Nine Media Myths About Proposals To Strengthen Gun Laws

››› ››› TIMOTHY JOHNSON

Media figures have smeared the Obama administration and promoted myths and falsehoods about gun policy in the days leading up to this week's release of the White House Task Force's recommendations to reduce gun violence.

Is any attempt to regulate firearms a violation of the Second Amendment?

Is it true that weaker gun laws lead to lower crime rates?

Does the public support gun violence prevention measures?

Does the NRA have the ability to remove from office politicians who support stronger gun laws?

Have any proposals been put forward which would result in federal gun confiscation?

Are guns that are commonly called assault weapons more dangerous than other firearms?

Are sellers at gun shows required to perform a background check on buyers?

Would closing the private sales loophole prevent private citizens from selling firearms?

Has the Obama administration proposed using an executive order to outlaw certain firearms?

MYTH: All Gun Violence Prevention Proposals Are Infringements On The Second Amendment

Fox News Host Megyn Kelly: The Second Amendment "Was Meant To Prevent Exactly This Kind Of Thing Where Lawmakers Are Trying To Mess With Somebody's Firearm Ownership." On the January 10 edition of Fox News' America Live, Kelly said that "The Second Amendment was meant to stop the government from interfering with an individual's right to bear arms. It was meant to prevent exactly this kind of thing, where lawmakers are trying to mess with somebody's firearm ownership, but the people on the other side say that the founders never could have envisioned a country in which we have 300 million guns and high-capacity magazines and semi-automatic weapons." [America Live1/10/13]

Kelly: New Gun Laws Won't Gain Support Since Most Americans Want "A Robust Interpretation Of The Second Amendment." During the January 9 edition of America Live on Fox News, Kelly suggested proposals to reduce gun violence "crack down on gun rights" and are irreconcilable with the view that "the majority of this country wants a robust interpretation of the Second Amendment."

KELLY: How could they get broad national support on any legislation that cracks down on gun rights? I mean the majority of this country wants a robust interpretation of the Second Amendment. And you know those polls moved around a little bit in the wake of the Newtown, Connecticut school shooting, but this is a gun loving country. And there's just a real question about whether in today's day and age they could push through any significant curtailment of gun rights. [America Live1/9/13]

FACT: The Supreme Court Says Guns Can Be Regulated In A Manner Consistent With The Second Amendment

Highest Court Reaffirmed That Regulation Of Firearms Is Permissible Under The Second Amendment In Landmark 2008 Case. In the 2008 Supreme Court case, District Of Columbia v. Heller, Justice Antonin Scalia wrote for the majority that the Second Amendment is "not unlimited" as "commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Justice Scalia continued:

 [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [District of Columbia v. Heller, 6/26/08, via Google Scholar]

MYTH: Gun Violence Prevention Proposals Are Ineffective Because More Guns Equal Less Crime

Ann Coulter Pushes "Gun Researcher" John Lott's "More Guns, Less Crime" Thesis On HannityFrom the January 3 edition of Hannity on Fox News:

ANN COULTER: You want to cut down on public shootings? I mean there's been one thorough examination of public multiple victim shootings in this country in all 50 states from 1977 to 1999, it was updated in 1999 by William Landis at University of Chicago, John Lott, then at Yale University, they looked at death penalty, they looked at extra penalties for committing a crime with a gun. The one public policy that had an effect that reduced the incidence of these shootings and the number of causalities was concealed carry permits. That was the one policy. If you care about children dying, if you care about innocent victims, you should be in favor of concealed carry. [Hannity1/3/13]

In The Wake Of The Mass Shooting In Newtown, ConnecticutJohn Lott Appeared On Television To Argue Against Further Firearms Restrictions. [Media Matters, 12/17/12]

Fact: "More Guns, Less Crime" Author Has Been Discredited

Johns Hopkins Center For Gun Policy And Research: Lott's Thesis Has "Serious Flaws," Expanding Concealed Carry Laws Likely Increases Aggravated Assaults. An October 25 report from the Center noted that a panel of experts from the National Council of Research and other experts found Lott's "More Guns, Less Crime" thesis to have "serious flaws":

