ATF proposes rule to close ‘gun show loophole’

A new proposed rule by the Bureau of Alcohol, Tobacco, Firearms and Explosives would increase what is required to obtain a federal firearms license (FFL) for gun sellers across the country — an attempt to end what gun control advocates term "the gun show loophole."

Justice Department officials told reporters that prior to the Bipartisan Safer Communities Act, which was signed into law last June, those "engaged in the business" of a firearms dealer were defined broadly. The definition that ATF is proposing is more specific in an effort to better regulate the market in accordance with the new federal law.

"The prior definition before that, [before] the BSCA was implemented and signed by the president, focused on when a person earns their livelihood from dealing in firearms," a senior DOJ official said on the call with reporters. "The revised, new definition covers anyone devotes time, attention and labor to dealing with firearms as a regular course of trade or business to predominantly earn a profit. So, the rulemaking is focused on that new terminology to predominantly earn a profit."

"The proposed rule would amend the ATF regulations to clarify that firearm dealing that requires a license and conduct conducting a background check does not solely occur in brick-and-mortar stores," a senior DOJ official said. "It also encompasses dealing at gun shows flea markets mail order and over the internet. The proposed rule reinforces and makes clear that there is no gun show loophole, there is no internet loophole recognized under federal law. Instead, a gun dealer must obtain a license and run background checks, no matter what menu that person engages in this."

Customers shop for firearms in the McBride Guns Inc. store, Aug. 25, 2023, in Austin, Texas.Brandon Bell/Getty Images

In 1968, Congress passed the Gun Control Act of 1968, establishing FFLs, but some dealers have not obtained them, because they have ether "done that by choice or because they were unclear as to whether they're kind of conduct required them to be licensed," ATF Director Steve Dettelbach told reporters.

"The impact is the same and significant," Dettlebach said. "Because they are not FFLs these unlicensed dealers sell guns without running background checks without keeping records and without observing the other crucial public safety requirements by which the FFL community abides."

Gun rights groups criticized the Biden administration's proposal.

"First, they said five guns, but now, anyone who sells a single firearm in a given year and makes even a penny of profit will be subject to dealer requirements, including a background check," Erich Pratt, Gun Owners of American Senior Vice President, said in a statement. "People need to realize this is just the next step in the anti-gunners' longform playbook to enact backdoor universal registration of firearms, and eventually, to confiscate all firearms. They will not stop until that day."

Firearms are seen displayed on shelves in the McBride Guns Inc. store, Aug. 25, 2023, in Austin, Texas.Brandon Bell/Getty Images

But gun control advocates said that the Biden administration was delivering on its promises.

"We're grateful to the Biden-Harris Administration and ATF for making good on their commitment to set a common-sense standard: If you're offering guns for sale online or at a gun show then you're presumed to be trying to make a profit, and you need to run background checks on your customers," said John Feinblatt, president of Everytown for Gun Safety. "Closing the gun seller loophole will significantly expand background checks on gun sales, keep weapons out of the hands of dangerous people, and ultimately save lives. We intend to submit formal comments on this proposal and urge ATF to finalize this rule as quickly as possible."

The public will have 90 days to comment on the proposed rule on the federal register.


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