Though more than 90% of the American public supports background checks for all gun sales, a dangerous and deadly loophole in federal gun laws still exempts unlicensed sellers from having to perform any background check whatsoever before selling a firearm. With this loophole, guns easily find their way into the hands of illegal buyers and gun traffickers, dramatically increasing the likelihood of gun homicides and suicides.

Background

A dangerous gap in our federal gun laws lets people buy guns without passing a background check. Under current law, unlicensed sellers—people who sell guns online, at gun shows, or anywhere else without a federal dealer’s license—can transfer firearms without having to run any background check whatsoever.

Because of this loophole, domestic abusers, people with violent criminal records, and people prohibited for mental health reasons can easily buy guns from unlicensed sellers with no background check in most states. In fact, an estimated 22% of US gun owners acquired their most recent firearm without a background check1—which translates to millions of Americans acquiring millions of guns, no questions asked, each year.

When background checks are required and properly enforced, they can help keep guns out of dangerous hands.

  • Since the federal background check requirement was adopted in 1994, over 3 million people legally prohibited from possessing a gun have been stopped from purchasing a gun or denied a permit to purchase.2 More than 35% of these denials involved people convicted of felony offenses.3
  • Background check laws also help prevent guns from being diverted to the illegal gun market. States without universal background check laws export crime guns across state lines at a 30% higher rate than states that require background checks on all gun sales.4

However, in the absence of a comprehensive background check system, criminals and other prohibited persons routinely exploit the massive loopholes in our laws.

  • Around 80% of all firearms acquired for criminal purposes are obtained through transfers from unlicensed sellers,5 and 96% of inmates convicted of gun offenses who were already prohibited from possessing a firearm at the time of the offense obtained their firearm from an unlicensed seller.6
  • Individuals who commit crimes with firearms may intentionally seek to purchase guns from sellers who aren’t required to run background checks. Purchasers from Armslist.com, a major online firearms marketplace, were nearly seven times as likely to have a firearm-prohibiting criminal record than people attempting to buy guns from licensed dealers.7 (This is discussed more fully on our page on online gun sales.)

Recent examples show that loopholes in our background check system can have dangerous and deadly consequences.

  • In 2019, a man fatally shot seven people and wounded 25 others in West Texas. The shooter previously failed a criminal background check when trying to purchase a gun, yet loopholes in our nation’s gun laws allowed him to bypass the background check system altogether and obtain the AR-style weapon used in his deadly attack from an unlicensed seller who wasn’t required to run a background check.8
  • In 2018, in Appleton, WI, a man who was prohibited from purchasing a gun because he was out on bond for a firearm-related felony domestic violence case purchased a firearm from an unlicensed seller on Armslist.com without a background check. The next day he used the gun to kill his wife.9
  • In 2016, a woman was killed, and their two children shot by an ex-boyfriend, who purchased the gun from an unlicensed seller without a background check. He was prohibited from purchasing a firearm due to a domestic violence restraining order and a pending domestic battery case.10
  • In 2014, a gunman in West Virginia killed four people, including his ex-girlfriend, with a gun he purchased from an online seller without a background check. He was prohibited from purchasing firearms due to multiple felony convictions.11

Background checks are easy, convenient, and impose almost no burden on law-abiding gun purchasers.

  • In at least 90% of cases, firearm background checks processed through the National Instant Criminal Background Check System (NICS) are resolved immediately. The average processing time for an electronic NICS-check is less than two minutes—107 seconds, to be precise.12
  • Contrary to gun-lobby claims, background checks rarely provide false-positive results. The FBI’s quality control evaluations suggest that background checks are accurate approximately 99.3 to 99.8% of the time.13

For more than a decade, the vast majority of the American public has supported laws requiring background checks on all firearm purchases,14 with polling data consistently showing that more than 90% of both gun owners and non-gun owners support this policy.15 Strong support for background check laws has also been measured among NRA members, with at least 69% supporting comprehensive background checks.16

Universal background checks are a necessary foundation for any policy that aims to keep firearms out of the hands of abusers and other prohibited people. However, other improvements should also be made in the existing background check system. For further information on how federal and state background checks work, see our pages on Background Check Procedures and Reporting Procedures.

Summary of Federal Law

Federal law imposes various duties on federally licensed firearms dealers. Firearms dealers must, among other things:

  • Perform background checks on prospective firearm purchasers.
  • Maintain records of all gun sales.
  • Make those records available to law enforcement for inspection.
  • Report certain multiple sales.
  • Report the theft or loss of a firearm from the licensee’s inventory.17 Federal law imposes none of these requirements on unlicensed sellers, however.