A large body of research has been conducted to investigate the effect of RTC [Right To Carry] laws on violence. Most notably, research led by John Lott, Jr. suggests that RTC laws have led to significant reductions in violent crime. But the research showing crime-reducing effects of RTC laws, including Lott's, has been carefully reviewed by a National Council of Research panel of experts, and others, and has been found to have serious flaws. The most consistent finding across studies which correct for these flaws is that RTC laws are associated with an increase in aggravated assaults. Using various statistical methods, estimates range from a one to nine percent increase in aggravated assaults as a result of RTC laws. [Johns Hopkins Center for Gun Policy and Research, October 2012]

Coding Errors In Lott's Research Leaves His "More Guns, Less Crime" Thesis "Without Credible Statistical Support." In a Stanford Law Review article titled "The Latest Misfires in Support of the 'More Guns, Less Crime' Hypothesis," Ian Ayres and John J. Donohue III studied how coding errors in data undermine Lott's "More Guns, Less Crime" claims. The authors explain:

PW [Lott's co-authors Florenz Plassmann and John Whitley] seriously miscoded their new county dataset in ways that irretrievably undermine every original regression result that they present in their response. As a result, the new PW regressions must simply be disregarded. Correcting PW's empirical mistakes once again shows that the "more guns, less crime" hypothesis is without credible statistical support. [Stanford Law Review, accessed 1/9/13 via Deltoid] 

For more on why Lott has been discredited - including his history of modifying his research when his claims are called into dispute - click here.

FACT: Greater Firearm Availability Is Actually Linked To Higher Rates Of Homicide And Suicide  

Economist Mark Duggan: Rate Of Gun Ownership "Significantly Positively" Correlated With Incidence Of Homicide. A study by economist Mark Duggan found that "changes in homicide and gun ownership are significantly positively related," as he reported in "More Guns, More Crime" in the Journal of Political Economy in 2001. Duggan wrote:

My findings reveal that changes in homicide and gun ownership are significantly positively related. This relationship is almost entirely driven by the relationship between lagged changes in gun ownership and current changes in homicide, suggesting that the relationship is not driven simply by individuals' purchase of guns in response to increases in criminal activity.

[...]

These findings contradict the results from recent work suggesting that legislation allowing individuals to carry concealed weapons (CCW) caused a significant decline in violent crime (Lott and Mustard 1997). [Journal of Political Economy2001

Harvard Injury Control Research Center Director David Hemenway: Guns Used "Far More" To Threaten Or Intimidate Than Protect. From a study published in Injury Prevention, "an international peer-reviewed journal for health professionals":

Even after excluding many reported firearm victimizations, far more survey respondents report having been threatened or intimidated with a gun than having used a gun to protect themselves. A majority of the reported self defense gun uses were rated as probably illegal by a majority of judges. This was so even under the assumption that the respondent had a permit to own and carry the gun, and that the respondent had described the event honestly. [Injury Prevention, vol. 6, issue 4, 2000] 

Hemenway: "States With Higher Levels Of Household Gun Ownership Had Higher Rates Of Firearm Homicide." From the Harvard Injury Control Research Center:

Our review of the academic literature found that a broad array of evidence indicates that gun availability is a risk factor for homicide, both in the United States and across high-income countries.  Case-control studies, ecological time-series and cross-sectional studies indicate that in homes, cities, states and regions in the U.S., where there are more guns, both men and women are at higher risk for homicide, particularly firearm homicide. [Harvard Injury Control Research Center, accessed 1/9/13]

American Journal Of Epidemiology Study: Having A Gun In The Home Increases The Risk Of Violent Death. A 2004 study conducted by employees of the Centers for Disease Control and Prevention found that individuals who had firearms in the home were more likely to be victims of firearm homicides and suicides than individuals who did not have firearms in the home. The risk occurred regardless of the type of gun or number of guns kept in the home. [American Journal of Epidemiology, vol. 160, issue 10, 2004]

