[Congressional Record Volume 149, Number 156 (Friday, October 31, 2003)]
[Senate]
[Pages S13711-S13714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN (for himself, Mr. Reed, Mr. DeWine, Mr. Lieberman, 
        Mr. Chafee, Mr. Lautenberg, and Mr. Schumer):
  S. 1807. A bill to require criminal background checks on all firearms 
transactions occurring at events that provide a venue for the sale, 
offer for sale, transfer, or exchange of firearms, and for other 
purposes; to the Committee on the Judiciary.
  Mr. McCAIN. Mr. President, I take a backseat to no one in my support 
of Second Amendment rights. But this right, which Americans have fought 
and died for, does not extent to terrorists, criminals and illegal 
aliens. That is why I am pleased to announce today a landmark agreement 
on gun show legislation that I have reached with Senators Jack Reed, 
Mike DeWine, and Joe Lieberman.
  The bill accomplishes two critical goals: It protects gun shows as a 
viable business and ongoing enterprise, and it slams the door on 
criminals, terrorists and illegal aliens who have successfully 
exploited a loophole in our gun

[[Page S13712]]

safety laws to acquire firearms at gun shows for nefarious purposes.
  I know the gun safety issue is controversial in Congress and that 
there is a great deal of passion on both sides. This legislation 
replaces passion with pragmatism. It stakes out a sensible middle 
ground to solve the real problem of criminals and terrorists getting 
guns at gun shows without burdening gun show operators with punishing 
paperwork or treating enthusiasts who attend these shows as pariahs.
  For gun rights advocates like myself, this bill does not retreat one 
inch in the battle to protect our Second Amendment rights. It treats 
gun show operators and patrons with respect and requires simply that 
background checks be performed on all firearms sales at gun shows. For 
those who are rightly concerned about gun violence, this bill simply 
and straightforwardly accomplishes the goal of closing a loophole that 
has fueled illegal gun trafficking in America.
  I am a gun owner and I have attended many gun shows in my state of 
Arizona. More than most people, I know that the majority of gun show 
patrons and sellers are honest, law abiding citizens. But I also know 
that there is a sinister element that attends these shows and exploits 
this loophole.
  Defenders of gun shows, like myself, cannot ignore the staggering 
statistic that gun shows are the second leading source of firearms 
recovered in illegal gun trafficking investigations conducted by ATF. 
Just this week, the St. Louis Post-Dispatch reported that ATF agents 
seized 572 firearms from five unlicensed sellers who were exploiting 
the gun show loophole in ways that threaten the safety of American 
citizens. The same article quoted an ATF agent saying ``crime guns do 
originate at gun shows. That's been documented.''
  The fact that gun shows are a leading source of crime guns is reason 
enough to close the gun show loophole, but we also know of at least 
three cases where alleged terrorists used the gun show loophole to 
purchase firearms and that makes closing this loophole imperative.
  On September 10, 2001, a Federal court in Detroit convicted Ali 
Boumelhem, a known member of the terrorist group Hezbollah on seven 
counts of weapons charges for smuggling shotguns, ammunition, flash 
suppressors, and assault weapons parts to Lebanon.
  FBI agents followed Boumelhem to at least three Michigan gun shows in 
October 2000. According to the Middle East Intelligence Bulletin, the 
shipment in which he was finally arrested was part of a pattern--
Boumelhem ``traveled frequently to gun shows to buy arms and then hid 
them in cargo crates bound for Lebanon.'' According to the Associated 
Press, ``Federal agents say they watched Boumelhem, a resident of 
Detroit and Beirut, travel to gun shows to buy gun parts and ammunition 
for shipment overseas.''
  On October 30, 2001, Muhammad Asrar, a Pakistani national with 
suspected al-Qaeda ties, pleaded guilty in Federal court in Texas to 
firearms-related charges. He was convicted of illegally possessing 50 
rounds of 9mm ammunition. He was also convicted on an immigration 
charge--illegally overstaying his student visa since 1988.
  Asrar was arrested after an anonymous informant told authorities that 
Asrar had asked him whether he would smuggle a foreign national across 
the border from Mexico. Asrar also allegedly asked the informant if he 
would take pictures of tall buildings for him during his travels. 
