Why the loophole the West Texas shooter used to buy a gun is unlikely to be closed any time soon

A loophole used by a Texas gunman to obtain an assault-style rifle, after failing a background check in 2014, seems unlikely to be closed any time soon despite new measures introduced by Texas Gov. Greg Abbott aimed at preventing more mass shootings in the state.

Killer reportedly evaded federal background check by purchasing AR-style weapon in a so-called private sale

Law enforcement officials process one of the crime scenes from the mass shooting in West Texas on Aug. 31. (Sue Ogrocki/The Associated Press)

A loophole used by a Texas gunman to obtain an assault-style rifle, after failing a background check in 2014, seems unlikely to be closed any time soon despite new measures introduced by Texas Gov. Greg Abbott aimed at preventing more mass shootings in the state.

On Sept. 5, Abbott, an avid gun-rights supporter, released a series of eight executive orders that focus on closing "information gaps" and strengthening reporting channels used by citizens or police agencies who are concerned a person could commit a mass shooting.

The orders came days after Seth Ator, 36, opened fire during a routine traffic stop in Midland on Aug. 31 and took off on a 16-kilometre rampage, killing seven people and injuring 22 others, before police shot and killed him outside a movie theatre in Odessa.

Critics, including Texas-based Democratic presidential candidate Beto O'Rourke, were quick to point out that Abbott's executive action plan failed to address key issues with the state's gun laws.

Ator reportedly purchased his AR-style rifle in a private sale.

Under federal law, licensed gun dealers are required to conduct criminal background checks to identify prospective buyers who are legally prohibited from owning guns. In Ator's case, he was prohibited from purchasing a firearm because of a mental illness diagnosis, media reported. But in states like Texas, individuals can avoid these checks by purchasing firearms through private sales, online or at gun shows.

None of the governor's executive orders mentions the loophole. 

Texas Gov. Greg Abbott speaks at the annual National Rifle Association convention in Dallas, Texas, on May 4, 2018. (Lucas Jackson/Reuters)

As Gyl Switzer, executive director of the firearm-safety group Texas Gun Sense, put it: In Texas, she could "sell you a gun right across [her] dining room table."

Lawmakers in both the U.S. federal government and Texas state legislature have the authority to close the loophole. But James Henson, director of the Texas Politics Project at the University of Texas in Austin, says it is "very unlikely" that either body will do so any time soon.

Mixed message

U.S. President Donald Trump weighed in on the tragedy on Sept. 1, saying he wanted to move quickly on gun violence legislation. But only one day after making those comments, several ads appeared on the president's official Facebook page defending the Second Amendment and warning Americans that Democrats are trying to take away their firearms. 

"Democrats have finally admitted what they truly want: a repeal of the Second Amendment," reads one version of the ad, the Washington Post reported. 

This is not the first time Trump has been vocal about wanting to strengthen gun laws. He said he was in favour of "very, very strong background checks" following the back-to-back shootings last month in El Paso, Texas, and Dayton, Ohio. But it wasn't long before he shifted his focus from gun control to the role of mental health.

U.S. Senate majority leader Mitch McConnell says he will only bring gun-control legislation to the floor for a vote if he knows President Donald Trump will support it. (Eric Thayer/Reuters)

Republican Senate majority leader Mitch McConnell said last Tuesday he won't put forward any kind of gun-control bill on the Senate floor unless Trump first says he would sign it into law.

"If the president is in favour of a number of things that he has discussed openly and publicly, and I know that if we pass it, it will become law, I'll put it on the floor," McConnell said.

McConnell has been a major obstacle​​​ for the Democratic-led House of Representatives, blocking almost every piece of legislation passed by Democrats, including gun regulations with bipartisan support.

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Henson said Trump's contradictory actions are similar to those of many lawmakers in Texas's Senate and House of Representatives, which are both controlled by Republicans. 

"There's not a lot of appetite to take measures which will rile up people for whom gun ownership is a primary issue." 

Following the mass shooting in West Texas, 63 of the 66 Texas House Democrats signed a letter calling for a special legislative session to address gun violence in the state. 

Texas Gov. Greg Abbott said during a news conference on Sept. 1 that "words must be followed by meaningful action" to prevent more mass shootings. However, he has yet to call lawmakers back to the legislature.

The state's legislature, which convenes for a 140-day regular legislative session every two years, won't meet again until 2021. This means any new gun-control legislation would be at least two years away, unless the governor were to take the rare step of ordering an emergency legislative session.

Although Abbott did not explicitly rule out calling a special session, his office criticized the idea of rushing ahead with votes.

"Governor Abbott made it clear in Odessa that all strategies are on the table that will lead to laws that make Texans safer. But that doesn't include a helter-skelter approach that hastily calls for perfunctory votes that divide legislators along party lines," said Abbott's spokesperson, John Wittman.

However, Lt.-Gov. Dan Patrick, a Republican, told the Dallas Morning News on Sept. 7 that he will press the state's lawmakers to close the loophole in gun-buyer background checks. 

Patrick said he would protect check-free gun transfers between family members and friends, but acknowledged this could be abused. 

"People don't understand why we allow strangers to sell guns to total strangers when they have no idea if the person they're selling the gun to could be a felon ... or someone who has serious mental issues."

Patrick does not have the authority to call the state's legislature back before 2021 and avoided questions about whether Abbott will do so.

'God-given right'

While one Republican lawmaker was voicing support for closing the loophole, another was dismissing all attempts to tighten any gun laws.

Matt Schaefer, who is a member of the Texas House of Representatives, said he was not going to let the "evil acts of a handful of people" diminish the "God-given right" of his fellow Texans to own a gun.

The District 6 representative said in a series of tweets that he opposes any type of gun control, despite elected officials often hearing demands to "Do something!"

"I say NO to 'red flag' pre-crime laws. NO to universal background checks. NO to bans on AR-15s, or high capacity magazines. NO to mandatory gun buybacks," he tweeted.

Gyl Switzer said Schaefer needs to be held accountable for his "obstructionist babble."

"This latest highly public mass shooting reinforces the urgent need for our state leaders to take comprehensive action. Now," Texas Gun Sense says on its website. 

However, it's even more important that the federal government pass legislation requiring universal background checks on all firearm purchases to plug the private sales loophole, Switzer said.

State-specific checks aren't strong enough, she said, because a person can simply buy a gun in a neighbouring state that has less-stringent controls.

Bordering states Louisiana, Oklahoma and Arkansas all have similar gun controls to Texas and do not require background checks on private sales, according to national advocacy group Everytown for Gun Safety.  

Texas also lacks legal penalties if a person lies on their background check form when trying to purchase a gun, Switzer said.


Adam Jacobson

Senior writer

Adam Jacobson is a CBC News senior writer and a producer for News Network. Prior to joining the CBC, Adam was a digital journalist in Auckland, New Zealand. Contact him at

With files from Reuters and The Associated Press