MYTH: The Public Does Not Support Stronger Gun Laws

FoxNews.com's Chris Stirewalt Claims Gun Violence Prevention Measures Are "Politically Unpopular" Because "America Is Still Very Strongly Pro-Second Amendment." From the January 8 edition of America Live on Fox News:

CHRIS STIREWALT: Jamming firearms legislation, anything that addresses gun control, which remains, restrictions on guns remain politically unpopular. People feel good about restricting access for the mentally ill, but by and large America is still very strongly pro-Second Amendment. [America Live1/8/13]

Meet The Press Host David Gregory: "We've Seen Declining Support Since 1990 For Stricter Gun Control Measures." From the December 16 edition of NBC's Meet the Press:

MICHAEL BLOOMBERG, MAYOR: I think the President through his leadership could get a bill like that through Congress. But at least he has got to try, that's his job.

DAVID GREGORY, HOST: But isn't it significant that he may only be able to try? That we've seen declining support since 1990 for stricter gun control measures? We've seen the assault weapons ban come and go. Tremendous political cost to Democrats when they first got it passed?

BLOOMBERG: What's the political cost? The NRA's number one objective this time was to defeat Barack Obama for a second term. The last time I checked the election results he won and he won comfortably. This myth that the NRA can destroy political careers is just not true. [Meet the Press12/16/12

FACT: Specific Proposals, Such As The Assault Weapons Ban And Requiring Background Checks On Every Gun Purchase, Have Strong Public Support

USA Today/Gallup Poll Shows Strong Public Support For A Background Check On Every Gun Purchase And Banning High-Capacity Ammunition Magazines. USA Today/Gallup poll conducted December 19-22 found 92 percent of respondents favored a background check on every gun purchase and 62 percent approved of a plan to ban the sale and possession of high-capacity magazines that hold more than 10 bullets:

poll

[USA Today/Gallup, 12/19-22/12]

Almost Three Quarters Of NRA Members Support A Background Check On Every Gun PurchaseOn July 24, 2012, Mayors Against Illegal Guns released the results of a survey conducted by Republican pollster Frank Luntz that found that 74 percent of NRA members and 87 percent of non-NRA gun owners support background checks on every gun sale. [Mayors Against Illegal Guns, 7/24/12]

"Close To Nine In 10 Gun Owners" Support A Background Check On Every Gun Sold. From a January 14 report on a Pew Research Center poll:

The phone survey of 1,502 adults, taken Jan. 9-13, shows broad and bipartisan consensus in support of two particular proposals:

  • Making background checks on gun buyers universal, including at gun shows and in private sales, is backed by 85% of Americans, including about equal numbers of Democrats and Republicans.
  • Preventing people with mental illness from buying guns is backed by 80%, including 86% of Republicans and 78% of Democrats.

Both ideas are supported by close to nine in 10 gun owners, who make up about a third of those surveyed. [USA Today,1/14/12]

Most Polling Shows Broad Support For An Assault Weapons Ban. A December 17-18, 2012 CNN poll found that 62 percent of Americans favored an assault weapons ban. A Public Policy Polling poll conducted between December 18-19, 2012 reached an almost identical result, finding 63 percent in favor of an assault weapons ban. CNN polls conducted in August 2012 and January 2011 also both found majority support for an assault weapons ban. A June 2011 Time magazine poll similarly found 62 percent of Americans supportive of an assault weapons ban.  [Media Matters,  1/10/13]

MYTH: The NRA Will Remove Politicians From Office Who Support Stronger Gun Laws

NRA Leader Promised To Defeat Democrats Who Support Gun Violence Prevention During The 2014 Elections. During a November 9 appearance on NRA News, NRA executive vice president Wayne LaPierre claimed that Democrats who support gun violence prevention laws will "go out on that plank" with President Obama and "the American public and the NRA will saw it right off":

