Update Background Check Laws

June 24, 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 percent of American voters support requiring background checks on all gun sales, including 89 percent of Republicans and 87 percent of gun owners.Quinnipiac University,“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, March 6, 2019, https://bit.ly/2ENkKH4.
93% of American voters support requiring background checks on all gun sales. That includes 89% of Republicans and 87% of gun owners!

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 3.5 million sales to prohibited purchasers have been blocked. Jennifer 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.Eleven 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. A map of the United States with the 28 states with this loophole marked.

Why does closing this loophole matter?

Twenty-two percent of Americans report acquiring their most recent gun without a background check.Matthew Miller, Lisa Hepburn, and Deborah Azrael, “Firearm Acquisition Without Background Checks: Results of a National Survey,” Annals of Internal Medicine 144, no. 4 (February 21, 2017): 233-239. 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,Everytown for Gun Safety Support Fund, Unchecked: Over 1 Million Online Firearm Ads, No Background Checks Required. New York: Everytown for Gun Safety Support Fund, February 2019, https://every.tw/2UXjYwf. Advertisements for firearms for sale were posted online by investigators in Florida, Georgia, Ohio, and Tennessee, all of which currently do not require background checks on unlicensed online sales. Investigators then conducted telephone, text, or email communications with prospective buyers who responded to these advertisements until they were able to verify the identity of 439 individuals—over 100 individuals per state. Using a variety of public record databases, investigators reviewed the criminal histories of each of these prospective buyers to determine whether the prospective buyers were prohibited from purchasing firearms under federal or state law. suggesting that prohibited buyers seek out opportunities to skip a background check.
22% of Americans report aquiring their most recent gun without 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.Under a permit-to-purchase system, a gun buyer simply applies to permit issuers, passes a background check, and presents their permit to the gun seller. This is convenient because nearly 90 percent of FBI background checks are completed immediately.US Department of Justice, Federal Bureau of Investigation, National Instant Criminal Background Check System (NICS) 2018 Operations Report, https://bit.ly/2TMhCkx. 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 in the US.Federal Firearms Listings. Washington, DC: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). https://bit.ly/2SPLs9O. As of February 2020, ATF reported there were 60,322 Type 1 and 2 licensed gun dealers across the 50 states and DC. Everytown used the OpenCage Geocoder to determine the latitude and longitude of each licensed dealer, and duplicates by latitude and longitude were removed, for a total of 58,775 unique licensed gun dealers; “Top 100 Retailers 2019.” National Retail Federation, https://bit.ly/34308p2; United States Postal Service, “Sizing It Up,” Postal Facts, https://bit.ly/2tlLGHe.

28 states have the background check loophole. A map of the United States with the 28 states with this loophole marked.

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.Alison 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,Michael 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 suicideEric 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. Daniel 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 percent lower homicide rates, markedly lower rates of firearm suicide, and markedly lower rates of gun trafficking.