jurisdictions requiring background checks for private sales
A number of states have background check requirements beyond federal law. Some states require universal background checks at the point of sale for all transfers, including purchases from unlicensed sellers. Pennsylvania and Nebraska laws in this regard are limited to handguns, and the Minnesota background check requirement is limited to handguns and assault weapons. Iowa (starting in 2011) and North Carolina (starting 2014) had state permit requirements for handgun purchases that included background checks, but Iowa repealed this requirement in 2021 and North Carolina did the same in 2023. Indiana and Tennessee also had handgun background check requirements that were repealed around 1981 and 1994, respectively. Hawaii, Massachusetts, Michigan and New Jersey require any firearm purchaser to obtain a permit. Illinois began requiring background checks for sales at gun shows in 2005 and began requiring checks for all private sales in 2014; in 2023 the state changed its law to require private sales to go through background checks processed by FFL holders. Vermont passed new gun control laws in 2018, one of which requires background checks for private sales. Nevada's revised law went into effect in 2020. Virginia also started requiring background checks in 2020. A majority of these jurisdictions require unlicensed sellers to keep records of firearm sales.
All populated territories of the United States require purchasers to have a territory-issued license to purchase or take possession of a firearm, and the only firearms permitted in American Samoa are shotguns and .22 caliber rifles.
Some cities and counties have also established local laws affecting gun ownership. For example Tacoma, Washington, has a background check requirement for purchases made at gun shows on city-owned property (made redundant by a state law passed the same year requiring universal background checks), and New York City has its own gun licensing requirements (in addition to being in a state that requires universal background checks).
Some states and counties have adopted "Second Amendment sanctuary" resolutions or laws in opposition to universal background check laws.
The following table summarizes the state, territory, and District of Columbia laws requiring background checks.
+ Background checks for private sales (date effective) Background check by FFL required State/territory-issued permit required All firearms California (1991) (effective January 1, 2011, operative January 1, 2012.)Colorado (2013)Connecticut (2013)Delaware (2013)Illinois (at gun shows in 2005, all sales 2014, checks by FFL holder 2023)Maine (for sales at gun shows and sales that are advertised, 2024)Maryland (non-handguns included 2021)Nevada (2020)New Mexico (transfers made without payment exempt, 2019)New York (2013)Oregon (2015)Rhode Island (1990)Vermont (2018) Virginia (transfers made without payment exempt, 2020)Washington (2014)District of Columbia (1976) Hawaii (2013)Massachusetts (2006)Michigan (2024)New Jersey (2011)American Samoa (only shotguns and .22 caliber rifles permitted)Guam (esp. § 60106, § 60108.)Northern Mariana Islands Puerto Rico (sometime before 2000)U.S. Virgin Islands Handguns Minnesota (also for assault weapons, 2023)Pennsylvania (2010) Nebraska (2010)(handguns prohibited in American Samoa)
Government studies and positions
A 1997 report by the National Institute of Justice based on self-reported survey responses by convicted criminals found that fewer than 2% of convicted criminals said they bought their firearm at a flea market or gun show. About 12% said they purchased it from a retail store or pawnshop, and 80% said they bought it from family, friends, or an illegal source. A 2019 study by the Bureau of Justice Statistics found that fewer than 1% of prison inmates who responded to a survey said they obtained a firearm at a gun show (0.8%).
According to a 1999 report by the ATF, legal private party transactions contribute to illegal activities, such as arms trafficking, purchases of firearms by prohibited buyers, and straw purchases. Anyone selling a firearm is legally prohibited from selling it to anyone the seller knows or has reasonable cause to believe is prohibited from owning a firearm. FFL holders, in general, can only transfer firearms to a non-licensed individual if that individual resides in the state where the FFL holder is licensed to do business, and only at that place of business or a gun show in their state.
Under Chapter 18 Section 922 of the United States Code it is unlawful for any person "except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms".
Under Chapter 18 Section 921(a)(11) a dealer is:
The 1999 report said that more than 4,000 gun shows are held in the U.S. annually. Between 50 and 75 percent of gun show vendors also hold a federal firearms license, and the "majority of vendors who attend shows sell firearms, associated accessories, and other paraphernalia". The report concluded that while most sellers at gun shows are upstanding people, a few corrupt sellers could move a large quantity of firearms into high-risk hands through gaps in current law, and recommended "extending the Brady Law to 'close the gun show loophole.
In 2009 the U.S. Government Accountability Office published a report citing that many firearms trafficked to