LAPIERRE: So what [Obama] is going to try to do is walk a lot of Democrats out on that plank with him. Now that Obama has got no more elections in front of him, he is going to try to do the same thing that Bill Clinton did in '92 after he got elected, which is walk a lot of Democrats out on that plank of attacking the Second Amendment. And here's a prediction I make right now. If they go out on that plank with President Obama, he doesn't have any more elections; these Democrats will have more elections in front of them. I predict in 2014, when they are out on that plank, if they walk it with Obama, the American public and the NRA will saw it right off behind him and defend this freedom. [The Daily News11/9/12]

CNN: Post-Sandy Hook Massacre, NRA Will "Leverage The $17 Million It Spent In Federal Races This Year Helping Elect Candidates Who It Considers Supports Of The NRA's Mission." From a December 19 article on CNN.com:

When the NRA does speak in detail, it will do so forcefully and with the type of political sway and heft the pro-gun lobby has carefully amassed over dozens of election cycles, experts say.

"When the emotions come down, I'm sure you'll hear the NRA address this issue. It'll be in January when legislation is introduced. They'll testify at hearings. You'll hear the same kind of arguments that I'd come up with," said Richard Feldman, who served as regional political director for the NRA during its rise to power in the 1980s and is president of a gun rights group, the Independent Firearm Owners Association.

When that happens, the group will wield the full power of its millions of members and leverage the $17 million it spent in federal races this year helping elect candidates who it considers supporters of the NRA's mission, said policy experts. [CNN, 12/19/12

FACT: The NRA's Ability To Influence Electoral Outcomes Has Been Vastly Overstated By The Media

Over 95 Percent Of More Than $18 Million Spent By The NRA During The 2012 Elections Went To Races Where The NRA-Backed Candidate LostMedia Matters reviewed combined election spending by the NRA Institute for Legislative Action and the NRA Political Victory Fund, as reported by the non-partisan Sunlight Foundation, and determined that less than five percent of money spent by the NRA was spent on victorious candidates. Notably, the NRA spent over $12 million in a failed attempt to defeat President Obama. [Media Matters12/21/12]

The NRA-Backed Candidate Was Not Elected In Six Of Their Top Seven Targeted Senate Races. The NRA spent more than $100,000 on seven general election Senate races: Ohio (more than $1 million), Virginia ($688,802), Florida ($629,553), Wisconsin ($571,811), Missouri ($343,299), Arizona ($323,474), and Maine ($117,612). Their chosen candidates was not elected in every state but Arizona and in three races, Florida, Missouri and Maine, the NRA candidate lost by more than 10 points. [Media Matters11/7/12]

Of 26 House Incumbents Defeated On Election Day, 18 Were Endorsed By The NRA. While the vast majority of U.S. Representatives were reelected, many Election Day losers were endorsed by the NRA and received financial contributions from the gun organization. Of the eight non-endorsed incumbents who lost, four were Democrats who lost to other Democrats in California's top-two primary system. [Media Matters11/13/12]

MYTH: Gun Measures Proposed By The White House And Congress Are A Pretext For Gun Confiscation

Fox News Host Kimberly Guilfoyle: "Right Now What We Are Looking At In This Country Is What People Most Fear, Which Is A Gun Grab." [Hannity1/10/13]

Past NRA President Marion Hammer On Assault Weapons Ban: "We've Tried To Tell People That In Order To Control The Masses They Have To Take Your Guns." During a January 2 appearance on NRA News, current NRA lobbyist Marion Hammer suggested that a proposal to ban assault weapons by Sen. Dianne Feinstein (D-CA) was a plan "to take your guns." Hammer's comment was in response to NRA News host Ginny Simone's claim that "you listen to people in England and Australia and they look right at you and they say, 'Don't do what we did. Don't let them take your guns away.'" Simone also noted that Hammer, along with NRA executive vice president Wayne LaPierre, have warned of gun confiscation plans "for years."  [NRA News, 1/4/13, via Media Matters]

