Whether this statement is misleading depends on how you hear Biden’s words.
After Biden’s remarks, some readers immediately complained to The Fact Checker, noting that a person at a gun show engaged in the business of selling guns needs a Federal Firearms License (FFL) and must conduct background checks and file substantial paperwork.
Here, for example, is a brochure issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives on the rules for sellers at gun shows. Gun dealers who pretend to be gun hobbyists but actively trade guns at gun shows are prosecuted. It’s also against federal law to sell a gun to any person you have reasonable cause to believe is a prohibited person, such as a felon.
The White House said that Biden was not saying that every gun at gun shows was sold without background checks, but simply that a person can buy a gun from unlicensed sellers at gun shows who sell guns without background checks or any paperwork that would document the transaction.
Still, Biden’s phrasing can leave the impression that no background checks are required at gun shows. Our colleagues at PolitiFact labeled Biden’s statement as “mostly false.” We would lean more toward “half true,” (i.e., Two Pinocchios) given how Biden’s statement could be misinterpreted.
Some gun-control experts, however, found little fault with Biden’s phrasing.
“You are absolutely right that you can’t buy any gun from any seller at a gun show — as you note, gun dealers still have to do a background check,” said Adam Winkler, a law professor at the University of California at Los Angeles and author of “Gunfight: The Battle over the Right to Bear Arms in America.” But he said it was parsing Biden’s statement too closely to say he was wrong.
“Anyone who wants to buy a gun without a background check can go to a gun show and buy a gun without one,” Winkler said. “If anything he is understating it. You don’t have to even go to a gun show. You can sell through classified ads, online marketplaces and even informal offers to the guy next to you on the bus.”
“If you go to a gun show and two of every three sellers is an FFL that is required to performed background checks, it is still very easy to find the unlicensed sellers and exchange cash for firearms with no questions asked or background checks performed,” said Daniel H. Webster, director of the Johns Hopkins Center for Gun Violence Prevention and Policy. “This is an exemption or gap that is exploited by criminals and traffickers and is a threat to public safety.”
“They may not make their status obvious,” Wintermute said. “I’ve watched transactions in which a deal is negotiated and agreed to, and only then is the paperwork produced, with the result that the prospective purchaser simply leaves and finds a private party to buy from. These days, the Internet (sites such as Armslist and Gunbroker) is probably a bigger player than gun shows.”
What percentage of the guns sold at gun shows are sold by unlicensed dealers? That’s a good question with little reliable — or recent — data. Studies suggest most sales at gun shows are made by licensed retailers, but enough private-party sales are made at gun shows to raise concerns.
A 2000 ATF report found that 14 percent of trafficked guns found in investigations were from gun shows and flea markets. “Felons, although prohibited from acquiring firearms, have been able to purchase firearms at gun shows,” said a 1999 ATF report. “In fact, felons buying or selling firearms were involved in more than 46 percent of the investigations involving gun shows.”
But note how old those reports are. Twenty-one states and the District of Columbia now require background checks on all handgun sales, including at gun shows, while 16 states and the District require a background check for any firearm sale, according to the Giffords Law Center to Prevent Gun Violence, a pro-gun-control group established by former Arizona congresswoman Gabby Giffords.
The Congressional Research Service, after examining several studies, including a 2016 survey of where federal and state prisoners obtained the firearms used in their crimes, in 2019 concluded: “Private firearms sales at gun shows or any similar venue did not appear to be a significant source of guns carried by these offenders, while private transfers among family members, friends, and acquaintances did appear to account for a significant source of such firearms.”
“The only industry in America, a billion-dollar industry that can’t be sued, has been exempt from being sued, are gun manufacturers. Imagine how different it would be had that same exemption been available to tobacco companies, who knew and — who knew and lied about the danger they were causing, that cancer caused, and the like. Imagine where we’d be. But this is the only outfit that is exempt from being sued.”
