Biden uses federal gun safety law to expand background checks

Gun Rights

Through the federal gun safety law enacted in 2022, President Joe Biden is expanding background checks for firearm sales by clarifying who needs to register as a federally licensed dealer.

The U.S. Department of Justice finalized a rule Thursday that will include more background checks for online purchases as well as sales through gun shows and flea markets. The rule clarifies that if a person is “engaged in the business” of selling guns “predominantly to earn a profit,” they must get a federal license and conduct background checks. But the new policy makes some exceptions for private transfers.

The rule implements more of the Bipartisan Safer Communities Act by expanding and clarifying those definitions. Authored by U.S. Sen. Chris Murphy, D-Conn., in 2022, it became the first major gun reform bill to pass Congress in nearly three decades.

With additional gun reforms stalling in Congress for the past two years, Biden and his administration have turned to executive actions and federal rule-making as a way to set more policies.

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During a meeting at the White House earlier this year, Greg Jackson, deputy director of the White House gun violence prevention office, told local leaders from Connecticut and Rhode Island that his team is working with 16 other government agencies to identify possible executive actions.

A recent executive order from September 2023 accelerated the implementation of the Bipartisan Safer Communities Act, and in January, the U.S. Department of Education rolled out an initiative to promote the safe storage of guns through school principals.

Administration officials noted that some mass shootings like at Columbine High School in 1999 happened with firearms purchased through unlicensed dealers and what has been referred to as the “gun show loophole.” They estimate more than 20,000 people will now need to register for a federal license through this rule.

“Universal criminal and mental health background checks on firearm sales is an issue that has near-unanimous support of Americans, however for too many decades Congress has neglected the will of the people and refused to enact this commonsense requirement,” Gov. Ned Lamont said.

“When it comes to firearms and efforts to prevent gun violence, a patchwork of different laws in different states does not work,” he said. “As called for in the Bipartisan Safer Communities Act of 2022 as authored by Sen. Chris Murphy, this rule is a coherent national policy that closes a gap in our federal background check system and is supported by the overwhelming majority of Americans.”

The policy was first proposed last year and garnered nearly 400,000 comments during the public comment period over the course of three months. The finalized rule will go into effect in 30 days, though it could face challenges in court.

Groups like the National Rifle Association oppose the rule and what it could mean for private firearms transfers like those who are selling guns from their personal collections.

U.S. Sen. John Cornyn, R-Texas, and U.S. Sen. Thom Tillis, R-N.C., who were the lead Republican negotiators of the Bipartisan Safer Communities Act, plan to push back against it through a joint resolution to disapprove of the final rule, according to Politico.

The Firearms Policy Coalition submitted a comment during the open period, arguing that the rule “fails to account for the clear charge of Congress and, instead, greatly expands ATF’s regulatory reach.”

The rule includes a definition of “personal firearms collection” to know whether a federal license is needed as well as a background check. A person in this category is not considered to be engaging in selling guns “because they make only occasional sales to enhance a personal collection or for a hobby, or if the firearms they sell are all or part of a personal collection.”

“[T]he final rule expressly recognizes that individuals who purchase firearms for the enhancement of a personal collection or a legitimate hobby are permitted by the GCA to occasionally buy and sell firearms for those purposes, or occasionally resell to a licensee or to a family member for lawful purposes, without the need to obtain a license,” the rule reads. “It also makes clear that persons may liquidate all or part of a
personal collection, liquidate firearms that are inherited, or liquidate pursuant to a court order, without the need to obtain a license.”

The Bipartisan Safer Communities Act updated and expanded background checks that have been mandated by federal law since 1994 by the Brady Bill. BSCA included enhanced background checks for buyers under the age of 21, criminal penalties for straw purchasers and gun traffickers, funding for states to create “red flag” laws to keep guns out of the hands of people who are a danger to themselves or others, and preventing those convicted for domestic abuse from being able to obtain a firearm.

The measure, however, fell short and did not include gun safety advocates’ top priorities like universal background checks, safe storage and a federal assault weapons ban. Since 2022, federal lawmakers have sought to clear separate bills on those remaining issues, but congressional Republicans have blocked passage.

With the lack of momentum in Congress, lawmakers like Murphy see the administration’s rule as a vehicle for getting closer to at least one of those policy goals.

“For too long, the law allowed individuals who were clearly in business as a firearms dealer to sell guns for profit without conducting background checks, permitting thousands of gun sales to fly under the radar each year,” Murphy said. “That’s why our legislation made this important change to expand background checks by broadening the definition of who is engaged in the business. This rule brings us closer to the goal of universal background checks and will save lives.”

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