Police seized several photos of tall buildings from Asrar's store.
  Asrar admitted to authorities that he had bought and sold a variety 
of guns at Texas gun shows over the previous 7 years, including a copy 
of a Sten submachine gun, a Ruger Mini-14 rifle, two handguns, and a 
hunting rifle.
  Despite the final adjudication of the ammunition and immigration 
charges, which can carry a penalty of up to 10 years in prison, Asrar 
remains under investigation by a Federal grand jury. According to the 
New York Times, Asrar is being investigated for possible links to al-
Qaeda.
  Connor Claxton is an Irish national and an admitted member of the 
Irish Republican Army who is currently serving a prison term for 
attempting to smuggle guns bought in Florida to Ireland. At his trial 
he testified about how he came to the United States on IRA orders to 
buy weapons and ammunition for shipment back to Ireland and that he 
chose to come to Florida because ``we don't have gun shows in Ireland, 
and you see things here like you never imagined.''
  According to his co-conspirator Siobhan Browne, Claxton ``spent more 
than $100,000 off the books on semi- and fully automatic weapons in 
sales from private dealers'' who are not required to perform background 
checks. Browne also said that Mickey Couples, a senior IRA leader, told 
her that ``the gunrunning mission had been going on for four years and 
that there were 50 IRA volunteers involved.''
  In an era where America is right to be concerned about security, it 
is absolutely imperative that we close this dangerous loophole that 
allows criminals, terrorists, and illegal aliens to claim a right that 
they don't deserve.
  The McCain-Reed-DeWine-Lieberman bill requires instant criminal 
background checks for all firearm sales at gun shows. For licensed 
dealers selling at gun shows, this bill creates no new burdens. For 
unlicensed sellers, they will simply need to have an instant background 
check performed before they transfer a firearm. The instant check could 
be performed by a licensed dealer, local law enforcement, or by a new 
entity created by this bill called a special licensee--an individual or 
gun show employee who may perform instant background checks at gun 
shows only.
  The bill also defines a gun show in a fair and rational way. Any 
public event where 75 or more firearms are offered for sale is defined 
in the legislation as a gun show. Collectors who sell their own guns 
from their own homes are exempt. In addition, private hunt clubs that 
buy, sell, or trade firearms between members are also free from the 
requirements of this bill.
  Paperwork requirements under the bill are the minimum necessary to 
ensure compliance with the law. I made sure that gun show operators 
would not be buried under an avalanche of paper.
  Finally, the bill allows States to seek a waiver to make the instant 
check even quicker for unlicensed sellers at gun shows once that State 
has automated the records necessary to make the check as accurate as 
possible. I am aware that some sellers are concerned that the law 
allowing up to three business days to complete a background check is 
burdensome for weekend gun shows.
  Currently, because of improvements made by Attorney General John 
Ashcroft, 91 percent of all background checks are completed within five 
minutes and 95 percent are completed within two hours. For all intents 
and purposes, we now have a viable instant check system. But I would 
like to get that 95 percent success rate up to 100 percent and this 
bill will help entice States to get their felony, domestic violence and 
mental health records in order so that no one has to wait days to be 
approved or denied a firearm under instant check.
  This legislation should appeal to all but those who either hate guns 
and believe that no one should own them or those who believe that even 
terrorists, criminals and illegal aliens are protected under the Second 
Amendment. In 1999, every member of the Senate voted for some form of a 
bill to close the gun show loophole, but neither side was willing to 
compromise for the sake of America. Let's stop playing politics with 
guns and support a bill that closes a serious loophole while respecting 
the rights of those who enjoy gun shows. This is our chance.
  Mr. REED. Mr. President, I rise to join my colleague Senator McCain 
in introducing the Gun Show Loophole Closing Act of 2003. We offer this 
legislation to strengthen our Nation's gun laws by closing a loophole 
that has allowed criminals to buy firearms at gun shows for far too 
long. I look forward to working with Senator McCain and our fellow 
cosponsors to offer this legislation to the first appropriate vehicle 
that comes before the Senate. In particular, it is our intention to 
offer this bill as an amendment to the gun industry immunity bill, S. 
