Taking on black-market guns, Biden administration issues new rules on unlicensed dealers
The Biden administration will take steps this week to crack down on unlicensed dealers selling firearms that bleed into the illegal market.
Under current rules, licensed dealers must perform background checks and log the make, model and serial numbers of guns sold, but hobbyists and infrequent traders don't. Justice Department officials say too many guns are being sold under the so-called gun-show loophole and internet loophole.
The new rules more clearly define who should join the 80,000 other federal firearms licensees and abide by existing law.
The expected result: At least 20,000 additional gun sellers will now be required to perform the instant background checks that will stop them from selling to felons, domestic abusers and other prohibited buyers. Even a single firearm transaction may be sufficient to require a license, according to the rule, if there is other behavior to suggest commercial activity.
The regulations clarify a new standard for which sellers are “engaged in the business” and thus need to perform background checks. The rule was part of the Bipartisan Safer Communities Act signed in 2022 and an executive order last year. They take effect 30 days after being published in the Federal Register, Justice Department officials told reporters this week.
Who is now required to do a background check?
The new standard draws the line at those who sell “predominantly to earn a profit.” It provides key indicators as examples. If a gun seller uses merchant services like a credit card reader or frequently rents space at a gun show, or repetitively acquires and sells firearms, that person is considered a dealer ? and must now do background checks.
The new rule does provide exceptions. Bona fide collectors can sell some of their inventory, for example. Guns can be given as gifts to family members. Personal sales tied to a hobby like hunting or sport shooting are carved out in the rules.
The rules for gun dealers have always applied to those who are "engaged in the business." The question has been what that phrase means.
The former standard defined a dealer as someone who sold for "profit and livelihood." Gun control groups and Democrats have called for the government to define “engaged in the business” by the number of sales, such as five in a year.
Instead, officials settled on the “predominantly earns a profit” language but added specific examples that help identify dealers.
Some oppose new rules on gun dealers
Since the proposed rule was published in August, the agency reviewed nearly 388,000 comments, most of them in favor of the proposal.
“Every person in our nation has a right to a life free from the horror of gun violence,” Vice President Kamala Harris told reporters Wednesday. “It’s a false choice that you have to be in favor of the Second Amendment or in favor of taking your guns away.”
The new rules come just before the 25th anniversary of the Columbine school shooting in Colorado on April 20. In that case, the two shooters purchased firearms from private sellers without a background check. Several of the firearms were sold by an unlicensed seller at a gun show five months before the massacre.
“This doesn’t infringe on your Second Amendment rights,” Steve Dettelbach, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, told reporters this week. “Licensed dealers are already playing by the rules. They keep transaction records, they use serial numbers, they work with the ATF to report suspicious activity. Nor does every person who sells a gun need a license. Only Congress can require universal background checks, as the president and vice president have asked them to do.”
Last week, the ATF issued a firearm trafficking report that showed more than 68,000 guns came through unlicensed dealers over five years. Those represented more than half off the illegally trafficked guns nationwide and were tied to 368 shooting cases, Dettelbach said.
Some gun industry groups opposed the new regulation and submitted comments. The National Shooting Sports Foundation trade group said the rule was an overreach and submitted a 28-page comment in opposition.
“ATF has no authority to ‘improve’ on what Congress enacted or to create new crimes not enacted by Congress,” wrote Larry Keane, the foundation’s senior vice president. “An agency may not rewrite statutory terms or fill in what the agency considers to be ‘gaps’ or ‘loopholes’ in the statute.”
Justice Department officials said they expect challenges to the new rules but were confident the measures fell within the rules covering administration policy proposals.
The rules could face challenges by Republicans who said this week they went beyond the authorities outlined in the Bipartisan Safer Communities Act.
Republican Sens. John Cornyn and Thom Tillis plan to introduce a joint resolution of disapproval under the Congressional Review Act to overturn the rules.
"The administration is acting lawlessly here, and the vast majority of this rule has nothing to do with the BSCA," said Tatum Wallace, Cornyn spokesperson. "Of course, this rule has been on the administration’s wish list for many years despite Congress rejecting these provisions repeatedly."
Gun violence prevention groups cheered the action this week.
“Expanding background checks and closing the gun seller loophole is a massive victory for safer communities ? and it was made possible thanks to the tireless advocacy of our grassroots movement,” said Angela Ferrell-Zabala, executive director of Moms Demand Action.
Nick Penzenstadler is a reporter on the USA TODAY investigations team. Contact him at [email protected] or @npenzenstadler, or on Signal at (720) 507-5273.
This article originally appeared on USA TODAY: Biden, DOJ take big step on guns with new rules on unlicensed dealers
