Update Background Check Laws

Updating federal and state laws to require background checks on all gun sales is a common-sense way to keep guns out of the wrong hands and keep our communities safe. That is why:

How do background checks work?

Background checks are the foundation of any effective effort to reduce gun violence and keep guns out of the wrong hands. Since federal law began requiring these background checks in 1994, over 4 million sales to prohibited purchasers have been blocked.¹Connor Brooks, “Background Checks for Firearm Transfers, 2016-2017,” (US Bureau of Justice Statistics, February 2021), https://bit.ly/3fkRmbW. Data for 2018 through 2020 were obtained by Everytown from the FBI directly. Though the majority of the transactions and denials reported by FBI and BJS are associated with a firearm sale or transfer, a small number may be for concealed carry permits and other reasons not related to a sale or transfer.

What is the background check loophole?

Federal law does not address gun sales by unlicensed sellers (e.g., non-dealers who sell guns online or at gun shows). This loophole enables people with felony convictions, domestic abuse restraining orders, and/or prohibiting histories of mental illness to buy guns with no questions asked. 

Thankfully, many states and Washington, DC, have enacted laws that require background checks for all handgun sales at the point of sale and/or as part of a purchase permit. But the loophole still exists in most states.

Why does closing this loophole matter?

Everytown’s research into Armslist.com—the largest online gun marketplace, which did not exist when the federal background check law was enacted more than 30 years ago—found that prospective online buyers are seven times more likely to fail a background check than other firearm purchasers or permit applicants, suggesting that prohibited buyers seek out opportunities to skip a background check.²Everytown for Gun Safety Support Fund, “Unchecked: An Investigation of the Online Firearm Marketplace,” February 1, 2021, https://everytownresearch.org/report/unchecked-an-investigation-of-the-online-firearm-marketplace/. 

A 2024 ATF analysis of five years of closed firearm trafficking investigations found that unlicensed sellers who do not conduct background checks are the most common suppliers of illegally trafficked firearms. Unlicensed sellers supplied over half of the trafficked guns in these investigations, amounting to more than 68,000 trafficked guns from 2017 to 2021.³ATF, “National Firearms Commerce and Trafficking Assessment (NFTCA), Volume III: Firearms Trafficking Investigations,” April 2024, https://www.atf.gov/firearms/national-firearms-commerce-and-trafficking-assessment-nfcta-firearms-trafficking.

How do we close this loophole?

Under a point-of-sale background check law, unlicensed sellers must meet their buyers at the location of a licensed gun dealer, who runs a background check using the same process already used for the sale of their own inventory. This is convenient because:

In 2022, there were nearly 78,000 active gun dealers.⁴Everytown Research analysis of ATF, Monthly Federal Firearms Listings, 2022. Total listings were deduplicated based on unique addresses. This total does not include Type 3 license holders, who are not permitted to sell firearms and thus are not engaged in the business of firearm sales. This is over twice as many gun dealers as US Postal Service post offices, and more than the number of McDonald’s, Burger King, Subway, and Wendy’s locations combined.⁵Everytown Research analysis of ATF, Monthly Federal Firearms Listings, 2022, and restaurant data: totals were 13,232 McDonald’s, 7,257 Burger King, 21,781 Subway, and 5,987 Wendy’s locations. There are 31,132 Postal Service-managed retail offices in the US.

In January 2018, a woman in Appleton, Wisconsin, was shot and killed by her husband, who purchased a firearm from a seller he met online, despite his prohibiting felony conviction.⁶Alison Dirr, “Five Years Apart, Armslist Was Source of Guns in High-Profile Domestic Violence Deaths,” Post Crescent, September 19, 2018, https://bit.ly/2Pu4YI9. A background check requirement for unlicensed sales could have saved her.

Does closing this loophole make us safer?

States that go beyond federal law and require background checks for unlicensed sales are associated with a 10 percent lower homicide rate,⁷Michael Siegel and Claire Boine, What Are the Most Effective Policies in Reducing Gun Homicides? Albany, NY: Rockefeller Institute of Government, March 2019. https://bit.ly/2YPAz7P. as well as lower rates of firearm suicide⁸Eric W. Fleegler, Lois K. Lee, Michael C. Monuteaux, David Hemenway, and Rebekah Mannix, “Firearm Legislation and Firearm-Related Fatalities in the United States,” JAMA Internal Medicine 173,no. 9 (2013): 732-740. and gun trafficking.⁹Daniel W. Webster, Jon S. Vernick, and Maria T. Bulzacchelli, “Effects of State-Level Firearm Seller Accountability Policies on Firearm Trafficking,” Journal of Urban Health 86, no. 4 (July 2009): 525–537. Federal law bars felons from having firearms but does not bar misdemeanors outside the domestic violence context. Daniel W. Webster, Jon S. Vernick, Emma Beth McGinty, and Ted Alcorn, “Preventing the Diversion of Guns to Criminals Through Effective Firearm Sales Laws,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis, 109-121. Baltimore, MD: The Johns Hopkins University Press, 2013.

States that go beyond federal law and require background checks for unlicensed gun sales are associated with:

Did the Biden-Harris Administration already close this loophole?

While the ATF clarified in 2024 that anyone selling guns for profit online or at a gun show is presumed to need a dealer license,¹⁰Biden-Harris White House, “FACT SHEET: Biden-⁠Harris Administration Announces New Action to Implement Bipartisan Safer Communities Act, Expanding Firearm Background Checks to Fight Gun Crime,” April 11, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/11/fact-sheet-biden-harris-administration-announces-new-action-to-implement-bipartisan-safer-communities-act-expanding-firearm-background-checks-to-fight-gun-crime/. and in turn run background checks on their buyers, federal law still does not require background checks on gun sales made by unlicensed sellers. It remains imperative that federal and state laws close this loophole entirely and require background checks on all gun sales, ensuring that every gun buyer is vetted prior to purchasing a gun.