On a recent Saturday morning, the Williamson County Agricultural Expo Park was a microcosm of the gun universe.
A line of bundled-up firearms enthusiasts stretched from a parking lot filled nearly to capacity, up a concrete walkway, and through the doors of the arena-like facility. Among the crowd were men and women (and quite a few children) who seemed to represent every gun-owning demographic: Some carried hunting rifles or shotguns, while others stood waiting with handguns in holsters, visible on their hips; others walked up to join the crowd, clad in fatigues and toting military style rifles on each shoulder.
The occasion for their gathering was a gun and knife show, this one organized by Iowa-based R.K. Shows Inc., whose calendar boasts 17 shows in six states in January alone. In Tennessee, you could attend such a show every weekend for at least the next two months.
A veritable festival of the armed American, the gun show has long been at the center of the gun debate, a place where unregulated private sales and those of licensed professional dealers overlap. Gun control advocates often point to such shows as a primary example of the dangerous gaps in the country’s gun laws created by secondary markets. For gun-rights advocates, on the other hand, attendance has increasingly become a political and cultural statement, particularly after recent mass shootings have renewed calls for tighter gun restrictions.
Inside the expo, the spectrum of the firearms constituency becomes even more clear. On the floor of the arena, vendors have set up several hundred tables and booths, catering to every imaginable exercise of the current interpretation of the Second Amendment.
Some tables attract hunters, offering shotguns and traditional hunting rifles, along with various hunting gear, such as binoculars and game calls. Elsewhere, antique collectors sell World War I and World War II era guns, engaging interested passers-by in discussions about a particular pistol or rifle’s place in the history of weaponry.
For recreational and competitive target shooting, some vendors offer long-range rifles, with a variety of scopes to match. On a smaller scale, there are booths specifically for the survivalist or “prepper” — individuals stocking up on firearms, food, water and other emergency supplies they might need to survive in the event of a tyrannical government crackdown, a crushing economic collapse or another unforeseen cataclysmic event.
And then there are vendors focused solely on self-defense. Table after table is lined with handguns for concealed carry, and various rifles for home defense, described by sellers as “anti-personnel” — that is, specifically designed to be used against a person. Some sellers screen films like Rambo or Dirty Harry on their laptops. At one booth, a large crowd gathers as a former law enforcement officer demonstrates his product — “The Ultimate Concealed Carry Holster” — and extols the virtue of being armed.
“Concealed carry is not just a right,” he tells the increasingly intrigued onlookers, “it’s a responsibility.”
Naturally, there is a wide selection of accessories and paraphernalia for the proud gun owner. For those looking to work on their aim, conventional targets — the round bulls-eye, by itself or positioned on a human silhouette — are readily available. For those desiring a little more excitement, there are images of zombies and Osama bin Laden, and full-sized replicas of deer — and humans — that explode on impact.
One booth features a variety of gun literature, along with what appear to be homemade copies of William Powell’s infamous work The Anarchist Cookbook, a sort of survival guide with instructions on making everything from explosives to drugs (the book has since been denounced by the author). There are also T-shirts, many of which make ironic use of clichés bandied about whenever a national discussion on guns starts up.
“Guns don’t kill people,” one reads. “Proper sight alignment, sight picture, and trigger control does.”
Given the timing of the show, less than a month after 20 children and six school administrators were killed in a mass shooting at Sandy Hook Elementary School in Newtown, Conn., a political subtext is evident in the conversations and transactions taking place on the expo floor. On several occasions, men can be heard engaging in fevered discussion about the fierce resistance that would meet any attempt by the federal government to confiscate all guns from the citizenry — an idea that has not even been implied by the federal government, but has served as a constantly beckoning windmill for gun-rights advocates nonetheless.
Even a stranger to the world of firearms who’s watched TV news at all in recent weeks would recognize some of the items for sale. At one table, a man selling from his private collection holds up an AR-15, a rifle similar to the one used in several recent mass shootings, including Newtown. “You know that’s gonna be on the ban list,” he says, showing it off to a prospective buyer.
At another table, stocked with a variety of guns, ammunition and other accessories, a young man approaches with two magazines — devices on the gun that hold ammunition to be fed into the firing chamber — still in their packaging and proposes a trade to the man behind the table. He offers both of his magazines for four of the increasingly controversial 30-round magazines on the table. The math of the deal does not benefit the vendor, but it’s close enough that he considers it. In the end he rejects the offer, but in the course of their negotiations, the young man proposing the trade reveals his motivation.
