Congress has made dozens of attempts to narrow the so-called gun show loophole since establishing the background check system. Most of those efforts have failed.
Feb 27, 2024
On February 28, 1994, the Brady Handgun Violence Prevention Act took effect, implementing a nationwide system for background checks on gun sales. Known as the Brady Bill, the legislation standardized what had been a state-by-state patchwork of vetting for prospective gun owners, and introduced background check systems to 32 states that didn’t have one.
Brady requires gun stores and other federally licensed firearms dealers to contact the Federal Bureau of Investigation to check a gun buyer’s background, drug use, and criminal history. But Brady doesn’t apply to firearm sales that don’t go through a licensed dealer — at gun shows and yard sales, between friends and strangers, or arranged through online listing sites like Armslist and GunBroker.
In the years after Brady’s passage, 70 bills were introduced in Congress that tried to narrow or close the private sales loophole, to no avail. Twenty states have passed laws requiring background checks on every gun sale, but 30 states have not. In those states, someone can buy a gun from a stranger with no vetting.
This gap in federal law has led to tragedy. The underage Columbine killers are among several mass shooters who got guns in private sales. States without universal background checks are among the states with the highest rates of gun death. Researchers estimate that nearly a quarter of gun sales still occur without background checks.
In retrospect, this seems like a glaring oversight. Were lawmakers aware of it then? To explain how the private sales loophole came to be, The Trace spoke to several people who were on Capitol Hill during Brady’s passage and in the years after as lawmakers tried in vain to expand the law.
The roots of the private sales loophole can be found in the 1968 Gun Control Act, which required people “engaged in the business” of selling guns to become licensed dealers. “Engaged in the business” was defined as someone who sold guns “with the principal objective of livelihood and profit.” But the law didn’t specify a minimum number of transactions that would trigger the licensing requirement. This loose definition allowed many private gun sellers to skate.
“This is a compromise that the NRA demanded,” said Jim Kessler, an executive vice president for the center-left think tank Third Way, who was a legislative aide for then-Representative Chuck Schumer in the early 1990s. “It’s like, ‘Look, if someone has a gun and they live out in the country and they want to sell their own shotgun, should they really have to go through all this red tape? Or if they want to sell it to their cousin or give it away?’” These casual sales weren’t seen as contributors to the violent crime plaguing cities in the 1980s and ‘90s, he said.
While the Gun Control Act required most gun sellers to get licensed, it didn’t mandate nationwide background checks for buyers. Until Brady, only 18 states vetted gun purchasers. In the other 32 states, gun store customers filled out a form attesting that they’d never been convicted of a felony, and the gun dealer filed it away. There was no criminal history check, just the honor system.
Because dealer sales were so unregulated, it made little difference whether a gun was obtained from a dealer or a friend — either could put a gun in the wrong hands, Kessler said. “Pre-Brady, it didn’t matter where you were buying a gun — from a gun store or a private sale. There was no requirement, there was nothing, you just had to sign some form that no one checked on. The private sale wasn’t a necessary conduit to the black market until Brady.”
This vast unregulated landscape was exacerbated by the sheer number of licensed dealers. The year Brady was enacted, there were more than 240,000 dealers operating in the United States — nearly five times the 50,000 in business today.
Under Brady, gun buyers still have to attest to their eligibility, but gun dealers are actually required to verify that information, forcing prohibited purchasers who’d normally just lie on the form to find another source. “And that source could be a gun store that’s dirty, a set of straw buyers who will pass the background check and then just transfer the gun to somebody else, or a variety of places where you can do private sales,” Kessler said.
The private sales gap first came to national attention after the 1999 Columbine massacre, perpetrated by two underage teens who enlisted a friend to buy guns from a private seller at a gun show. Because of this, it was known as the “gun show loophole.”
The 18-year-old friend who bought guns for the 17-year-old killers later testified in the Colorado Legislature that “they wanted to buy their guns from someone who was private, and not licensed, because there would be no paperwork or background check. It was too easy. I wouldn’t have helped them buy the guns if I had faced a background check.”
But even before Columbine, mayors around the country had been sounding the alarm about private sales — not just at gun shows, but also at fairs and flea markets. Four months before the shooting, the phrase “gun show loophole” appeared in The New York Times for the first time in a story about a coalition of mayors urging federal lawmakers to more tightly regulate guns.
