[The following is a guest post by Nadine Godwin, a longtime friend and former editor of Travel Weekly among other gifts. She routinely spends huge time investigation important issues that are being considered in federal agencies and preparing/circulating alerts, often with drafts of comments. Her messages to a select list of recipients date back to 2017]
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has proposed a rule that would effectively, for the first time ever, require almost anyone who sells guns on the Internet or at gun shows to obtain licenses to make those sales.
This matters because holders of federal firearm licenses are required to conduct background checks on their buyers, to sell only guns with serial numbers and to record the sales.
Currently, gun sellers on the Internet and at gun shows don’t have to be licensed, which means they don’t have to do background checks. This circumstance is often called the gun show loophole, but the loophole is way bigger than gun shows.
These days, nearly a quarter of all gun sales occur without background checks or adherence to the other rules associated with a license to sell firearms. Furthermore, up to 80% of firearms used to commit crimes are obtained from unlicensed sources, i.e., without background checks.
Meanwhile, Americans overwhelmingly (87% to 90%, depending on the poll) favor expanded background checks for gun buyers. I support the ATF proposal because I am one of that huge majority.
The deadline for comments on the ATF proposal is Dec. 7.
Background + some details of the proposal
Sellers on the Internet and at gun shows aren’t licensed now because the relevant law, the 1968 Gun Control Act, was too vague about which gun sellers must be licensed. Besides which, Internet selling wasn’t a thing in 1968.
As a result, brick-and-mortar operations have gotten licenses, but other sellers have not been pressed to do so. Gun traffickers, individuals with dodgy backgrounds and buyers with lethal intent could thus make their purchases essentially unnoted. It is easy to see how this increases the odds for gun violence.
For the good news (my view), the Bipartisan Safer Communities Act, passed last year, set the stage for expanding background checks.
Whereas the 1968 legislation required licenses for those with the “principal objective of livelihood and profit,” the 2022 Safer Communities law requires licenses for anyone who deals in guns “to predominately earn a profit.” That language isn’t very specific either, but it does contemplate licenses for anyone selling guns for profit even if profits aren’t a significant portion of the seller’s livelihood.
It was left to the ATF, the only federal agency with a mandate to regulate the gun industry, to create the rule that makes clear which sellers must be licensed, based on the updated language found in the 2022 law.
For starters, the ATF proposal states, a person is presumed to be in the business of selling firearms if among other things the person:
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- Repetitively sells or offers for sale firearms within 30 days after they were purchased,
- Repetitively sells or offers for sale firearms that are new, or like new in their original packaging, or
- Repetitively sells or offers for sale firearms of the same or similar make and model.
Furthermore, the proposal says, it will be presumed a person intends to “predominantly earn a profit” if among other things the person a) promotes a firearms business, however casually; b) keeps records documenting profits and losses; c) obtains a state or local business license for the sale of firearms, or d) buys a business insurance policy that covers firearms inventory.
The rule, if finalized, will apply to gun sales in flea markets and mail-order businesses as well as in the oft-discussed Internet and gun show venues.
The ATF estimates that anywhere from 24,540 to an astonishing 328,296 unlicensed persons selling guns for profit would be affected by this rule.
Geez, a lot of people sell guns!
What to do
The proposed rule wouldn’t require universal background checks for gun sales (our feckless Congress must legislate that), but it gets us a lot closer.
If you support this enhancement to ATF regulations, please speak up by filing comments by Dec. 7 here: https://www.regulations.gov/commenton/ATF-2023-0002-0001.
I am adding a few sample messages, prepared by gun safety groups, that you can use for inspiration.
Finally, please share this letter with anyone you think might want to comment, as well.
Thanks
Nadine Godwin
P.S. For those who would like to know more about this proposal, I am also adding a helpful explainer. It was prepared by Giffords, a gun safety advocacy group founded by former Rep. Gabby Giffords after she was shot in the head and nearly killed while meeting with constituents in Arizona in 2011.
SAMPLE MESSAGES:
From Brady Campaign to Prevent Gun Violence
I strongly support the proposed rule to ensure that individuals who are “engaged in the business” of selling firearms are licensed, thus requiring them to complete background checks for all firearm sales and maintain records of those transactions, and that dealers who have lost their licenses may no longer sell firearms to the public.