“I need to go back to New York,” he says, picking up one of the magazines he’s hoping to obtain, “and these are illegal there.”
A gun show combines the professional business of firearms and the wheeling-and-dealing of a neighborhood yard sale, all under one big roof, and charges the masses $10 a head for the buffet.
For $66, an individual or group can reserve a table on which to hawk their wares.
Some are local gun shop owners or other professional dealers, who see the crowded shows as a chance to bring their storefront to many more would-be customers in a day than they might otherwise see. For them, the generally two-day events are a potential boon for sales or, at least, marketing.
The rest are an assortment of private sellers, many looking to sell or trade individual guns or downsize large personal collections. But among them are private sellers who look very much like licensed dealers.
It is not uncommon, members of the industry said, for these individuals to set up at show after show, flipping guns, as it were, and engaging in what is essentially a professional gun-dealing operation — without the regulation that goes along with it. And that practice is irritating to more than just those sounding the alarm about the dangers of unfettered gun sales.
Bill Bernstein, owner of East Side Gun Shop in East Nashville, objects to these ostensibly casual sellers on business grounds. Strictly speaking, they don’t pose direct competition to his business, since he stays away from gun shows. But their regular activities end up looking very similar to his, just without the rules, regulation and red tape.
“It’s their ‘private collection,’ ” he said, “[but] their private collection changes every week, and every week or every gun show they’re out there with a different table of guns, buying, selling, trading. I’m sorry, to me that person is an unlicensed dealer.”
Bernstein said the problem is with the federal Bureau of Alcohol, Tobacco Firearms and Explosives’ somewhat amorphous definition of the term “dealer.” The bureau defines a dealer as a person “who devotes time, attention and labor to dealing in firearms ... with the principal objective of livelihood and profit.” At the point when a person is selling and trading firearms as a means to obtain other firearms, which they then intend to sell and trade, they’re encroaching on that definition, Bernstein said.
“I wanted to engage in this business,” he said, “I went and got a license. I have to go through inspections periodically, I have to present records to ATF when they come calling — and they did last week — I have to pay sales tax on whatever I sell. And these guys don’t.”
The often blurry distinction between the two groups — private sellers and licensed dealers — and the large gray area populated by those seemingly operating somewhere in the middle, has been a consistent pressure point in the debate over guns and gun control. Gun shop owners like Bernstein and other professional dealers must obtain a c (FFL), and are therefore required to comply with various rules and regulations, including mandatory background checks on all customers, whether at a gun show or in their shop. Due to what is known as the “casual sale exception,” however, background checks are not required on private sales, wherever they take place, as long as the transaction does not cross state lines.
Bernstein is not calling for stricter regulation of what he considers “unlicensed dealers” for the purpose of stronger gun control, but rather in the interest of general fairness. Simply put, they’re cutting corners where he can’t. But his complaint also lends credence to the primary argument against the legal exceptions that allow such activity.
Under the guise of a casual private sale, these unlicensed dealers are able to operate outside of rules and regulations, such as required background checks, that would typically govern sales of similar volume and frequency. On the flip side, they create a quasi-legitimate market where individuals who would otherwise be prohibited from obtaining a firearm can purchase one. It is a felony to knowingly sell a gun to a prohibited person, but without a required background check, the situation effectively becomes one of “don’t ask, don’t tell,” regardless of the intentions of the dealer.
The perceived gap in the law is the source of a commonly used, albeit somewhat flawed term — “the gun-show loophole.”
Gun-rights advocates recoil at the term for a number of reasons. Generally speaking, they reject the notion that more regulation is needed in an area where many among them already feel there is too much. They also point out that it falsely suggests an unintentional oversight in the law — indeed, whether or not one agrees that it is an oversight, the casual-sale exception is undeniably intentional. Moreover, like conservatives in debates over the tax code, they object to the negative connotation of the word “loophole,” which suggests an insult being hurled at citizens simply following current law.
But whatever you want to call it, the scenario paves a legal path to potentially illegal transactions. Just as the wrong gun in any hands can be illegal, so can any gun in the wrong hands. And the lack of required background checks for private sales at gun shows, or in other secondary markets, makes it at least possible for a person legally prohibited from owning a gun — such as a convicted felon — to obtain one.
The term “gun-show loophole” is not just flawed for the way it might malign the well-meaning and law-abiding gun owner. It is also insufficient to describe the magnitude of the gap in regulation to which it refers.
