Point and Click

This year, however, there is an additional legal twist. With one U.S. Supreme Court gun ruling recently handed down (District of Columbia v. Heller, 128 S.Ct. 2783 (S. Ct. 2008), available at www.law.cornell.edu/supct/html/07-290.ZO.html), limiting (but not prohibiting), federal efforts to restrict guns, and another decision in the wings involving the same question at the state level (McDonald v. City of Chicago, No. 08-1521), the rights of those who use guns for sport ' and those who abuse them for crime ' are perhaps more in play than ever before in the limited world of Second Amendment jurisprudence (see, “D.C. Lawyer Will Defend Chicago's Gun Law Before Supreme Court,” in The National Law Journal, www.law.com/jsp/scm/PubArticleSCM.jsp?id=1202442085842).

But while the Second Amendment cases concerning the right to bear arms may dominate the news, that law doesn't guarantee a right to buy arms online. Because I believe that what occurs online in e-commerce is merely a mirror of its real-world counterpart, e-commerce involving firearms should be no different.

Guns in the Ether

Just as one can buy just about anything online, it is not surprising that even a basic Internet search will reveal many gun sellers, small and large, sophisticated and unsophisticated ' just as in any type of semi-regulated shopping. From links to authorized retail outlets of major manufacturers (www.gun-shots.net/gun-manufacturers.shtml), to links to individual gun sellers' sites and online gun auctions (www.auctionarms.com, www.auction-lynx.com/guns.html and www.gunbroker.com), to an online gun-search engine (www.ebang.com), and even many self-labeled “Craigslists for guns,” there seems to be no limit to what one can find for sale on the Internet. It's the same with any market in which e-commerce has made it possible for the proverbial needle shopper to find what he or she wants in a very well-stocked haystack. (In fact, the advertisement of “weapons and related items” is “not permitted” on the “real” Craigslist ' see, www.craigslist.org/about/prohibited.items.)

In one respect, the ready availability of these sites has certainly eased the burden of the serious collector; the hunt for a particular model no longer requires combing through classified ads in obscure publications or combing pawn shops to find it ' the hunt need go no farther than the spare bedroom computer. Through the many sales sites online, one can locate particular models at multiple price points with relatively little effort ' just as easily as one can locate obscure recordings or out-of-print books without having to travel to many shops.

For the “traditionalist” uncomfortable with buying online, there are even links to real-world gun shows (http://en.wikipedia.org/wiki/Gun_show); perceived by some as a way to avoid complying with other types of firearms regulation (as discussed further below) (see, www.gunshows-usa.com; http://naasgunshows.com/links.html).

Online Gun 'Guidance' Galore

Similarly, there are many explanations online of the laws regulating firearms purchases ' and some of them may even be accurate. (I will not address the many hobbyist and enthusiast sites purporting to explain the law through folk-wisdom and tunnel-vision understanding.) Most notably, the federal government has its own site at www.atf.gov/firearms/industry. The National Rifle Association (“NRA”) has a comprehensive site at www.nraila.org/GunLaws.

From the “other side” of the gun-debate aisle, the Legal Community Against Violence publishes its own Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws (www.lcav.org/publications-briefs/reports_analyses/RegGuns.entire.report.pdf).

While a full treatment of laws affecting gun purchases, much less online purchases, is well beyond the scope of this article, there are several basic principles that are relevant ' although, as the sites warn, one must read the laws specifically applicable to particular location and type of weapon.

First, any interstate sale, or sale conducted remotely, must be done through a federal firearms license holder (“FFL”). (See, e.g., www.gunbroker.com/FFL/DealerNetwork.aspx; there are many FFL databases online.) Next, interstate gun purchases must be preceded by a background check. Intrastate sales conducted between persons who do not have FFL licenses, in contrast, do not have to pass that check, or even be brought into the FFL recordkeeping system. For example: “Sales Between Individuals. An individual who does not possess a federal firearms license may not sell a firearm to a resident of another state without first transferring the firearm to a dealer in the purchaser's state” (quoted at www.nraila.org/GunLaws/Federal/Read.aspx?id=60).

For all of the “gun control” efforts offline, therefore, e-commerce seems to make it just as easy to buy a gun online as to purchase rap music or fatty food, or other “dangerous” consumer items ' until one reads the terms and conditions at the sites for gun sales. A casual survey of the terms and conditions of gun-sales sites finds the same bland language from site to site, disclaiming responsibility for legal compliance; warning users that they must be familiar with federal, state and local laws regulating gun sales (which can differ); and that they must comply with those laws (see, www.cabelas.com/cabelas/en/templates/community/customerservice/gun-restrict.jsp?csPage=gunrestrict&cm_re=customerservice*left*gunrestrict ' listing of gun regulations; www.thegunauction.com/terms,page,content_pages; and https://secure.auctionarms.com/TermsNConds.cfm).

