- The "Florida gun show loophole" is not a Florida statute. It is the shape of 18 U.S.C. 922, which puts the background check duty on federally licensed dealers, so a private seller at a Florida gun show can sell without running one.
- A licensed dealer selling in Florida must run the buyer through the state criminal history records check under Florida Statute 790.065 and hold the firearm for the waiting period in Florida Statute 790.0655, which is 3 days excluding weekends and legal holidays or until the check clears, whichever is later.
- Florida Statute 790.065(13) bars anyone younger than 21 from purchasing a firearm and bars a licensed dealer from making or facilitating that sale. That limit came from the Marjory Stoneman Douglas High School Public Safety Act, chapter 2018-3, Laws of Florida.
- Article VIII, Section 5(b) of the Florida Constitution lets each county require a criminal history records check and a 3 to 5 day waiting period on any firearm sale where part of the transaction happens on property the public may enter, which describes a gun show. Concealed weapons permit holders are exempt.
- A private seller still commits a federal crime under 18 U.S.C. 922(d) by transferring a firearm to a person he knows or has reasonable cause to believe is prohibited, and under Florida Statute 790.23 a convicted felon who possesses a firearm commits a second-degree felony.
Gun shows are a popular way for individuals to buy and sell firearms in Florida. However, a loophole in Florida's gun show laws allows certain individuals to purchase firearms without a background check. This is known as the "Florida gun show loophole."
Although there have been attempts to close the loophole, it remains controversial and is being debated at the federal and state levels. It’s important for individuals to understand the implications of the gun show loophole and to be aware of any changes to gun laws.
What Florida Law Requires Of A Licensed Dealer
A federally licensed dealer selling a firearm in Florida has to do two things a private seller does not. Under Florida Statute 790.065 the dealer must run the buyer through the criminal history records check operated by the Florida Department of Law Enforcement before transferring the firearm. Under Florida Statute 790.0655 the dealer must then hold the firearm for a mandatory waiting period of 3 days, excluding weekends and legal holidays, or until the records check is complete, whichever happens later.
Two further limits apply at the dealer counter. Article I, Section 8(b) of the Florida Constitution imposes the 3-day wait on the retail purchase of any handgun, and Florida Statute 790.065(13) provides that a person younger than 21 may not purchase a firearm and that a licensed dealer may not make or facilitate that sale. The age limit came from the Marjory Stoneman Douglas High School Public Safety Act, chapter 2018-3, Laws of Florida, effective March 9, 2018. None of these duties reach a private seller with a table in the same room.
Understanding The Florida Gun Show Loophole
Some Florida counties do require a check at a gun show, and the power to do that comes from Article VIII, Section 5(b) of the Florida Constitution. It lets each county require a criminal history records check and a 3 to 5 day waiting period on the sale of any firearm when any part of the transaction is conducted on property to which the public has the right of access, which is exactly what a gun show is. Holders of a Florida concealed weapons permit are exempt. Where a county has adopted no such ordinance, a private sale at a gun show involves no check at all.
What Is The Florida Gun Show Loophole?
The "Florida gun show loophole," as it is commonly called, is not a Florida law at all. It is the shape of 18 U.S.C. 922, which puts the background check duty on federally licensed importers, manufacturers and dealers. A person who is not in the business of dealing firearms and holds no federal firearms license is selling out of a personal collection, and federal law does not require that person to run a check on the buyer.
The result is that two people can buy the same rifle in the same building an hour apart under different rules. Law enforcement groups and gun control advocates argue that this is how a person who would fail a check obtains a firearm anyway. Gun rights groups answer that a sale between two Florida residents has never required federal paperwork and that adding it would not stop a determined buyer from going to the street instead.
Impact On Gun Control Measures In Florida
The gap also limits what the 2018 reforms can reach. After the Parkland shooting the Legislature passed the Marjory Stoneman Douglas High School Public Safety Act, chapter 2018-3, Laws of Florida, which created risk protection orders at Florida Statute 790.401. A risk protection order lets a law enforcement officer or agency petition a court to remove firearms from a person found to pose a significant danger. The order binds the person it names, but it puts no private seller on notice, because a private seller has no database to query.