Originating from a time when gun shows and newspaper classifieds were the primary mode of the secondary gun market, the term fails to account for the Internet, a virtual Wild West for commerce of any kind, not just the transfer of firearms.
“People need to realize there is a permanent gun show every day online that is accessible to anyone with a computer,” Dan Gross, president of the Brady Campaign to Prevent Gun Violence, told Bloomberg News in an interview last month.
Indeed, on the Web, as at the gun show, a prospective buyer can engage in a variety of transactions, some of which are burdened by very little regulation.
GunBroker, an eBay-like auction site, boasts more than 1.8 million registered users and 2.5 million unique monthly users, which include private and licensed sellers. Because federal law requires that modern firearms be shipped to a licensed dealer, who is then required to run a background check before completing the transfer, virtually all transactions on the site are of the regulated variety. A prospective buyer must make arrangements with a Federal Firearms License holder — a local gun shop, for instance — and fax or mail a copy of the dealer’s signed license to the seller. At that point the gun may be shipped to the licensed dealer, who runs the requisite background check and completes the transfer as if it were any other transaction in their store.
Elsewhere, however, the online firearms market is more like the aforementioned yard sale. A site like Armslist is essentially the Craigslist of firearms, a comparison that illustrates the nature of much of the activity on the site. Click on the website, and you are met with a disclaimer — which explains that Armslist does not become involved in transactions, tells users to follow all applicable laws, and indemnifies Armslist for “any and all loss, harm, damage, costs, liability, and expense caused to them, whether intentionally or unintentionally, by [customers’] use of Armslist.com, including but not limited to direct or indirect results of violations of any and all applicable laws.” Clicking “Agree,” just as you would to rent an R-rated movie at a RedBox, takes you into the site.
Both private and licensed dealers can be found on there. Postings from licensed dealers note that a background check will be required, while some private-party posts ask for either a background check, or proof of a handgun-carry permit before purchase.
(While completion of a handgun safety course and fingerprinting is required for such a permit, Tennessee’s handgun-carry permit does not meet federal requirements, according to the Tennessee Bureau of Investigations, because it does not require an annual recheck of the permit holder’s criminal history, and does not require a check through the National Instant Check System. As a result, Tennessee handgun-carry permit holders must still submit to a background check before purchasing a firearm from a licensed dealer out of state.)
But many listings from private parties include no such request, and some even use the lack of a required background check as a selling point.
As of this writing, a listing from a private dealer featured a Bushmaster M4 carbine — a military-style rifle, in the same family of firearms as the AR-15 that has been the gun of choice in several recent mass shootings — with 900 rounds of ammo, half of which were hollow-point bullets. Also included in the offer were eight magazines, five with a 30-round capacity, and three with a capacity of 20 rounds. The seller requests “cash only” and offers to “do a FFL transfer if you choose.” There is no list price, so the gun is for sale to the highest acceptable bid.
Armslist did not respond to an email requesting comment.
Gun-rights advocates often dismiss talk of “assault weapons” as fearmongering from individuals who are simply ignorant about firearms, and they are not entirely off the mark. Previous assault-weapons bans often focused on cosmetic features that have little bearing on the actual threat posed by the weapon. This is an outgrowth, opponents to such bans argue, of a misplaced fear of guns that “look scary.” At a gun show, one will undoubtedly come across a standard .22 caliber rifle that has been dressed up to look like something straight out of the movies — a slick design catering to appearance more than function, akin to car manufacturers including a spoiler option for a station wagon.
But when President Barack Obama and others talk about assault weapons or keeping “weapons of war” off American streets, the M4 carbine and its kin are more likely the kind of weapon they have in mind. In a recent appearance on MSNBC’s Morning Joe, Stanley McChrystal, a retired four-star general, described the weapon this way:
“The M4 carbine fires a .223 caliber round, which is 5.56 mm, at about 3,000 feet per second,” he said. “When it hits a human body, the effects are devastating. It’s designed to do that, and that’s what our soldiers should carry. I personally don’t think there’s any need for that kind of weaponry on the streets and particularly around schools in America.”
Requiring universal background checks, along with just about any other gun control measure, is a virtual non-starter in Tennessee politics. There is an argument to be made that federal legislation is the only kind that is practically enforceable when it comes to guns anyway. After all, an assault weapons ban in one state is easily undermined by the lack of one in a neighboring state. Still, some states have put in place their own stricter regulations.
