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Update Background Check Laws

6.10.2020

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:

93%

93 percent of American voters support requiring background checks on all gun sales, including 89 percent of Republicans and 87 percent of gun owners.

“US Voters Oppose Trump Emergency Powers On Wall 2-1 Quinnipiac University National Poll Finds; 86 Percent Back Democrats’ Bill On Gun Background Checks”. Quinnipiac University. (2019). https://bit.ly/2ENkKH4.

How do background checks work?

To buy a gun at a federally licensed dealer, federal law requires: a person to present their ID and fill out ATF Form 4473, the dealer to submit that information to the FBI or state agency by phone or internet, and the agency to check this information against the relevant databases to determine if the person can legally purchase a firearm.

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 3.5 million sales to prohibited purchasers have been blocked.1Jennifer C. Karberg, Ronald J. Frandsen, Joseph M. Durso, Trent D. Buskirk, and Allina D. Lee, Background Checks for Firearm Transfers, 2015 – Statistical Tables. Washington, DC: US Department of Justice, Bureau of Justice Statistics, https://goo.gl/SbaLbt. Data for 2016 through 2018 were obtained by Everytown from the FBI directly. Though the majority of the transactions and denials reported by 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?

Federal law does not address gun sales by unlicensed sellers (e.g., non-dealers who sell guns online or at gun shows). This loophole enables people with felony convictions, domestic abuse restraining orders, and/or prohibiting histories of mental illness to buy guns with no questions asked. 

Thankfully, 22 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.2Eleven states require only a point-of-sale check for sales by unlicensed handgun sellers (CA, CO, DE, NC, NM, NV, OR, PA, VA, VT, and WA); seven states require only a background check on those sales pursuant to a purchase permit (HI, IA, IL, MA, MI, NE, and RI); and four states (CT, MD, NJ, and NY) and Washington, DC, require a background check on both occasions. But the loophole still exists in 28 states.

28 states have the Background Check Loophole

Why does closing this loophole matter?

22%

22 percent of Americans report acquiring their most recent gun without a background check.

Miller M., Hepburn L., and Azrael D., “Firearm Acquisition Without Background Checks: Results of a National Survey”. Annals of Internal Medicine. (2017).

Everytown’s research into Armslist.com—the largest online gun marketplace, which did not exist when the federal background check law was enacted 25 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. 

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:

90%

Nearly 90 percent of FBI background checks are completed immediately.

“National Instant Criminal Background Check System (NICS) 2018 Operations Report”. FBI. (2019). https://bit.ly/2TMhCkx.

59k

There are nearly 59,000 licensed gun dealers across the country. That’s four times the number of McDonald’s and nearly twice the number of post offices.

Federal Firearms Listings. ATF. (2020). https://bit.ly/2SPLs9O. “Top 100 Retailers 2019.” National Retail Federation, https://bit.ly/34308p2 United States Postal Service, “Sizing It Up,” Postal Facts, https://bit.ly/2tlLGHe.

Does closing this loophole make us safer?

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.3Alison 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. States that go beyond federal law and require background checks for unlicensed sales are associated with a 10 percent lower homicide rate,4Michael Siegel and Claire Boine, What Are the Most Effective Policies in Reducing Gun Homicides? Albany, NY: Rockefeller Institute of Government, March 2019. https://bit.ly/2YPAz7P. as well as lower rates of firearm suicide5Eric W. Fleegler, Lois K. Lee, Michael C. Monuteaux, David Hemenway, and Rebekah Mannix, “Firearm Legislation and Firearm-Related Fatalities in the United States,” JAMA Internal Medicine 173,no. 9 (2013): 732-740. and gun trafficking.6Daniel 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): 525–537. Federal law bars felons from having firearms but does not bar misdemeanors outside the domestic violence context. Daniel W. Webster, Jon S. Vernick, Emma Beth McGinty, and Ted Alcorn, “Preventing the Diversion of Guns to Criminals Through Effective Firearm Sales Laws,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis, 109-121. Baltimore, MD: The Johns Hopkins University Press, 2013.

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

↓ 10%

States that go beyond federal law and require background checks for unlicensed gun sales are associated with 10 percent lower homicide rates.

Siegel M., and Boine C. “What Are the Most Effective Policies in Reducing Gun Homicides?”. Rockefeller Institute of Government, (2019). https://bit.ly/2YPAz7P.

States that go beyond federal law and require background checks for unlicensed gun sales are associated with markedly lower rates of firearm suicide.

Fleegler EW., Lee LK., Monuteaux MC., Hemenway D., Mannix R. “Firearm Legislation and Firearm-Related Fatalities in the United States”. JAMA Intern Med. ;173(9):732–740. (2013). https://bit.ly/3fLMtqH

States that go beyond federal law and require background checks for unlicensed gun sales are associated with markedly lower rates of gun trafficking.

Webster D. W., Vernick J. S., & Bulzacchelli M. T. “Effects of state-level firearm seller accountability policies on firearm trafficking”. Journal of urban health : bulletin of the New York Academy of Medicine, 86(4), 525–537. (2009). https://bit.ly/2XP20jx Webster D., Vernick J., McGinty E., Alcorn T., “Preventing the Diversion of Guns to Criminals Through Effective Firearm Sales Laws”. Reducing Gun Violence in America: Informing Policy with Evidence and Analysis, 109-121. (2013).

Everytown Research & Policy is a program of Everytown for Gun Safety Support Fund, an independent, non-partisan organization dedicated to understanding and reducing gun violence. Everytown Research & Policy works to do so by conducting methodologically rigorous research, supporting evidence-based policies, and communicating this knowledge to the American public.

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