Though more than 90% of the American public supports background checks for all gun sales, a dangerous and deadly loophole in federal gun laws still exempts unlicensed sellers from having to perform any background check whatsoever before selling a firearm. With this loophole, guns easily find their way into the hands of illegal buyers and gun traffickers, dramatically increasing the likelihood of gun homicides and suicides.

Background

When background checks are required and properly enforced, they can block illegal gun sales and keep deadly weapons out of the hands of people with the most significant histories of violence or irresponsible behavior.

• Since the federal background check requirement was adopted in 1994, nearly 4.7 million people legally prohibited from possessing a gun have been stopped from purchasing a gun or denied a permit to purchase.² More than 35% of these denials involved people convicted of felony offenses.³
• Background check laws also help prevent guns from being diverted to the illegal gun market. States without universal background check laws export crime guns across state lines at a 30% higher rate than states that require background checks on all gun sales.⁴

However, in the absence of a comprehensive background check system, people who are ineligible to possess firearms routinely exploit the massive loopholes in our laws.

• Around 80% of all firearms acquired for criminal purposes are obtained through transfers from unlicensed sellers,⁵ and 96% of inmates convicted of gun offenses who were already prohibited from possessing a firearm at the time of the offense obtained their firearm from an unlicensed seller.⁶
• A Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) report found that between 2017 and 2021 “unlicensed firearm dealing by private persons” was the “most frequent type[ ] of trafficking channel[ ] identified in ATF” firearm trafficking investigations (40.7%).⁷ ATF found that approximately 60% of end users of trafficked firearms had a previous felony conviction, making them ineligible to purchase and possess firearms.⁸ Unlicensed firearms dealers seldom conduct background checks. (Visit our Trafficking and Straw Purchasing page for more information on the impact of firearm trafficking.)
• Individuals who commit crimes with firearms may intentionally seek to purchase guns from sellers who aren’t required to run background checks. Purchasers from Armslist.com, a major online firearms marketplace, were nearly seven times as likely to have a firearm-prohibiting criminal record than people attempting to buy guns from licensed dealers.⁹ (This is discussed more fully on our page on online gun sales.)

Recent examples show that loopholes in our background check system can have dangerous and deadly consequences.

• In 2022, a man attempted to buy a gun from a licensed seller but did not pass the background check. Soon after, he bought a rifle from an unlicensed seller, who is not required to run a background check, and shot and killed two people at a St. Louis high school.¹⁰
• In 2019, a man fatally shot seven people and wounded 25 others in West Texas. The shooter previously failed a criminal background check when trying to purchase a gun, yet loopholes in our nation’s gun laws allowed him to bypass the background check system altogether and obtain the AR-style weapon used in his deadly attack from an unlicensed seller who wasn’t required to run a background check.¹¹
• In 2018, in Appleton, WI, a man who was prohibited from purchasing a gun because he was out on bond for a firearm-related felony domestic violence case purchased a firearm from an unlicensed seller on Armslist.com without a background check. The next day he used the gun to kill his wife.¹²

Background checks are easy, convenient, and impose almost no burden on law-abiding gun purchasers.

• In at least 90% of cases, firearm background checks processed through the National Instant Criminal Background Check System (NICS) are resolved immediately. The average processing time for an electronic NICS-check is less than two minutes—107 seconds, to be precise.¹³
• Contrary to gun-lobby claims, background checks rarely provide false-positive results. The FBI’s quality control evaluations suggest that background checks are accurate approximately 99.3 to 99.8% of the time.¹⁴

For more than a decade, the vast majority of the American public has supported laws requiring background checks on all firearm purchases,¹⁵ with polling data consistently showing that more than 90% of both gun owners and non-gun owners support this policy.¹⁶ Strong support for background check laws has also been measured among NRA members, with at least 69% supporting comprehensive background checks.¹⁷

Universal background checks are a necessary foundation for any policy that aims to keep firearms out of the hands of people convicted of domestic abuse and other ineligible people. However, other improvements should also be made in the existing background check system. For further information on how federal and state background checks work, see our pages on Background Check Procedures and Reporting Procedures.

Summary of Federal Law

Federal law imposes various duties on federally licensed firearms dealers. Firearms dealers must, among other things:

• Perform background checks on prospective firearm purchasers.
• Maintain records of all gun sales.
• Make those records available to law enforcement for inspection.
• Report certain multiple sales.
• Report the theft or loss of a firearm from the licensee’s inventory.¹⁸
  

Federal law imposes none of these requirements on unlicensed sellers, however.

