The Biden administration has finalized the largest expansion of gun-sales background checks since the advent of the federal check system in the 1990s, moving to close the “gun show loophole” and online sales that have avoided checks in the past.
The new rule being announced Thursday expands the definition of who is considered a firearms dealer and says every dealer must conduct a background check regardless of the sale venue. That means sales at gun shows or conducted over the internet must now be included.
It is not a universal background check, meaning some transactions such as gifts or occasional sales are still exempt. But administration officials said they expect the rule will cover tens of thousands of sales each year that currently escape background checks.
Biden officials called the new rule overdue but historic.
“Countless families and communities will be spared the horror and heartbreak of gun violence by this new rule,” Vice President Kamala Harris said in previewing the rule for reporters.
The rule comes amid a flurry of executive activity on issues important to President Biden’s political base and the 2024 election. He has recently attempted a major student loan forgiveness program and is pondering action on immigration.
At issue is language defining who is considered “engaged in the business” of dealing firearms.
Those operating out of traditional stores have been covered, but Biden officials say that misses perhaps 20,000 other people who make a business out of buying and selling at gun shows and using online methods.
“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,” Attorney General Merrick Garland said.
Officials said they carved out exceptions so people can manage their collections, including selling them off, without having to worry about being considered a dealer.
Background checks are supposed to weed out people who are ineligible to purchase a gun, including felons, immigrants without documentation, fugitives and those with domestic violence records.
The administration has been working on the rule for months, including releasing a draft proposal last summer. The final rule, which is being submitted for publication in the Federal Register on Thursday and will take effect in about a month, hews closely to the original proposal, officials said.
Gun rights groups vehemently oppose the idea. They worry it is a step toward the creation of a national gun registry and say criminals will find ways to get firearms no matter what.
“Most mass shooters, including those inspired by Islamic terrorist groups, pass background checks to acquire firearms,” the National Rifle Association’s Institute for Legislative Action argues on its website.
Biden officials said they anticipate legal challenges but said they believe they are on firm ground under a 2022 law passed by Congress in the wake of a mass shooting that killed 10 Black people at a market in Buffalo, New York, and another mass shooting at Robb Elementary School in Uvalde, Texas, that killed 19 students and two teachers.
But it was another shooting, 2019’s massacre in Midland and Odessa, Texas, which killed seven people and wounded 25, that drew attention to unlicensed dealers.
Seth Aaron Ator, who bought the weapon, was a prohibited purchaser because of mental illness and had failed a background check before. But he was able to buy an AR-style semi-automatic rifle from a man who did not perform background checks.
The seller, Marcus Anthony Braziel, pleaded guilty to dealing firearms without a license and a tax evasion charge and was sentenced to two years in prison.
The crux of the new rule is trying to define who is considered to be in the business of dealing firearms. The policy lays out some tests, including that someone is repeatedly advertising sales, reserves space at shows or flea markets, keeps profit and loss records, or uses credit cards for sales.
Failing to register as a dealer would be met with jail time and fines.
Officials said the public comments on the draft rule ran about two-to-one in favor of the idea.
Requiring background checks for all gun purchases is almost universally popular, with a 2022 Gallup survey finding 92% support for the idea.
Wednesday’s announcement comes just days after the Justice Department released a report on firearms trafficking. After studying nearly 10,000 trafficking investigations by the Bureau of Alcohol, Tobacco, Firearms and Explosives, analysts concluded that private transactions were involved in more than 40% of them.
Gun show and flea market sales were relatively small, however, at just 3%.
Some 3.6% of trafficking cases involved online marketplace sales, 2.7% involved social media and 1% involved peer-to-peer apps.
Estimates vary on the number of gun transactions that happen without a check.
One study of a prominent online marketplace, done by gun-control group Everytown for Gun Safety, identified nearly 1.2 million ads for firearms sales that would not have needed to go through a background check.
Another study, which surveyed Americans who had recently acquired firearms, found that 22% of the transactions didn’t go through a background check. That included both sales and gifts.
