What is the Charleston "Loophole"?

The 3 day proceed to sale provision, often referred to by the gun control community as the “Charleston loophole”, is not a loophole at all. It is a necessary component of our current background check system. Under current law, commercial firearms transactions cannot proceed until a background check determines that the transfer to the individual would not violate applicable federal and state laws. In the case of a delay, if the background check is not completed within 3 business days, the Federal Firearms Licensee (FFL) has the OPTION to proceed with the transfer. The FFL is NOT required to complete the transfer.

The 3 day proceed to sale provision is a safety valve that ensures gun purchasers in the U.S. are not arbitrarily denied their Second Amendment Rights. Without the 3 day provision, the FBI has no incentive to complete checks in a timely manner.

Delaying the exercise of a person’s right to self-defense can have deadly results. In 2015, Carol Bowne of Berlin, New Jersey was murdered by her ex-boyfriend after waiting more than forty days for a firearm permit. Eliminating the 3 day proceed to sale provision would expose law-abiding Americans to the same type of deadly delay that prevented Ms. Bowne from defending herself.

Many Senators in favor of stricter gun control supported reducing the current 3 day provision to 1 day as part of the Manchin-Toomey amendment. With improvements in technology since the provision was originally adopted in 1998, we should be discussing reducing the time limit, not increasing it. NICS is premised on the idea that background checks should be instant, accurate, and fair.

The murders in Charleston do not justify lengthening the 3 day provision:

The Charleston murderer first attempted to buy a firearm on April 11, 2015, but was delayed due to an arrest for drug possession.
The gun was transferred to him on April 16, 5 days after his attempt to purchase it.
The attack didn't occur until June 17, over two months after the murderer first tried to buy the firearm. During that time, the FBI continued to investigate to determine whether the transaction should have proceeded. The FBI investigation was not impeded because the firearm was transfered.
When it is later determined that a transaction should have been denied, the case is referred to ATF for recovery of the firearm. That didn't happen in this case because the murderer was not prohibited from possessing a firearm due to his drug arrest. Under federal law, a person has to be an unlawful "user" of a controlled substance, so the government needs evidence of use, not simply possession, of a controlled substance. Federal courts generally require evidence of “recent and repetitive” drug use to sustain a conviction as an "unlawful user." One court even held that evidence of a single recent usage of drugs by the defendant was insufficient to sustain a conviction. United States v. Augustin, 376 F.3d 135, 139 (3d Cir. 2004).

The Charleston case would not have been prevented by lengthening the 3 day proceed to sale provision. To the contrary, doing so would result in arbitrary delays affecting the rights of millions of people every year and make it more difficult for law-abiding Americans to defend themselves and their families.