A Shotgun Sampling of
Explanations, Advice, Guidance, Laws and Regulations

Here is an example from auctionarms.com's terms-and-conditions section:

All Auction Arms Users are expected to abide by all federal, state, and local laws (“Law”) governing the offering, transfer, ownership and sale of firearms, ammunition and other items. It is the obligation of the Auction Arms User to know and to abide by the Law applicable to such user regarding such transactions. (https://secure.auctionarms.com/TermsNConds.cfm)

And an example from gun-lodge.com:

NOTICE TO BUYERS: All firearms must be shipped to a Federal Firearms License (FFL) holder. YOU ARE RESPONSIBLE TO KNOW THE GUN LAWS IN YOUR STATE. Your FFL holder will process the transaction of your firearm and most likely will require a fee. Some firearms are NOT legal in certain states. Check with your FFL holder, local gun store, or the Bureau of Alcohol, Tobacco and Firearms if you have questions. Firearms are to be sold within the USA only. (Emphasis in original, which is printed in red at the bottom of the Web page at www.gun-lodge.com/cgi-bin/elp?cmd=view&pages=policies.)

And from shootersxchange.com:

Remember, YOU are responsible [for] obeying the law and this means using a valid FFL holder to ship or receive your firearms when required by law. (www.shootersxchange.com/buyers.cfm) (The site also features a link to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' FFLEZCheck Web site, where buyers can check an FFL holder's status ' https://www.atfonline.gov/fflezcheck.)

In addition, others, particularly the auction sites, position themselves as pure intermediaries, providing a place for gun buyers and sellers to locate each other before participating in private transactions (aided by the e-commerce tools of the site).

Consider:

The Gun Auction is a [Web] site that facilitates the sale and purchase of firearms and related items. We are not involved in the actual transaction between buyers and sellers.
(www.thegunauction.com/terms,page,content_pages)

And:

Auction Arms is an online marketplace where firearms buyers, sellers, merchants and aficionados meet to conduct transactions. We are not involved in the actual transactions between Buyers and Sellers. (https://secure.auctionarms.com/TermsNConds.cfm)

Similarly:

This site acts as the window for sellers to conduct auctions and for bidders to bid on sellers' auctions. We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items listed the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items.(www.gunsandall.com/content_pages.php?page=terms)

And many sites just do not sell many ' or any ' items related to guns or firearms themselves, or limit such sales to licensed bricks-and-mortar stores.

For example, Bass Pro Shops' e-site customers are advised:

Firearm Regulations require that a customer must pass the Federal background check before possession of firearm can occur. Bass Pro Shops catalog and online divisions do not sell modern firearms. We do offer Black Powder Firearms, Air Rifles, Paintball Guns and various gun components and accessories.
(www.basspro.com/webapp/wcs/stores/servlet/CFPage?pageID=4348&storeId=10151&SearchResults=EA&langId=-1&catalogId=10001)

That position, too, is not surprising, because federal and state law (in the real world, not just online) impose many barriers to the purchase of a gun. (Since that law is somewhat complex, I do not propose to recite it here, but have provided the links above to helpful summaries.)

Shots in the Dark?

Of course, the e-commerce seller's strategy of placing one's head in e-sand and ignoring the reality of who should be responsible for policing gun sales has strong precedent. For many years, online sellers persisted in the fiction that their lack of a real-world presence absolved them from duties imposed on sellers in most other channels to collect and remit sales taxes. Similarly, the online divisions of real-world retailers created “Internet only” affiliates to try to break free of the shackles of a real-world presence in taxing states ' and the constitutional nexus that would require them to give up their online sales tax “discount” (compared to the price offered by a bricks-and-mortar seller). Instead, customers were advised to remit their own use tax, which, of course, is rarely done.

As has been chronicled previously in other articles in this publication, states have not stood idly by at the loss of increasing amounts of sales-tax revenue and have pushed back on both of these issues. As a result, many online retailers (with notable exceptions, such as Amazon.com), have conceded the existence of taxable nexus, and routinely collect sales tax. But asking non-lawyer retail customers to parse the complex world of gun-sale regulations, so that the online seller need not be concerned about the costs and burdens of complying with complex but understandable gun-regulation laws, seems to make the assumption that the buyer will not comply, just as few of us actually pay use tax (even if we have no valid argument that it is not due).

In fact, real-world laws present many obstacles to the gun enthusiast, even before getting to the complexities of doing so remotely through a Web site. A colleague at my own firm, for example, who reads Popular Mechanics and is intrigued by how things work, once considered collecting guns that had advanced engineering ' until he started to try to comply with all of the regulations, and just gave up.

