Who is 'engaged in the business' of selling firearms?

Last year I sold my old vacuum on Nextdoor, a social networking service for neighborhoods. A stranger responded to my listing, we agreed on a price, and we arranged a place and time for making the exchange. Until recently, I could have legally sold a gun in much the same way in 29 states. 

This changed on May 20opens in a new tab or window this year. Many people who previously sold firearms as private parties are now required to obtain the same federal firearms license (FFL) that stores like Bass Pro Shops or your local gun dealer have. By doing so, the Department of Justice (DOJ) has effectively extended background check requirements to a significant number of firearm sellers -- between 24,540 and 328,000 based on two estimates from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). 

As a violence epidemiologist, I conduct research on background check policies and firearm violence. I believe this change may help address some of the biggest challenges to the effective operation of our country's background check system and help prevent some firearm injury and death. 

U.S. Gun Sale Safety Measures 

Twenty-one states and Washington, D.C., have comprehensive background check policies. In these states, a background check is required for nearly all firearm transfers, whether the seller is licensed or unlicensed. In the other 29 states, unlicensed individuals, or private parties, are not required to conduct a background check on the person to whom they mean to give or sell their firearm. In these cases, the firearm is treated very similarly to the vacuum I sold. 

These new regulations, stemming from the Bipartisan Safer Communities Act, expand the scope of activities that identify someone as "engaged in the business" of selling firearms, which requires an FFL. Exactly who qualifies depends on the circumstances of the sale, but at the heart of the definition is the idea that a person is selling firearms with the intent of making a profit. Individuals who occasionally sell firearms while managing their personal collection or as part of a hobby are not required to obtain a license. As a result of expanding the universe of activity that requires an FFL, more firearm purchasers are now required to demonstrate via a background check that they do not have a criminal record or any other risk factor that prevents them from legal gun ownership before gaining possession of their new firearm. 

Historically, comprehensive background check policies have faced significant challenges that this regulatory change may also help to address. First, it is very difficult to know when a background check was not completed in a private sale. Survey research and undercover investigations suggest many people sell their firearms without conducting a background check, even in states where a background check is required. But typically, law enforcement becomes aware that a firearm transfer was completed without a background check only after and if the firearm shows up in a crime. This makes it difficult for firearm laws like comprehensive background check policies to achieve large-scale reductions in firearm violence. And in fact, a recent DOJ report on crime guns identified unlicensed sellers as the most common source of firearms that are later used in crimes. 

The Implications of the Policy Change 

By redefining what it means to be "engaged in the business" of selling firearms, the DOJ gives law enforcement something different to enforce: selling without a license. Violations of this requirement may be easier to identify than the absence of a background check. For example, I expect multiple listings by the same seller in an online marketplace are easier to identify than a background check that didn't happen. Also, selling without a license when one is required has long been a felony punishable by a term of imprisonment of up to 5 years, a fine of up to $250,000, or both. These penalties are far steeper than those typically applied for failing to conduct a background check in a private party transfer and may be more enticing for prosecutors to pursue. 

Another challenge is that firearms exchanged via private party transfers are harder to trace. Firearm tracing involves following the transaction trail from manufacturer or importer to dealer to buyer. When sales by private parties do not require record keeping, the trail may go cold before reaching the person who made the firearm available for use in crime. As FFL-holders, formerly unlicensed sellers will be required to compile the records that make tracing possible. 

We began National Gun Violence Awareness month this June with a new set of tools for preventing firearm sales to potentially dangerous people, enforcing the use of background checks when they are required, and identifying the owners of guns used in crimes. As a result, many private party firearm sales will look more like FFL transactions and less like vacuum sales on Nextdoor. This quiet change to the definition of "engaged in the business" may have big implications for safe firearm transfers, and we should keep an eye on what happens next.