Breitbart.com Columnist Warner Todd Huston: "Some People Fear That Government Will Use The Military To Forcibly Disarm The Public If Gun Banning Laws Get Passed." In a December 31 column promoting the call of a retired Marine to defy a potential assault weapons ban, Huston fearmongered that Sen. Feinstein's proposed legislation could mean "that government will use the military to forcibly disarm the public." [Breitbart.com, 12/31/12]

The Daily Caller On Proposed Assault Weapons Ban: "We Need ... Your Guns Comrade." On January 2 the conservative Caller published an "alert" article with an accompanying graphic suggesting that Sen. Feinstein's assault weapons ban would entail gun owners turning in their weapons. [The Daily Caller, 1/2/13]

FACT: Assault Weapons Ban Would Allow Current Owners To Keep Their Weapons

Proposed Assault Weapons Ban "Grandfather[s] Weapons Legally Possessed On The Date Of Enactment." The assault weapons ban proposed by Sen. Dianne Feinstein (D-CA) plainly states that legal owners of assault weapons would be allowed to keep their firearms. Current owners would undergo a background check and register the serial number of their weapons under the National Firearms Act. [Dianne Feinstein, United States Senator for California, accessed 1/9/13]

No Other Option Reportedly Under Consideration Would Impact A Lawful Citizen's Ability To Purchase A Firearm. The Washington Post provided the following description of policies under discussion by the White House in a January 5 article:

The White House is weighing a far broader and more comprehensive approach to curbing the nation's gun violence than simply reinstating an expired ban on assault weapons and high-capacity ammunition, according to multiple people involved in the administration's discussions.

A working group led by Vice President Biden is seriously considering measures backed by key law enforcement leaders that would require universal background checks for firearm buyers, track the movement and sale of weapons through a national database, strengthen mental health checks, and stiffen penalties for carrying guns near schools or giving them to minors, the sources said. [Washington Post1/5/12]

MYTH: Assault Weapons Are No Different From Firearms Typically Used For Sporting Purposes

Washington Times' Charlie Hurt: Assault Weapons "Far Less Powerful Than Your Average Deer Rifle." During the January 9 edition of Happening Now on Fox News, Hurt claimed that "there was no functionality of a gun that was actually banned by the so-called assault weapons ban, it was just things that looked kind of military-like" even while noting that "we've seen these weapons at crime scenes so much lately."

CHARLIE HURT, WASHINGTON TIMES: The whole so-called assault weapons ban, especially for people who actually knew about it, it was kind of a joke, because what it did was you had a bunch of lawmakers who didn't know anything about guns and you have a media that doesn't know about guns, and what they wound up doing is they wound up banning guns that kind of looked scary. They didn't ban anything -- there was no functionality of a gun that was actually banned by the so-called assault weapons ban, it was just things that looked kind of militarily-like. And so it was pointless, sort of. And since the repeal of it, or the expiration of it, there has been, you know, a huge explosion in the sales of the guns that were kind of scary looking. They are the most popular guns out there. They include the Bushmaster AR-15 that we've seen in two -- and I think it's also important to point out, one of the reasons I think we've seen these weapons at crime scenes so much lately is because so many people are buying them, because they like them. But there is no difference between -- in fact it's far less powerful than your average deer rifle that, you know, an 18-year-old uses to shoot deer. [Happening Now1/9/13]

NRA News Host: Assault Weapons Ban Is "About Cosmetics And It Has Nothing To Do About How A Firearm Works." During the January 2 edition of NRA News, host Ginny Simone suggested that there is no difference between weapons that would fall under Sen. Feinstein's proposal and those that would not and also claimed that "this is about banning the ugliest guns." Past NRA president Marion Hammer agreed, comparing the idea of banning firearms based on appearance to racial discrimination. [NRA News, 1/4/13, via Media Matters]

Townhall's Katie Pavlich: "The Term 'Assault Weapon' Is A Made Up Political Term." [Townhall, 12/28/12]

FACT: Assault Weapons Are Designed To Be More Lethal Than Other Firearms

Violence Policy Center: Assault Weapons Are "Designed For Laying Down A High Volume Of Fire Over A Wide Killing Zone." From a June 2011 report detailing a trend in firearm manufacturing to militarize civilian firearms:  

The world's armies developed assault weapons to meet specific combat needs.  All assault weapons--military and civilian alike--incorporate specific features that were designed for laying down a high volume of fire over a wide killing zone.  This is sometimes known as "hosing down" an area.  Civilian assault weapons feature the specific military design features that make spray-firing easy and distinguish assault weapons from traditional sporting firearms.

