Gun Sale Loopholes

The Brady Bill, which created our nation's background check system on gun sales, states that federal firearm licensees (FFLs) are required to conduct a background check before transferring a firearm. However, individuals are only required to apply for a federal firearm license if they are "engaged in the business" of selling firearms. Unfortunately, what it means to be "engaged in the business" of selling firearms has largely been unclear, allowing individuals to exploit the ambiguity and sell large quantities of firearms without securing a license, conducting background checks, or maintaining records. Private sales through unlicensed dealers undermine public safety by helping supply guns to prohibited purchasers.

A proposed rule by the Biden-Harris administration seeks to clarify the definition of what it means to be "engaged in the business" of selling firearms, bringing America as close as possible to universal background checks without the urgently needed Congressional action.

We call on Congress to pass the Bipartisan Background Checks Act of 2023 and the Background Check Expansion Act to address this loophole.

Gun shows are public events where vendors, licensed and unlicensed, sell guns at community venues such as fairgrounds or civic centers. The “gun show loophole” refers to the fact that federal law does not require unlicensed private sellers to perform background checks on potential gun buyers or transferees.

We call on Congress to pass the Bipartisan Background Checks Act of 2023 and the Background Check Expansion Act to address this loophole.

When the Brady Bill was passed into law creating the nation's background check system for gun sales, the internet was still in its infancy. Today, online shopping has drastically changed how Americans buy and sell products, including firearms. While licensed gun dealers are required to conduct background checks for online purchases, federal law does not require unlicensed private sellers to perform background checks for gun purchases or transfers. The internet has created various ways for private sellers to connect with potential customers. For example, Armslist is an online forum that allows anyone, regardless of their legal eligibility, to connect with a private retailer willing to sell a gun without a background check.

We call on Congress to pass the Bipartisan Background Checks Act of 2023 and the Background Check Expansion Act to address this loophole.

Under federal law, firearms dealers can automatically transfer a firearm to a purchaser in three business days if the purchaser’s background check isn’t completed. This is called a "default proceed," and is more commonly referred to as the "Charleston Loophole." On June 17, 2015, a white supremacist opened fire on parishioners at the historic Emanuel AME Church in Charleston, South Carolina, killing nine people. Two months before the attack, the shooter attempted to purchase a firearm from an FFL but faced a "delayed" response. Due to the FBI being severely overburdened and under-resourced for processing background checks, they were unable to complete a background check within three business days. When the background check remained "delayed" on the fourth day, the FFL exercised its discretion and transferred the firearm to the shooter, as permitted by law. Despite the shooter having been prohibited from purchasing or possessing a firearm, he was able to acquire the murder weapon. The impact of this glaring gap in law cannot be ignored: more than 53,000 firearms have been sold to prohibited purchasers since 2008 because of the Charleston loophole, with an average of 11 prohibited individuals a day being able to purchase guns at FFLs.

We call on Congress to pass the Enhanced Background Checks Act of 2023 to address this loophole.

Under federal law, convicted domestic abusers must relinquish their rights to purchase and possess firearms if they are or were recently in a dating relationship with, are or were at one time married to, are cohabiting or have cohabited with, have a child with, or are a parent/guardian of their victim. Partners in non-recent past dating relationships or stalkers aren’t considered prohibited persons under the law, which creates a dangerous loophole known as the “boyfriend loophole.” The boyfriend loophole represents an all-too-common scenario in which someone convicted of domestic abuse is allowed to maintain their firearm rights because federal law does not deem their relationship with the victim sufficiently “serious.”

This presents a huge risk to domestic abuse victims whose abusers fall outside the currently recognized relationship categories. There is a 500% increase in the likelihood of homicide if a gun is available during a domestic abuse situation, regardless of the relationship between the abuser and victim

States are taking action to close the boyfriend loophole by expanding the definition of intimate partner, in turn ensuring that firearms are not allowed to remain in the hands of dangerous abusers. In 2022, the Bipartisan Safer Communities Act was signed into law and took a critical first step to closing the "Boyfriend Loophole," by expanding those prohibited from gun possession to include dating partners with a misdemeanor domestic violence conviction and defining the term "dating relationship" as a "relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature." Prior to this, abusers only had to relinquish firearm rights if they were married to, living with, or had a child with their victim.

Currently, federal law does not prevent individuals convicted of misdemeanor hate crimes or individuals who received a sentencing enhancement for hate or bias in the commission of a misdemeanor, from purchasing or possessing a firearm. Each year, over 10,300 people are victims of hate crimes involving a firearm (including the use of a gun to threaten or intimidate). Evidence shows that hate crimes become more deadly when firearms are involved. By keeping firearms away from individuals with histories of hateful violence, we can reduce gun deaths and injuries. 

We call on Congress to pass the Disarm Hate Act to address this loophole.