The Gun Control Act of 1968 provides that persons “engaged in the business” of dealing in firearms must be licensed.¹⁹ Although Congress did not originally define the term “engaged in the business,” it did so in 1986 as part of the McClure-Volkmer Act (also known as the Firearms Owners’ Protection Act). That Act defined the term “engaged in the business,” as applied to a firearms dealer, as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

Significantly, the 1986 McClure-Volkmer Act also defined “engaged in the business” to exclude a person who “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”²⁰ According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the 1986 definition of “engaged in the business” often frustrates the prosecution of “unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons.”²¹

In 2022, the Bipartisan Safer Communities Act made a change to the definition of “engaged in the business” of dealing in firearms, replacing “with the principal objective of livelihood and profit” with “to predominantly earn a profit.”²² Current law now defines “engaged in the business,” as applied to a firearms dealer, as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms.”²³

The Bipartisan Safer Communities Act did not generally address the McClure-Volkmer Act exclusion of persons who make “occasional sales, exchanges, or purchases of firearms…for a hobby.” ATF’s rule, however, clarifies what constitutes a “personal collection,” since a person who resells all or part of their personal collection of firearms is not considered to be engaged in the business. A personal collection is “[p]ersonal firearms that a person accumulates for study, comparison, exhibition (e.g., collecting curios or relics, or collecting unique firearms to exhibit at gun club events), or for a hobby (e.g., noncommercial, recreational activities for personal enjoyment, such as hunting, skeet, target, or competition shooting, historical re-enactment, or noncommercial firearms safety instruction).”²⁴

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Summary of State Law

Twenty-two states and Washington DC have extended the background check requirement beyond federal law to at least some gun sales from unlicensed sellers. 

Instead of (or in addition to) a point of sale background check, seven states (Connecticut, Hawaii, Illinois, Massachusetts, Michigan, New Jersey and Oregon) require all firearm purchasers to obtain a permit, issued after a background check, in order to be qualified to acquire any firearm.²⁶ Illinois also requires unlicensed sellers to contact the State Police at the point of sale to verify the that the transferee’s firearms license remains valid, and requires the State Police to continuously monitor relevant databases to ensure that license holders remain eligible to keep their firearm license.²⁷

New Jersey and Oregon require firearm purchasers to both obtain a permit to purchase a firearm and, if the purchase is from an unlicensed seller, conduct the transaction through a federally-licensed firearms dealer.²⁸

Nebraska has this permit and background check requirement for the purchase of handguns, but not long guns, and as of August 1, 2023, Minnesota requires a permit and background check for handgun and assault weapon purchases from unlicensed sellers.

State Laws Closing the Loophole

Background Checks at the Point of Sale/Transfer

The most immediate approach to ensuring that guns are not sold to ineligible people requires a background check to be completed by a licensed dealer or law enforcement at the point that any firearm is sold or transferred to another owner. Processing these transfers through licensed dealers or law enforcement helps to ensure that a background check will be conducted prior to any transfer.

States that Require a Background Check at the Point of Transfer

• California²⁹
• Colorado³⁰
• Connecticut³¹
• Delaware³²
• District of Columbia³³
• Maine³⁴
• Maryland³⁵
• Massachusetts³⁶
• Nevada³⁷
• New Jersey³⁸
• New Mexico (Applies to firearm sales, but not transfers made without consideration)³⁹
• New York⁴⁰
• Oregon⁴¹
• Pennsylvania (handguns only)⁴²
• Rhode Island⁴³
• Vermont⁴⁴
• Virginia⁴⁵
• Washington⁴⁶

California, Colorado, Delaware, Maryland, Nevada, New Jersey, New York, Oregon, Vermont, and Washington generally require all firearm transfers to be conducted by or processed through licensed dealers, who conduct background checks on prospective firearm purchasers or recipients. In the District of Columbia, firearms may be sold and transferred only by or to a licensed dealer.

Rhode Island requires all sellers to obtain a completed application form from the prospective purchaser and to submit the form to law enforcement for purposes of conducting a background check. Connecticut requires any person transferring a firearm to either submit a form to law enforcement or conduct the transfer through a licensed dealer, so that a background check is conducted for every sale or transfer.

Pennsylvania requires a background check for every prospective handgun sale or transfer, and provides that the background check may be conducted either by a licensed dealer or a designated law enforcement agency.

New Mexico and Virginia require background checks for firearms sales, but not for other types of transfers, such as gifts or long-term loans. Both states require that the background check be conducted through a licensed firearms dealer.⁴⁷

Maine requires a background check for advertised sales, which includes sales resulting from a message posted in writing, on television or radio, or online.