659. If the Senate is going to consider granting immunity from civil 
liability to the firearms industry--an industry that Congress already 
exempted from the consumer product safety laws that apply to virtually 
every other product sold in this country--it is critical that we 
protect

[[Page S13713]]

the American people by improving law enforcement oversight of commerce 
in firearms.
  The Bureau of Alcohol, Tobacco and Firearms reported to Congress in 
2000 that gun shows are a major gun trafficking channel responsible for 
more than 26,000 illegal firearms sales during the 18-month period ATF 
studied. The FBI and ATF tell us again and again that convicted felons, 
domestic abusers, and other prohibited purchasers are taking advantage 
of the gun show loophole. At least three suspected terrorists that we 
know of have also exploited this loophole to acquire firearms, 
including one suspected al Qaeda member.
  Under Federal law, Federal Firearms Licensees are required to 
maintain careful records of their sales, and under the Brady Act, to 
check a purchaser's background with the National Instant Criminal 
Background Check System before transferring any firearm. However, a 
person does not need a Federal firearms license--and the Brady Act does 
not apply--if the person is not ``engaged in the business'' of selling 
firearms pursuant to Federal law. These unlicensed sellers make up one 
quarter or more of the sellers of firearms at thousands of gun shows in 
America each year. Consequently, felons and other prohibited persons 
who want to avoid Brady Act checks and records of their purchases buy 
firearms at gun shows.
  Four years ago, Eric Harris and Dylan Klebold killed 13 people at 
Columbine High School with weapons purchased from an unlicensed seller 
at a gun show. The woman who purchased those guns on behalf of Harris 
and Klebold testified to the Colorado legislature that she never would 
have purchased the weapons had she been required to undergo a 
background check.
  We have united behind this bipartisan legislation--which brings 
together provisions from several previous gun show bills--to make gun 
show transactions safer for all Americans. The bill would require Brady 
Law background checks on all firearms transactions at any event where 
75 or more guns are offered for sale. Three years after enactment, 
States could apply to the Attorney General for certification for a 24-
hour background check for unlicensed sellers at gun shows. In order to 
be eligible for 24-hour certification, a State would be required to 
have 95 percent of its disqualifying records automated and searchable 
under NICS, including 95 percent of all domestic violence misdemeanor 
and restraining order records dating back 30 years. Before certifying 
any State for 24-hour background checks, the Attorney General would be 
required to establish a toll-free telephone number to enable State and 
local courts to immediately notify the NICS system any time a domestic 
violence restraining order is filed, and courts within a certified 
State would be required to use the telephone number immediately upon 
the filing of such an order. The bill also directs the Attorney General 
to work with States to encourage the development of computer systems 
that would allow courts to provide electronic records to NICS 
immediately. The Bureau of Justice Statistics would conduct an annual 
review of all certified States to ensure they continue to meet the 
conditions for 24-hour background check certification.
  Some will say that this legislation is an attempt to end gun shows, 
but the experience of States that have closed the gun show loophole 
proves otherwise. California, for example, requires not only background 
checks at gun shows but a 10-day waiting period for all gun sales, yet 
gun shows continue to thrive there. No, we are not trying to end gun 
shows. What we are trying to end is the free pass we're giving to 
terrorists and convicted felons that allows them to simply walk into a 
gun show, find a private dealer, buy whatever weapons they want and 
walk out without a Brady background check.
  In overwhelming numbers, the American people believe that background 
checks should be required for all gun show sales. The people of 
Colorado confirmed this after the Columbine tragedy when they approved 
a ballot initiative to close the gun show loophole. I urge my 
colleagues to support the Gun Show Loophole Closing Act of 2003 so that 
we can finally close this loophole in every State and make sure that 
convicted felons, domestic abusers, and other prohibited persons do not 
use gun shows to purchase firearms without a Brady background check.
  Mr. DeWINE. Mr. President, I rise today as an original co-sponsor of 
the Gun Show Loophole Closing Act of 2003. I would like to thank 
Senators McCain, Lieberman and Reed for also sponsoring this common 
sense piece of legislation that aims to keep guns out of the hands of 
criminals and out of the hand of kids. It is a good bill--an important 
bill.