The National Instant Criminal Background Check System (NICS) only sees a sale that a licensed dealer submits to it. A private sale is never queried, so a disqualifying record in the system, however complete and current, has no effect on that transaction.
Arguments For And Against Closing The Loophole
While there are arguments for and against closing the loophole, it will be up to lawmakers to determine whether or not to close the gun show loophole and how best to address the issue of gun violence in our society.
Arguments For Closing The Gun Show Loophole
Closing the loophole at gun shows would require all sales at gun shows to be subject to background checks to ensure that individuals with criminal backgrounds or mental health issues cannot easily purchase firearms. This would help prevent guns from falling into the wrong hands and potentially reduce gun violence.
Proponents argue that closing the loophole would increase community safety by minimizing the possibility of individuals acquiring guns without proper background checks. Stricter regulations on gun sales may reduce the number of illegal firearms in circulation and make it more difficult for criminals to obtain guns.
Critics of the gun show loophole argue that it creates a regulatory loophole that allows people to bypass background checks, making it easy for potential criminals or those with dangerous intentions to obtain firearms. Closing this loophole would help ensure consistent enforcement of firearms acquisition laws and promote responsible gun ownership.
Against Closing The Loophole
Opponents argue that closing the loophole interferes with an individual's Second Amendment right to bear arms. They believe that law-abiding citizens should have unrestricted access to firearms and see any attempt to regulate or close the loophole as an unnecessary restriction on their constitutional rights.
Some opponents argue that closing the loophole on gun shows would place an undue burden on law-abiding citizens who want to buy or sell firearms privately. They contend that requiring additional background checks could lead to delays and administrative hurdles for law-abiding citizens who want to exercise their right to bear arms.
Critics also question whether closing the loophole would have a significant impact on reducing crime. They point out that criminals are likely to seek illegal methods of obtaining firearms regardless of whether private sales at gun shows are regulated. They argue that addressing the root causes of crime, such as poverty and mental health issues, would be more effective in reducing gun violence.
What A Private Seller Can Still Be Charged With
The absence of a background check duty is not a defense to everything. Under 18 U.S.C. 922(d) it is a federal crime to sell or otherwise dispose of a firearm to a person the seller knows, or has reasonable cause to believe, is a convicted felon, a fugitive, an unlawful user of a controlled substance, or otherwise prohibited from possessing firearms. "I did not run a check" does not answer what the seller already knew, and a seller who waved off an obvious warning sign is the one prosecutors look at.
On the buyer's side, Florida Statute 790.23 makes it a second-degree felony for a person convicted of a felony to own or have in their care, custody, possession or control a firearm, ammunition, or an electric weapon, punishable by up to 15 years in prison. Buying at a gun show rather than a store changes nothing about that charge. Florida Statute 790.065(13) separately bars the purchase of any firearm by a person younger than 21.
Whether Florida should extend the check to private sales is a live argument in Tallahassee, and bills to do it have been filed in multiple sessions without passing. As things stand, the requirement in general law reaches licensed dealers only, plus whatever the county hosting the show has adopted under Article VIII, Section 5(b).
Call Weinstein Legal Team For Your Legal Concerns
Florida has specific rules on firearm ownership, purchase and transfer, and a gun owner is much better off knowing them before a transaction than after one. Our criminal defense attorneys handle gun charges across Florida, including possession of a firearm by a convicted felon under Florida Statute 790.23, purchase by a person younger than 21, and charges arising out of a private firearm transfer.
If you're facing gun charges in Florida, the Weinstein Legal Team is here to help. Give us a call today at (954) 845-0505 to schedule a consultation with one of our attorneys. We’ll review your case, answer any questions, and provide you with the guidance and support you need.