A recent study found that more than one in five gun sales in the U.S. are conducted without a background check, amounting to millions of off-the-books gun transfers annually; many of these transactions are facilitated by individuals who profit from the repetitive sale of firearms yet avoid the oversight required of licensed dealers.
This is a public health and safety issue, and I urge the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives to finalize the rule in order to prevent further firearm transfers to prohibited purchasers.
From Everytown for Gun Safety
Our background check system was created to keep firearms out of the hands of individuals who are not allowed to purchase or possess them. But loopholes in the system — like the ones that allow unlicensed gun sellers to sell guns online and at gun shows without running background checks on their buyers — undermine it.
That’s why ATF’s proposed rule must be finalized. It will help close loopholes in our background check system that have, for decades, been exploited by bad actors like gun traffickers, straw purchasers and other prohibited persons, including domestic abusers and convicted felons.
I support the proposed rule because it makes clear that firearms dealing can take place wherever and through whatever medium guns are bought and sold — whether at a gun show or at an online marketplace — and that conduct, such as selling guns of the same or similar kind and type, constitutes firearms dealing. Such gun sellers will need to become licensed dealers and, as licensed dealers, run background checks.
More to the point, the proposed rule will save lives. That’s why I support the proposed rule and why I encourage ATF to finalize it.
Another canned message prepared by Everytown for Gun Safety
I support the ATF’s proposed rule (Docket No ATF 2022R-17), which would dramatically reduce the number of guns sold without a background check.
I urge the ATF to finalize this rule as soon as possible. Guns sold without background checks — both online and at gun shows — are a huge source for gun traffickers and people looking to avoid a check. These guns often end up trafficked across state lines, recovered at crime scenes in major cities and used against police officers. This contributes to the gun violence epidemic plaguing our country.
The long-standing lack of clarity around which sellers must become licensed and run background checks has made this problem all the worse.
I support the clear commonsense standard laid out in this rule: Anyone offering guns for sale online or at a gun show is presumed to be trying to make a profit and should therefore be licensed and run a background check on each customer. This rule will save lives and should be urgently finalized.
GIFFORDS
COURAGE TO FIGHT GUN VIOLENCE
FACT SHEET: FEDERAL REGULATION TOEXPAND BACKGROUND CHECKS
THE PROBLEM
Under current federal law, certain individuals with a history of felony convictions, domestic violence, or involuntary mental health commitments are prohibited from purchasing or possessing firearms. This law is enforced primarily through the National Instant Criminal Background Check System (NICS), which licensed gun dealers, those holding a Federal Firearms License (FFL), are required to contact, either directly through the FBI or indirectly through state or local law enforcement, to determine a person’s eligibility to possess firearmsbefore selling or transferring a firearm to them.
There is, however, a significant loophole that exists when guns are sold by unlicensed individuals. Only those sellers who are required to obtain an FFL through the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) must perform background checks via the NICS system. As a result of this loophole, unlicensed gun sellers frequently sell guns without background checks online, at gun shows, and through unregulated person-to-person sales.
This loophole makes it far too easy for people prohibited from purchasing or possessing guns to circumvent the laws on the books and obtain guns. Up to 80% of firearms used for criminal purposes were obtained fromunlicensed sources, meaning no background check was required. With the rise of social media and the expansion of internet access, new avenues for unlicensed gun sales have opened up via websites like Armslist.This expansion of access has made the background check loophole an even more salient issue, and in fact,nearly a quarter of gun sales in recent years have occurred without a background check.
“ENGAGED IN THE BUSINESS” AND CHANGES MADE BY BSCA
Fortunately, the landmark Bipartisan Safer Communities Act (BSCA) provides a remedy for the above issue. The 1968 Gun Control Act (GCA) mandates that all those “engaged in the business” of selling firearms acquire an FFL. This status triggers federal laws and regulations that licensees must follow, including the requirement that they conduct a background check on potential purchasers. Before the BSCA,the GCA was unclear as to the level of sales activity that distinguishes someone who sells guns occasionally-and is thus not subject to licensing requirements-from someone who is “engaged in the business” of firearm sales and qualifies as a firearms dealer.
The BSCA updated the definition of “engaged in the business.” Now, instead of including only those who sellguns with “the principal objective of livelihood and profit,” the law includes anyone who deals guns “topredominately earn a profit.”
giffords.org