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Louis Jacobson
By Louis Jacobson April 18, 2024
Samantha Putterman
By Samantha Putterman April 18, 2024

New firearm license rule expands background checks, but in a limited way

Gun policy has become so politically divisive that lawmakers have found it nearly impossible to pass federal legislation on it in recent years. A window opened in 2022 after a mass school shooting in Uvalde, Texas: Congress passed, and President Joe Biden signed, the Bipartisan Safer Communities Act, which became the first major piece of legislation to limit guns since 1993.

One act provision strengthens federal licensing requirements for gun sellers. Having a federal license requires a dealer to check  prospective buyers' backgrounds; not having a license has long meant that sellers didn't have to run such checks. 

Groups seeking tighter gun regulation referred to a lack of licensing requirements for certain gun sellers as the "gun show loophole," although we have found this is something of a misnomer

As a 2020 presidential candidate, Biden promised to "require background checks for all gun sales."

The Bipartisan Safer Communities Act's passage provided a road map for expanding background checks. But the Justice Department had to align its existing regulations with the new law before it could be applied. In 2023, Biden signed an executive order to accelerate this process, and Sept. 8, 2023, the Justice Department published a proposed rule that initiated a 90-day public comment period. 

OnApril 10, 2024, after receiving 388,000 comments, Attorney General Merrick Garland officially published the new rule, which is poised to take effect May 10. 

The new rule specifies that people need licenses to repetitively sell guns of the same or similar make and model within a year of buying them. Even a single transaction may be enough to trigger the need for a license if the seller's other behavior suggests commercial activity (such as telling others they're willing and able to purchase more firearms for resale). 

The rule more tightly defines what constitutes a "personal" gun collection as it relates to selling those guns. 

"Under this regulation, it will not matter if guns are sold on the internet, at a gun show, or at a brick-and-mortar store: If you sell guns predominantly to earn a profit, you must be licensed, and you must conduct background checks," Garland said in announcing the rule. "This regulation is a historic step in the Justice Department's fight against gun violence. It will save lives."

How far does the new rule go toward fulfilling Biden's campaign promise? A bit, experts say, but not a lot. 

Guns displayed at a store in Auburn, Maine, in 2022. (AP)

The United States has more than 80,000 licensed gun dealers, and the Justice Department estimates more than 20,000 unlicensed sellers operate online, at gun shows or in other ways. Many of these 20,000 would fall under the new definition and be required to obtain licenses. 

Therefore, although the new rule limits which firearm sales can proceed without a background check, "there are still plenty of other opportunities to buy and sell," said Michael P. Lawlor, a University of New Haven criminologist. These include private sales, such as those between family members.

Nick Perrine, a National Rifle Association spokesperson, highlighted two rule passages that distinguish public gun sales from private ones. One passage says the new rule "does not require or implement universal background checks for private firearm sales between individuals." The other passage says that "because of the myriad circumstances under which a person may sell a firearm, it would be difficult, if not impossible, for the (Justice Department) to outline all the circumstances in which firearms might lawfully be sold without a license."

Jay Corzine, an emeritus professor of sociology and a specialist in gun policy at the University of Central Florida, pointed to the yard sales he regularly sees in his neighborhood as an example of what the new rule doesn't cover. 

"Every time we had a yard sale at my house, we had at least one person approach me or my spouse and ask if we have any guns for sale," Corzine said. 

Experts don't know how the number of sellers who will now need to register under the new rule compares with the number who could continue to operate without a license. Gary Kleck, an emeritus criminology and criminal justice professor at Florida State University, said he suspects that thefts, especially residential burglaries, and voluntary transfers from friends and relatives will continue to be significant sources of guns in circulation.

"The new rule, if it survives (legal) challenges, would be a sensible but tiny step towards universal background checks," Kleck said. "However, the new rule does nothing to require background checks on transfers between private parties, such as between a nondealer selling a gun to a relative or a personal friend. This would require new legislation that Biden would have a hard time getting enacted."

