‘Historic’ action by justice department closes ‘doggone dangerous’ loophole in Biden administration’s fight against gun violence
‘Historic’ action by justice department closes ‘doggone dangerous’ loophole in Biden administration’s fight against gun violence
The sale of firearms on the internet and at gun shows in the US will in future be subject to mandatory background checks, the justice department said on Thursday as it announced a “historic” new action to keep weapons out of the hands of criminals.
The closing of the so-called gun show loophole, which exempts private transactions from restrictions that apply to licensed dealers, has long been a goal of the Biden administration, and is specifically targeted in the rule published in the federal register today.
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The White House estimates that 22% of guns owned by Americans were acquired without a background check and that about 23,000 more individuals will be required to be licensed as a dealer after the rule’s implementation.
I thought online gun sales already required a background check, isn't that why they have to be shipped to an FFL? So that they can run a background check before ownership is transferred to you.
This is correct. In addition all sales at gun show from a licensed FFL to a customer currently also require a background check. Currently the main two kinds of transfers that don't require federal background checks nationwide are private party sales and gifts. Eg. Selling your neighbor a shotgun or gifting your dad a hunting rifle. I believe these were both carved out exceptions as a result of the limitations on the Feds due to the commerce clause. Several states have tighter restrictions.
The private sales were excluded because they didn't want to give access to NICS to just anyone. States with more restrictions require you to pay a dealer or go to the sheriffs office to get approval.
I would expect too that the inability to effectively enforce those expectations was a motivating factor. The last time I bought a gun off some one I don't know we went to a FFL to comply with state background law. Really only because neither of us knew for sure if the other was a cop. If you know the other person. It can be very hard to prove a transfer ever happen.
I believe the framing is something like buying locally on armslist.com, where the buyer and seller agree to meet up face-to-face to make the sale. No mailing it.
Reading the article and a few others, this new regulation seems like election year posturing that doesn’t actually change much for the average person. The regulation is expanding who must register as an FFL from “making their livelihood from gun sales” to selling guns “predominantly to derive a profit”. Whatever that means. But it seems like it is specifically meant to exclude the occasional sale by a private person, which means that a private person happening to sell a gun at/near a gunshow or through armslist seems like they are still in the clear.
Where that line is will surely be hashed out in court, but it seems like the simple sale of a single gun from one person to another is unaffected.
I commented elsewhere about this. I've always had a background check run whenever I've purchased a firearm. If there's a way to bypass that I don't know how.
I’ve only ever purchased a single gun at a gun show, but they had a big ass table full of guns (and other junk) and I was not subject to a background check. This is definitely going to force more background checks, which is a good thing.
Everyone knows that certain gun shows are massive laundering operations for stolen weapons. The FBI has straight up stated that a large number of guns which are used in crimes in the Northeast can be traced back to gun shows in Virginia specifically. If you "look the part" it is trivial to get basically any common enough gun at a gun show just by doing a deal in a parking lot, since it's completely legal for an FFL to gift any gun to an associate, and completely legal for that associate to sell it to you in the parking lot. Cops literally watch this happen because it is legal.
The rule, which clarifies who is considered to be “engaged in the business” as a firearms dealer, will take effect in 30 days’ time, and follows a three-month consultation period that attracted almost 388,000 comments to the website of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
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I mean, it's better than nothing, but still doesn't do anything about the people outside the gun show with a trunk full of Glocks they're selling for $100 over sticker price.
If a gun show table was for a store, they always had you do a background check.
This is a huge loophole, but this isn't fixing it.
Hell, we don't even enforce straw purchase laws when it involves a minor, moving the guns over state ligns, and murdering multiple people...
Even when the illegal buyer testifies on the stand that he intentionally planned and completed a straw our hase to illegally gain possession of a gun.
All the laws in the world don't matter if no one enforced them.
We need a background check on every sale, and to prosecute people for flagrantly breaking gun laws.
Even without a registry, that makes selling it without a check a clear crime.
Now as long as the seller "doesn't know" the buyer can't pass a background, that gives them plausible deniability. Which has the unintended effect of sellers not even asking the name of the buyer.
If every "private seller" knew they were breaking the law, and there was a good chance they'd be prosecuted if caught, they'd be a lot more likely to follow the law and go thru a FFL.
We don't need to only do something that works 100% of the time, working 90% is still pretty good too...
I mean, it’s better than nothing, but still doesn’t do anything about the people outside the gun show with a trunk full of Glocks they’re selling for $100 over sticker price.