But while proposals to close the so-called gun-show loophole, along with others to ban high-capacity magazines and assault weapons like the AR-15, are currently being pushed at the federal level, the only related pieces of legislation likely to appear in Tennessee would expand and defend current gun rights, not restrict them. State Sen. Frank Niceley, for instance, introduced legislation on the second day of the new legislative session that would prohibit the use of state funds or personnel in and federal confiscation of firearms.
Gov. Bill Haslam’s office said he won’t be proposing any legislation on the matter, and that the governor would have to see any related legislation before commenting.
Although it would benefit him financially, by way of facilitating transfers and performing background checks for private sellers, Bernstein said the idea of requiring universal background checks “offends” him as an “unnecessary infringement on people’s liberty.” He also noted, as a practical matter, the difficulty of enforcing a background check requirement on 100 percent of gun sales.
“Before I became a dealer,” he said, “I bought and sold many, many guns over the hoods of cars and in parking lots with guys that I emailed once or twice. That’s kind of standard.”
The only way to approach certainty about universal background checks would be to require universal registration of firearms, an idea seen by many in the gun community as a bridge to confiscation by the federal government.
Some in the industry have said they could live with a requirement for background checks at “sanctioned events” like gun shows, but they decline to state that publicly. If that’s because they’re worried about upsetting their consumer constituency, the state’s elected officials can relate. Last year, in large part for the crime of standing in the way of the National Rifle Association’s signature piece of legislation, Debra Maggart, then-chair of then House Republican Caucus, found herself on the wrong end of the NRA’s Political Victory Fund, which contributed nearly $100,000 toward her eventual defeat in the primary.
John Harris, executive director of the Tennessee Firearms Association, was perhaps the most vocal member of that political effort. He is vehemently opposed to magazine limits or bans, assault weapons bans, and any expanded statute that would require background checks on private sales — citing the proverb, often attributed to Benjamin Franklin, that those who would give up liberty in the pursuit of safety
“We do not require background checks on transfers of cars to see if the purchaser has a prior DUI or reckless driving conviction that might predict an increased probability of a future accident or crime,” he said. “We do not require background checks on doctors to see if any prior malpractice has resulted in an accidental death to limit the probability of future malpractice. We do not punish all owners of Mercedes because a football player gets drunk and has an accident, killing a teammate.
“Similarly, we have no statistical data to establish that background checks on private sales of firearms would have any statistically significant capacity to keep firearms away from those who have no criminal or psychiatric history but for some reason later commit a crime.”
Indeed, background checks do not appear to have a Minority Report-style ability to predict future crimes, committed by individuals with no criminal past. They do, however, keep firearms away from already prohibited persons.
In 2012, excluding the month of December (for which records are not yet available), 15,255 people in Tennessee were denied purchase of a firearm due to a failed background check, according to the TBI. That number represents just over 4 percent of all attempted purchases from gun stores or other licensed dealers in the state. Additionally, 407 wanted persons were identified as a result of the TBI’s Instant Check System.
The system, which applies to pawnshops or other businesses where an individual might try to sell a gun, allows the retailer to run a check on the weapon. It resulted in the identification of 412 stolen firearms. However, such businesses are not required to run a check on weapons brought into their store, nor are individual gun owners required to report a gun missing or stolen.
The City Paper was not witness to any transactions at the gun show in Williamson County, or while strolling the aisles of the Internet, that were verifiably illegal. But given the statistics on the number of attempted purchases denied in stores — as well as estimates that up to 40 percent of all gun sales occur in the under-regulated secondary markets — it seems possible that a number of them might have been transactions involving prohibited individuals. It’s a question that gun regulation advocates have been asking: After a shop owner’s actions prevented an illegal sale, how many buyers went to the gun show next?
Back at the gun show, a group of men and women sit in folding chairs just outside the large cluster of tables and booths. Several sit with various types of rifles leaning on their shoulders, price tags hanging from the end of their barrels. Others have handguns lying at their feet. David Layne, a 75-year-old military veteran, is selling a .44 Magnum rifle. There’s no price tag on the gun, since he had traded for it earlier in the day, but it’s an impressive weapon, and it halts the occasional passer-by, eliciting a second look and an inquiry.
Asked if he’s ever worried about who might be trying to buy his gun, he gives a somewhat surprising answer.
“Yeah,” he says, “all the time.”
