When some media person or politician is screaming about some loophole that is allowing bad things to happen, know that what they actually mean is that somebody is following the law and they don’t like the results.
For years we’ve been hearing about the “gun show loophole”. What is the gun show loophole? It means that people that are not FFLs because they don’t aren’t in the business of buying and selling firearms sold firearms at or near a gunshow.
We know that an FFL is required to do all the required background checks, Federal 4473 and whatever the state requires, in order to transfer a firearm. It doesn’t matter if they are doing it at their place of business or at their home or in a convention center, if they are transferring a firearm they have to do the background checks.
Imagine that your father passed and in his will he gave you his collection of firearms. You go to the LGS to sell the entire collection and gives you a lowball offer. Knowing there is a gunshow coming up you determine to sell them yourself. You pay the table feed and show up with your fathers collection of firearms.
At this point you are in an interesting position. Are you in the business of selling firearms? If you are then you need an FFL. If you aren’t then you don’t and can sell to anybody with just a handshake and an exchange of cash. This is how the public thinks gun shows work. The reality is that most gun shows won’t let you do private sales on premises just to remove any chance of a bad sale.
The gun show loophole is a dead issue. The truth has gotten out and people push back so hard that it is only used by the most extreme gun infringers.
The new loophole is the “boyfriend loophole”. This is another one of those made up problems. The issue revolves around removing second amendment rights from people via restraining orders.
Qualifying Restraining Orders: Under 18 U.S.C. 922, firearms may not be sold to or received by persons subject to a court order that: (A) was issued after a hearing which the person received actual notice of and had an opportunity to participate in; (B) restrains such person from harassing, stalking, or threatening an intimate partner or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. An “intimate partner” of a person is: the spouse or former spouse of the person, the parent of a child of the person, or an individual who cohabitates or has cohabitated with the person.
— Form 4473 instructions
What this means is that if my neighbor takes gets a restraining order against me, I get to keep my firearms. On the other hand, if my ex-wife of 30 years decides to take out a restraining order I lose my rights to own firearms.
So the loophole in question is the “boyfriend relationship.” If some guy is dating and gets violent. The victim can get a restraining order. That restraining order would not result in the guy losing his firearms.
The concern for the gun rights infringers is the guy using his firearms to harm the victim. So they want to extend the definition of “intimate partner” to include dating. Under this model the guy would lose access to his firearms saving the victim from this guys confiscated firearms.
The issue being argued in the Senate is two fold. The first is what is a dating partner and the second is how does he get his rights back.
Under the guns right infringing model, a guy can take a girl to dinner and a movie. He decides she is to crazy to even dip his wick. She gets upset that he is rejecting her so gets a restraining order. Dude that made the mistake of having dinner with crazy girl now loses his second amendment rights.
The Senate is arguing about how does the guy get his rights back.
Federal law currently only bars people from purchasing a firearm if they are convicted of domestic violence while:
- Living with their partner
- Married to their partner
- Have a child with their partner
Democratic lawmakers have long sought to expand the law to extend that coverage to dating partners, convicted stalkers and any individual under a protective order. But as of now, it doesn’t apply to other types of dating partners, hence the label “boyfriend loophole.”
— Here’s what you need to know about the ‘boyfriend loophole’ holding up gun safety negotiations
To give some perspective to this consider this reality. There are a number of people out there that are prohibited persons because of domestic violence misdemeanors that should not be prohibited. What happened was that they were accused of a bunch of stuff and the lawyers got together and offered a plea deal. If they would plead guilty to misdemeanor domestic violence then all the rest of the charges would be dropped and they would be let of with a slap on the wrist.
In this age of lawfair this is a good deal. Having a lawyer represent you in court is expensive. Since the slap on the wrist is known in advance it is a good deal for the accused. Years later the federal government changes the definition of prohibited person to include domestic violence misdemeanors and suddenly they lose their rights.
Fighting the expansion of who is a prohibited person is an important battle.