Under the current system, dangerous people are able to buy firearms far too often, President Barack Obama said in a speech announcing new executive action on gun policy.
"The problem is some gun sellers have been operating under a different set of rules," he said Jan. 5. "A violent felon can buy the exact same weapon over the Internet with no background check, no questions asked."
Quite a few readers flagged Obama’s claim that a violent felon can buy a gun online without a background check, so we decided to fact-check it.
Some readers seemed to think Obama was suggesting such transactions were legal. We don’t see that in Obama’s comments. (The grammarians at PolitiFact would note that Obama said "can," not "may.") To be clear, such a transaction would be illegal. What Obama said is that such transactions are possible. That is accurate, but it’s also a little more complicated than Obama’s comment suggests.
A big loophole
Federal law prohibits felons from purchasing or receiving guns unless their rights have been formally restored. However, felons can get around this obstacle by buying guns from sellers who do not require criminal background checks.
"Violent felons aren't allowed to buy guns, period," said Adam Winkler, a law professor at the University of California Los Angeles. "But they can take advantage of the loophole in federal law that allows gun sales, including some gun sales over the Internet, to purchase from non-licensed sellers, who don't have to conduct a background check."
Anyone who repeatedly buys and sells firearms "with the principal motive of making a profit" has to get a dealer’s license, whether they deal out of a brick-and-mortar store, at a flea market, or online, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives. Licensed firearm dealers must run background checks on non-licensed buyers before selling them a gun.
But the law does not require a dealer’s license for private hobbyists and others who occasionally buy and sell guns for the purpose of enhancing or liquidating a collection. If an individual buys a gun from someone who does not have or require a license, the purchaser does not have to undergo a background check.
So a violent felon could buy a gun from a hobbyist over the Internet because he or she would not be subject to a background check. The purchase would still be illegal, because of the buyer’s felon status, but it would not create an immediate red flag. The same thing can happen at a gun show.
There are a couple of important limitations on these sorts of online private transactions.
First, private sales, online or otherwise, cannot take place across state lines, so the buyer and seller must be in the same state. And there are many restrictions on shipping guns, so the actual transfer of the gun is likely to take place in person.
Second, it is illegal for private sellers to transfer a gun to someone they either know or reasonably believe is prohibited from owning a gun, for example, if the seller knows the buyer is a felon. But online sellers "can give themselves plausible deniability by not asking the necessary questions," said Garen Wintemute, a professor of emergency medicine at the University of California Davis.
Additionally, several states — California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, Washington — and the District of Columbia require background checks for all private gun sales.
There is a sizeable online market for private, background check-free gun sales, according to a 2013 study by Third Way, a center-left think tank. Focusing on the website Armslist.com, a sort of Craigslist for firearms and accessories, in 10 states, Third Way found 2,000 ads from individuals looking to purchase guns from private sellers specifically.
In its own 2013 review of Armslist and similar sites, the New York Times found that these sites "function as unregulated bazaars, where the essential anonymity of the Internet allows unlicensed sellers to advertise scores of weapons and people legally barred from gun ownership to buy them."
Their investigation identified several individuals with criminal backgrounds buying and selling firearms over the Internet.
Still, only a small slice of gun purchases take place online. In a December Quinnipiac poll, just 3 percent of gun owners said they obtained a gun from an online seller.
Obama’s statement "rings true," said John Donohue, a law professor at Stanford University.
"Since our goal is to keep guns from the hands of criminals, it doesn't make sense that if you go to a store to buy a gun you have to go through a background check," Donohue said, "But if you buy the exact same gun on the Internet from a private seller, you don't have to go through a background check."
Winkler said Obama’s proposed executive action won’t do much to curb these kinds of transactions, though, "because the loophole is baked into federal law."
Regarding background checks, Obama has directed the Bureau of Alcohol, Tobacco, and Firearms to "clarify" that anyone "engaged in the business of dealing in firearms" needs a license — meaning self-described hobbyists who regularly sell guns, rather than just occasionally, might be violating the law by operating without a license.
But this doesn’t directly stop felons from buying guns from private sellers who don’t have a license and don’t require purchasers to undergo background checks.
Obama said, "A violent felon can buy (a gun) over the Internet with no background check, no questions asked."
The kind of transaction Obama described is possible, though illegal, and more complicated than his comment suggests. Federal law prohibits felons from buying guns. But with some effort, they can purchase guns from private sellers over the Internet without getting caught, because private sellers are not required to run background checks. That seller would have to be in the same state as the buyer.
We rate Obama’s claim Mostly True.
Editor's note: This fact-check has been updated to add details about how Internet-facilitated gun sales take place.
White House, "Remarks by the President on Common-Sense Gun Safety Reform," Jan. 5, 2016
White House, "New Executive Actions to Reduce Gun Violence and Make Our Communities Safer," Jan. 4, 2016
ATF, "Do I need a license to buy and sell firearms?" accessed Jan. 5, 2016
ATF, Q&A, accessed Jan. 5, 2016
New York Times, "Obama’s Action on Guns: What It Means for Background Checks,"
New York Times, "Seeking Gun or Selling One, Web Is a Land of Few Rules," April 17, 2013
Washington Post, "Study finds vast online marketplace for guns without background checks," Aug. 5, 2013
Washington Post, "Why Obama’s executive order on guns won’t change much," Jan. 5, 2015
Quinnipiac University, December poll, Dec. 23, 2015
Third Way, "The Virtual Loophole: A Survey of Online Gun Sales," Aug. 5, 2013
Email interview, White House spokesman Frank Benenati, Jan, 5, 2016
Email interview, UCLA Law professor Adam Winkler, Jan. 5, 2016
Email interview, Stanford Law professor John Donohue, Jan. 5, 2016
Email interview, Garen Wintemute, UC Davis public health professor, Jan. 5, 2016
Email interview, Kristin Goss, Duke public policy professor, Jan. 5, 2016
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