Biden announces new action to address gun sale loopholes

The Biden administration on Thursday announced new action to crack down on the sale of firearms without background checks and prevent the illegal flow of gun sales by unlicensed sellers. 

The rule does not enact new legislation, but instead clarifies and advances implementation of the Bipartisan Safer Communities Act by addressing loopholes used by unlicensed gun dealers to make transactions without conducting background checks. 

“I’ve spent hours with families who’ve lost loved ones to gun violence. They all have the same message: ‘Do something,’” Biden said in a statement. “Today, my Administration is taking action to make sure fewer guns are sold without background checks. This is going to keep guns out of the hands of domestic abusers and felons.”

Clarifying guidelines for federal gun sale licensing

Federally licensed gun sellers must use the online National Instant Criminal Background Check System (NICS) system when selling firearms, but gun owners looking to occasionally sell firearms from their personal collections are not legally required to become federally licensed dealers, and are therefore exempt from background check requirements while vetting buyers. 

Under the Bipartisan Safer Communities Act, which Biden signed into law in 2022, requirements for what constitutes a “licensed seller” were expanded to prevent dealers from falsely claiming liquidation of a personal collection to avoid licensing requirements and conducting background checks, among other loopholes. 

“Every year, thousands of unlicensed gun dealers sell tens of thousands of guns without a background check, including to buyers who would have failed one—domestic abusers, violent felons, and even children,” said Vice President Kamala Harris, who heads the White House Office of Gun Violence Prevention. “This single gap in our federal background check system has caused unimaginable pain and suffering.”

The new action clarifies that certain types of commercial activity require sellers to become licensed and, in turn, conduct background checks. This includes dealers who repeatedly sell guns of similar makes and models within 12 months of purchase, repeatedly sell firearms of any sort within 30 days of purchase, or cannot otherwise provide evidence to prove that they aren’t conducting firearms dealings as a significant means of profit. 

Additionally, sellers cannot rely on so-called “gun show and online loopholes” to avoid becoming licensed. If firearms sellers are conducting business that would require licensing if it took place in a brick-and-mortar store, they must legally become licensed and conduct background checks on all sales. This includes sales that take place at flea markets, via social media marketplaces, or from sellers’ homes. 

Finally, gun sellers cannot rely on “fire sale loopholes” to evade background check requirements, particularly when they’ve had their sale licenses revoked. The administration’s final ruling states that “a business inventory may not be transferred to a person’s personal collection after a license is revoked. Instead, a business could dispose of this inventory through another licensed seller who runs background checks.”

Illegal gun trafficking sparks tragedy—and unlicensed dealers are key

Background checks have long been touted as a way to keep firearms out of the wrong hands—including convicted felons who cannot legally own guns, individuals charged with domestic violence offenses, and even would-be mass shooters displaying significant mental health concerns. In many cases, such buyers have sought out firearms from what the Department of Justice (DOJ) estimates are 20,000 unlicensed gun sellers throughout the country. 

DOJ data also shows that unlicensed dealers represent the largest source of illegally trafficked firearms in the US, leading to opportunities for background check evasion that spur tragic consequences. 

In 1999, the Columbine High School shooters, who were too young to legally purchase firearms, obtained their weapons via a friend who purchased them from an unlicensed gun show dealer. A shooter who killed seven people in Midland and Odessa, Texas in 2019 purchased his AR-15 rifle through an unlicensed online seller who did not carry out a background check. The shooter had previously tried to purchase a gun legally, but was prevented from doing so after a licensed sporting goods store conducted a background check that raised mental health concerns. 

Biden says that while the implementation of action under the Bipartisan Safer Communities Act is an important step toward reducing gun violence in the US, there’s still work to be done—specifically in closing remaining loopholes that allow private gun sales to proceed without background checks.  

“My administration is going to continue to do everything we possibly can to save lives,” he said in a statement. “Congress needs to finish the job and pass universal background checks legislation now.”