The Biden administration wants to tackle the ‘gun show loophole.’ Here’s how

Gun Rights

A rule requiring gun dealers to obtain federal licences and conduct background checks regardless of where they sell guns has been finalized and will soon go into effect, the U.S. Justice Department announced on Thursday.

The rule makes clear that anyone who sells firearms predominantly to earn a profit must be federally licensed and conduct background checks.

“This is going to keep guns out of the hands of domestic abusers and felons,” President Joe Biden said in a statement.

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

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What it is, and what it isn’t

Aimed at closing the “gun show loophole,” the rule clarifies what it means to be “engaged in the business,” so that those selling weapons at gun shows, other venues and online will face the same requirements as gun stores to check the backgrounds of would-be buyers.

Although it will increase the number of background checks, the rule does not constitute a universal background check. Universal background checks for gun buyers is a Democratic Party priority that has been blocked by Republicans in Congress.

A digital billboard is shown.
A digital advertisement for the Tampa Gun Show sits along a highway in Tampa, Fla., on Oct. 9, 2023. (Shannon Stapleton/Reuters)

Certain firearms transfers, including those among family members, will still be allowed without a background check. 

The rules takes effect 30 days after its publication.

“This regulation is a historic step in the Justice Department’s fight against gun violence. It will save lives,” Attorney General Merrick Garland said in a statement.

Recent outcomes on gun control

U.S. lawmakers passed a federal gun reform law in June 2022, following two high-profile mass shootings in Buffalo, N.Y. and Uvalde, Texas.

The Bipartisan Safer Communities Act that Biden signed was widely considered to be the most significant federal legislation limiting the supply of guns since the early 1990s, when the Brady Bill first established background checks for licensed gun dealers, as well as an assault weapons ban that expired after 10 years.

It expanded the definition of those who are “engaged in the business” of selling firearms, and required them to become licensed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and therefore run background checks.

In March 2023, Biden issued an executive order aimed at bolstering enforcement of background checks and raising awareness of state red flag laws and safe gun storage.

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Still pending are Supreme Court decisions on the legality of barring all those who have been convicted of domestic violence from possessing firearms and the legality of a measure banning bump stock devices for guns, a Donald Trump administration move in the wake of the deadliest mass shooting in U.S. history, in Las Vegas in 2017.

The numbers

There are already roughly 80,000 federally licensed firearms dealers. Administration officials believe the new rule will impact more than 20,000 dealers who have gotten away with selling firearms without a licence and performing background checks at places like gun shows and over the internet by claiming they aren’t “engaged in the business” of firearm sales.

The ATF just released new data showing more than 68,000 illegally trafficked firearms in the U.S. came through unlicensed dealers who aren’t required to perform background checks over a five-year period. The ATF report also showed that guns trafficked through unlicensed dealers were used in nearly 370 shootings between 2017 and 2021.

A comprehensive report of U.S. mass shootings between 1966 to 2019, which was supported by the National Institute of Justice, found that illegal purchases were made by 13 per cent of mass shooters.

Legal battles are presumed

The rule published Thursday is likely to be challenged in court by gun rights activists, who have previously sued over other ATF rule changes that they argue infringe on gun rights.

The National Shooting Sports Foundation, an industry trade group, previously warned of a court challenge if the rule was finalized as written.

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“This final rule does not infringe on anyone’s Second Amendment rights, and it will not negatively impact the many law-abiding licensed firearms dealers in our nation,” ATF director Steve Dettelbach said. “They are already playing by the rules.”

The political stakes

In a contentious election year, the rule could help demonstrate to some voters — especially younger ones for whom gun violence resonates deeply — that the White House is trying to stop needless death.

Biden has made curtailing gun violence a major part of his administration and re-election campaign, creating the White House Office of Gun Violence Prevention, overseen by Vice-President Kamala Harris. Biden also has urged Congress to ban so-called assault weapons — something Democrats shied from even just a few years ago.

Donald Trump, the presumptive Republican nominee, did not oversee meaningful gun control legislation in his four years as president. In 2018, he met with several students and their families from Marjory Stoneman Douglas High School in Parkland, Fla., promising reform after a mass shooting in February of that year.

Nothing materialized, and Trump has appeared repeatedly at National Rifle Association events.

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