The most important of these design features are--

·         High-capacity detachable ammunition magazines that hold as many as 75 rounds of ammunition.

·         A rear pistol grip (handle), including so-called "thumbhole stocks" and magazines that function like pistol grips.

·         A forward grip or barrel shroud.  Forward grips (located under the barrel or the forward stock) give a shooter greater control over a weapon during firing. [Violence Policy Center, June 2011]

Johns Hopkins Center For Gun Policy And Research: "Mass Shootings Involving Assault Weapons Typically Involve More Victims Per Incident Than Mass Shootings With Other Weapons." The October 2012 report noted a number of public mass shootings where the shooter used an assault weapon and/or a high-capacity magazine including the Virginia Tech massacre that left 32 victims dead and 17 wounded, a shooting in Fort Hood, Texas that left 13 dead and dozens wounded, an assassination attempt on former Congresswoman Gabrielle Giffords that left six dead and 13 wounded, and a mass shooting at an Aurora, Colorado cinema that left 12 dead and 58 wounded. Since the publication of the report, a gunman used an assault rifle to kill 20 children and six educators in an elementary school in Newtown, Connecticut. [John Hopkins Center for Gun Policy and Research, October 2012]

Citizens Crime Commission Of New York City: "The Increased Lethality" Of Mass Shootings "Is Made Possible By The Use Of Large Capacity Ammunition Magazines." The Citizens Crime Commission has identified 30 mass shooting incidents since 1984 where the shooter used a high-capacity magazine. [Citizens Crime Commission of New York City, accessed 1/9/13]

MYTH: There Is No Such Thing As The Private Sales Loophole

NRA News Host Cam Edwards: People Prohibited From Owning Firearms Cannot Exploit The Private Sales Loophole. During the January 3 edition of Cam & Company on NRA News, host Cam Edwards first told guest Jim Geraghty, who writes for the National Review Online, that Geragthy was "incorrect" in his assumption that background checks are not required at gun shows. Edwards would later acknowledge that private sellers at gun shows conduct sales without running a background check on customers, but he also claimed that it was impossible for individuals prohibited from owning firearms under federal law from obtaining weapons through this process.  

CAM EDWARDS, HOST: Are there background checks done at gun shows?

JIM GERAGHTY: I'm going to go out on a limb and say, I actually -- since you're asking that question I'm guessing maybe I don't know what I think I know.

EDWARDS: Would you say no? Is that what you wanted to say?

GERAGHTY: My sense is that they are not required. Am I incorrect there?

EDWARDS: You are incorrect.

[...]

GERAGHTY: Now I know that there are certain lists in which you are not allowed to own a gun, in many cases criminal record, domestic abuse, circumstances like that.

EDWARDS: Adjudicated mentally defective.

GERAGHTY: Ok, alright, so in those categories can you purchase a gun through these private sales?

EDWARDS: Not legally.

GERAGHTY: Alright so there you go -- so the question -- worth noting, ok. 

EDWARDS: So no. There. [Cam & Company1/3/13

FACT: Private Sales Without A Background Check, Which Are Often Conducted At Gun Shows, Are Extremely Common

According To Most Recent Data, 40 Percent Of Gun Sales Are Conducted Through Private Sellers, Not Licensed Dealers. According to a PolitiFact review of New York City Mayor Michael Bloomberg's statement on a July 2012 appearance on CBS' Face the Nation that 40 percent of guns are purchased without a background check:

Buying a gun has required a background check since the Brady Act took effect in 1994. (James Brady was badly wounded during the assassination attempt on President Reagan; he was Reagan's press secretary.) Under the law, federally licensed dealers must verify that a buyer has not been convicted of a serious crime or declared mentally incompetent or is blocked for any of about 10 reasons. Typically this is done online and takes less than a day.

