WASHINGTON — Thousands more firearms dealers across the United States will have to run background checks on buyers at gun shows or other places outside brick-and-mortar stores, according to a Biden administration rule that will soon go into effect.
The rule aims to close a loophole that has allowed tens of thousands of guns to be sold every year by unlicensed dealers who do not perform background checks to ensure the potential buyer is not legally prohibited from having a firearm. Gun rights groups are expected to fight it in court.
It’s the administration’s latest effort to combat gun violence. But in a contentious election year, it’s also an effort to show voters — especially younger ones for whom gun violence deeply resonates — that the White House is trying to stop the deaths.
“This is going to keep guns out of the hands of domestic abusers and felons,” President Joe Biden said in a statement. “And 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.”
The rule, which was finalized this week, makes clear that anyone who sells firearms predominantly to earn a profit must be federally licensed and conduct background checks, regardless of whether they are selling on the internet, at a gun show or at a brick-and-mortar store, Attorney General Merrick Garland told reporters.
Biden has made curtailing gun violence a major part of his administration and reelection 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.
Harris told reporters in a call Wednesday that the new regulation addressed “one of the biggest gaps” in the federal background check system.
“This single gap in our federal background check system has caused unimaginable pain and suffering,” said Harris, who also noted that gun violence was now the leading cause of death among children.
“In the years to come, I do believe countless families and communities will be spared the horror and heartbreak of gun violence by this new rule,” she said.
The rule is likely to be challenged in court by gun rights activists who believe the Democratic president is unfairly targeting gun owners. The National Rifle Association said in a statement that it is “already working to use all means available to stop this unlawful rule.”
The National Shooting Sports Foundation, an industry trade group, also has warned of a court challenge if the rule was finalized as written. Lawrence Keane, the foundation’s senior vice president and general counsel, said Thursday that the organization was reviewing the regulation after contending previously that the Bureau of Alcohol, Tobacco, Firearms and Explosives was overstepping its legal authority.
After a preliminary version of the rule was announced last year, Gun Owners of America, a group that has opposed Biden’s efforts at gun control, called the regulation a “backdoor” universal background check and vowed that its “attorneys will be preparing a lawsuit.”
Biden administration officials said they are confident the rule, which drew more than 380,000 public comments, would withstand lawsuits.
‘ENGAGED IN BUSINESS’
The administration first proposed the rule in August, after the passage of the most sweeping gun violence bill in decades, a bipartisan compromise in response to the massacre of 19 students and two teachers at a Uvalde, Texas elementary school.
That law expanded the definition of those who are “engaged in the business” of selling firearms, and are required to become licensed by the ATF and therefore run background checks. The rule, which implements the change in the law, will take effect 30 days after it is published in the Federal Register.
Unlicensed private sellers in many states have been able to legally sell at gun shows, out of their houses and through online platforms without having to submit to the background check system created to prevent sales to children, criminals, domestic abusers, and people with mental illnesses or drug addictions.
The purpose of the new rule is twofold, officials said: first, to pull legitimate sellers into the regulatory sunlight and, second, to deprive brokers who knowingly traffic in criminal gun sales of a legal shield provided by the vagaries of federal firearms laws.
Dealers have previously been required to join the federal system only if they derived their chief livelihood from selling weapons. The bar is much lower now — the government has to prove only that they sold guns to “predominantly derive a profit” from their actions.
Failing to register carries a penalty of up to five years in prison and $250,000 in fines.
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 license 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.
“Everybody can see that people are not following the law in significant numbers,” ATF Director Steve Dettelbach said in an interview. “And it’s just wrong for public safety, it’s wrong for fairness when all these licensed dealers are out there following the rules, for people to think that they don’t have to all play by the same set of rules.”
Dettelbach, the first permanent director of the ATF to be approved by the Senate in nearly a decade, has overseen a succession of more modest regulatory moves, including an effort to regulate deadly homemade firearms known as ghost guns.
The rule makes clear there are instances when a license is not needed, such people who occasionally resell firearms to a family member or liquidate their personal collection.
Republican Sens. John Cornyn of Texas and Thom Tillis of North Carolina, who were instrumental in the passage of the gun law, have started an effort to block the rule from going into effect. But that is unlikely to succeed because the president would have the final say.
Cornyn has accused the administration of a “power grab” that stretched the law’s language involving those “engaged in the business” far beyond its original intent.
“Our goal was to provide the American people with predictability and clarity in the law, not to give the ATF an opportunity to impose a gun control regime on law-abiding Americans,” he wrote in a comment to the proposed rule last year.
The gun control bill, one of the administration’s most significant policy achievements, has provided the government with several tools to combat a flood of illegal firearms.
The most important, officials said, is a new gun-trafficking charge that is starting to be used in gun cases around the country. Enhanced background check provisions have enabled the Justice Department to stop more than 600 illegal gun purchases by people younger than 21, and stopped straw purchases by third-party buyers that account for roughly 40% of illegal gun cases brought by federal prosecutors.
It comes a week after the ATF released new data that shows 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.
The data also shows that four in 10 illegal-gun cases tracked by the bureau from 2017 to 2021 involved such unregulated sales, including thousands from shadow dealers who used legal loopholes to evade background checks.
Gun control advocates who have long pushed to close the so-called gun show loophole praised the regulation as a big step toward their goal of universal background checks for gun buyers — a Democratic priority that has been blocked by Republicans in Congress.
“Expanding background checks and closing the gun seller loophole is a massive victory for safer communities — and it was made possible thanks to the tireless advocacy of our grassroots movement,” Angela Ferrell-Zabala, executive director of Moms Demand Action, said in an emailed statement.
Information for this story was contributed by Alanna Durkin Richer and Colleen Long of The Associated Press and by Glenn Thrush and Erica L. Green of The New York Times.
FILE – President Joe Biden’s nominee to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives, Steve Dettelbach speaks during an event at White House in Washington, April 11, 2022. New data from the Bureau of Alcohol, Tobacco Firearms and Explosives shows that 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 report that was released Thursday, April 4, 2024. Dettelbach, the ATF director, said the guns are harder to investigate because unlicensed dealers aren’t required to keep records of their sales. (AP Photo/Carolyn Kaster, File)