All just semantics really.
Not really. This is a cultural "battle". Kinda hard to win the hearts and minds of the next generation when you start with terms that imply impropriety. Loophole has negative connotations. We shouldn't use it.
Of course. The point that some folks want to make is that it's very easy for those prohibited persons to circumvent the law via private sale.
A prohibited person already commits a crime by attempting to acquire a gun in the first place. Why does he care if he commits two crimes by not doing a background check? Further, the fact is that the vast majority of firearms that prohibited person acquire illegally come from sellers who know that the prohibited person is prohibited. The sellers are already committing a crime... what do they care about the additional crime of no background check.
Background checks for private transfers do not prevent prohibited persons.
Look, like I said before, I'm all for zero BC's for firearms purchases, but ignoring or verbally dancing around facts, especially amongst other gun folks, doesn't really help anything. The fact is that as the system stands, in most states, a person can legally purchase a firearm with no background check and no record of the purchase. The fact also stands that it's very easy for a prohibited person to take advantage of that exception, or loophole, or whatever word you want to use, to purchase a firearm illegally.
You have to dance around facts to suggest that there is a "loophole" in the law.
Fact 1: Congress specifically called out transfers from FFLs. If they wanted everyone to do a background check, they would have simply said all transfers. It's not a loophole, it's the law.
Fact 2: It's very easy, and already a crime, for a prohibited person to buy a gun regardless of background checks.
The reason for that exemption is because of the "commerce clause". According to the 10A, Congress isn't supposed to be regulating anything that they aren't specifically given power to regulate in the Constitution. The Constitution says that they can regulate commerce between the states, so they figured, hey!, that's how we can sneak it in there! Sales of guns across state lines are interstate "commerce", right? Of course, you'd be hard pressed for anyone to buy the idea that Billy Bob selling his squirrel rifle to his cousin in the neighboring state is "interstate commerce" and that's quite obviously not what the framers of the Constitution were talking about when they wrote it, but Congress just conveniently ignored that. They couldn't quite figure out how to justify lumping intrastate sales into that though, so that's how we still have private sales between residents of the same state.
If Congress can invoke the Commerce Clause to resurrect the Gun Free School Zone act after Lopez (this is essentially the same congress composed of essentially the same members 1993 vs 1996) simply by saying that the GFSZ act applies to any firearm that has ever been or affected interstate congress, there was nothing stopping them from applying the same logic to the Brady Act.
Perhaps "loophole" isn't exactly the right word to use, but it's at least a fairly close fit. I haven't seen anybody suggest a better word to use.
The word "loophole" implies an unanticipated combination of factors that results in something that is contrary to the original intent. A good example of such is the Franklin Armory "Reformation" firearms... they neither rifles nor shotguns because of straight (not rifled) grooves (not smooth) in the bore. As a result, the NFA doesn't apply to them and there are no limits on barrel length with stocks. Congress clearly intended to prevent concealable long guns with the NFA, but because of the definitions of the terms shotgun and rifle, the "reformation" can slip through a loophole.
On the other hand, Congress intentionally only included sales from FFL's in the Brady Act. For whatever reason they had, that is the law. "It's a feature, not a bug."
The better word for private transfers without background checks is LEGAL.