In addition, not only is it complex to purchase a firearm online, but shipping requires mastery of additional sets of rules (see, for example, www.gunbroker.com/Support/SupportFAQView.aspx?faqid=1118, www.thegunzone.com/ship-guns.html; and www.gunsamerica.com/GunShippingGuide.aspx).

The purchase and shipment of ammunition is also regulated (see, for example, www.lcav.org/content/ammunition_regulation.pdf and www.lcav.org/content/federallawsummary.asp#ammunitionregulation).

Even worse, just finding the law that is applicable to your situation requires navigation of a patchwork of rules that varies not only by state, but by municipality or other local government (see, www.nraila.org/GunLaws). Because these laws vary so much from locality to locality, I have not tried to address the local variations, in favor of providing links so that each reader can, as advised by the gun sellers, determine the status of the law applicable to his or her clients. It is perhaps no wonder that online firearms sellers try to avoid the cost and complexity of keeping up with all those rules, in favor of throwing that responsibility back on the buyer with clauses in their terms and conditions such as those cited above (much like the widespread denial of sales- and use-tax compliance duties common online even today).

Gun Laws Create e-Middlemen

Many gun-sale sites simply punt, and instead defer to the obligations of the holders of federal firearms licenses, the FFL holders. In theory, virtually any online sale should have to pass through an FFL, because it would be hard to characterize a sale arranged online, in interstate commerce, as an intrastate sale. (Conceptually, through the many channels now available in e-commerce, such as the auction sites listed above, that result could occur if the buyer and seller happen to be from the same state, and neither buys or sells enough ' or sufficiently regularly ' to require FFL licensing as a dealer.)

Many of the gun-sale sites clearly state in their terms and conditions that buyers and sellers must select an FFL holder to complete the transaction ' and pay its processing fees. If one of the attractions of e-commerce is the ability to cut prices by eliminating overhead, then a system that requires the party to use and compensate another middleman seems thoroughly at odds with the ethos and practicality of e-commerce. After all, if I have to pay a middleman, why not use someone locally who will want to give me additional services for his fee, to encourage my patronage for all firearms-related needs, rather than a faceless Web site?

In fact, isn't e-commerce meant to bypass these types of obstacles, whether for books, music, or more grown-up diversions? Historically, cutting prices and time, and creating efficiencies, spurred the growth of e-commerce. Yet everything I have stated above about gun purchases, whether online or off, shows a clear effort to make firearms purchases, wherever consummated, more difficult to do than a purchase of a book. Indeed, several sites specifically address this complexity with “how to” pages, providing “step-by-step” instructions, complete with links to FFL databases (see, www.gundealersonline.com/how_why.asp; www.shootersxchange.com/buyers.cfm ' similar guides exist for online sellers).

Presumably, these legal and administrative barriers reflect social concerns about who should be permitted to purchase such goods ' especially after the seemingly endless parade of high-profile crimes by people who used guns and, with 20/20 hindsight, seem like people who should never have been permitted to own a pair of nail clippers, much less a firearm. Moreover, e-commerce for regulated products, such as liquor and prescription drugs, still often requires navigating real-world hurdles, to ensure that convenience doesn't threaten public safety. The existence of similar barriers involving online firearms purchases does not seem that unusual, from that perspective.

Despite these seemingly necessary hurdles to online purchases, there are online resources to introduce the benefits of e-commerce to this process. For example, the federal government now has electronic, online, versions of many of the forms that holders of FFLs must file in the process of transferring a weapon, as well as to complete the background checks required by federal law (see, www.atf.gov/firearms/industry, www.atf.gov/applications/eform6, www.atf.gov/applications/fflezcheck and www.atf.gov/applications/e4473). Certainly, those buying for a proper purpose can enjoy the e-commerce efficiencies added to the process, as described above. (Curiously, and apparently contrary to the intentions of these laws, the Bureau of Alcohol, Tobacco, Firearms and Explosives has issued a formal ruling restricting use of these investigatory tools by a private seller wishing to conduct a background check. See, www.atf.gov/press/releases/2005/12/122905-openletter-ffl-pennsylvania-pics.html). Again, this seems to be a situation in which the advantages of e-commerce have been rejected in favor of rigid adherence to existing rules, at the expense of losing an efficient means of furthering the regulatory purposes of the laws.

