All the Things Hillary Clinton Got Wrong in Her Gun Speech

Analysis: Clinton made 6 inaccurate or misleading statements

October 7, 2015

Hillary Clinton made a number of factually incorrect or misleading statements about firearms during her remarks at a town hall meeting in New Hampshire on Monday.

While speaking to a crowd at Manchester Community College, Clinton made inaccurate claims about several issues, from background checks to automatic weapons to state gun laws. The inaccuracies came as she laid out her proposal for new gun control measures, including her plan to use executive actions to implement some of the measures.

The "Gun Show Loophole"

During her speech Clinton referred to what she called a "gun show loophole" and said that she planned to close it. She said that there is a special exception in the federal background check system for sales at gun shows and online. "We’ve got what’s called the gun show loophole and we’ve got what’s now being called the Charleston loophole," Clinton said. "When the Brady bill was passed, which wasn’t easy as you recall but it did pass, exceptions were made for gun shows and later it was extended to include online sales."

No such exemption exists in the Brady Handgun Violence Prevention Act. The law does not take into account how a gun sale takes place. It does not distinguish between sales made at gun stores, gun shows, or online.

Instead, federal law makes a distinction between who is selling the gun. Commercial dealers with a Federal Firearms License must perform background checks through the FBI’s National Instant Background Check System (NICS) on every sale they make to a customer, regardless of how that sale occurs. A private seller who resells a used gun to another private party living in the same state does not have to perform a background check regardless of how that sale occurs.

Some states with so-called universal background check systems require background checks on all private sales as well as sales through commercial dealers. Clinton’s proposals would mirror such systems.

"40 Percent" of Guns Are Sold at Gun Shows and Online

Clinton said that 40 percent of guns are sold at gun shows or online, sales that she claimed are exempt from background checks. "Forty percent of guns are sold at gun shows, online sales," she said. "We need to close that loophole so that when we have a universal system it will cover everybody."

Clinton’s claim likely stems from a poll included in a 1997 report from the Department of Justice. The poll found that 35.7 percent, not 40 percent, of respondents did not obtain their guns from commercial firearms dealers. It did not indicate whether those purchases were made at gun shows or online. The percentage is further reduced to 26.4 percent when gifts or inheritances are factored in.

In fact, the survey indicated that only 3.9 percent of respondents obtained their firearms from gun shows.

Additionally, while the survey was originally published in the 1997 report, it was conducted on sales that took place in 1993 and 1994, before the Brady Act’s background check system was implemented. It also only consisted of 251 respondents.

A 2013 reexamination of the survey results done by the original researchers at the request of the Washington Post found that 22 percent of gun sales at most were conducted with non-dealers.

The "Charleston Loophole"

Clinton referred to another exception in federal law that she called the "Charleston loophole."

"Another loophole is what happened when the young man who murdered the nine people at Bible study in the church basement in Charleston," the Democratic candidate said. "He applied for a gun. The loophole says if they don’t get the background check done in three days you can still go buy the gun. Turned out he had a criminal background. And, you know how record keeping is, people were still searching through it but at the end of three days he goes and buys the gun."

While the Charleston shooter did obtain his firearm after the FBI failed to deny his application during the three business days they are given by law to review an application, the FBI is not required to stop investigating applications after those three business days. The Brady Act allows the FBI to continue their investigation and make a final determination as to whether or not the applicant can legally purchase a gun. If they determine the purchaser is not legally allowed to possess a firearm after the firearm has already been purchased the FBI will contact the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and that agency will retrieve the firearm. In 2012, this happened more than 3,700 times.

In the case of the Charleston shooter, the FBI had two months between the time of the purchase and the shooting to determine that the purchase was illegal. The FBI did not determine that the shooter was prohibited from purchasing a firearm in that time period due to a number of mistakes made by law enforcement officials.

Doctors in Florida "Can Go to Jail" for Talking about Guns

Hillary Clinton targeted a Florida gun law during her speech, saying it threatened doctors with jail time for speaking to their patients about guns. "There’s a law in Florida, and I want you to hear this because it was so shocking at first that I really didn’t believe it," she told the crowd. "There’s a law in Florida that makes it a felony for a pediatrician to talk with families about being sure they keep guns safely away from children."

"Literally a doctor can go to jail in Florida."

Violating the 2011 Florida law Clinton is likely referring to, the Firearm Owners’ Privacy Act, would not make doctors felons, nor does the act impose any potential jail time on doctors who violate it. Instead, the act subjects doctors to standard disciplinary measures from a medical licensing board if they inquire about a patient’s guns when doing so is not relevant to the patient’s medical care.

"The Act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care," a Federal Appeals Court said of the law in a ruling earlier this year.

Medical licensing boards can impose sanctions against doctors that range from letters of reprimand to suspension of medical licenses to fines up to $10,000, but cannot impose jail sentences.

"Automatic Weapons" are Widely Available

During her comments Clinton decried the availability of automatic weapons. "You’re walking to class. You’re driving your baby around in a car seat. You’re going to church," she said. "And somebody has an automatic weapon or, even worse, an assault weapon that is a military instrument of war. And you’re somehow supposed to be able to stop that with your own gun. That has never made any sense."

The sale of new automatic weapons to civilians has been illegal under federal law since 1986.

Possession of automatic weapons that predate the 1986 ban is heavily regulated. Those civilians who own automatic weapons must pay a special tax at purchase, submit their fingerprints to the ATF, and notify the agency when they plan to cross state lines with the weapons. Automatic weapons are also among the only civilian-owned firearms required to be registered with the federal government.

Each Year "33,000" Killed by Guns

After referring to recent murders in Oregon and Cleveland, Clinton claimed that more than 33,000 are killed by guns every year in America. "Between 88 and 92 people a day are killed by guns in American," Clinton said. "Last figures we have for a whole year is more than 33,000."

The Centers For Disease Control estimates that there were 33,636 firearm-related deaths in 2013, but the vast majority of those deaths were not murders. The agency estimated that 21,175 of those deaths were suicides. That represents 62.9 percent of firearm deaths.

They estimated that there were 11,208 firearms homicides, representing 33.3 percent of the total, in 2013.

In a separate report, the FBI found that gun murders are currently at a multi-decade low and continue to fall, a fact that Clinton did not mention.