One of the most dangerous gaps in our country’s gun laws today is the background check loophole. Although federal law requires licensed gun dealers to perform background checks on prospective purchasers, it does not require unlicensed sellers to do so. Twenty one states have enacted their own laws to close this loophole and require background checks for at least certain types of firearms, but a majority of states still do not require people to pass a background check to buy a gun, including an assault weapon, from an unlicensed seller. (These laws are discussed more fully in our page on Universal Background Checks).
The internet has made it increasingly easy for dangerous people to take advantage of the private sale loophole by arranging gun sales with unlicensed sellers in online chatrooms, social media sites, auctions, and classified ad platforms. Predictably, the online market has become an attractive source of weapons for people who could not pass a background check at a gun store.
- A recent large-scale survey found that 45% of gun owners who acquired a gun online in the past two years did so without any background check.1
- Nearly one in nine prospective gun buyers on Armslist.com (a major web platform for gun classifieds) would not have passed a background check.2
- In 2018 alone, there were 1.2 million ads on Armslist.com for firearm sales where no background check was required.3
Federal law does provide some important, straightforward limitations on the sale or transfer of guns across state lines, making it more difficult for a prohibited person in a state with strong guns laws to buy guns online from sellers in states with weaker gun laws. Importantly, federal law generally requires people to conduct interstate gun sales or transfers through licensed gun dealers, who are required to conduct background checks and maintain a record of the sale.
As discussed below, these limitations, along with federal and state background check laws, also govern whether gun sales ordered or arranged online are subject to background checks, sale records, and other requirements.
Summary of Federal Law
Federal Law on Interstate Gun Sales
Federal law governing the sale or transfer of guns across state lines differs depending on the type of firearm.
Under federal law, anyone who does not have a federal gun dealer license, or other Federal Firearms License (FFL), is generally prohibited from acquiring a handgun directly from a seller or transferor who resides in a different state.4 This means that people generally cannot obtain handguns out of state and then transport them into their state of residence, and cannot otherwise receive a handgun from an out-of-state seller or transferor without the assistance of a licensed dealer in their home state.
People may acquire handguns from out-of-state sellers or transferors if the sale or transfer of the weapon is conducted through a licensed dealer in the recipient’s state of residence.5 In other words, a person in one state may buy a handgun online from a licensed or unlicensed seller in another state so long as the handgun is shipped to a licensed dealer in the purchaser’s home state who facilitates the sale. Usually, gun dealers will charge a small fee for providing this service, conducting a background check, and fulfilling other requirements.
One exception to this requirement is when a person inherits a handgun through a will or other inheritance after its owner’s death. In these cases, the person may receive the handgun directly without the involvement of an in-state gun dealer, as long as the person inheriting the handgun complies with any applicable gun laws in his or her own state regarding possession of the weapon.6 Another exception applies when a person obtains a handgun through a temporary loan or rental, like when visiting a firing range in another state, so long as the person uses the gun for lawful sporting purposes.7
Federal law places somewhat looser restrictions on the sale or transfer of long guns like rifles and shotguns across state lines. Under federal law, individuals can lawfully obtain a long gun from a seller or transferor in another state, provided that:
- Both parties meet in person to conduct the sale or transfer.
- The sale or transfer is conducted by, or through, a licensed dealer, pursuant to a background check and other requirements.
- The sale, delivery, and receipt of the long gun fully comply with state law in both parties’ states of residence.8
The same exceptions for out-of-state handgun transfers also apply to long guns, meaning that people can sell or transfer long guns through a dealer in the recipient’s state of residence, inherit a long gun from an out-of-state owner after the owner’s death, and temporarily receive a long gun through a loan or rental for lawful sporting purposes.9
Federal Law on Online Gun Sales
Federal law does not treat online gun sales differently from other gun sales—these sales are simply governed by the same laws governing other firearm transfers, including laws regarding interstate and “private party” gun sales. The applicable rules for an online gun sale therefore depend primarily on (1) whether the firearm is being shipped across state lines and (2) whether state and federal law require a background check for that gun sale.
