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Justice Department finalizes rules to close ‘gun show loophole’

Lisa Caso sells guns at Caso’s Gun-A-Rama store on March 25, 2021, in Jersey City, New Jersey. It’s been a quarter of a century since the shooting at Columbine High School in Colorado brought the “gun show loophole” {a id=”link-f8a28f64a357fff7052e29555da3e791” href=””}into popular discourse{/a}, and the Biden administration in 2024 has just announced it would move unilaterally to end the practice following decades of inaction by Congress.(Spencer Platt/Getty Images/TNS)  (Spencer Platt)
By Perry Stein Washington Post

In a move that officials touted as the most significant increase in American gun regulation in decades, the Justice Department has finalized rules to close a loophole that allowed people to sell firearms online, at gun shows and at other informal venues without conducting background checks on those who purchase them.

Vice President Kamala Harris and U.S. Attorney General Merrick Garland celebrated the rules and said they would keep firearms out of the hands of potentially violent people who are not legally allowed to own guns.

The rules – which are expected to take effect in 30 days – codify changes outlined in the Bipartisan Safer Communities Act, which was signed into law by President Biden in June 2022 and expanded which gun sellers were legally required to conduct background checks on buyers.

“Every person in our nation has a right to live free from the horror of gun violence. I do believe that,” Harris said on a call with reporters. “We know how to prevent these tragedies, and it is a false choice to say you are either in favor of the Second Amendment or you want to take everyone’s guns away.”

As part of the Bipartisan Safer Communities Act, officials tasked the Bureau of Alcohol, Tobacco, Firearms and Explosives, which is responsible for regulating the sales and licensing of firearms in the United States, with developing rules that would make clear to gun owners how officials will implement and enforce the new gun laws.

The rules clarify who is required to conduct background checks and aims to close what is known as the “gun show loophole” – which refers to the reality that gun-show sellers and online vendors are subject to much looser federal regulations than vendors who sell at brick-and-mortar stores.

Under long-standing federal law, people who operate gun shops – or whose main livelihood involves selling firearms – must register with the government to obtain a Federal Firearms License. This license requires them to search a federal database before selling a gun to ensure that the purchaser is not barred from owning one. The license also requires gun vendors to record the sale of each firearm, making it easier for federal officials to trace the gun if it is used in a crime.

But people who claim that selling firearms is not their main source of income – such as people who sell guns at shows or in other more informal settings – have been exempt from such licensing rules. The 2022 law aimed to change that by saying that many more categories of people selling guns to earn money must register for a license and, as a result, record gun purchases and conduct the background checks that come with having that license.

The rules require anyone who sells a firearm through mail order or at flea markets, gun shows or online to register for a license and conduct the necessary background checks.

There are some exceptions, including for hobbyists who are selling firearms from their collection and people who sell firearms they inherited.

It is difficult to determine how many unlicensed dealers are selling firearms, but officials said they expect the new rules to apply to about 23,000 dealers. They said about 22% of Americans have obtained their guns without a background check – a figure that includes private transfers of ownership.

“Under this regulation, it will not matter if guns are sold on the internet, at a gun show or at a brick-and-mortar store: If you sell guns predominantly to earn a profit, you must be licensed, and you must conduct background checks,” Garland said. “This regulation is a historic step in the Justice Department’s fight against gun violence. It will save lives.”

Many of Biden’s gun-control efforts have been challenged by conservative groups in court. These regulations are likely to face that same opposition, though White House and Justice Department officials said they are confident the rules align with the law and will withstand any legal challenges.

Sens. John Cornyn, R-Texas, and Thom Tillis, R-N.C. – the lead Republicans who worked on the Bipartisan Safer Communities Act (BSCA) – plan to introduce a joint resolution of disapproval calling for the new rules to be overturned, Tatum Wallace, a spokesperson for Cornyn, said in an email Thursday. Wallace said that the rules go far beyond the intent of the legislation and accused the Biden administration of trying to circumvent Congress to get close to universal background checks.

“The administration is acting lawlessly here, and the vast majority of this rule has nothing to do with the BSCA,” Wallace said. “Of course, this rule has been on the administration’s wish list for many years despite Congress rejecting these provisions repeatedly.”

The ATF issued the proposed version of the rules in August and opened them up to public comment for 90 days. Officials said they received nearly 400,000 comments, two-thirds of which were clearly in favor of the rules. A quarter of the comments were decidedly against the proposal, the officials said, and other comments did not take a clear stance on the rules.

The final version of the rules did not contain substantial changes.

Gun control advocates celebrated the rule change as a victory.

“This rule is the definition of common sense: If you’re selling firearms at a gun show or online for profit, you are engaged in the business of dealing guns and need to run a background check – period,” John Feinblatt, president of Everytown for Gun Safety, said in a statement.

The ATF released a gun trafficking report last week that determined that the country’s illegal firearm network is growing and said approximately 60% of users of trafficked firearms in cases that officials examined were convicted felons.