'Gun show loophole' rule that will outlaw 'virtually all private' gun sales announced by Biden administration

It’s been a quarter of a century since the shooting at Columbine High School in Colorado brought the “gun show loophole” into popular discourse, and the Biden administration has just announced it would move unilaterally to end the practice following decades of inaction by Congress.

A new federal regulation published by the Department of Justice on Thursday, titled "Final Rule: Definition of 'Engaged in the Business' as a Dealer," aims to greatly reduce the number of firearms sold without a background check and comes following the passage of the Bipartisan Safer Communities Act, according to the Biden White house.

“I’ve spent hours with families who’ve lost loved ones to gun violence. They all have the same message: ‘Do something.’ Today, my Administration is taking action to make sure fewer guns are sold without background checks. This is going to keep guns out of the hands of domestic abusers and felons. And my Administration is going to continue to do everything we possibly can to save lives. Congress needs to finish the job and pass universal background checks legislation now,” President Joe Biden said in a statement.

Loopholes in the nation’s gun laws allow “domestic abusers, school shooters, violent criminals, and gun traffickers” to obtain firearms at local gun shows without criminal background checks, the White House said, and those same loopholes allow some gun sellers who should be required to run background checks to skirt the law and operate without a license to deal in firearms.

The Bipartisan Safer Communities Act of 2022 includes a provision allowing for a broader definition of what makes a gun dealer and outlining who is required to hold a dealer’s license. In 2023, Biden signed an executive order fast-tracking implementation of the law. The announcement of the Final Rule this week “clarifies the type of conduct that requires a person to get a license to sell guns and to conduct background checks.”

The rule is the “largest expansion of background checks since the Brady Bill became the law,” and includes a list of commercial activity that might qualify a person as a gun dealer. For example, if a gun owner were to frequently buy and sell the same model firearm, or offer to procure and sell more firearms during a private sale, or if they “repeatedly” sell firearms within 30 days of purchase, they may require a license.

The rule states that there is “no gun show or online sales loophole” and that any commercial activity that would require a Federal Firearms License if it were conducted in a brick and mortar location will now also require such a license.

“Under this regulation, it will not matter if guns are sold on the internet, at a gun show, or at a brick-and-mortar store: if you sell guns predominantly to earn a profit, you must be licensed, and you must conduct background checks,” Attorney General Merrick Garland said when announcing the rule’s submission to the Federal Register. “This regulation is a historic step in the Justice Department’s fight against gun violence. It will save lives.”

According to Dudley Brown, President of the National Association for Gun Rights, the rule “will outlaw virtually all private sales of firearms between individuals.”

Jim Wallace, executive director of Massachusetts based Gun Owners Action League, told The Boston Herald that he’ll need time to digest the more than 400-page rule, but that he’s curious how the bill defines a gun dealer.

“There are already licensing requirements” for selling firearms, Wallace said.

A spokesperson for the National Rifle Association said the rule is an attempt to “coerce Americans to forgo legal activity” and that they are “already working to use all means available to stop this unlawful rule.”

House Minority Whip Katherine Clark, D-Mass., hailed the move, saying the rule “honors the will” of the majority of Americans and that it will save lives, but cautioned there was more to be done.

“Now, Congress needs to build on that progress by fully closing the boyfriend loophole, enacting a nationwide red flag law, getting high-capacity magazines off the street, and reenacting the federal assault weapons ban,” Clark said.

The final rule will go into effect in 30 days, according to the DOJ.