By Kris Brown, president of Brady, and Adzi Vokhiwa, federal affairs director of Giffords
In August 2019, a man in Odessa, TX, with a history of violent behavior and a criminal record, was fired from his job. Hours later, he embarked on a random shooting spree while driving around the city, killing seven people and wounding 25 others.
The gun he used was an AR-15 style rifle purchased without a background check from an unlicensed seller. If a background check had been required, his criminal history would have prevented the sale. Prior to this sale, the gunman had in fact already attempted to purchase a firearm from a licensed dealer and was denied when a background check exposed his criminal record.
Despite selling many guns using an online service to identify purchasers, the person who sold the gun used in the shooting spree claimed he was legally not “engaged in the business” of dealing firearms and therefore was not required to run a background check. Thankfully in this rare case, the court decided against him.
However, the lack of clarity as to the meaning of “engaged in the business” has for years allowed private sellers to act as gun dealers — while evading the rules designed to keep guns out of the hands of prohibited purchasers, like those with violent criminal records or domestic violence convictions. In fact, nearly 22% of U.S. gun owners acquired their most recent firearm without a background check, no questions asked.
To rectify this problem, gun violence prevention groups Brady and Giffords are calling on the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to close this loophole by issuing a regulation that clarifies the definition of what it means to be engaged in the business of selling firearms.
This summer, for the first time in nearly 30 years, Congress listened to the American people and acted to prevent gun violence by passing a landmark gun violence prevention bill, the Bipartisan Safer Communities Act (BSCA). It included a provision that changed the definition of what it means to be “engaged in the business” of selling firearms, which could save lives by preventing guns from getting into the wrong hands.
Under the new language, sellers must be licensed as firearms dealers and comply with federal regulations if they devote regular time, attention, and labor to dealing in firearms, in order to “predominantly” earn a profit. Previously, the phrase “engaged in the business” included the requirement that a seller acted with “the principal objective of livelihood and profit.”
This new change is welcome, though a small but important ambiguity remains: What frequency of firearm sales is “regular”? The lack of clarity on this point may embolden many “private” firearm sellers to refrain from obtaining a federal firearms license and continue avoiding oversight.
ATF must make it clear that anyone who sells or offers for sale five or more firearms in any 12-month period is “engaged in the business” of selling firearms. In the proposed rule, ATF should assert that the law’s exception for individuals who make only “occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby” is narrow, and that five or more sales or offers of sales for profit per year reasonably exceeds the exception.
Being able to pass a background check should be the most basic prerequisite of acquiring a firearm. Background checks are the foundation upon which all gun laws are built. But unfortunately, dangerous loopholes and ambiguities have allowed unlicensed and irresponsible sellers to operate with impunity, causing guns to fall into the hands of people who should not have them.
Tens of thousands of Americans die from gun violence every year. The agencies tasked with protecting public safety must do more. With a simple change, already authorized by Congress, the ATF can close this particular loophole, prevent gun violence, and save lives.
