I still occasionally get questions from all kinds of people — including those who own guns — about the “gun show loophole”. It’s poorly understood because the entire characterization of it is wrong. When we think of a “loophole” what we typically mean is a detail of the law as written that has been discovered by a nefarious person who uses it for the purpose of circumventing the intent of the law. The “gun show loophole” however, is not so much a loophole as it is the intent of the law. Yes, this is going to end up being about race.
Background checks for gun purchases are a result of the Brady Act of 1993 (implemented in 1998). It was a direct reaction to the attempted assassination of Ronald Reagan in 1981 by John Hinckley Jr., who says he was trying to impress Jodie Foster after seeing her in Taxi Driver (she was 12!!). Incidentally, he also considered Jimmy Carter as a candidate for death, so his choice of target was less about Foster’s politics than it was about assuming that Iris (the character she played in the film) would be impressed if he killed a President.
The point is that when violence touched federal politicians, they suddenly decided that “something must be done” but their solution couldn’t be one that affected the fine, upstanding conservative white people that owned most of the guns. The law, and the politicians that create it, are conservative institutions — they usually work to preserve the status quo. Hinckley was seen as an aberration rather than what he was — just another unhinged white man who had decided that killing several people was the solution to his troubles. The intent of the Brady Act was to keep guns out of the hands of the aberrations while minimizing the effect on “good honest gun owners”.
I don’t want to portray the Brady Act as having had no effect. It did, in fact, reduce the number of suicides. Suicide by gun is a remarkably common thing in the US, and 60% of gun-related deaths are suicides. There are stories about men walking into a gun store, asking to see a gun behind the counter, then loading it and taking their own life right there in front of the counter and the horrified shopkeeper.
The effect of the Brady Act on other kinds of firearm violence is negligible, and that’s for a couple of reasons.
First off, while the intent was to keep people with a history of violence-associated mental health issues from getting guns at all, that didn’t really happen. Factually, people with mental illness are less likely to commit an act of violence than they are to be victims of violence, so the blanket condemnation of people with mental illness implied by the law was quite simply wrong; it was also way more complicated to implement than politicians expected. To make matters worse, conservatives realized that they could easily be defined as people with mental illness, and so they fought against this aspect of the law. For these reasons, the federal background check system still does not meaningfully integrate with data about who might be violent according to a mental health professional (that’s the broad stroke; the details are quite complicated — see 1, 2).
Second, to keep the Brady Act from bothering the people who already owned most of the guns (conservative white men), the Brady Act allows for the unregulated transfer of guns between private individuals. It only regulates sales of guns by federally-licensed dealers. The meme associated with this part of the law was, “I am a completely good conservative white man and what if I want to give my gun (a precious family heirloom) to my completely good conservative white son? How dare the government tell me what I can do with my property!!”
A side-effect of the Brady Act — which undoubtedly helped it become law — is that it made it harder for the people who are not conservative white men to get a gun. Conservative white men could feel good about it because the black gangster of their racist fantasies would have to either pass a federal background check (which he can’t, because in this fantasy, he is a felon) or buy one from a conservative white man, who would obviously be able to detect that the buyer has ill intent (via racism).
Since 9/11, the conservative function of the background check has been kicked up a notch, and the same people who are on the secret “no-fly list” and the even more secret “super shitty special screening” list for flying also get extra special attention when trying to purchase a gun from a federally-licensed dealer. Most of those people aren’t dangerous, but are just members of some group that conservatives are afraid of (i.e., leftists, Muslims, and Black people who have been vocal about the idea that Black people shouldn’t be murdered by the police more often than other types of people).
There’s really only one group of people who shouldn’t be allowed to buy (or own) guns, and that’s fascists. We can go down that rabbit hole some other time, but yes, I would include the standard “domestic violence” or “stalking” guy in that category. Coincidentally, Twitter created an anti-fascist algorithm, but decided not to use it because of how frequently it flagged conservative politicians.
If you go to a gun show, most of the vendors there will be federally-licensed firearm dealers, and if you buy a gun from one of them, they will perform the background check required by the Brady Act before handing you that gun. Some of them even make it one step more annoying and ask you to pay now, but then ship you the gun from their store after they run your background check (gun shows are typically Friday to Sunday, so they’d run your background check the following Monday). However, a gun show is also a place where private individuals can sell guns to other private individuals. Typically, this looks like an attendee (not someone with a booth) walking around with a sign on his back (literally) that says what he has for sale. At a gun show with 100 people, you’re only typically going to see one or two of these guys at a time.
The “gun show loophole” isn’t a loophole, and it also isn’t really about gun shows. Rather, it is about private sales, and it isn’t the “private sale loophole” but rather the “private sale feature”. The reason for the private sale feature is that conservative white men already own most of the guns, and they are presumed to be both good people and adequate judges of who may purchase a used gun.