In the years between Brady’s enactment and the Columbine shooting, Congressional lawmakers introduced 12 pieces of legislation to narrow or close the private sales loophole. Among the first was a 1994 bill sponsored by Schumer that would have limited private handgun sales to one per month. Over the next four years, Democrats introduced bills that would have required private sales to be reported to gun show exhibitors, required private sellers at gun shows to conduct background checks, and provided a path for private sellers to use the instant background check system.
None of them passed. When Columbine happened, in April 1999, there were bills pending in the House and Senate that might have prevented the massacre, as they would have required background checks at gun shows where 50 or more firearms are exhibited for sale. The gun show where the shooters got their weapons, the largest in the state, would have qualified.
Even in the immediate aftermath of Columbine, Democrats couldn’t close the private sales loophole. An effort to require background checks at gun shows and give vendors 72 hours to conduct them was opposed by the National Rifle Association, which argued that because gun shows are held on the weekend, and people come from out of town, a three-day delay would effectively kill business. During a June 1999 debate over the measure, Louise Slaughter, a firebrand representative from New York, remarked of her fellow lawmakers, “I simply cannot understand how a House of people who are willing to wait four days for dry cleaning cannot wait for a gun.”
Manley, the former Senate staffer, said Democrats had burned their political capital with the back-to-back passage of the Brady Bill in 1993 and the federal assault weapons ban in 1994. “That coalition that came together for whatever reason broke apart very quickly,” he said. “And then in the 2010s the Tea Party pops up with more and more arguments that Democrats want to take away your guns, and it was a lost decade.”
To mark the anniversary of the 1993 Brady Bill, The Trace charted the evolving landscape of gun purchasing and gun violence.
An attempt to narrow the private sales loophole after the Sandy Hook shooting failed in 2013. The measure, named Manchin-Toomey after its Senate sponsors, would have required background checks only at gun shows and sales arranged via internet ads. Sales between friends, neighbors, or strangers were not addressed.
Since 1999, congressional lawmakers have introduced at least 59 pieces of legislation to try to narrow or close the private sales loophole. In 2022, one of them was enacted.
The Bipartisan Safer Communities Act, passed 29 years after Brady, aims to shrink the private sales loophole by expanding the definition of who is “engaged in the business” of selling firearms. Before, only those who sold guns “with the principal objective of livelihood and profit” had to become a licensed dealer. Now that requirement applies to anyone selling guns with the main intent of making a profit.
Even though President Biden has asked the attorney general to further clarify that definition, it remains unclear how his administration plans to suss out private sellers who qualify as being “engaged in the business.” Daniel Webster, a professor and expert on gun policy at Johns Hopkins University’s Bloomberg School of Public Health, told The Trace’s Chip Brownlee in 2022, “It’s very difficult just to monitor firearm sales from licensed dealers, but monitoring sales from people who are unlicensed — we don’t have a lot to go on.”
But Kessler, the former Schumer aide, is optimistic. “That was a significant law — more significant than anyone realizes,” he said. At the very least, the Bipartisan Safer Communities Act will make progress in closing the gun show portion of the private sales loophole. Gun shows, afraid of being shut down, might require anyone selling on the premises to run a background check.
“Everyone at a gun show is ‘engaged in the business,’ at least in that moment,” he said. “So you just might see some behavioral change among people who were the inadvertent leakers into this black market system.”
While Kessler acknowledged that gun shows don’t account for the entire private sales loophole, “it shrinks the number of places you have to look for nefarious actors,” he said. “So I think it will have some benefit.”
Jennifer is a senior news writer and founding staffer at The Trace. She previously covered gun violence at The New York Times . In her decade on this beat, she’s covered community gun violence, the intersection of domestic violence and guns, and the growing role of firearms in public life. She is currently the lead writer of the Ask The Trace series and tracks news developments on the gun beat.
Your tax-deductible donation to The Trace will directly support nonprofit journalism on gun violence and its effects on our communities.
Some characteristics of the February 11 shooting at the Houston megachurch set it apart, while others highlight gaps that have allowed several shooters to acquire guns.