Online Gun Shows

Another contentious area of gun law that is analogous to the issue of regulation of online sales is the so-called “gun show” or “private sale” exception (see, http://en.wikipedia.org/wiki/Gun_show, www.vpc.org/studies/gunloop.htm, www.lcav.org/content/private_sales.pdf and www.lcav.org/publications-briefs/reports_analyses/RegGuns.entire.report.pdf (at page 162)). One now slightly dated study estimated that 30% to 40% of all gun sales per year pass through this so-called secondary market, free of regulation and tracking (see, http://books.nap.edu/openbook.php?record_id=10881&page=74). This issue is relevant to online sales because Web sites make it easier to locate sellers and buyers who would be outside regulatory reporting requirements than if they physically appeared at shows in a particular state.

While not truly an exception to the laws regulating sales, the term “gun show” stems from the fact that certain legal duties involved in transferring guns apply only to FFL holders, and not to individual sellers of the occasional gun (although how many sales are “occasional” can be a question of judgment and degree). However, unless regulated by a particular state law (see, www.nraila.org/GunLaws/Federal/Read.aspx?id=74), an individual who is not a licensee or dealer, and who sells to a person from the same state, would not be covered by many of the currently applicable regulatory laws. New York, for example, applies its regulations concerning gun shows broadly, regardless of whether a seller is a dealer or not (see, N.Y. Gen. Bus. Law Section 897, http://law.justia.com/newyork/codes/general-business/gbs0897_897.html.) Massachusetts, in the analogous area of ammunition sales, has “aggressively prosecuted” unlicensed online sellers (see, www.lcav.org/content/ammunition_regulation.pdf and www.northeastshooters.com/vbulletin/threads/173-Judge-Bars-Ammunition-Dealer…?p=1496&viewfull=1).

Some skeptics fear that facilitating online gun sales will simply turn online gun commerce into one large gun show, with all of that market sector's warts, because the Internet will allow private buyers and sellers to locate each other within the same state more quickly and easily for intrastate sales that need not be reported. In fact, there are many individual gun-sale sites organized by state, presumably to allow the gun-owner community to take advantage of the intrastate sale “exemption” (see, e.g., www.gunshowdirectory.com/local.asp, www.gundealersonline.com and http://ingunowners.com/forums.)

Perhaps our country's experiences with Prohibition and illegal drugs provide a useful analogy to think about regulation of online gun sales in a country that has “an exceptional attachment to the gun,” and an inordinate percentage of the world's weapons ' 35% of the world's civilian-owned guns, in a country with less than 5% of the world's population (according to Professor Nicholas Johnson of the Fordham University Law School, in a recent scholarly article in the Wake Forest Law Review; see, http://lawreview.law.wfu.edu/documents/issue.43.837.pdf). Although we have many laws purporting to restrict the availability of banned substances, in fact, they are readily available, often at a relatively low price, to a person who wants them. In the case of firearms, therefore, while persons who are inclined to ignore the law concerning acquisition of guns will probably do so and get a gun anyway, whether online or off, regardless of regulation, those who would obey the law will also probably find it harder and less convenient to make proper gun purchases online, if they can do so at all ' the opposite of the e-revolution that has improved most sectors of commerce.

Balancing e-Commerce and Regulation

In other words, getting a gun online is not an e-commerce issue. Rather, whatever one believes about what our laws should provide concerning gun purchases, the policy questions of what to permit (or restrict) must be resolved generally, not just for e-commerce. While the e-commerce markets for guns described above certainly help the collector to find exactly what he or she wants, they can also help a person who would not be able to purchase offline find a way around the rules by, for example, identifying a willing private seller for an intrastate sale.

Perhaps the real e-commerce issue involving gun sales, instead, is how the law paradoxically turns so much on state-to-state variation in law generally, rather than Internet-specific law ' the same modern paradox involved in sales- and use-tax application to online sales. The ability of an e-commerce seller to open an online gun shop, and to grow its sales, will depend heavily on where it is physically located and how that state adds rules that go beyond the federal rules ' a factor that should generally be irrelevant to e-commerce vendors that have no physical home. Similarly, the existence of a complex regulatory infrastructure, largely predating e-commerce, involving multiple laws in multiple jurisdictions and requiring paid middlemen (the FFL holders), poses a real obstacle to rationalizing regulation of online firearms sales.

Whether one believes that gun sales should be further restricted or relaxed, as long as the real-world barriers to e-commerce in firearms described in this article remain in effect, I would not expect to see the same e-revolution that made possible a world of online sellers of books and music. While the Internet has certainly helped the sale of guns, the firearms community won't enjoy the same advantages that the dot-com revolution provided to e-commerce customers, as long as it must contend with (necessary) regulation that, not surprisingly, makes it harder to buy a gun than to buy a book.

In this summer of 2010, a worldly person's fancy can turn to one thing only: guns.

As seems inevitable in the competition for dwindling news consumers, the public debate is colored each year by the somber annual memorials of the Columbine and Virginia Tech massacres.