  Gun ownership rights are clearly established in the United States 
Constitution. And, I am a firm supporter of the Second Amendment. I 
also strongly believe that we have an obligation to protect the safety 
of law-abiding citizens and the safety of our most precious resource, 
our children.
  As a former county prosecutor, I learned that the best way to reduce 
the illegal and often fatal use of guns is to pass and enforce tough 
laws that severely punish criminals who use them. That is why I 
consistently have supported measures that keep firearms from getting 
into the wrong hands in the first place and that increase the 
punishment of those who use firearms in the commission of a crime. The 
Gun Show Loophole Closing Act helps achieve that goal.
  Under the existing Brady law, when a purchaser buys a gun from a 
licensed dealer, he or she must undergo a background check through the 
Federal Government's National Instant Criminal Background Check System 
(``NICS''), into which States feed records of certain criminals and 
others not qualified to own a gun. NICS has up to three days to inform 
the dealer as to whether the buyer is qualified to purchase a gun. If 
the dealer receives no response by the end of the three-day period, the 
dealer is allowed to the sell the gun to that buyer. Ninety-five 
percent of NICS checks, however, do not take three days. They come up 
with an instant or near instant response.
  This bill we are introducing today simply applies the same common-
sense checks to gun show sales. Right now, there is no statute 
requiring that all sellers at gun shows run NICS checks on potential 
gun buyers; however, according to Federal officials, gun shows are the 
second leading source of illegal guns recovered from gun trafficking 
investigations. By leaving this loophole open--by not requiring all gun 
show sellers to run NICS checks--we are presenting gun traffickers and 
other criminals with a prime opportunity to acquire firearms. This is 
terrifying and this is unacceptable. Only last week, Federal 
authorities arrested a Georgia man who sold large quantities of 
firearms at Georgia gun shows. These firearms have been recovered in 
subsequent crimes in New York, New Jersey, Michigan, and here in 
Washington, DC.
  Furthermore, following the attacks on September 11th, it came to 
light that Al Qaeda produced a handbook in which it advised terrorists 
to purchase firearms at gun shows in the United States. In fact, at 
least three suspected terrorists have exploited this loophole to 
acquire firearms. Therefore, it is imperative, now more than ever, to 
enact legislation to protect our citizens from this potential area of 
terrorist exploitation.
  This bill is common sense. The laws for purchasing firearms at gun 
shows and stores should be the same. We have the same responsibility to 
make sure that gun owners are qualified--regardless of where they buy 
their guns. This bill closes the gun show loophole in a way that 
respects the Second Amendment and honest, law-abiding Americans' right 
to buy and sell guns and attend gun shows. That's good law. That's good 
policy. That's why we should pass this bill.
  Mr. LIEBERMAN. Mr. President, I am proud to join Senators McCain, 
Reed, DeWine, Lautenberg, Schumer and Chafee in introducing this 
important legislation. This bill aims to build common ground on gun 
violence--a problem that has too often divided Members of Congress. As 
citizens of this great Democracy, we have rights and we have 
responsibilities. We have the right to own guns, but we have a 
responsibility not to sell them to criminals. That is the simple but 
important set of values on which the legislation we introduce today is 
founded.
  For several decades, our Nation has had a clear policy against 
allowing

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convicted felons to buy guns, because we know that mixing criminals and 
guns far too often yields violent results. Through the Brady law, we 
established what seems like an obvious corollary to that policy--a 
requirement that those selling guns determine whether someone trying to 
buy a firearm isn't supposed to get one before they sell it to them. 
The Brady law has been an enormous success. Since its enactment, 
background checks have stopped almost one million gun sales to those 
who by law aren't allowed to own guns--convicted felons, spouse 
abusers, fugitives from justice, among others. This has saved an untold 
number of our citizens from the violence, injury or death the sale of 
many of these guns would have brought.
