Biden to close ‘gun-show loophole’ and expand background checks for firearms

The Biden administration is moving to expand background checks for gun purchases, fulfilling a key demand of advocates following the deadly shooting at a school in Uvalde, Texas.

The final rule, expected to be submitted Thursday to the Federal Register by the Bureau of Alcohol, Tobacco and Firearms, would eliminate a loophole that has allowed sales of guns without background checks of guns outside of brick-and-mortar stores.

The rule was issued under a provision of the 2022 Bipartisan Safer Communities Act. It requires that anyone who sells guns for profit to have a license and that buyers be subject to a background check, including at firearms shows and flea markets. The administration had been working on the rule since last spring. Once publicized, it will take effect in 30 days.

The so-called gun show loophole has for years allowed unlicensed gun dealers to sell firearms without background checks at gun shows, on the internet and out of their homes. The new rule, the most sweeping expansion of firearms background checks in decades, will apply to more than 20,000 individuals engaged in unlicensed gun dealing and affect “tens and tens of thousands of gun sales” each year, an administration official told reporters during a call previewing the announcement.

“This single gap in our federal background check system has caused unimaginable pain and suffering,” Vice President Kamala Harris said on the call.

The vice president noted the 25th anniversary next week of the mass shooting at Columbine High School, which was carried out with weapons purchased through the gun-show loophole. She also pointed to the 2019 shooting in Midland and Odessa, Texas, where a man killed seven people and wounded dozens of others. A background check stopped the shooter from purchasing a gun at a sporting goods store in 2014, but he later purchased an AR-15 from an unlicensed seller he met online.

“So many communities have been torn apart by acts of violence committed with weapons bought without background checks,” she continued. “So in the memory of all those we have lost today, as the head of the White House Office of Gun Violence Prevention, I am proud to announce that all gun dealers now must conduct background checks no matter where or how they sell their merchandise.”

After Congress passed the gun safety legislation in June 2022 following a shooting in Uvalde, Texas, gun safety groups have pushed the White House to use it to expand background checks by clarifying which entities are considered “engaged in the business” of selling firearms. Doing so would not fulfill the president’s plea for universal background checks, as it would not apply to all sales, including private transfers. But the rule’s publication still marks a step forward in the administration’s more incremental efforts to regulate gun sales through implementation of the Bipartisan Safer Communities Act.

“We know this doesn’t get all the way there. And this law can only do so much. And it’s why the president is firm that the Congress needs to finish this job and make sure that we have background checks on all gun sales,” an administration official said.

The final rule comes a year after the president issued an executive order directing Attorney General Merrick Garland to develop and implement a plan to clarify the definition of “engaged in business.” The Department of Justice issued the proposed rule in September. The administration has also made an effort to release previously undisclosed firearms data, offering a fuller picture of the illegal firearms market in the U.S.

An analysis published last week from the Bureau of Alcohol, Tobacco, Firearms and Explosives found sales by unlicensed dealers were the most frequently used gun trafficking channel. From 2017 to 2021, the ATF traced more than 68,000 of these illegally tracked firearms to unlicensed dealers.

“Today’s Final Rule is about ensuring compliance with an important area of the existing law where we all know, the data show, and we can clearly see that a whole group of folks are openly flouting that law. That leads to not just unfair but, in this case, dangerous consequences,” said ATF director Steven Dettelbach.

The move is already facing backlash from Republicans. Sens. John Cornyn (R-Texas) and Thom Tillis (R-N.C.), the lead Republicans on the Bipartisan Safer Communities Act, plan to introduce a joint resolution of disapproval under the Congressional Review Act to “overturn this unconstitutional rule,” a Cornyn spokesperson told POLITICO. To invalidate a federal regulation, both Houses must pass the resolution, which would then be sent to a president for a signature or veto. It would take two thirds majority of both Houses of Congress to override the president’s veto.