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State Permit Requirements for Purchasers

Twelve states and the District of Columbia impose background checks on purchasers of some or all firearms through a permitting or licensing system. In these states, a purchaser must obtain a permit that includes a background check in order to purchase a firearm. Depending on the state, these permits may be valid for as short as 10 days or as long as 10 years. State licensing requirements are discussed in greater detail on our licensing policy page.

While these requirements ensure that a background check has been conducted at some point prior to purchase, a person may fall within a prohibited category after the license or permit is issued but before the time the person attempts to purchase a firearm. As a result, licensing laws alone do not necessarily prevent ineligible people from accessing firearms. States with the most comprehensive laws require purchasers to obtain a permit and also require a background check at the point of sale to ensure that a purchaser has not fallen into a prohibited category after he or she obtained the permit.

States that Require a Background Check to Purchase from Unlicensed Sellers through a Permit Requirement

• Connecticut (also requires a point of sale background check)⁴⁸
• District of Columbia (also requires a point of sale background check)⁴⁹
• Hawaii⁵⁰
• Illinois⁵¹
• Maryland (handguns only; also requires a point of sale background check for all firearms)⁵²
• Massachusetts⁵³
• Michigan (Effective early 2024)⁵⁴
• Minnesota (handguns and assault weapon purchases from unlicensed sellers only)(Effective August 1, 2023)⁵⁵
• Nebraska (handguns only)⁵⁶
• New Jersey⁵⁷ (also requires a point of sale background check)
• New York (handguns only. Also requires point of sale background check for all firearms)⁵⁸
• Oregon (also requires a point of sale background check)⁵⁹
• Rhode Island (handguns only. Also requires point of sale background check for all firearms)⁶⁰

California and Washington achieve universal background checks through point of transfer checks, but both states additionally require purchasers to obtain a firearm safety certificate that does not require a background check.

Gun Show Background Checks

Currently, 22 states and the District of Columbia require background checks on sales of some or all types of firearms by unlicensed individuals, whether the sale occurs at a gun show or elsewhere. For more information about the regulation of gun shows, see our summary on Gun Shows.

Key Legislative Elements

The features listed below are intended to provide a framework from which policy options may be considered. Any jurisdiction considering new legislation should consult with counsel.

• For all firearm transfers, unlicensed sellers are subject to similar requirements as licensed dealers, including background checks and record-keeping requirements.
• The most immediate policy option requires all firearm transfers to be conducted through licensed dealers, so that background checks will be completed on all purchasers (including purchases from unlicensed sellers), and sales records will be maintained
• If the jurisdiction does not require that all firearm transfers be conducted through licensed dealers, unlicensed sellers should be required to:
  • Conduct background checks through a central law enforcement agency that has access to federal and state databases of prohibited purchasers
  • Maintain records of all firearm transfers for a lengthy period
  • Report all transfers to state and local law enforcement