The first gun Layne ever fired, he says, was an illegal gun. Someone had taken a .22 rifle and cut the barrel and stock off, turning it into a single-shot bolt-action pistol. Layne said he used it to shoot rats on the Ohio River.
“It’s not the bang, it’s not the recoil of the gun,” he says of the gun-show crowd’s attraction to firearms. “It’s putting a hole in a piece of paper. That’s why the majority of these people in here, that’s all they ever do. They don’t hunt, they shoot at targets. Or they shoot at beer cans, or they shoot at plastic bottles. It is challenging to do that.”
“You got too many guns?” he continues. “Well how many is too many? Let’s take a golfer. How many clubs does a golfer have? How many does a golfer need? He’s probably got 15 in his bag, he needs five. But one time he wants to take a particular shot, with a particular club.”
Having fired guns in a military context, Layne says he doesn’t believe that weapons like the M4 and AR-15 are too military-like for the citizenry. On that question, and the matter of universal background checks, Layne’s view is similar to that of Harris’, a variation on the idea that any tool can be a weapon if you hold it right.
Most private sellers The City Paper spoke with were willing to talk, as long as their name didn’t end up being used (an issue given new political weight after several publications nationwide caused uproar by publishing public records listing gun owners and even maps of where the owners reside). But to a person, they all gave a response similar to Layne’s with regard to the unknown quantity represented by a random buyer at a gun show. Without a background check, the trustworthiness and potential motivations of the person on other end of a gun sale are even more unknown than they would be otherwise. Each seller recalled a time when they had denied a sale to an individual based essentially on a gut feeling.
While chatting with a reporter, Layne fielded some interest from a man to whom he later said he would not have sold his rifle. The prospective buyer immediately commented on how “badass” the gun was, and how loud it must be. He didn’t seem like a guy who knew anything about guns, Layne said. He didn’t seem to respect their capability.
“You can tell, just by generally looking at a person, who’s shady and who’s not,” he said. “You gotta go by that, you gotta have your instincts. Most of the guys I know around here do not want to sell shady or illegally. But it can happen. It can happen. You don’t know.”
Attendees at an R.K Shows Inc. gun and knife show are met at the door with a bit of unintended irony: The shows are, essentially, gun-free zones.
The policy prohibits loaded guns, loaded magazines and loose ammo, requires that showgoers check guns at the door. And that occasionally raises eyebrows with the typically armed crowd. But Rex Kehrli, owner of R.K. Shows, which put on a recent gun show in Franklin, told The City Paper there’s a good reason for the rule.
“I’m a big believer in concealed carry. But there’s one area that I’m not a big believer in concealed carry and that is at a gun show. We get people coming in there that want to check out a holster for their handgun, that want to maybe show their handgun to a friend, or maybe even trade their handgun. And we simply can’t take the chance on public safety that everybody is going to handle that firearm correctly.”
R.K. Shows organizes gun and knife shows in eight different states. Asked about the so-called “gun-show loophole,” Kehrli took issue with the popular term, which he said puts the public spotlight on gun shows when many more private gun sales take place over the Internet or through newspaper classifieds. Nevertheless, when it comes to legislation that would require universal background checks, he said R.K. Shows is agreeable to “whatever the locals are comfortable with in each state.”
“We look at this as a states’ rights issue,” he said. “I do some shows in the state of Colorado, where they have to do background checks on gun shows on every firearm sold. And, you know,
it works OK for us. It works fine.”
As for unlicensed dealers — that is, individuals who frequently sell guns for a profit without a license, and thus the various rules and regulations that come with a license — Kehrli said he thinks the federal Bureau of Alcohol, Tobacco and Firearms deals with the problem well, and frequently sends out what are essentially cease-and-desist letters to people who may be flirting with the line.
Kehrli said that at his gun shows, upwards of 85 percent of table holders are federally licensed dealers. He also cited a Clinton-era study suggesting that less than 2 percent of guns found at crime scenes had passed through a gun show before ending up in criminal hands.
But a couple years ago Kehrli found his business in the middle of just such a case. At a Chattanooga gun show put on by Kehrli’s company in March 2011, Jesse Matthews, a convicted felon and federal fugitive, traded three handguns he had stolen, in exchange for an assault rifle. According to the Chattanooga Times-Free Press, the transaction between Matthews and a private seller fell under the casual-sale exception, meaning a background check was not required. Less than a week later, Matthews used the gun to fire on police officers as he fled a robbery, and eventually shot and killed police Sgt. Tim Chapin.