Update Background Check Laws

Updating federal and state laws to require background checks on all gun sales is a common-sense way to keep guns out of the wrong hands and keep our communities safe. That is why:

How do background checks work?

Background checks are the foundation of any effective effort to reduce gun violence and keep guns out of the wrong hands. Since federal law began requiring these background checks in 1994, over 4 million sales to prohibited purchasers have been blocked.¹United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “Publications & Products: Background Checks for Firearm Transfers,” https://bit.ly/2F4vMYw. Data on federal- and state-level denials were obtained from the BJS reports for the years 1999–2010 and 2012–2020. Local-level denials were available and included only for the years 2012, 2014–2018, and 2020 from the BJS reports. Data for the years 2011 and 2021 were obtained by Everytown for Gun Safety from the FBI directly. Though the majority of the transactions and denials reported by the FBI and BJS are associated with a firearm sale or transfer, a small number may be for concealed-carry permits and other reasons not related to a sale or transfer.

What is the background check loophole?

Under federal law, background checks are only required for sales conducted by licensed dealers. Federal law does not address gun sales by unlicensed sellers (e.g., non-dealers who sell guns online or at gun shows). This loophole makes it easy for people with felony convictions, domestic abuse restraining orders, and/or prohibiting histories of mental illness to buy guns with no questions asked. While federal regulations expanded in 2024 to require more background checks nationwide, the loophole in the law remains.

Thankfully, many states and Washington, DC, have enacted laws that require background checks for all handgun sales at the point of sale and/or as part of a purchase permit. However, the loophole still exists in most states.

Did the Biden-Harris Administration already close the background check loophole?

In 2024, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) finalized a rule requiring more unlicensed gun sellers to get dealer licenses²Department of Justice and Bureau of Alcohol, Tobacco, Firearms and Explosives,“Definition of ‘Engaged in the Business’ as a Dealer in Firearms,” Federal Register 89, no. 77 (April 19, 2024): 28968–29093, https://www.govinfo.gov/content/pkg/FR-2024-04-19/pdf/2024-07838.pdf; Biden-Harris White House, “FACT SHEET: Biden-⁠Harris Administration Announces New Action to Implement Bipartisan Safer Communities Act, Expanding Firearm Background Checks to Fight Gun Crime,” April 11, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/11/fact-sheet-biden-harris-administration-announces-new-action-to-implement-bipartisan-safer-communities-act-expanding-firearm-background-checks-to-fight-gun-crime/.—meaning more gun buyers will have to pass background checks and fewer guns will end up in the wrong hands. The rule will have an especially large impact on firearm sales at gun shows and online. However, federal law continues to allow many sellers to proceed without getting licensed and running background checks, leaving open a loophole through which prohibited people are able to purchase guns with no questions asked. 

Why does closing this loophole matter?

Everytown’s research into Armslist.com—the largest online gun marketplace, which did not exist when the federal background check law was enacted more than 30 years ago—found that prospective online buyers are seven times more likely to fail a background check than other firearm purchasers or permit applicants, suggesting that prohibited buyers seek out opportunities to skip a background check.³Everytown for Gun Safety Support Fund, “Unchecked: An Investigation of the Online Firearm Marketplace,” February 1, 2021, https://everytownresearch.org/report/unchecked-an-investigation-of-the-online-firearm-marketplace/. 

A 2024 ATF analysis of five years of closed firearm trafficking investigations found that unlicensed sellers who do not conduct background checks are the most common suppliers of illegally trafficked firearms. Unlicensed sellers supplied over half of the trafficked guns in these investigations, amounting to more than 68,000 trafficked guns from 2017 to 2021.⁴ATF, “National Firearms Commerce and Trafficking Assessment (NFTCA), Volume III: Firearms Trafficking Investigations,” April 2024, https://www.atf.gov/firearms/national-firearms-commerce-and-trafficking-assessment-nfcta-firearms-trafficking.

How do we close this loophole?

Under a point-of-sale background check law, unlicensed sellers must meet their buyers at the location of a licensed gun dealer, who runs a background check using the same process already used for the sale of their own inventory. This is convenient because:

In 2022, there were nearly 78,000 active gun dealers.⁵Everytown Research analysis of ATF, Monthly Federal Firearms Listings, 2022. Total listings were deduplicated based on unique addresses. This total does not include Type 3 license holders, who are not permitted to sell firearms and thus are not engaged in the business of firearm sales. This is over twice as many gun dealers as US Postal Service post offices, and more than the number of McDonald’s, Burger King, Subway, and Wendy’s locations combined.⁶Everytown Research analysis of ATF, Monthly Federal Firearms Listings, 2022, and restaurant data: totals were 13,232 McDonald’s, 7,257 Burger King, 21,781 Subway, and 5,987 Wendy’s locations. There are 31,132 Postal Service-managed retail offices in the US.

In January 2018, a woman in Appleton, Wisconsin, was shot and killed by her husband, who purchased a firearm from a seller he met online, despite his prohibiting felony conviction.⁷Alison Dirr, “Five Years Apart, Armslist Was Source of Guns in High-Profile Domestic Violence Deaths,” Post Crescent, September 19, 2018, https://bit.ly/2Pu4YI9. A background check requirement for unlicensed sales could have saved her.

Does closing this loophole make us safer?

States that go beyond federal law and require background checks for unlicensed sales are associated with a 10 percent lower homicide rate,⁸Michael Siegel and Claire Boine, What Are the Most Effective Policies in Reducing Gun Homicides? Rockefeller Institute of Government, March 2019, https://bit.ly/2YPAz7P. as well as lower rates of firearm suicide⁹Eric W. Fleegler et al., “Firearm Legislation and Firearm-Related Fatalities in the United States,” JAMA Internal Medicine 173, no. 9 (2013): 732-40, https://doi.org/10.1001/jamainternmed.2013.1286. and gun trafficking.¹⁰Daniel W. Webster, Jon S. Vernick, and Maria T. Bulzacchelli, “Effects of State-Level Firearm Seller Accountability Policies on Firearm Trafficking,” Journal of Urban Health 86, no. 4 (July 2009): 525–37, https://doi.org/10.1007/s11524-009-9351-x; Daniel W. Webster et al., “Preventing the Diversion of Guns to Criminals Through Effective Firearm Sales Laws,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis (Baltimore, MD: The Johns Hopkins University Press, 2013): 109-21, https://bit.ly/3Ic334l.

States that go beyond federal law and require background checks for unlicensed gun sales are associated with: