Private Gun Sales and Background Checks: What You Need to Know

Introduction

If you have been to a gun show, you might have seen those guys walking around with backpacks bristling with rifle barrels. Come to realize they are selling guns without background checks or any FBI paperwork. You might be asking, “how do they get away with selling a gun without all the paperwork? That must be illegal or something…?”.

As a gun owner and an amateur firearms expert for over a decade, I’ve encountered many situations that made me question the ins and outs of private gun sales. I reviewed the federal and state laws so you don’t have to waste your time researching bloated legal documents and FUDD forums (no offense!).

In this article, we’ll dive into the world of private gun sales and how they get around background checks.

Remember, I’m not a lawyer, so don’t take this as legal advice please..

What Are Private Gun Sales?

Picture this: You’re looking to sell that old hunting rifle that’s been collecting dust in your gun safe. Your buddy Joe is interested in buying it. You meet up, exchange cash for the gun, and that’s that. Congratulations, you’ve just conducted a private gun sale!

In simple terms, private gun sales are transactions between individuals without involving a licensed firearms dealer. It’s like selling your old bike on Craigslist, but with way more legal strings, and potential repercussions, attached.

Here’s the kicker: depending on where you live, these sales might not require the same level of scrutiny as buying from a gun store. It’s this direct, person-to-person nature that makes private gun sales both appealing and controversial.

Federal Laws Governing Private Gun Sales

Now, let’s talk about Uncle Sam’s role in all this. Federal law doesn’t require a background check for private gun sales between residents of the same state. I know, I was surprised too when I first learned this in my concealed carry class.

But before you start planning a gun-buying spree, hold your horses! There are still some federal rules to keep in mind:

It’s illegal to knowingly sell a gun to someone who’s prohibited from owning one (like convicted felons or folks with certain mental health issues).
You can’t sell to someone from another state without going through a licensed dealer.
If you’re “engaged in the business” of selling firearms, you need a federal license.

Now, let’s address the elephant in the room: the infamous “Gun Show Loophole.” Despite what the name suggests, it’s not just about gun shows. It’s the fact that private sellers, whether at a show or elsewhere, don’t have to run background checks.

Gun shows are like watching two different worlds collide. Some tables have signs saying “Licensed Dealer – Background Check Required,” while others don’t. It makes you feel like a criminal if you start talking to a table without the background check sign.

State Laws on Private Gun Sales

Here’s where things get really interesting – and by interesting, I mean complicated. When it comes to state laws on private gun sales and background checks, it’s like each state decided to write its own choose-your-own-adventure book.

Some states, like California and New York, require background checks for ALL gun sales, including private ones. They’re like the strict overbearing parents of the bunch who check their kids’ location every 30 minutes. Others, like Texas and Arizona, stick to the federal minimum. In these states, private sales are pretty much a free-for-all.

I remember chatting with a guy at a gun range in Colorado. He was telling me how the state recently changed its laws to require background checks for private sales. He was grumbling about the hassle, but his buddy chimed in saying he felt safer knowing there was an extra layer of diligence on a potential gun owner. Just goes to say how divisive background checks can be.

How to Conduct a Background Check for Private Gun Sales

So, you’ve decided to be a responsible citizen and conduct a background check when selling your gun. Good on ya! Here is what you should know.

If you’re in a state that requires background checks for private sales, you’ll likely need and I recommend to go through a licensed firearms dealer (FFL). In my opinion, you don’t know who this person is and what they plan to use the gun for. Why would you risk jail time when a criminal goes and kills someone with a gun you sold them?

In states that require background checks, don’t be lazy. Go to your local FFL.

Here’s the general process:

Find a local FFL willing to do the transfer. Pro tip: call ahead! Not all of them offer this service
Both the buyer and seller need to show up at the FFL with valid ID
The buyer fills out the ATF Form 4473 (Firearms Transaction Record)
The FFL runs the background check through the NICS system.
If approved, you can complete the sale. If denied, you are probably lucky you didn’t sell to a criminal or ineligible person.

You can expect to pay the gun store $20 – $50 for running the background check. It’s just the cost of doing business..

Best Practices for Buyers

Alright, all you potential gun buyers out there, listen up! I’ve seen both sides of private gun sales, and let me tell you, it pays to be smart about it.

First off, do your homework! I can’t stress this enough. Before you even think about buying a gun privately, make sure you know your local laws inside and out. Buying a gun at a Trader Joe’s parking lot in California is a felony which could bring a sentencing of up to 10 years in jail.

When you’re dealing with a private seller, trust your gut. If something feels off, it probably is. A gun with a deal too good to be true is just that.

Here are some key things to keep in mind:

Always meet in a safe, public place. Some police stations even offer their parking lots for these transactions. It’s like having a safety net!
Insist on seeing the seller’s ID and proof of residence. It’s not being paranoid, it’s being smart.
Document everything! Get a bill of sale that includes both your information and the seller’s, as well as details about the firearm including the serial number.
Inspect the firearm. Make sure it is a legal configuration and not an ATF item.
If the serial number or other information is scratched out, get in your car and drive away.

Best Practices for Sellers

Now, let’s talk about vetting your buyer. This is crucial. You don’t want to be that person who unknowingly sold a gun to someone who shouldn’t have one (I probably sound like a broken record at this point).

Here’s what you can do:

Ask for identification and proof of residence. If they hem and haw, that’s a red flag.
If they are trying to speed up the deal, obviously get in your car and drive away.
Consider only selling to buyers with a valid concealed carry permit. It’s not foolproof, but it’s a good indicator that they’ve passed a background check.
Do some research online. See if they have gone to jail. If they have an active Linkedin, they are probably squared away.

Documentation is your friend, people! Even if your state doesn’t require it, keep records of the sale. I’m talking about the bill of sale, copies of IDs, the whole nine yards. It’s like having an insurance policy for your conscience.

Debates Surrounding Private Gun Sales

The debate around private gun sales and background checks are a hot topic. I believe both of these are in the same boat since the issue goes back to “should this person be allowed to purchase and own a firearm?” and even deeper, “does the government have the right to mark someone ineligible to possess a firearm based on their mental health?”. We will dive into that topic in a future post.

On one side, you’ve got folks arguing that every single gun sale, private or not, should require a background check. They say it’s common sense, like wearing a seatbelt or not juggling chainsaws.

But on the flip side, you’ve got people who see it as an infringement on their rights. They argue that criminals will find ways around the checks anyway, so why burden law-abiding citizens?

Both sides have valid points but there needs to be a compromise. Starting off, I think people convicted of crimes involving firearms should probably not be allowed to purchase them. Does the second amendment include criminals in its right to bear arms? I think criminals lost their right when they decided to break laws. The right of The People are law-abiding citizens, not criminals.

The Future of Private Gun Sales

Well, folks, if I had a crystal ball, I’d be making a killing in the stock market instead of writing about gun laws. But since I don’t, let’s put on our thinking caps and see what the future might hold for private gun sales and background checks.

First up, legislation. It seems like every time there’s a high-profile shooting, we see a flurry of proposed bills before the victims’ families even have time to mourn (politicians.. am I right?). Some push for universal background checks, others for stricter penalties on private sales that skirt the law.

But here’s the thing: passing federal legislation on this issue is about as easy as herding cats. State laws, though? That’s where the real action is. I wouldn’t be surprised if we see more states following the lead of California and New York, requiring background checks for all gun sales, private or not. The real concern would be if a waiting period is expanded or if the background checks get stricter to include DUIs and other offenses.

Conclusion

Whew! We’ve covered a lot of ground, haven’t we? From the basics of private gun sales to the complexities of state laws, from best practices to heated controversies, it’s been interesting writing about this.

If there’s one thing I hope you take away from all this, it’s the importance of staying informed (plugging my newsletter below where I send weekly updates on gun regulations and gun related deals).

Whether you’re a buyer, a seller, or just an interested citizen, understanding the laws and responsibilities around private gun sales is crucial. It’s not just about staying on the right side of the law – it’s about being a responsible member of the gun-owning community.

So, whether you’re a seasoned gun owner or just starting to dip your toes into the world of firearms, keep learning, keep asking questions, and above all, keep prioritizing safety and responsibility.

Stay safe out there, and happy (responsible) gun owning!

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Blaine

Blaine is a gun and gear nerd with over 20 years of experience around firearms. He has a strong background in both historic and modern firearms which he gained while attending multiple shooting courses. He holds a bachelor's degree from Texas A&M University and is a licensed realtor. Blaine is passionate about the outdoors and enjoys helping readers by giving them firsthand information backed by objective information.