Table of Contents
The United States has always been a country of individuals who are free to be themselves. This freedom was only obtained after numerous battles by those citizens who desired to be free from tyranny. Despite this, freedom has been a continuous battle for United States citizens due to internal and external forces. One of these battles is the sale and possession of firearms. The Second Amendment in the United States Constitution states that a well-regulated militia can keep and bear arms. This law gives people the right to keep and bear arms being a necessity of a free state, and their rights shall not be infringed. If a citizen has a firearm in their state, they have the right to own and carry it whether or not they are currently in service. Therefore, the three-day, also known as the Charleston loophole, is a provision in the sale of certain firearms that ensures that people who purchase such guns are not arbitrarily denied the provisions and rights under the Second Amendment. The Charleston loophole remains a controversial issue within the United States, with different parties arguing that it is associated with increased crime rates because of the federal firearm checks flaw.
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History of the Charleston Loophole
The three-day is an ancient gun control tactic using which a portion of currently existing federal gun laws are circumvented. These laws were enacted under the Gun Control Act of 1968, following the assassinations of Martin Luther King Jr. and Robert F. Kennedy in 1968 in the American south’s most famous cities of Memphis and Baton Rouge (Edison, 2018). Before Haynes vs. The United States case prompted the Amendment of the National Firearms Act of 1934, which had setbacks in applying for mandatory weapons registration. As a result, Haynes was charged with possessing a firearm without a permit but argued that the requirement would openly mean accepting guilt in violation of the law through self-incrimination as a convicted felon (Etter & Johnson, 2021). Thus, the assassination of two prominent American individuals in 1968 changed the public opinion on firearms possession, reinforcing the Gun Control Act, which President Lyndon B. Johnson signed in 1968. The Act regulates the sale and licensing of firearms to avoid the sale of guns to criminals and minors, who could potentially use them for illegal purposes. Brady Handgun Violence Prevention Act later amended the Gun Control Act of 1968 in 1993 (Womble, 2018). The Brady Law requires licensed Federal Firearms Licensees (FFL) to perform background checks on customers who want to purchase a gun from them before completing a sale.
The Charleston Loophole
Under the current federal law, transactions about firearms cannot proceed before a background check is completed to determine that the transfer does not violate applicable state and federal laws. In a situation where the completion of the background checks is delayed for three business days, the FFL has to proceed with the firearm transfer without option. This three-day is referred to as the sale provision as a safety measure to ensure those gun buyers are not denied their rights under the Second Amendment. It also allows the Federal Bureau of Investigation to complete the checks on time (Weigend et al., 2021). The sale provision was created to ensure that the sale of firearms does not violate applicable state or federal laws so that a person with a criminal record could not purchase a gun from an FFL. The three-day provision gives the FFL an advantage over the potential buyers of firearms, where they can sell a gun before the completion of background checks if it is within these three days.
A notable case involving this federal law provision is that of the 2015 shooting of nine worshipers in Emanual Church in Charleston, South Carolina. The shooter bought a gun because of this provision in the check system (Stoever, 2019). Despite the legal prohibition of the shooter to possess a firearm, the purchase was completed because the background check took more than three business days. As a result, the firearm was transferred to the suspect, who killed nine individuals in this case. Although it is not a loophole in that gun buyers are forced or coerced into buying firearms from FFLs, as many will claim, it distorts the gun market and could have produced a positive result by eliminating illegal gun sales. Some states, such as Washington, New York, Illinois, and Wisconsin, have limited or closed the Charleston loopholes. On the other hand, Texas, Georgia, North Carolina, and others have special provisions in their state gun laws that allow for the sale of guns and have not adopted the policy to limit or close the loophole.
The Charleston loophole remains a controversial issue within the United States, with different parties arguing that it is associated with increased crime rates because of the federal firearm checks flaw. The Gun Control Act of 1968 set a precedent for firearm sales, brought into law in 1968, would not be able to be enacted without loopholes. Thus, it was necessary to make provisions that would allow the sale of firearms even if the system required more than three days to ensure that citizens’ rights under the Second Amendment were guaranteed. The debate over whether such a measure is necessary or should be adopted within other states remains an important aspect of American politics concerning gun control and private firearm ownership, even with the recent mass shootings in the country.
- Edison, J. (2018). The Forgotten County: St. Clair County, Illinois, in 1968 [Unpublished doctoral dissertation]. Southern Illinois University at Edwardsville.
- Etter, G. W., & Johnson, J. M. (2021). Gunrunning 101: A how-to guide about what to look for. Police Behavior, Hiring, and Crime Fighting, 228-241. Routledge.
- Stoever, J. K. (2019). Firearms and domestic violence fatalities: Preventable deaths. Family Law Quarterly, 53(3), 183-212.
- Weigend Vargas, E., Sugarmann, J., & Bhatia, R. (2021). Gun violence and key challenges in the United States. Gun Trafficking and Violence, 51-92. Palgrave Macmillan, Cham.
- Womble, D. L. (2018). A Citizen’s guide to the Second Amendment. DttP, 46, 7.