For almost a decade, Pat McMann has brought his Roadrunner Gun Show to the Tucson Convention Center's exhibition hall, where attendees can buy pistols, rifles, shotguns, ammo, scopes, T-shirts, bumper stickers, books, poker chips and even beef jerky.
But McMann says last weekend's gun show may be his last at the TCC, if a contract requirement recently passed by the Tucson City Council stands up in court. In February, the council voted to require anyone renting the TCC to ensure that all gun buyers pass a background check.
Last week, McMann filed a notice with the city attorney's office, alleging that the council's policy violated a state law that prohibits counties, cities and towns from passing gun ordinances more strict than state law.
"What they've tried to do is exactly the kind of thing that is preempted by state law," says attorney Michael Rusing, who is representing McMann. "The very same thing was raised as potential legislation in the state Senate this year and killed in committee. So it's obviously a type of gun-sale regulation that is a state matter."
Rusing's legal bill is being funded through a grant from the National Rifle Association, which has fought similar gun-show background check battles across the country.
"It's not really about background check, it's about them issuing policies that contravene state law," says Todd Rathner, who sits on the NRA's national board. "They've clearly done this in contravention of state law and they've done it in a way that they think is very cute and will allow them to circumvent the state law. We don't believe a loophole exists in state law."
City Attorney Michael House says the city is ready for a court fight. "We feel that the state cannot preempt us in operating our own convention center and they cannot tell us whether we have to allow gun shows or how we can allow gun shows," says House. "Now we recognize that this state statute that McMann relies upon seems to prohibit any kind of regulation of the sale or transfer of guns across the board. I guess if you read that literally, it would mean that somebody could walk into my office and sell guns. So I choose not to read this as literally as that, and I don't believe that law takes away the city's power to regulate its own facilities for business purposes."
With its vote to require background checks on all weapon sales, the council waded into a national fight that has been intensifying since 1999, when Dylan Klebold and Eric Harris killed 12 students, a teacher and themselves at Columbine High with weapons they'd obtained through a Colorado gun show.
Although Americans support background checks on weapon sales at gun shows by sizable margins--four different polls found support ranging from 85 to 90 percent in 1999--actually implementing them has proven to be tricky legal ground.
The Brady Bill, passed by Congress in 1993, requires federally licensed firearms dealers to conduct background checks to ensure that the buyers are not minors, convicted felons or mentally ill. The federal law originally allowed a five-day waiting period for background checks to be completed, but advances in technology now allow gun buyers to be screened in about five minutes, although the law allows up to three days to complete the check.
Access to the database, however, is limited to the aforementioned federally licensed firearms dealers. Anyone else who wants to sell a used gun has no way to conduct a background check--and hence, no obligation to do so.
Gun-show critics like Mary Judge Ryan, the deputy county attorney who lobbied the council to implement the new policy, say that many gun dealers decided they didn't want the hassle that comes with being a federally licensed dealer. "So they just created this environment where the unlicensed dealer can sell their guns," says Ryan. "It's not just collectors, it's people who have a whole array of guns."
City Councilman Jerry Anderson, who pushed the city's new policy, says he wanted to end "this shoddy process that exists now at gun shows where anybody can basically get a gun from somebody walking through the aisles."
The local push for background checks at the TCC was inspired in part by the brutal 1999 robbery of an eastside Pizza Hut that left three employees dead. Investigators believe Kajornsak "Tom" Prasertphong purchased the Glock pistol at a gun show, even though a background check would have prohibited him from buying a handgun because he was under 21 years old. Prasertphong and his accomplice, Bo Huerstal, were sentenced to death for the crime last Friday, March 16.
The city's background check policy passed on a 4-2 vote, with Shirley Scott and Fred Ronstadt opposing the new policy. (Councilwoman Carol West was absent.) Mayor Bob Walkup cast the deciding vote, leaving local gun-rights advocates so outraged they're now grumbling about a recall campaign.
Ronstadt argues there's already a thriving black market where criminals can get firearms. "Bad guys who want guns are going to get guns," he says. "If I thought in my heart that banning private sales at the TCC would be an effective way to keep guns out of the hands of criminals, I would support it."
"That may indeed be the case and we're always going to have lots of illegal conduct," says Ryan, "but that to me does not seem to me to be a good argument for not making good public policy, and it is good public policy to be requiring background checks when we sell these guns."
Even if the council's new policy holds up in court, there are a number of legal wrinkles to iron out. Since only federally licensed firearm dealers have access to the national instant check database, they'll have to act as middlemen in the private sales, essentially taking the weapon into their inventory while the background check is completed. Opponents of the new policy are skeptical that any federally licensed firearms dealers will be willing to take on the potential liability that would come with the process because criminals could be selling stolen guns or trying to get rid of guns used in crimes.
House dismisses those concerns. "Nobody's forcing anybody to do this," he says. "There will be somebody willing to do it for the fee. We've had people already express interest in doing it."
But House acknowledges that the state's preemption law will be legal hurdle in implementing the new policy. "That law applies to ordinances, rules and taxes," says House. "If it applies at all, it would apply to the policy adopted by the council."
Rathner feels confident that the city's requirement of background checks on all sales will be overturned in court. "If the state's firearms preemption law did not exist, we would not be able to do anything about this, quite frankly," says Rathner. "So the issue is state law. We live in a representative republic. If they would like to perform background checks on private firearms transactions between individuals, they need to change state law or federal law."
Efforts to require background checks at the federal and state level have failed in recent years. Ryan foresees some "last-ditch" efforts to resurrect the bill at the state legislature, but she's pessimistic about the chance of passing it this session.
Rusing says the council's new policy amounts to a "feel-good measure." He points out that the man who allegedly sold the weapon used in the Pizza Hut killings denies selling the weapon to Prasertphong, but even if he did, he was not an exhibitor at the show, so the sale wouldn't have been covered by the new policy requiring show promoters to force vendors to do a background checks on their gun sales.
"Something happens and a backlash occurs that usually would not have prevented the crime to begin with and is wholly ineffective in any way reducing crime," says Rusing. "It was not an exhibitor who sold the gun. We don't know if it took place in the parking lot, in the hall or if it took place at all. But we do know that he was not an exhibitor, so requiring these private sales to be run through a background check would not have stopped the sale in any event."