  But the Brady law contained an unfortunate loophole that has since 
been exploited to allow convicted felons and other people who shouldn't 
own guns to evade the background check requirement by buying their guns 
at gun shows. The problem is that Brady applies only to Federal 
Firearms Licensees, so-called FFLs--people who are in the business of 
selling guns. Brady explicitly exempts from the background check 
requirement anyone ``who makes occasional sales, exchanges, or 
purchases of firearms for the enhancement of a personal collection or 
for a hobby, or who sells all or part of his personal collection of 
firearms.'' As a result, any person selling guns as a hobby or only 
occasionally, whether at a gun show, flea market or elsewhere, need not 
obtain a Federal license and therefore has no obligation to conduct a 
background check. This means that any person wanting to avoid a 
background check can go to a gun show, find out which vendors are not 
FFLs, and buy a gun. This situation is dangerous not only because it 
allows convicted felons and other prohibited persons to buy guns, but 
also because--in contrast to FFLs--non-FFLs have no obligation to keep 
records of the transaction, thereby depriving law enforcement of the 
ability to trace the gun if it later turns up at a crime scene.
  Our bill will change that. We will make sure that no one will be able 
to buy a gun at a gun show without it first being determined whether 
that person is a convicted felon, a spouse abuser or a member of one of 
the other categories of people we all agree should not be allowed to 
buy guns.
  Our bill does this, though, by taking into account some of the 
concerns that were expressed about previous efforts to close this 
loophole.
  First, our bill has a simple definition of a gun show--an event where 
75 or more guns are offered or exhibited for sale--and we make clear 
that that definition doesn't include sales from a private collection by 
nonlicensed sellers out of their homes.
  Second, to respond to the argument that previous proposals made it 
too difficult for nonlicensed sellers to fulfill the background check 
requirement, our bill makes sure that nonlicensed sellers will have 
easy access to someone who can initiate background checks for them, by 
creating a new class of licensee whose sole purpose will be to initiate 
background checks at gun shows.
  Third, we have tried to respond to those who say that a three-day 
check is too long for gun shows, because those events only last a 
couple of days. It is worth noting that the length allowed for the 
check doesn't affect the overwhelming majority of gun purchasers, 
because over 90 percent of checks are completed almost instantly. But 
to allay the concerns that have been expressed, we have come up with a 
compromise that authorizes a State to move to a 24-hour check for 
nonlicensed dealers at gun shows when the State can prove that a 24-
hour check is feasible. A State can prove that by showing that 95 
percent of the records that would disqualify people in that State from 
buying guns are computerized and searchable by the NICS system. And, 
because of the particular need to keep guns out of the hands of spouse 
abusers, the bill specifically provides that a State must have 
computerized 95 percent of its domestic violence misdemeanor and 
restraining order records dating back 30 years before it is eligible to 
go to a 24-hour check at gun shows.
  One significant difference between the bill Senator McCain and I 
introduced last Congress and the one we introduce today is that my 
colleague from Rhode Island, Senator Reed, has worked with us to craft 
a single gun show loophole closing bill. I am truly pleased that we can 
now all go forward together in a unified effort to bring greater 
responsibility to our gun laws.
  Now I know that there are many, including President Bush, who argue 
that what we need to solve the gun violence problem are not new laws 
but the enforcement of existing ones. I agree with part of that 
statement, and firmly support efforts to crack down on those who 
violate our gun laws. But I believe we must go farther than that, 
because we will never be able to enforce existing laws unless we close 
the loopholes in them that criminals exploit. And we all know that 
there is a big loophole in the provision saying that felons and spouse 
abusers aren't supposed to buy guns, and that is that criminals know 
that if they go to a gun show, they will be able to avoid the 
background check that was set up to keep them from getting guns.
  Gun crime remains a critical public safety problem. For too long, 
differences over finding a solution to that problem have unnecessarily 
divided the Congress, and the American people have been left to suffer 
the violent consequences. But the reality is that most of us agree on 
most of the critical questions. We agree that the laws on the books 
should be enforced, that the rights of law-abiding gun owners should be 
protected, and that convicted felons and spouse abusers shouldn't be 
able to get guns. The bill we are introducing today would write those 
principles into law. I hope all of my colleagues support it.
                                 ______