It makes it easier to prosecute them for not being private sales, so not nothing.
It doesn't tho. They can just say they're furthering their collection. Feds would have to show a strong pattern of sales and if the person was buying and selling out of their own collection it gets gray.
The actual text of the rule (all 466 pages) does a decent job of closing out loopholes, but it does (in theory) provide an avenue to address unlicensed dealers.
pg. 457
Whether a person is engaged in the business as a dealer under paragraph (a) of this section is a fact-specific inquiry… there is no minimum number of transactions that determines whether a person is "engaged in the business" of dealing in firearms. At all times, the determination of whether a person is engaged in the business of dealing in firearms is based on the totality of the circumstances.
This is a good framework for a prosecutor to build from, but it’s not a firm line that immediately introduces legal peril like say, a “10 guns max per year sold” limit would once crossed. This will prevent bad enforcement against honest sellers, but lets off the ‘smaller fish’ who aren’t in flagrant violation and a prosecutor may not feel is a good case to try for conviction.
It will likely survive in a post-Mock v. Garland legal landscape, but its timidity was doubtlessly influenced by the legal beatdown the DoJ got on that other issue the last few years. ATF needs primary legislation to build from for enforcement, especially as scotus are eying up the Chevron doctrine that has guided courts and bureaucrats for decades.
Even a background check on every sale wouldn't be enough to catch some previous offenders, those on watch lists, or people with serious mental illness issues because the system is woefully incomplete. The whole thing is ridiculous. You shouldn't be able to buy guns at conventions or on websites to begin with. Honestly, I'm amazed licensed gun dealers haven't been pushing congress to make it so that people have to buy guns through them- or if they have, I haven't heard about it.
I don't think it is realistic to get guns out of the equation in America any time soon, but it's become such an insane free-for-all. Nothing enforced, everything has a loophole.
What's the qualm with online sales? They get shipped to an FFL and a background check is performed before the transfer anyways. Online sales add more competition to the market and increases consumer choice.
As for why FFLs don't lobby for protectionist practices beyond principal, FFLs have terrible margins, are generally small businesses without much lobbying power, and lobbying for anti consumer practices generally doesn't go well in that market. People are still mad at Springfield Armory (the company) for rescinding opposition on a failed Illinois bill after they got a carve out exemption so it wouldn't apply to them (unlike their competition).
It seems like this has less to do with where (gunshow) or how (internet) the guns are being sold, and more about the volume being moved.
The “loopholes” are still intact for the private person making an occasional sale. These regulations are looking at people selling, in any way, guns in volumes that the government feels should be regulated as an FFL.
Unsurprisingly, the article’s title and the general framing leads people to focus away from what the regulation is actually doing. It’s a story and a political move that manages to bring out the emotion in both pro and anti gun people, but where the change to the legal reality seems honestly boring.
The occasional private party sale from a "personal collection" isn't what this is designed to stop. It's intended to close the loopholes that required no background checks in certain transactions, which:
Allowed people to function like online dealers, buying and selling volumes of guns, but claiming they are selling from personal collections.
Allowed for the very common "gun shows," which are frequent and widespread, to be used by #1 to sell guns to people in person not just online but to large, interested, and gathered crowds of people. These things are basically pop-up malls for guns, with a mixture of legitimate firearm businesses running background checks and tables of guns from a "private collection."
It prevents the "fire-sale loophole," where gun stores, often ones that lose their license for other violations, close their business and liquidate their guns at steep discounts without background checks by claiming that the guns revert to private collection.
The purpose of this rule revision is to get rid of those loopholes, which is how the overwhelming majority of guns sold without background check happen.
The occasional sale between private parties from a personal collection, defined as a collection whose purpose is study, comparison, exhibition, or in pursuit of hobby like hunting and sport shooting isn't the issue here. That doesn't appear to be where most guns involved in crime that were purchased without a background check originate from.
Yes I read the article. I was pointing out how that was the case rather than, as the article title frames with its title, something to do specifically with posting guns online, or selling privately on gunshow grounds.
The article’s title is misleading. The regulation isn’t “closing” the “loophole” of buying a gun without a background check from somewhere like armslist where you meet up in person for the exchange.
The article title, and some politician comments want people to think that this a loophole to be worried about, and that it has been closed in a “historic” move.
The regulation is going after people selling in such a volume, in any manner, that the government deems that they should be FFLs.
In practical terms what that volume qualifies as is still vague, but the manner or location of sales isn’t something being touched.