As described above, federal law generally prohibits anyone from selling or transferring a firearm directly to an unlicensed person in another state.10 This means that in order to acquire a gun online from a seller located in another state, a buyer will generally have to have the firearm shipped to a licensed dealer to process the sale. If the buyer is acquiring a handgun, the gun will have to be shipped to a licensed dealer in the buyer’s state of residence; if the person is acquiring a long gun, the sale or transfer may be conducted by a dealer in either the buyer’s or seller’s state of residence.
Federal law requires licensed gun dealers to conduct in-person background checks on gun purchasers and to maintain records of their sales.11 If a person orders a firearm through a licensed gun dealer’s website—whether or not the dealer operates in the same state as the buyer—the dealer will generally be required to ship the firearm to its physical location or to another local gun dealer, who will then be responsible for handling the background check and sale record and delivering the gun to the buyer. However, a federally licenced dealer can ship a firearm directly to a person’s home if that person is exempt from the federal background check requirement, such as someone with a Brady exempt permit.12 For more information, visit our Gun Dealers policy page.
However, federal law does not extend these requirements to unlicensed sellers. This means that a person can acquire a gun online from an unlicensed seller who resides in the same state without any background check or sale record required, unless the buyer and seller reside in a state that has closed this dangerous loophole by requiring background checks on all gun sales. In some cases, the buyer could have the gun mailed directly to his or her door. (The US Postal Service, for instance, will mail unloaded long guns between individuals who are mailing the guns within the same state).13
As our Universal Background Checks policy page discusses more thoroughly, this enormous loophole in our nation’s gun laws helps explain why online “private” gun sales are a major source of guns trafficked on the black market and sold to people who could not pass a background check. Closing this loophole is one of the gun violence prevention movement’s top priorities.
Summary of State Law
Twenty states and Washington DC have at least partially closed the background check loophole, meaning that residents of these states are required to pass a background check and/or obtain a permit in order to buy at least some types of guns from unlicensed sellers, including people arranging gun sales online. These laws are discussed more fully in our page on Universal Background Checks.
Some states also place additional requirements on the purchase of firearms from out-of-state sellers. For instance, California generally prohibits its residents from acquiring any type of firearm out of state without first having that firearm delivered to a licensed dealer located in California to process the sale, conduct the background check, and submit a sale record to state law enforcement.14 (Federal law, by contrast, generally authorizes unlicensed buyers to acquire long guns out of state through a licensed dealer in either the buyer’s or seller’s state of residence).
Key Legislative Elements
The strongest state laws in this area close gaps in federal law by generally requiring that all gun sales—including sales arranged or completed online—must be conducted through a licensed firearms dealer, pursuant to a background check and sale record. Alternatively, gun buyers should be required to physically appear in person to buy a firearm and to present a firearm purchase permit that was issued by law enforcement, pursuant to a background check.
States should also ensure that a state law enforcement agency receives a record of any gun sale, regardless of where the resident acquired the weapon.
- Matthew Miller, Lisa Hepburn, and Deborah Azrael, “Firearm Acquisition Without Background Checks: Results of a National Survey,” Annals of Internal Medicine 166, no. 4 (2017): 233–239. ⤴︎
- “Unchecked,” Everytown for Gun Safety, February 2019, https://everytownresearch.org/documents/2019/02/singles-unchecked-bifold-020119d.pdf/. ⤴︎
- 18 U.S.C. § 922(a)(3). ⤴︎
- See id.; 18 U.S.C. §922(a)(5). ⤴︎
- Id. ⤴︎
- Id.; 18 U.S.C. §922(b)(3). ⤴︎
- 18 U.S.C. §922(a)(3); 18 U.S.C. §922(b)(3). ⤴︎
- Id. ⤴︎
- 18 U.S.C. §§ 922(a)(5), 922(b)(3). ⤴︎
- 18 U.S.C. § 923. ⤴︎
- “May a licensee transfer a firearm to a nonlicensed individual who does not appear in person at the licensed premises?”, Bureau of Alcohol, Tobacco, Firearms, and Explosives, accessed August 5, 2019, https://www.atf.gov/firearms/qa/may-licensee-transfer-firearm-nonlicensed-individual-who-does-not-appear-person-licensed. ⤴︎
- See USPS.com, Publication 52, “Hazardous, Restricted, and Perishable Mail, at https://pe.usps.com/text/pub52/pub52c4_009.htm#ep308518. ⤴︎
- Cal. Penal Code § 27585. ⤴︎