1. Matthew Miller, Lisa Hepburn & Deborah Azrael, “Firearm Acquisition Without Background Checks,” Annals of Internal Medicine 166, no. 4 (2017): 233–239. [↩]
2. Connor Brooks, “Background Checks for Firearm Transfers, 2019-2020,” US Department of Justice: Bureau of Justice Statistics (2023), https://bjs.ojp.gov/document/bcft1920.pdf; “2020–2021 NICS Operations Reports,” Federal Bureau of Investigation,  https://www.fbi.gov/file-repository/nics-2020-2021-operations-report.pdf/view; “2022 NICS Operations Reports,” Federal Bureau of Investigation, https://www.fbi.gov/file-repository/nics-2022-operations-report.pdf/view.[↩]
3. Connor Brooks, “Background Checks for Firearm Transfers, 2019-2020,” US Department of Justice: Bureau of Justice Statistics (2023), https://bjs.ojp.gov/document/bcft1920.pdf[↩]
4. Daniel W. Webster, Jon S. Vernick, and Maria T. Bulzacchelli, “Effects of State–level Firearm Seller Accountability Policies on Firearm Trafficking,” Journal of Urban Health 86, no. 4 (2009): 525–537; Daniel W. Webster, Jon S. Vernick, Emma E. McGinty, and Ted Alcorn, “Preventing the Diversion of Guns to Criminals Through Effective Firearm Sales Laws,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis (Baltimore: The Johns Hopkins University Press, 2013), 109–121.[↩]
5. Katherine A. Vittes, Jon S. Vernick, and Daniel W. Webster, “Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership,” Injury Prevention 19, no. 1 (2013): 26-31.[↩]
6. Id.[↩]
7. Bureau of Alcohol, Tobacco, Firearms and Explosives, “National Firearms Commerce and Trafficking Assessment: Firearms Trafficking Investigations; Part III: Firearm Trafficking Channels and Methods Used,” US Department of Justice, April 2024, https://www.atf.gov/firearms/docs/report/nfcta-volume-iii-part-iii/download.[↩]
8. Bureau of Alcohol, Tobacco, Firearms and Explosives, “National Firearms Commerce and Trafficking Assessment: Firearms Trafficking Investigations; Part VI: Characteristics of Firearm Traffickers, End Users, and Defendants,” US Department of Justice, April 2024, https://www.atf.gov/firearms/docs/report/nfcta-volume-iii-part-vi/download.[↩]
9. “Unchecked,” Everytown for Gun Safety, February 2019, https://everytownresearch.org/documents/2019/02/singles-unchecked-bifold-020119d.pdf/.[↩]
10. Phil Helsel, “St. Louis school shooter bought gun from private seller after dealer sale was blocked, police say,” NBC News, October 27, 2022, https://www.nbcnews.com/news/us-news/st-louis-school-shooter-bought-gun-private-seller-dealer-sale-was-bloc-rcna54447.[↩]
11. Ryan W. Miller, “Gunman in Texas Shooting Bought Gun in Private Sale: Here’s What We Know,” USA Today, September 3, 2019, https://bit.ly/2khMbBp.[↩]
12. Alison Dirr, “Five Years Apart, Armslist was Source of Guns in High-Profile Domestic Violence Deaths,” Appleton Post-Crescent, September 19, 2018, https://www.postcrescent.com/story/news/crime/2018/09/19/guns-harrison-murder-suicide-azana-shooting-found-same-website/1224081002/.[↩]
13. “National Instant Criminal Background Check System Celebrates 20 Years of Service,” Federal Bureau of Investigation, Criminal Justice Information Services, November 30, 2018, https://www.fbi.gov/services/cjis/cjis-link/national-instant-criminal-background-check-system-celebrates-20-years-of-service; “About NICS,” Federal Bureau of Investigation, Accessed June 3, 2019, https://www.fbi.gov/services/cjis/nics/about-nics.[↩]
14. Office of the Inspector General, “Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background Check System,” US Department of Justice, September 2016, https://oig.justice.gov/reports/2016/a1632.pdf.[↩]
15. For example, a 2008 poll showed 87% support for background checks on unlicensed gun sales. Garen J. Wintemute, Anthony A. Braga, and David M. Kennedy, “Private–party Gun Sales, Regulation, and Public Safety,” 363 NewEngland Journal of Medicine, no. 6 (2010): 508–511.[↩]
16. “U.S. Support For Gun Control Tops 2-1, Highest Ever, Quinnipiac University National Poll Finds; Let Dreamers Stay, 80 Percent Of Voters Say,” Quinnipiac University Poll, February 20, 2018, https://poll.qu.edu/national/release-detail?ReleaseID=2521.[↩]
17. Brett Samuels, “Poll: Most NRA Members Support Comprehensive Background Checks,” The Hill, March 8, 2018, https://thehill.com/blogs/blog-briefing-room/377455-poll-most-nra-members-support-comprehensive-background-checks.[↩]
18. 18 U.S.C. §§ 922(t), 923(g).[↩]
