Gun Show Loophole: What It Means and How it Applies in New Jersey

What is the Gun Show Loophole?

Presently, federal law requires all federally licensed firearms dealers to conduct background checks before selling a person a firearm. Moreover, the law makes it unlawful for any person to sell or transfer a firearm to any person the seller knows or has reasonable cause to believe cannot lawfully purchase a weapon. However, for private transactions, the federal statute does not mandate any inquiries into a person’s background and therefore, the remote seller can easily turn a blind eye. As a result, unless State law places separate or additional restrictions on these private exchanges, individuals can easily sidestep undergoing a background check and obtain a firearm. This gap between federal and state law is referred to as the “gun show loophole.” This term was coined because it was common for gun enthusiasts to attend gun shows and while there, either purchase or sell firearms, no questions asked. As a result, felons, people who are mentally ill, or individuals who have a history of domestic violence, all of whom fall under the category of “certain persons not to possess weapons” in New Jersey, can more readily obtain a gun or another weapon.

Federal Law and Background Checks

The governing federal statute is the Brady Handgun Violence Prevention Act, otherwise known as the Brady Act or Brady Bill. The legislation was named after James Brady, who was wounded during an assassination attempt on President Ronald Reagan. The Act directs federally licensed dealers to perform background checks before a firearm can be lawfully sold. To conduct these required inquiries, the dealers contact the National Instant Criminal Background Check System (NICS). This system is maintained by the FBI and is comprised of three databases: the National Crime Information Center (NCIC), the Interstate Identification Index, and the NICS Index. In addition, the Department of Homeland Security’s Immigration and Customs Enforcement records are also searched during a background check.

The NCIC database stores records related to protective orders, missing person reports, and fugitive records. The Interstate Identification Index provides information concerning whether a person has a criminal record or has been arrested or indicated for an offense anywhere in the country. The NICS Index is unlike the other sources because it is specifically designed for firearm background checks. The Index receives its information from local, state, and federal authorities who believe that a certain individual is disqualified from possessing a firearm. For instance, medical records resulting in civil commitments, which are generally confidential, may be forwarded to the Index to ensure individuals that are suffering from mental incapacities cannot obtain a dangerous weapon. The Index serves as a catchall data because it includes information and reports that would not otherwise be available from other public sources. Lastly, as part of a federal background check, the Immigration and Customs database will be reviewed because it is unlawful for a person, who is not authorized to be present in the United States, to possess a firearm.

Efforts to Close the Gun Show Loophole

The Brady Act is effective for licensed dealers but falls short when it comes to private or secondary market sales and exchanges. Nevertheless, in the wake of the many mass shootings endured throughout the country, several States have passed legislation to close the loophole. California, Colorado, Connecticut, Delaware, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia require universal background checks at the point of sale for all firearm exchanges, whether they are purchased from a licensed dealer or an unlicensed seller. Meaning, when a person wishes to purchase a firearm, they must undergo a background check prior to the sale. Additionally, Maryland and Pennsylvania require background checks for handguns at the point of sale, however, the same mandate does not apply for long guns such as rifles or shotguns.

Further, Hawaii, Illinois, and Massachusetts do not have point of sale constraints but rather, obligate any person who wishes to purchase a firearm to first obtain a permit, which requires a background check. Acquiring the permit and presenting it to the dealer informs the seller that the buyer is qualified to own a weapon. Also, Iowa, Michigan, Nebraska, and North Carolina, have similar laws that require a permit to purchase a gun, however, these States only require a permit with respect to the sale of handguns. However, under this approach, a person could acquire a permit and thereafter, commit a crime or become subject to a restraining order. Thus, it is not as effective as the point of sale requirement.

How does the Gun Show Loophole Apply in New Jersey?

New Jersey law, which is codified under N.J.S.A. 2C:58-3, states that no person shall sell, give, transfer, assign, or otherwise dispose of a firearm unless he or she is a licensed dealer. The law further reads that no person shall purchase, receive or otherwise acquire a gun unless he or she first secures a permit to purchase. Stated simply, you cannot sell or give a gun to someone unless you have a license and you cannot buy or acquire a gun unless you have a permit. The statute also goes on to provide that prior to the transaction, the retail dealer must complete a background check through the National Instant Criminal Background Check.

Accordingly, for individuals seeking to purchase a firearm, they must first obtain the proper permit, which requires a background check. Then, at the point of sale, another background check will be performed before the transaction is completed. With regard to people who wish to privately sell or transfer a firearm, they must go through a licensed dealer. However, if the transfer is between an immediate family member such as spouses, parent to child, grandparent to grandchild, siblings, or stepparent to a stepchild, you do not need the assistance of a dealer. Also, if a firearm is bequeathed to you, the transfer does not have to go through a retail dealer.

In sum, New Jersey is a State that has closed the gun show loophole by outlawing private sales and moreover, has taken action to ensure only qualified individuals can obtain a firearm by requiring both purchaser permits and background checks at the point of sale.

Questions about Background Checks for Firearms Purchases in NJ?

If you are in need of additional information about the process for obtaining a firearm in New Jersey, our experienced firearms attorneys can assist you. We have extensive experience assisting clients with gun permit applications and appeals across the state of NJ and we are available anytime to answer your questions. Simply call (201)-614-2474 or contact us online for a free consultation. Our depth of knowledge about New Jersey gun laws can prove highly valuable when you are uncertain about what can and cannot be done when it comes to weapons in our state.