But only licensed dealers must do this. The law doesn't apply to private sellers at gun shows, flea markets, or people who post firearms for sale on the Internet. If a private seller suspects that a buyer would be disqualified under federal rules, then they can't go through with the sale. But there is no background check, and no one needs to file any paperwork.

Bloomberg's office pointed us to a 1997 study by the National Institute of Justice on who owns guns and how they use them. The researchers estimated that about 40 percent of all firearm sales took place through people other than licensed dealers. They based their conclusion on a random survey of more than 2,500 households.

In 1999, the Bureau of Alcohol, Tobacco, Firearms and Explosives released a report on gun shows. Investigators found that a quarter of the vendors were private sellers, not licensed dealers, and reported that "felons and other prohibited persons who want to avoid Brady Act checks and records of their purchase buy firearms at these shows." They said guns from such shows had been used in drug crimes.

Both of these reports are at least 10 years out of date. We called the ATF and asked if there was anything more recent. They had nothing new to add. We called the National Rifle Association and the National Shooting Sports Foundation, groups that oppose new efforts to track gun transactions. Neither organization responded. [PolitiFact.com, 7/25/12]

Law Center To Prevent Gun Violence: Private Sales Loophole Has Been Exploited By Gun Traffickers And Used To Supply Firearms To Criminals. The Law Center to Prevent Gun Violence explained how a deficiency in federal law concerning how firearms sellers are licensed allows dangerous individuals to obtain firearms without a background check:

The Gun Control Act of 1968 provides that persons "engaged in the business" of dealing in firearms must be licensed. Although Congress did not originally define the term "engaged in the business," it did so in 1986 as part of the McClure-Volkmer Act (also known as the "Firearms Owners' Protection Act"). That Act defined the term "engaged in the business," as applied to a firearms dealer, as "a person who devotes 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."

Significantly, however, the term was defined to exclude a person who "makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms."

Consequently, unlicensed sellers may sell firearms without conducting background checks or documenting the transaction in any way. In addition, because federal law does not require private sellers to inspect a buyer's driver's license or any other identification, there is no obligation for such sellers to confirm that a buyer is of legal age to purchase a firearm. As a result, convicted felons, minors and other prohibited purchasers can easily buy guns from unlicensed sellers.

According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the current definition of "engaged in the business" often frustrates the prosecution of "unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons." A June 2000 ATF report found that unlicensed sellers were involved in about a fifth of the trafficking investigations and associated with nearly 23,000 diverted guns.  A national survey of firearm ownership conducted in 1994 determined that 60 percent of all firearm sales in the U.S. involved federally licensed dealers, while the remaining 40 percent of firearms were acquired from unlicensed sellers. [Law Center to Prevent Gun Violence, accessed 1/10/13]

New York City Undercover Investigation: Most Private Sellers Agreed To Sell Firearm To Someone Who Said They Couldn't Pass A Background Check. In an investigation of 10 websites that allow unlicensed sellers to list firearms for sale, undercover investigators working for New York City found that 77 out of 125 sellers agreed to go forward with a firearm sale after the purchaser said that he could not pass a background check. [City of New York, December 2011]

MYTH: Closing The Private Sales Loophole Would Prohibit Private Citizens From Selling Firearms

Fox Regular Kate Obenshain On Fox & Friends: Prohibiting "Individuals From Being Able To Sell Guns To Other Individuals" Is What "Closing The Gun Show Loophole Is About." During a January 8 appearance on Fox News, Obenshain suggested that closing the private sales loophole would mean that gun owners could no longer sell firearms to a "buddy down the street." [Fox & Friends1/8/13]

FACT: Gun Show Loophole Legislation Allows For Private Sales To Continue, So Long As A Background Check Is Performed On The Buyer