The Gun Control Act of 1968 provides that persons “engaged in the business” of dealing in firearms must be licensed.18 Although Congress did not originally define the term “engaged in the business,” it did so in 1986 as part of the McClure-Volkmer Act (also known as the Firearms Owners’ Protection Act). That act defined the term “engaged in the business,” as applied to a firearms dealer, as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”19

Significantly, however, the term was defined to exclude a person who “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”20 According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the current definition of “engaged in the business” often frustrates the prosecution of “unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons.”21

Summary of State Law

Twenty-one states and Washington DC have extended the background check requirement beyond federal law to at least some private sales. 

Twelve states (California, Colorado, Connecticut, Delaware, Nevada22, New Jersey, New Mexico23, New York, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia require universal background checks at the point of sale for all sales and transfers of all classes of firearms, whether they are purchased from a licensed dealer or an unlicensed seller.24

Two more states, Maryland and Pennsylvania, require point of sale background checks for handguns but not for long guns, like rifles and shotguns.

Instead of a point of sale background check, three states (Hawaii, Illinois, and Massachusetts) require all firearm purchasers to obtain a permit, issued after a background check, in order to buy any firearm. New Jersey requires firearm purchasers to both obtain a permit to purchase a firearm and, if the purchase is from an unlicensed seller, conduct the transaction through a federally-licensed firearms dealer.25 Four more states (Iowa, Michigan, Nebraska, and North Carolina) have this permit and background check requirement for the purchase of handguns, but not long guns. Illinois also requires a point of sale background check whenever a firearm is sold at a gun show.

State Laws Closing the Private Sale Loophole

Background Checks at the Point of Transfer

The most comprehensive approach to ensuring that guns are not sold to prohibited people is through a requirement for a background check at the point of transfer of any firearm. Processing transfers by private sellers through licensed dealers or a law enforcement agency helps to ensure that a background check will be conducted prior to any transfer.

States that Require a Background Check at the Point of Transfer

California26
Colorado27
Connecticut28
Delaware29
District of Columbia30
Maryland (handguns and assault weapons only)31
Nevada (effective January 2, 2020)32
New Jersey33
New Mexico (Does not apply to transfers that are not commercial sales. Effective July 1, 2019)34
New York35
Oregon36
Pennsylvania (handguns only)37
Rhode Island38
Vermont39
Washington40

California, Colorado, Delaware, Nevada, New Jersey, New York, Oregon, Vermont, and Washington generally require all firearm transfers to be conducted by or processed through licensed dealers, who conduct background checks on prospective firearm purchasers or recipients. In the District of Columbia, firearms may be sold and transferred only by or to a licensed dealer.

Rhode Island requires all sellers to obtain a completed application form from the prospective purchaser and to submit the form to law enforcement for purposes of conducting a background check. Connecticut requires any person transferring a firearm to either submit a form to law enforcement or conduct the transfer through a licensed dealer, so that a background check is conducted for every sale or transfer.

Maryland and Pennsylvania require a background check for every prospective handgun sale or transfer, and provide that the background check may be conducted either by a licensed dealer or a designated law enforcement agency.

New Mexico requires background checks only for firearms sales, not for other types of transfers, for example, a gift or long-term loan, and requires that the background check be conducted through a licensed firearms dealer.

State Permit Requirements for Private Purchasers

Some states impose background checks on private purchasers through a permitting or licensing system. In these states, a purchaser must obtain a permit that includes a background check in order to purchase a firearm. The permits may be valid for as short as 10 days or as long as 10 years. State licensing requirements are discussed in greater detail on our licensing policy page.

While these requirements ensure that a background check has been conducted at some point prior to purchase, a person may fall within a prohibited category after the license or permit is issued but before the time the person attempts to purchase a firearm. As a result, licensing laws do not necessarily prevent prohibited people from accessing firearms. Some states that require purchasers to obtain a permit also require a background check at the point of sale to ensure that a purchaser has not fallen into a prohibited category after he or she obtained the permit.

The thirteen states that require private individuals to obtain a permit prior to the purchase of a firearm are listed below.

States that Require Permits for Private Purchasers after Background Checks

Connecticut (also requires a point of sale background check)41
District of Columbia (also requires a point of sale background check)42
Hawaii43
Illinois44
Iowa (handguns only)45
Maryland (handguns only. Also requires a point of sale background check for handguns and assault weapons)46
Massachusetts47
Michigan (handguns only)48
Nebraska (handguns only)49
New Jersey50 (also requires a point of sale background check)
New York (handguns only. Also requires point of sale background check)51
North Carolina (handguns only)52
Rhode Island (handguns only. Also requires point of sale background check)53

Gun Show Background Checks

Illinois54 requires a background check before the sale or transfer of a firearm at a gun show. Additionally, though Oregon generally requires background checks to be conducted by a licensed dealer at the point of transfer for all firearms, Oregon law also allows a transferor at a gun show who is not a licensed dealer to contact the Department of State Police directly to conduct the background check.55 For more information about the regulation of gun shows, see our summary on Gun Shows.

