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The Biden administration will take steps this week to crack down on unlicensed dealers selling firearms that bleed into the illegal market.
Under current rules, licensed dealers must perform background checks and log the make, model and serial numbers of guns sold, but hobbyists and infrequent traders don’t. Justice officials say too many guns are being sold under the so-called gun-show loophole and Internet loophole.
The new rules more clearly define who should join the 80,000 other federal firearms licensees and abide by existing law.
The expected result: at least 20,000 additional gun sellers who will now be required to perform the instant background checks that will stop them from selling to felons, domestic abusers and other prohibited buyers. Even a single firearm transaction may be sufficient to require a license, according to the rule, if there is other behavior to suggest commercial activity.
The regulations clarify a new standard for which sellers are “engaged in the business” and thus need to perform background checks. The rule was part of the Bipartisan Safer Communities Act signed in 2022 and an executive order last year. They take effect 30 days after being published in the Federal Register, Justice officials told reporters this week.
Who is now required to do a background check?
The new standard draws the line at those who sell “predominantly to earn a profit.” It provides key indicators as examples. If a gun-seller uses merchant services like a credit card machine, or frequently rents space at a gun show, or repetitively acquires and sells firearms, that person is considered a dealer − and must now do background checks.
The new rule does provide exceptions. Bona fide collectors can sell some of their inventory, for example. Guns can be given as gifts to family members. Personal sales tied to a hobby like hunting or sport shooting are carved out in the rules.
The rules for gun dealers have always applied to those who are “engaged in the business.” The question has been what that phrase means.
The former standard defined a dealer as someone who sold for “profit and livelihood.” Gun control groups and Democrats have called for the government to define “engaged in the business” by the number of sales, such as five in a year.
Instead, officials settled on the “predominantly earns a profit” language, but added specific examples that help identify dealers.
Some oppose new rules on gun dealers
Since the proposed rule was published in August, the agency reviewed nearly 388,000 comments, mostly in favor of the proposal.
“Every person in our nation has a right to a life free from the horror of gun violence,” Vice President Kamala Harris told reporters Wednesday. “It’s a false choice that you have to be in favor of the Second Amendment or in favor of taking your guns away.”
The new rules come just before the 25th anniversary of the Columbine shooting in Colorado on April 20. In that case, the two shooters purchased firearms from private individuals without a background check. Several of the firearms were sold by an unlicensed seller at a gun show five months before the massacre.
“This doesn’t infringe on your Second Amendment rights,” ATF Director Steve Dettelbach told reporters this week. “Licensed dealers are already playing by the rules. They keep transaction records, they use serial numbers, they work with the ATF to report suspicious activity. Nor does every person who sells a gun need a license. Only Congress can require universal background checks, as president and vice president have asked them to do.”