Kleck said the law, "really doesn't matter much from the standpoint of reducing violence," because the number of sellers needing licenses would probably have little effect on the overall flow of firearms.

Passing gun legislation was Biden's initial plan, but he faced roadblocks even in his presidency's first two years, when his fellow Democrats controlled both chambers of Congress. When Biden made this promise as a candidate, he said legislation was necessary because the goal could not be met "by executive action alone."

Garland's finalized rule is the fruit of that effort.

Tess Fardon, senior counsel for policy at Brady United Against Gun Violence, said her group strongly supports the new rule, which is "still far from universal background checks" but is "a step in the right direction."

The administration's rule represents a tangible step toward expanding the reach of background checks in firearm purchases, but experts say it's a modest one. We rate this promise a Compromise.

Our Sources

Justice Department/Bureau of Alcohol, Tobacco, Firearms and Explosives, "Definition of 'Engaged in the Business' as a Dealer in Firearms," April 10, 2024

Justice Department, "Justice Department Publishes New Rule To Update Definition of "Engaged in the Business" as a Firearms Dealer," April 11, 2024

Bureau of Alcohol, Tobacco, Firearms and Explosives, "Final Rule: Definition of "Engaged in the Business" as a Dealer in Firearms," April 11, 2024

White House, "FACT SHEET: Biden-⁠Harris Administration Announces New Action to Implement Bipartisan Safer Communities Act, Expanding Firearm Background Checks to Fight Gun Crime," April  11, 2024

White House, "Fact Sheet: President Biden Announces New Actions to Reduce Gun Violence and Make Our Communities Safer," March 14, 2023

PolitiFact, "In gun policy address, Joe Biden exaggerates about background checks at gun shows," April 8, 2021

PolitiFact, "PolitiFact Sheet: 3 things to know about the 'gun show loophole,'"Jan. 7, 2016

Email interview with Nick Perrine, spokesman for the National Rifle Association, April 17, 2024

Email interview with Gary Kleck, emeritus professor of criminology and criminal justice at Florida State University, April 16, 2024

Interview with Tess Fardon, senior counsel for policy at Brady United Against Gun Violence, April 17, 2024

Interview with Jay Corzine, emeritus professor of sociology at the University of Central Florida, April 16, 2024

Interview with Michael P. Lawlor, University of New Haven criminologist, April 17, 2024

Amy Sherman
By Amy Sherman January 4, 2022

Legislation to require background checks for all gun sales stalls

On the third anniversary of the February 2018 school shooting in Parkland, Florida, President Joe Biden called on Congress to expand background checks for gun buyers, acting on one of several campaign promises he made to tighten gun control. But Biden hasn't been able to get a bill through the divided Senate.

In March, the House passed the Bipartisan Background Checks Act of 2021, H.R. 8, which would require background checks before someone buys or transfers a gun from a private seller. The prohibition would have limited exceptions, such as a gift between spouses. The legislation never received a vote in the Senate.

The House also passed H.R. 1446, the Enhanced Background Checks Act of 2021. The bill would give federal law enforcement 10 days to do background checks before a gun can be transferred to an unlicensed person, up from the current three days. Senate Republicans blocked the bill.

During the last couple of decades, Democratic lawmakers have generally favored further gun regulation while Republican lawmakers have generally resisted it, said Kristin A. Goss, a Duke University professor of public policy and political science. 

There have been a few exceptions, including Sen. Pat Toomey, R-Pa., who co-sponsored a background check bill after the 2012 mass shooting at Sandy Hook Elementary School in Connecticut. 

"But the alignment between position on guns and party affiliation has been strengthening over time," Goss said. "Thus, I think it's fair to say that universal background check legislation is unlikely to pass the U.S. Senate as long as it is so closely divided by party and the filibuster remains in place."

With no likely path toward expanding gun background checks, the Biden administration has turned its focus to funding community violence intervention programs, which seek to engage the small group of people who are at high risk for gun violence. In June, the White House announced that 15 jurisdictions committed to use a portion of their American Rescue Plan funding or other public funding to invest in violence intervention programs. The American Rescue Plan provides $350 billion in state and local funding and $122 billion in school funding that can be tapped for public safety strategies.