In States Where The Private Sales Loophole Is Closed, Gun Owners Can Sell Their Weapons So Long As The Purchaser Undergoes A Background Check. A summary of state law from the Law Center to Prevent Gun Violence shows that in those few states that require a background check for all gun sales, private sellers may sell their weapons to other individuals, so long as the buyer undergoes a background check conducted by a licensed firearms dealer or law enforcement agency. [Law Center to Prevent Gun Violence, accessed 1/9/13]

Gun Show Loophole Legislation Introduced In Previous Congress Permitted Private Sales. S. 35, a bill introduced by Sen. Frank Lautenberg (D-NJ) during the 112th Congress to establish background check procedures for gun shows, would have allowed private sellers to make sales at gun shows through licensed dealers. [S. 35 via Government Printing Office, accessed 1/9/13]

MYTH: The Obama Administration Will Use Executive Orders To Override The Second Amendment

Fox News Host Brian Kilmeade: President Obama May Use Executive Order To "Gut The Second Amendment." On the January 10 edition of Fox & Friends, Kilmeade said, "What Constitution? Vice President Joe Biden says the president may crack down on guns by executive order. Will they really gut the Second Amendment?" [Fox & Friends1/10/13]

Fox Business Host Lou Dobbs: Executive Order Proposal Is An "Assault On The Second Amendment." From the January 10 edition of Lou Dobbs Tonight:

LOU DOBBS: We continue our look at the White House assault on the Second Amendment, the President's insistence that he can rule, if you will, by decree, by fiat in what is still after all a constitutional republic.

[...]

DOBBS: Our Vice President has said that the President will, if necessary, be using executive order to control guns in this country. Can he?

PETER JOHNSON JR., FOX NEWS LEGAL ANALYST: I don't think there is any question in my mind that he will. I don't think he is going to be any more powerful than he is right now in terms of public popularity. And so there are things that I think they are looking at, that they will try to do, to change the dialogue, to change the dynamic of guns in America, to show action, even if it provokes legal action. So this president can say, "I've done something. I've made it harder for Americans to get legal firearms because I believe it's an outrage, and I'm standing up for the victims in America." That's what he is going to do say. And I do believe that they will tweak certain pieces of the law in order to do that. [Lou Dobbs Tonight1/10/13

FACT: Executive Order Proposals On Gun Violence Have Not Involved Restricting Weapons That Law-Abiding Americans Can Purchase

Politico: Biden Told House Dems That Executive Orders Will Focus On Enforcing Existing Law. From a January 15 Politico article:

The White House has identified 19 executive actions for President Barack Obama to move unilaterally on gun control, Vice President Joe Biden told a group of House Democrats on Monday, the administration's first definitive statements about its response to last month's mass shooting at Sandy Hook Elementary School.

[...]

The executive actions could include giving the Centers for Disease Control and Prevention authority to conduct national research on guns, more aggressive enforcement of existing gun laws and pushing for wider sharing of existing gun databases among federal and state agencies, members of Congress in the meeting said.

"It was all focusing on enforcing existing law, administering things like improving the background database, things like that that do not involve a change in the law but enforcing and making sure that the present law is administered as well as possible," said Rep. Bobby Scott (D-Va.). [Politico1/15/12]

The New York Times: Proposed And Previously Discarded Executive Action On Guns Aimed To Improve Background Check System, Not Confiscate GunA December 15 article in The New York Times noted that the Department of Justice had proposed using executive action on "improving the background check system" and "did not call for banning weapons," but that those initiatives had not been carried out. [The New York Times12/15/12]

Precedent For Using Executive Order For The Purpose Of Gun Violence Prevention Is Robust. In 1968 President Lyndon Johnson signed an executive order regulating the importation of certain firearms. The administrations of George H.W. Bush and Bill Clinton both used executive order to ban the importation of certain assault weapons, including some variations of the AK-47 and the Uzi. [Media Matters1/10/13]

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Guns
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Guns, National Rifle Association
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