.S. federal law requires persons engaged in interstate firearm commerce, or those who are "engaged in the business" of dealing firearms, to hold a Federal Firearms License
and perform background checks
through the National Instant Criminal Background Check System
maintained by the FBI prior to transferring a firearm. Under the terms of the Firearm Owners Protection Act of 1986
, however, individuals "not engaged in the business" of dealing firearms, or who only make "occasional" sales within their state of residence, are under no requirement to conduct background checks on purchasers or maintain records of sale (although even private sellers are forbidden under federal law from selling firearms to persons they have reason to believe are felons or otherwise prohibited from purchasing firearms).
Those seeking to close the "Gun Show Loophole" argue that it provides convicted felons and other prohibited purchasers (i.e., domestic abusers, substance abusers, those who have been adjudicated as "mental defectives," etc.) with opportunities to evade background checks, as they can easily buy firearms from private sellers with no accountability or oversight.
Use of the "Gun Show Loophole" has been advocated by terrorists. In the summer of 2011, Adam Yahiye Gadah
declared that "America is absolutely awash with easily obtainable firearms." He also incorrectly claimed that, "You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely without having to show an identification card," Gadah urged Western extremists to follow this path. Subsequent news analysis indicated that individuals could not actually buy a fully automatic assault rifle at gun shows, although purchases of semi-automatic handguns and extended magazines remain legal without a criminal background check.
The term "Gun Show Loophole" has been contentious with gun rights advocates, however. They claim there is no "loophole," only a long-standing tradition of free commerce between private parties that heretofore has not been restricted in the context of secondary, intrastate firearm sales.
Furthermore, they argue that the term "Gun Show Loophole" is misleading, as private firearm sellers are not required to perform background checks regardless of location—whether they are at a gun show, a flea market, their home, or anywhere else. They also challenge federal jurisdiction in intrastate transactions between private parties, which they argue exceeds the federal power created by the Commerce Clause