Those of us involved in e-commerce pay particular attention when online sellers are involved, such as the report that the same e-seller sold a gun or accessories to two well-publicized killers (see, www.usatoday.com/news/nation/2008-02-16-gundealer-niu-vatech-shooters_N.htm).

This year, however, there is an additional legal twist. With one U.S. Supreme Court gun ruling recently handed down ( District of Columbia v. Heller , 128 S.Ct. 2783 (S. Ct. 2008), available at www.law.cornell.edu/supct/html/07-290.ZO.html ), limiting (but not prohibiting), federal efforts to restrict guns, and another decision in the wings involving the same question at the state level ( McDonald v. City of Chicago, No. 08-1521), the rights of those who use guns for sport ' and those who abuse them for crime ' are perhaps more in play than ever before in the limited world of Second Amendment jurisprudence (see, “D.C. Lawyer Will Defend Chicago's Gun Law Before Supreme Court,” in The National Law Journal, www.law.com/jsp/scm/PubArticleSCM.jsp?id=1202442085842).

But while the Second Amendment cases concerning the right to bear arms may dominate the news, that law doesn't guarantee a right to buy arms online. Because I believe that what occurs online in e-commerce is merely a mirror of its real-world counterpart, e-commerce involving firearms should be no different.

Guns in the Ether

Just as one can buy just about anything online, it is not surprising that even a basic Internet search will reveal many gun sellers, small and large, sophisticated and unsophisticated ' just as in any type of semi-regulated shopping. From links to authorized retail outlets of major manufacturers (www.gun-shots.net/gun-manufacturers.shtml), to links to individual gun sellers' sites and online gun auctions (www.auctionarms.com, www.auction-lynx.com/guns.html and www.gunbroker.com), to an online gun-search engine (www.ebang.com), and even many self-labeled “Craigslists for guns,” there seems to be no limit to what one can find for sale on the Internet. It's the same with any market in which e-commerce has made it possible for the proverbial needle shopper to find what he or she wants in a very well-stocked haystack. (In fact, the advertisement of “weapons and related items” is “not permitted” on the “real” Craigslist ' see, www.craigslist.org/about/prohibited.items.)

In one respect, the ready availability of these sites has certainly eased the burden of the serious collector; the hunt for a particular model no longer requires combing through classified ads in obscure publications or combing pawn shops to find it ' the hunt need go no farther than the spare bedroom computer. Through the many sales sites online, one can locate particular models at multiple price points with relatively little effort ' just as easily as one can locate obscure recordings or out-of-print books without having to travel to many shops.

For the “traditionalist” uncomfortable with buying online, there are even links to real-world gun shows (http://en.wikipedia.org/wiki/Gun_show); perceived by some as a way to avoid complying with other types of firearms regulation (as discussed further below) (see, www.gunshows-usa.com; http://naasgunshows.com/links.html).

Online Gun 'Guidance' Galore

Similarly, there are many explanations online of the laws regulating firearms purchases ' and some of them may even be accurate. (I will not address the many hobbyist and enthusiast sites purporting to explain the law through folk-wisdom and tunnel-vision understanding.) Most notably, the federal government has its own site at www.atf.gov/firearms/industry. The National Rifle Association (“NRA”) has a comprehensive site at www.nraila.org/GunLaws.

From the “other side” of the gun-debate aisle, the Legal Community Against Violence publishes its own Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws (www.lcav.org/publications-briefs/reports_analyses/RegGuns.entire.report.pdf).

While a full treatment of laws affecting gun purchases, much less online purchases, is well beyond the scope of this article, there are several basic principles that are relevant ' although, as the sites warn, one must read the laws specifically applicable to particular location and type of weapon.

First, any interstate sale, or sale conducted remotely, must be done through a federal firearms license holder (“FFL”). (See, e.g., www.gunbroker.com/FFL/DealerNetwork.aspx; there are many FFL databases online.) Next, interstate gun purchases must be preceded by a background check. Intrastate sales conducted between persons who do not have FFL licenses, in contrast, do not have to pass that check, or even be brought into the FFL recordkeeping system. For example: “Sales Between Individuals. An individual who does not possess a federal firearms license may not sell a firearm to a resident of another state without first transferring the firearm to a dealer in the purchaser's state” (quoted at www.nraila.org/GunLaws/Federal/Read.aspx?id=60).