The community violence-intervention approach "works remarkably well and is not about guns or gun control," said David M. Kennedy, professor of criminal justice at John Jay College of Criminal Justice. "This administration for the first time in the country's history is making a substantial investment in that kind of violence prevention."

While these programs address the underlying goal of containing gun violence, they're not the same as requiring background checks for all gun sales. 

Biden faces an uphill battle to enact background check requirements, but we will continue to monitor his progress. For now, we rate Biden's promise as Stalled. 

RELATED: Buttigieg on point that majority of Republicans support background checks

Our Sources

White House, FACT SHEET: Biden-⁠Harris Administration Announces Initial Actions to Address the Gun Violence Public Health Epidemic, April 7, 2021, H.R.8 - Bipartisan Background Checks Act of 2021, House vote March 11, 2021, H.R.1446 - Enhanced Background Checks Act of 2021

The Educational Fund to Stop Gun Violence, Community Gun Violence

Politico, Gun control legislation isn't going to happen. Here's what Biden's doing instead. Nov. 5, 2021

PolitiFact, Cory Booker says Newark shooting victims have high chance they've been arrested an average of 10 times, Oct. 24, 2011

AP, Biden tightens some gun controls, says much more needed, April 8, 2021

The Hill, GOP blocks bill to expand gun background checks after Michigan school shooting, Dec. 2, 2021

Email interview, Kristin A. Goss, a Duke University professor of public policy and political science, Dec. 13, 2021

Telephone interview, David M. Kennedy, professor of criminal justice at John Jay College of Criminal Justice in New York City and the director of the National Network for Safe Communities at John Jay, Dec. 13, 2021

Amy Sherman
By Amy Sherman March 11, 2021

House passes gun background check bills supported by Biden

The U.S. House of Representatives voted for a pair of bills to expand gun background checks to close loopholes, a priority for President Joe Biden that will face resistance in the Senate.

During the campaign, Biden promised to require universal gun background checks, including for online sales or by private sellers at gun shows.

The Bipartisan Background Checks Act of 2021, H.R. 8, would require background checks before someone purchases or transfers a gun from a private seller. The prohibition has limited exceptions, such as a gift between spouses.

The bill passed 227-203 with eight Republicans joining all-but-one Democrat in support of the bill. Although the bill introduced by Rep. Mike Thompson, D-Calif, had the word "bipartisan" in it's name, it only had three Republican cosponsors.

Under federal law currently, firearms dealers must be licensed. Licensees are prohibited from knowingly transferring any firearm to certain groups of people, including felons and people who were involuntarily committed to mental institutions. However, background checks are not generally required for private sales under federal law. Many states and Washington, D.C., have laws that require some sort of check on private sales for at least some kinds of firearms.

A separate bill, H.R. 1446, the Enhanced Background Checks Act of 2021, passed 219-210. The bill gives federal law enforcement 10 days to do background checks prior to transferring a firearm to an unlicensed person, an increase from the current three days. 

House Majority Whip Jim Clyburn, D-S.C., introduced the legislation, which he said is intended to close the "Charleston loophole," a reference to Dylann Roof, who killed nine people at an African American church in 2015. Roof was able to buy the gun after reaching the three-day time limit.

On the anniversary of the Parkland shooting on Feb. 14, Biden called on Congress to require background checks on all gun sales, ban assault weapons and eliminate immunity for gun manufacturers.

"We owe it to all those we've lost and to all those left behind to grieve to make a change," Biden said. "The time to act is now."

The Office of Management and Budget said in a March 8 statement that the administration supports both bills to close existing loopholes in the background check process. 

Although polls have consistently shown that the public says it supports increased background checks, efforts to pass legislation stalled in recent years. Both measures are expected to face hurdles in the Senate, where 60 votes are required to break a potential filibuster.

We will continue to monitor the path of background check legislation, but for now we rate this promise In the Works.

RELATED: Buttigieg on point that majority of Republicans support background checks

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