19. 18 U.S.C § 921(a)(21)(C).[↩]
20. Id.[↩]
21. US Department of Justice & Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Gun Shows: Brady Checks and Crime Gun Traces 13-14 (Jan. 1999).[↩]
22. 18 U.S.C § 921(a)(21)(C).[↩]
23. Id.[↩]
24. Definition of “Engaged in the Business” as a Dealer in Firearms, Definition of “Predominantly Earn a Profit,” 89 Fed. Reg. at 29090 (codified at 27 CFR § 478.11).[↩]
25. These states adopted their universal background check laws in this order: Washington D.C. (conducts universal background checks as part of a firearm registration law that was enacted in 1975), Rhode Island (1990), California (1991), New York (2013), Colorado (2013), Connecticut (2013), Delaware (2013), Washington (2014 by voter initiative), Oregon (2015), Vermont (2018), Nevada (2019), New Mexico (2019), Virginia (2020), Maryland (2020), Maine (2024), and Massachusetts (2024). (Prior to 2020, Maryland only required point of sale background checks for handguns and assault weapons).[↩]
26. Michigan’s law will become effective in early 2024.[↩]
27. See 2021 IL HB 562; 430 ILCS 65/3(a-10). Illinois also requires a point of sale check whenever a firearm is sold at a gun show. 430 ILCS 65/3(a-5); 65/3.1.[↩]
28. N.J. Stat. Ann. § 2C:58-3; Or. Rev. Stat. §§ 166.412(2)(a), (14); 166.435(3)(a); 166.436(2); 166.438(1)(a)(A).[↩]
29. Cal. Penal Code §§ 27545, 27850-28070.[↩]
30. Colo. Rev. Stat. § 18-12-112; 2013 Colo. H.B. 1229. See also Colo. Rev. Stat. §§ 12-26.1-101 – 12-26.1-108.[↩]
31. Conn. Gen. Stat. §§ 29-33(c), 29-36l(f), 29-37a(e)-(j). 2013 Ct. ALS 3. See also Conn. Gen. Stat. § 29-37g (pre-existing law requiring a background check before a firearm is sold at a gun show).[↩]
32. Del. Code tit. 11, § 1448B, tit. 24, § 904A.[↩]
33. D.C. Code Ann. § 7-2505.02.[↩]
34. Me. Stat., 15 § 395[↩]
35. Md. Code Ann., Pub. Safety §§ 5-101(t), 5-124 (handguns and assault weapons only); id. § 5-204.1 (rifles and shotguns other than assault weapons). Assault weapons are now generally banned in Maryland.[↩]
36. Mass. Gen. Laws ch. 140, §§ 123, 128A.[↩]
37. Nev. Rev. Stat. Ann. § 202.2547.[↩]
38. N.J. Stat. Ann. § 2C:58-3.[↩]
39. 2019 NM S 8, enacting N.M. Stat. Ann. § 30-7-7.1.[↩]
40. N.Y. Gen. Bus. Law § 898. 2013 NY ALS 1. See also N.Y. Gen. Bus. Law §§ 895-897; N.Y. Penal Law § 400.00 (pre-existing law requiring a background check before sale of a firearm at a gun show).[↩]
41. Or. Rev. Stat. § 166.435. At gun shows, Oregon law allows a transferor who is not a licensed dealer to contact the Department of State Police directly to conduct the background check. Or. Rev. Stat. § 166.436.[↩]
42. 18 Pa. Cons. Stat. § 6111(b), (c), (f)(2).[↩]
43. R.I. Gen. Laws §§ 11-47-35 – 11-47-35.2.[↩]
44. Vt. Stat. Ann. tit. 13, § 4019, enacted by 2017 SB 55, Sec. 6.[↩]
45. Va. Code Ann. §§ 18.2-308.2:2; 18.2-308.2:5.[↩]
46. Rev. Code Wash. § 9.41.113. In 2014, Washington became the first state to enact a law requiring background checks on unlicensed sales by voter initiative. See Initiative Measure No. 594, available at http://sos.wa.gov/_assets/elections/initiatives/FinalText_483.pdf.[↩]
47. In Virginia, sales at a gun show can be processed by the State Police.[↩]
48. Conn. Gen. Stat. §§ 29-33, 29-36f – 29-36i, 29-37a, 29-38g – 29-38j.[↩]
49. D. C. Code Ann. §§ 7-2502.01 – 7-2502.10; D.C. Mun. Regs. tit. 24, D.C. Mun. Regs. tit. 24, §§ 2311 – 2320.[↩]
50. Haw. Rev. Stat. Ann. §§ 134-2, 134-13.[↩]
51. 430 Ill. Comp. Stat. 65/1 – 65/15a, 720 Ill. Comp. Stat. 5/24-3(k). Since 2014, Illinois has required a seller to contact law enforcement and verify the validity of the purchaser’s permit (called a FOID Card) at the time of the sale.[↩]
52. Md. Code Ann. Pub. Safety § 5-117.1.[↩]
53. Mass. Gen. Laws ch. 140, §§ 121, 129B, 129C, 131, 131A, 131P.[↩]
54. Mich. Comp. Laws §§ 28.422, 28.422a.[↩]
55. Minn. Stat. § 624.7134, subds. 2 and 3.[↩]
56. Neb. Rev. Stat. Ann. §§ 69-2404, 69-2407, 69-2409.[↩]
57. N.J. Stat. Ann. § 2C:58-3.[↩]
58. N.Y. Penal Law §§ 400.00 – 400.01.[↩]
59. Oregon generally requires firearm sales and transactions to be conducted through licensed firearms dealers who contact the Oregon State Police to verify the purchaser’s permit to purchase firearms and also conduct a point-of-sale background check. See See Or. Rev. Stat. §§ 166.412(2)(a), (14); 166.435(3)(a); 166.436(2); 166.438(1)(a)(A).[↩]
60. R. I. Gen. Laws §§ 11-47-35 – 11-47-35.1.[↩]