For all of the “gun control” efforts offline, therefore, e-commerce seems to make it just as easy to buy a gun online as to purchase rap music or fatty food, or other “dangerous” consumer items ' until one reads the terms and conditions at the sites for gun sales. A casual survey of the terms and conditions of gun-sales sites finds the same bland language from site to site, disclaiming responsibility for legal compliance; warning users that they must be familiar with federal, state and local laws regulating gun sales (which can differ); and that they must comply with those laws (see, www.cabelas.com/cabelas/en/templates/community/customerservice/gun-restrict.jsp?csPage=gunrestrict&cm_re=customerservice*left*gunrestrict ' listing of gun regulations; www.thegunauction.com/terms,page,content_pages; and https://secure.auctionarms.com/TermsNConds.cfm).

A Shotgun Sampling of
Explanations, Advice, Guidance, Laws and Regulations

Here is an example from auctionarms.com's terms-and-conditions section:

All Auction Arms Users are expected to abide by all federal, state, and local laws (“Law”) governing the offering, transfer, ownership and sale of firearms, ammunition and other items. It is the obligation of the Auction Arms User to know and to abide by the Law applicable to such user regarding such transactions. (https://secure.auctionarms.com/TermsNConds.cfm)

And an example from gun-lodge.com:

NOTICE TO BUYERS: All firearms must be shipped to a Federal Firearms License (FFL) holder. YOU ARE RESPONSIBLE TO KNOW THE GUN LAWS IN YOUR STATE. Your FFL holder will process the transaction of your firearm and most likely will require a fee. Some firearms are NOT legal in certain states. Check with your FFL holder, local gun store, or the Bureau of Alcohol, Tobacco and Firearms if you have questions. Firearms are to be sold within the USA only. (Emphasis in original, which is printed in red at the bottom of the Web page at www.gun-lodge.com/cgi-bin/elp?cmd=view&pages=policies.)

And from shootersxchange.com:

Remember, YOU are responsible [for] obeying the law and this means using a valid FFL holder to ship or receive your firearms when required by law. (www.shootersxchange.com/buyers.cfm) (The site also features a link to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' FFLEZCheck Web site, where buyers can check an FFL holder's status ' https://www.atfonline.gov/fflezcheck.)

In addition, others, particularly the auction sites, position themselves as pure intermediaries, providing a place for gun buyers and sellers to locate each other before participating in private transactions (aided by the e-commerce tools of the site).

Consider:

The Gun Auction is a [Web] site that facilitates the sale and purchase of firearms and related items. We are not involved in the actual transaction between buyers and sellers.
(www.thegunauction.com/terms,page,content_pages)

And:

Auction Arms is an online marketplace where firearms buyers, sellers, merchants and aficionados meet to conduct transactions. We are not involved in the actual transactions between Buyers and Sellers. (https://secure.auctionarms.com/TermsNConds.cfm)

Similarly:

This site acts as the window for sellers to conduct auctions and for bidders to bid on sellers' auctions. We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items listed the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items.(www.gunsandall.com/content_pages.php?page=terms)

And many sites just do not sell many ' or any ' items related to guns or firearms themselves, or limit such sales to licensed bricks-and-mortar stores.

For example, Bass Pro Shops' e-site customers are advised:

Firearm Regulations require that a customer must pass the Federal background check before possession of firearm can occur. Bass Pro Shops catalog and online divisions do not sell modern firearms. We do offer Black Powder Firearms, Air Rifles, Paintball Guns and various gun components and accessories.
(www.basspro.com/webapp/wcs/stores/servlet/CFPage?pageID=4348&storeId=10151&SearchResults=EA&langId=-1&catalogId=10001)

That position, too, is not surprising, because federal and state law (in the real world, not just online) impose many barriers to the purchase of a gun. (Since that law is somewhat complex, I do not propose to recite it here, but have provided the links above to helpful summaries.)

Shots in the Dark?

Of course, the e-commerce seller's strategy of placing one's head in e-sand and ignoring the reality of who should be responsible for policing gun sales has strong precedent. For many years, online sellers persisted in the fiction that their lack of a real-world presence absolved them from duties imposed on sellers in most other channels to collect and remit sales taxes. Similarly, the online divisions of real-world retailers created “Internet only” affiliates to try to break free of the shackles of a real-world presence in taxing states ' and the constitutional nexus that would require them to give up their online sales tax “discount” (compared to the price offered by a bricks-and-mortar seller). Instead, customers were advised to remit their own use tax, which, of course, is rarely done.

As has been chronicled previously in other articles in this publication, states have not stood idly by at the loss of increasing amounts of sales-tax revenue and have pushed back on both of these issues. As a result, many online retailers (with notable exceptions, such as Amazon.com), have conceded the existence of taxable nexus, and routinely collect sales tax. But asking non-lawyer retail customers to parse the complex world of gun-sale regulations, so that the online seller need not be concerned about the costs and burdens of complying with complex but understandable gun-regulation laws, seems to make the assumption that the buyer will not comply, just as few of us actually pay use tax (even if we have no valid argument that it is not due).

