While most of our Guide focuses on new policies and laws, we know that a disturbing amount of progress has been rolled back through coordinated, well-funded legislative attacks fueled by the gun lobby. One glaring loophole is the virtually unregulated market of private transfers.
Despite the NRA’s protestations that these measures accomplish little, the evidence clearly demonstrates that it’s this loophole through which many criminals obtain firearms. A 2013 study by Katherine Vittes, et al, looked at criminal offenders who are legally prohibited from owning firearms. The study found that 96 percent of the legally prohibited offenders obtained their firearms from a supplier not required to conduct a background check(12).
Unlike FFL dealers, private sellers in most states are not required to perform background checks, and in many states they’re not able to conduct one. Unless the seller “probably” knows that the buyer is prohibited, there is no penalty for selling to a felon. This “don’t ask, don’t tell” system makes it easy for criminals to obtain firearms. Undercover investigations demonstrate that discretion and moral scruples, in the absence of regulation, will not stop many gun sellers from selling to prohibited buyers. (13)
A 2011 report(14) from New York City found that more than 60 percent of sellers agreed to sell a firearm to an undercover buyer who said he could not pass a background check. Another 2013 report by Mayors Against Illegal Guns(15) estimated that potentially more than 25,000 firearms were transferred to prohibited buyers through Armlist.com in a single year. The background check system works, but its effectiveness is mitigated by the private sales loophole. So the problem isn’t that gun laws are too weak, or that criminals don’t follow them. The issue is that the very laws meant to curb gun violence are ultimately hamstrung in such a way that allows more people to have access to more guns. The result: more gun violence.
The infamous shooting death of 17-year-old Trayvon Martin in 2012 brought Florida’s Stand Your Ground (SYG) law into the public eye. Thirty-five states have adopted some form of Stand Your Ground laws (through legislation, statutes, or court decisions), that allow a person to use deadly force in self-defense, even if the person could have safely retreated to avoid conflict. Yet the growing popularity of these laws is at odds with the best available academic evidence, which overwhelmingly finds that SYG laws increase homicide rates. They exacerbate racial elements that contaminate the process of deciding if a homicide is justifiable. Most defendants in SYG cases have a criminal record, many had been accused of violent crimes, and most could have safely retreated from the conflict without using deadly force(16).
12. DeFilippis, E., Hughes, D.L. (2015, September 8). Gun-Rights Advocates Claim Criminals Don’t Follow Gun Laws. Here’s the Research That Shows They’re Wrong: How the right kind of regulations deter criminals from getting guns. The Trace.
13. Chu, V.S. (2012), Internet Firearm and Ammunition Sales (CRS Report No. R42687), Retrieved from Congressional Research Service website: https://fas.org/sgp/crs/misc/R42687.pdf
14. City of New York, Bloomberg, M.R. (2011 December). Point, Click, Fire: An Investigation of Illegal, Online Gun Sales
15. Mayors Against Illegal Guns (2013 September). Felon Seeks Firearm No Strings Attached: How Dangerous People Evade Background Checks and Buy Illegal Guns Online [Report]
16. Hughes, D.L. (2018). Stand Your Ground [White paper]. GVPedia.