Giffords, Brady Urge ATF to Address Dangerous Background Check Loophole

Washington DC — Today, Giffords and Brady released a memo they sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding the updated definition of a federal firearms dealer that was included in the Bipartisan Safer Communities Act (BSCA). In the memo, the organizations urge ATF to address the dangerous loophole that allows gun sales by unlicensed sellers without background checks. Because of this loophole, an estimated 22% of U.S. gun owners acquired their most recent firearm without a background check—which translates to millions of Americans acquiring millions of guns, no questions asked, each year. This allows guns to get in the hands of people prohibited by law from possessing guns—like people with violent criminal records or domestic violence convictions.

“No one should be able to buy a gun without passing a background check. Right now, far too many guns are sold with a background check because the gun is purchased from an unlicensed seller. One of the ATF’s main responsibilities is regulating gun sellers, which is why they must act to address this alarming problem. The BSCA updated the law to clarify that anyone whose main purpose is to earn a profit from the sale of firearms must be licensed. With gun violence on the rise and lives at stake, the ATF must ensure that this provision of the BSCA is appropriately implemented and crack down on unlicensed sellers.”

“More than one in five gun sales in the United States are conducted without a background check, which amounts to millions of guns per year ending up in the hands of people who aren’t allowed to buy guns. And studies show that people who commit crimes with firearms overwhelmingly obtain them from unlicensed sources. It’s time to close this deadly loophole and end the dangerous ambiguity over when a seller is required to comply with federal firearms regulations, including conducting life-saving Brady Background Checks.”

Federal law requires anyone “engaged in the business” of selling guns to obtain a federal license and conduct background checks on buyers. However, federal law is unclear about what constitutes a person being “engaged in the business” of selling guns, and only states that “occasional” sales or selling from a “personal collection” do not require a license. 

The Bipartisan Safer Communities Act, signed into law by President Biden on June 25, 2022, updated the law, requiring anyone who sells guns to “predominantly earn a profit” be licensed. As the primary agency charged with regulating guns, ATF is responsible for interpreting and implementing that change in the law.

While fully closing the dangerous background checks loophole would require congressional action, ATF also has the authority to issue a regulation clarifying which gun sellers must get a license and conduct background checks, thus significantly shrinking the loophole.

With leadership from the Department of Justice, ATF should issue a regulation specifying that any person who sells or offers for sale five or more firearms in a year is presumed to be “engaged in the business” of selling firearms. This regulation should not only set a numerical threshold, but should also describe other features of a gun seller who is “engaged in the business” of selling guns, including:

• Re-selling guns shortly after obtaining them; 
• Selling multiple guns of the same make and model; and 
• Expressing a willingness or ability to obtain guns upon request.

A strong regulation would also define what exactly is a “personal collection.” A gun seller should not be able to avoid getting a license and conducting background checks by claiming that its inventory is a “personal collection.”

• People who commit crimes with firearms overwhelmingly obtain these firearms from unlicensed sources. A 2013 study found that approximately 80% of all firearms acquired for criminal purposes were obtained from sellers who were not required to run a background check, and 96% of individuals incarcerated due to a firearm related offense who were prohibited from possessing a firearm at the time they committed their crime obtained their gun this way. 
• A recent large-scale survey found that 45% of gun owners who acquired a gun online in the past two years did so without any background check.
• Data suggests that individuals who commit crimes with firearms intentionally purchase guns from sellers who aren’t required to run background checks. For example, as many as 1 in 9 people arranging to buy a firearm on armslist.com, the nation’s largest online gun marketplace, are people who are legally prohibited from owning firearms.
• More than 90% of the American public supports background checks for all gun sales. 
• Unlicensed gun sellers have been connected to mass shootings. For example, in Odessa, Texas, in 2019, a gunman who was prohibited from purchasing firearms used weapons he bought from an unlicensed firearms dealer to kill seven people and wound 25 others. More recently, the man who killed two people at a high school in St. Louis in October bought the gun from an unlicensed seller after a dealer sale was blocked.

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