In fact, real-world laws present many obstacles to the gun enthusiast, even before getting to the complexities of doing so remotely through a Web site. A colleague at my own firm, for example, who reads Popular Mechanics and is intrigued by how things work, once considered collecting guns that had advanced engineering ' until he started to try to comply with all of the regulations, and just gave up.

In addition, not only is it complex to purchase a firearm online, but shipping requires mastery of additional sets of rules (see, for example, www.gunbroker.com/Support/SupportFAQView.aspx?faqid=1118, www.thegunzone.com/ship-guns.html; and www.gunsamerica.com/GunShippingGuide.aspx).

The purchase and shipment of ammunition is also regulated (see, for example, www.lcav.org/content/ammunition_regulation.pdf and www.lcav.org/content/federallawsummary.asp#ammunitionregulation).

Even worse, just finding the law that is applicable to your situation requires navigation of a patchwork of rules that varies not only by state, but by municipality or other local government (see, www.nraila.org/GunLaws). Because these laws vary so much from locality to locality, I have not tried to address the local variations, in favor of providing links so that each reader can, as advised by the gun sellers, determine the status of the law applicable to his or her clients. It is perhaps no wonder that online firearms sellers try to avoid the cost and complexity of keeping up with all those rules, in favor of throwing that responsibility back on the buyer with clauses in their terms and conditions such as those cited above (much like the widespread denial of sales- and use-tax compliance duties common online even today).

Gun Laws Create e-Middlemen

Many gun-sale sites simply punt, and instead defer to the obligations of the holders of federal firearms licenses, the FFL holders. In theory, virtually any online sale should have to pass through an FFL, because it would be hard to characterize a sale arranged online, in interstate commerce, as an intrastate sale. (Conceptually, through the many channels now available in e-commerce, such as the auction sites listed above, that result could occur if the buyer and seller happen to be from the same state, and neither buys or sells enough ' or sufficiently regularly ' to require FFL licensing as a dealer.)

Many of the gun-sale sites clearly state in their terms and conditions that buyers and sellers must select an FFL holder to complete the transaction ' and pay its processing fees. If one of the attractions of e-commerce is the ability to cut prices by eliminating overhead, then a system that requires the party to use and compensate another middleman seems thoroughly at odds with the ethos and practicality of e-commerce. After all, if I have to pay a middleman, why not use someone locally who will want to give me additional services for his fee, to encourage my patronage for all firearms-related needs, rather than a faceless Web site?

In fact, isn't e-commerce meant to bypass these types of obstacles, whether for books, music, or more grown-up diversions? Historically, cutting prices and time, and creating efficiencies, spurred the growth of e-commerce. Yet everything I have stated above about gun purchases, whether online or off, shows a clear effort to make firearms purchases, wherever consummated, more difficult to do than a purchase of a book. Indeed, several sites specifically address this complexity with “how to” pages, providing “step-by-step” instructions, complete with links to FFL databases (see, www.gundealersonline.com/how_why.asp; www.shootersxchange.com/buyers.cfm ' similar guides exist for online sellers).

Presumably, these legal and administrative barriers reflect social concerns about who should be permitted to purchase such goods ' especially after the seemingly endless parade of high-profile crimes by people who used guns and, with 20/20 hindsight, seem like people who should never have been permitted to own a pair of nail clippers, much less a firearm. Moreover, e-commerce for regulated products, such as liquor and prescription drugs, still often requires navigating real-world hurdles, to ensure that convenience doesn't threaten public safety. The existence of similar barriers involving online firearms purchases does not seem that unusual, from that perspective.

Despite these seemingly necessary hurdles to online purchases, there are online resources to introduce the benefits of e-commerce to this process. For example, the federal government now has electronic, online, versions of many of the forms that holders of FFLs must file in the process of transferring a weapon, as well as to complete the background checks required by federal law (see, www.atf.gov/firearms/industry, www.atf.gov/applications/eform6, www.atf.gov/applications/fflezcheck and www.atf.gov/applications/e4473). Certainly, those buying for a proper purpose can enjoy the e-commerce efficiencies added to the process, as described above. (Curiously, and apparently contrary to the intentions of these laws, the Bureau of Alcohol, Tobacco, Firearms and Explosives has issued a formal ruling restricting use of these investigatory tools by a private seller wishing to conduct a background check. See, www.atf.gov/press/releases/2005/12/122905-openletter-ffl-pennsylvania-pics.html). Again, this seems to be a situation in which the advantages of e-commerce have been rejected in favor of rigid adherence to existing rules, at the expense of losing an efficient means of furthering the regulatory purposes of the laws.

