In March, President Biden signed an Executive Order directing the Attorney General to move as close to universal background checks as possible within existing law. Today, as a result of the Executive Order and the Bipartisan Safer Communities Act, the Department of Justice is taking life-saving action to reduce the number of guns sold without background checks and keep guns out of the hands of criminals.

Why the Biden-Harris Administration is Taking Action

Since 1994, federal law has required federally licensed firearms dealers to run background checks prior to selling or transferring a weapon. These background checks have helped keep guns out of the hands of more than three million felons, convicted domestic abusers, and other dangerous individuals. However, despite the law, individuals who should be licensed dealers have refused to obtain a license, skirting the background check requirement.

Last year, Congress passed and President Biden signed into law bipartisan legislation to help address this dangerous problem by modifying the definition of who has to become a federally licensed firearms dealer. Members of Congress—both Democrats and Republicans—made clear that they intended for the Bipartisan Safer Communities Act to better protect the American people from gun violence by clarifying when someone is supposed to become a licensed firearms dealer.

New Action to Keep Guns Out of Dangerous Hands

Today, the Justice Department has announced a proposed rule to specify what exactly the new definition in the Bipartisan Safer Communities Act means on the ground. If finalized, this proposed rule would mean the following for people who are not selling guns in order to make money: If you have a gun you no longer need, and you want to sell it to your family member, you do not need a license to sell it. If you buy and sell curios or relics or “collectible” personal firearms as a hobby, again, you do not need a license. But, if you are offering a firearm for sale to make money, and telling a customer that you can purchase and sell him additional firearms, you would presumptively need a license—and need to run background checks. The same is true if you repetitively offer for resale firearms within 30 days of when you purchased them. The proposed rule includes a number of other situations where, in civil and administrative proceedings and absent reliable evidence to the contrary, it will be presumed that you need a license.

Specifically, the proposed rule, if finalized, would clarify that an individual would be presumed to be “engaged in the business” of dealing in firearms—and therefore be required to become a licensed firearms dealer and run background checks—if they meet certain conditions. For example, under the proposed rule, a person would be presumed to be required to become a licensed dealer and run background checks if they meet one or more of the following criteria:

• Offer for sale any number of firearms and also represents to potential buyers that they are willing and able to purchase and sell them additional firearms;
  
• Repetitively offer for sale firearms within 30 days after they were purchased;
  
• Repetitively offer for sale firearms that are like new in their original packaging;
  
• Repetitively offer for sale multiple firearms of the same make and model; or
  
• As a formerly federally-licensed firearms dealer, sell firearms that were in the business inventory and not transferred to a personal collection at least a year before the sale, addressing the so-called “fire sale loophole.”

The proposed rule would also clarify that, for civil or administrative actions, an individual would be presumed to have the intent to “predominantly earn a profit”—one of the elements of engaging in the business of dealing firearms—if the person engages in activities such as:

• Creating a website or making business cards to advertise or market a firearms business;
  
• Maintaining records to document and track profits and losses from firearms purchases or sales; or
  
• Purchasing business insurance or renting space at a gun show.

The proposed rule would make clear that there is no “gun show loophole” or “internet loophole” in federal law. Dealers who engage in the business of selling guns are required to obtain a license and run background checks no matter where they engage in the business of buying and selling firearms. That include at gun shows and over the Internet.

The proposed rule is now open for public comment.  The Department of Justice will consider the comments it receives in deciding on a final rule.

Continuing to Call on Congress to Act

This rule is a significant step toward reducing the percentage of firearms sold for profit without background checks. It builds on previous Biden-Harris Administration actions to save lives and combat the epidemic of gun violence.

However, to fully address this problem, Congress must act. The President continues to call on Congress to enact universal background checks legislation, as well as other commonsense legislation to ban assault weapons and high-capacity magazines, require safe storage of guns, and end immunity from liability for gun manufacturers. These are life-saving measures that the vast majority of Americans and gun owners support to protect our Country from the threat of gun violence.

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