The Protection of Lawful Commerce in Arms Act (PLCAA), signed by President George W. Bush in 2005, generally shields gun manufacturers and dealers from having to face lawsuits over violent crimes committed with the weapons they sell.
The law comes with six exceptions, however, so Biden is wrong to claim that the gun industry is totally immune.
One exception applies when “a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”
The Connecticut Supreme Court ruled in 2019 that gun manufacturer Remington Arms could be sued under this exception for potentially violating the state’s Unfair Trade Practices Act.
The U.S. Supreme Court later declined to review the ruling, meaning it stands as the law in Connecticut.
The families of the victims of the Sandy Hook Elementary School shooting in Newtown, Conn., sued Remington Arms under various legal theories, but the only one that is going to trial is the allegation that the gunmaker “advertised and marketed the XM15-E2S” — the Bushmaster semiautomatic rifle the shooter used — “in an unethical, oppressive, immoral and unscrupulous manner.”
The families alleged that Remington Arms’s advertisements and product catalogues promoted the AR-15 as “ ‘the uncompromising choice when you demand a rifle as mission adaptable as you are,’ (2) depict soldiers moving on patrol through jungles, armed with Bushmaster rifles, (3) feature the slogan ‘[w]hen you need to perform under pressure, Bushmaster delivers,’ superimposed over the silhouette of a soldier holding his helmet against the backdrop of an American flag, (4) tout the ‘military proven performance’ of firearms like the XM15-E2S, (5) promote civilian rifles as ‘the ultimate combat weapons system,’ (6) invoke the unparalleled destructive power of their AR-15 rifles, (7) claim that the most elite branches of the United States military, including the United States Navy SEALs, the United States Army Green Berets and Army Rangers, and other Special Forces, have used the AR-15, and (8) depict a close-up of an AR-15 with the following slogan: ‘Forces of opposition, bow down. You are single-handedly outnumbered,’ ” according to the Connecticut Supreme Court.
The case is ongoing. The families contend that Remington Arms’s marketing materials inspired the Sandy Hook shooter to choose the Bushmaster rifle from an arsenal of other firearms and weapons kept in his house, a choice that increased the lethality of his attack.
“Proving such a causal link at trial may prove to be a herculean task,” the Connecticut Supreme Court observed, but the families’ claims as to illicit marketing merited a full hearing and should not have been dismissed out of hand. The state justices reversed a ruling from a lower court that had tossed out the case.
Federal law would not shield “an automobile manufacturer [that] advertised that the safety features of its vehicles made them ideally suited for drunk driving, or if a sporting goods dealer ran advertisements encouraging high school baseball players to hurl their bats at the opposing pitcher in retaliation for an errant pitch,” the state’s high court said.
This is a rare case, however, and gun-control advocates say the PLCAA is too protective of gunmakers and should be amended.
“When Congress passed the Protection of Lawful Commerce in Arms Act in 2005, our leaders made the gun industry immune from nearly all lawsuits, leaving families of gun violence victims without an avenue to seek justice,” according to the Giffords Law Center.
“States that have red-flag laws have seen the reduction in the number of suicides in their states.”
Biden is referring to extreme risk protection order (ERPO) laws, which authorize the removal of firearms from people determined by a court to be at risk for committing gun violence. But a 2020 Rand Corporation review of gun studies found that it was too soon to make such a sweeping claim.
“Although the findings for Indiana’s law are suggestive, considering the strength of this evidence and potential issues of generalizability, we find inconclusive evidence for the effect of extreme risk protection orders on total and firearm suicides,” the report said on page 117.
“We should also ban assault weapons and high-capacity magazines in this country. For that 10 years we had it done, the number of mass shootings actually went down.”
Correlation does not necessarily equal causation, but Biden was careful to cite both the ban on assault weapons and large-capacity magazines. As we documented in an earlier fact check, new research increasingly supports the idea that restrictions on large-capacity magazines were effective in reducing the death toll when the law was in effect. (Whether the assault-weapons restrictions reduced mass shootings is still questionable.)
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