Online Gun Shows

Another contentious area of gun law that is analogous to the issue of regulation of online sales is the so-called “gun show” or “private sale” exception (see, http://en.wikipedia.org/wiki/Gun_show, www.vpc.org/studies/gunloop.htm, www.lcav.org/content/private_sales.pdf and www.lcav.org/publications-briefs/reports_analyses/RegGuns.entire.report.pdf (at page 162)). One now slightly dated study estimated that 30% to 40% of all gun sales per year pass through this so-called secondary market, free of regulation and tracking (see, http://books.nap.edu/openbook.php?record_id=10881&page=74). This issue is relevant to online sales because Web sites make it easier to locate sellers and buyers who would be outside regulatory reporting requirements than if they physically appeared at shows in a particular state.

While not truly an exception to the laws regulating sales, the term “gun show” stems from the fact that certain legal duties involved in transferring guns apply only to FFL holders, and not to individual sellers of the occasional gun (although how many sales are “occasional” can be a question of judgment and degree). However, unless regulated by a particular state law (see, www.nraila.org/GunLaws/Federal/Read.aspx?id=74), an individual who is not a licensee or dealer, and who sells to a person from the same state, would not be covered by many of the currently applicable regulatory laws. New York, for example, applies its regulations concerning gun shows broadly, regardless of whether a seller is a dealer or not (see, N.Y. Gen. Bus. Law Section 897, http://law.justia.com/newyork/codes/general-business/gbs0897_897.html.) Massachusetts, in the analogous area of ammunition sales, has “aggressively prosecuted” unlicensed online sellers (see, www.lcav.org/content/ammunition_regulation.pdf and www.northeastshooters.com/vbulletin/threads/173-Judge-Bars-Ammunition-Dealer…?p=1496&viewfull=1).

Some skeptics fear that facilitating online gun sales will simply turn online gun commerce into one large gun show, with all of that market sector's warts, because the Internet will allow private buyers and sellers to locate each other within the same state more quickly and easily for intrastate sales that need not be reported. In fact, there are many individual gun-sale sites organized by state, presumably to allow the gun-owner community to take advantage of the intrastate sale “exemption” (see, e.g., www.gunshowdirectory.com/local.asp, www.gundealersonline.com and http://ingunowners.com/forums.)

Perhaps our country's experiences with Prohibition and illegal drugs provide a useful analogy to think about regulation of online gun sales in a country that has “an exceptional attachment to the gun,” and an inordinate percentage of the world's weapons ' 35% of the world's civilian-owned guns, in a country with less than 5% of the world's population (according to Professor Nicholas Johnson of the Fordham University Law School, in a recent scholarly article in the Wake Forest Law Review; see, http://lawreview.law.wfu.edu/documents/issue.43.837.pdf). Although we have many laws purporting to restrict the availability of banned substances, in fact, they are readily available, often at a relatively low price, to a person who wants them. In the case of firearms, therefore, while persons who are inclined to ignore the law concerning acquisition of guns will probably do so and get a gun anyway, whether online or off, regardless of regulation, those who would obey the law will also probably find it harder and less convenient to make proper gun purchases online, if they can do so at all ' the opposite of the e-revolution that has improved most sectors of commerce.

Balancing e-Commerce and Regulation

In other words, getting a gun online is not an e-commerce issue. Rather, whatever one believes about what our laws should provide concerning gun purchases, the policy questions of what to permit (or restrict) must be resolved generally, not just for e-commerce. While the e-commerce markets for guns described above certainly help the collector to find exactly what he or she wants, they can also help a person who would not be able to purchase offline find a way around the rules by, for example, identifying a willing private seller for an intrastate sale.

Perhaps the real e-commerce issue involving gun sales, instead, is how the law paradoxically turns so much on state-to-state variation in law generally, rather than Internet-specific law ' the same modern paradox involved in sales- and use-tax application to online sales. The ability of an e-commerce seller to open an online gun shop, and to grow its sales, will depend heavily on where it is physically located and how that state adds rules that go beyond the federal rules ' a factor that should generally be irrelevant to e-commerce vendors that have no physical home. Similarly, the existence of a complex regulatory infrastructure, largely predating e-commerce, involving multiple laws in multiple jurisdictions and requiring paid middlemen (the FFL holders), poses a real obstacle to rationalizing regulation of online firearms sales.

Whether one believes that gun sales should be further restricted or relaxed, as long as the real-world barriers to e-commerce in firearms described in this article remain in effect, I would not expect to see the same e-revolution that made possible a world of online sellers of books and music. While the Internet has certainly helped the sale of guns, the firearms community won't enjoy the same advantages that the dot-com revolution provided to e-commerce customers, as long as it must contend with (necessary) regulation that, not surprisingly, makes it harder to buy a gun than to buy a book.