In 2016, Virginia enacted a law requiring the state police to be available at gun shows in order to facilitate voluntary background checks requested by either party to a transaction if the seller is unlicensed.56

Key Legislative Elements

The features listed below are intended to provide a framework from which policy options may be considered. Any jurisdiction considering new legislation should consult with counsel.

  • For all firearm transfers, private sellers are subject to similar requirements as licensed dealers, including background checks and record-keeping requirements.
  • The most comprehensive policy option requires all firearm transfers to be conducted through licensed dealers, so that background checks will be completed on all purchasers (including purchases from unlicensed sellers), and sales records will be maintained (see California, Colorado, Delaware, District of Columbia, New York, Oregon, Vermont, and Washington).
  • If the jurisdiction does not require that all firearm transfers be conducted through licensed dealers, private sellers should be required to:
    • Conduct background checks through a central law enforcement agency that has access to federal and state databases of prohibited purchasers (Rhode Island requires private sellers to conduct background checks directly through law enforcement; Connecticut requires private sellers to conduct background checks through licensed dealers or law enforcement).
    • Maintain records of all firearm transfers for a lengthy period (Illinois requires all sellers to retain sales records for 10 years).
    • Report all transfers to state and local law enforcement (see Connecticut, Hawaii, Massachusetts).
Notes
  1. Matthew Miller, Lisa Hepburn & Deborah Azrael, “Firearm Acquisition Without Background Checks,” Annals of Internal Medicine 166, no. 4 (2017): 233–239. ⤴︎
  2. Jennifer Karberg, et al., “Background Checks for Firearm Transfers, 2015—Statistical Tables,” US Department of Justice: Bureau of Justice Statistics (2017), https://www.bjs.gov/content/pub/pdf/bcft15st.pdf. ⤴︎
  3. Id. ⤴︎
  4. Daniel W. Webster, Jon S. Vernick, and Maria T. Bulzacchelli, “Effects of State–level Firearm Seller Accountability Policies on Firearm Trafficking,” Journal of Urban Health 86, no. 4 (2009): 525–537; Daniel W. Webster, Jon S. Vernick, Emma E. McGinty, and Ted Alcorn, “Preventing the Diversion of Guns to Criminals Through Effective Firearm Sales Laws,” in Reducing Gun Violence in America: Informing Policy with Evidence and Analysis (Baltimore: The Johns Hopkins University Press, 2013), 109–121. ⤴︎
  5. Katherine A. Vittes, Jon S. Vernick, and Daniel W. Webster, “Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership,” Injury Prevention 19, no. 1 (2013): 26-31. ⤴︎
  6. Id. ⤴︎
  7. “Unchecked,” Everytown for Gun Safety, February 2019, https://everytownresearch.org/documents/2019/02/singles-unchecked-bifold-020119d.pdf/. ⤴︎
  8. Ryan W. Miller, “Gunman in Texas Shooting Bought Gun in Private Sale: Here’s What We Know,” USA Today, September 3, 2019, https://bit.ly/2khMbBp. ⤴︎
  9. Alison Dirr, “Five Years Apart, Armslist was Source of Guns in High-Profile Domestic Violence Deaths,” Appleton Post-Crescent, September 19, 2018, https://www.postcrescent.com/story/news/crime/2018/09/19/guns-harrison-murder-suicide-azana-shooting-found-same-website/1224081002/. ⤴︎
  10. Kimber Laux, “Report reveals details about North Las Vegas day care shooting,” Las Vegas Review Journal, June 17, 2016, https://www.reviewjournal.com/crime/homicides/report-reveals-details-about-north-las-vegas-day-care-shooting/. ⤴︎
  11. “Appendix: Mass Shootings in the United States, 2009–2017,” Everytown for Gun Safety, December 2018, https://everytownresearch.org/documents/2018/12/appendix-mass-shootings-report-2009-2017.pdf. ⤴︎
  12. “National Instant Criminal Background Check System Celebrates 20 Years of Service,” Federal Bureau of Investigation, Criminal Justice Information Services, November 30, 2018, https://www.fbi.gov/services/cjis/cjis-link/national-instant-criminal-background-check-system-celebrates-20-years-of-service; “About NICS,” Federal Bureau of Investigation, Accessed June 3, 2019, https://www.fbi.gov/services/cjis/nics/about-nics. ⤴︎
  13. Office of the Inspector General, “Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background Check System,” US Department of Justice, September 2016, https://oig.justice.gov/reports/2016/a1632.pdf. ⤴︎
  14. For example, a 2008 poll showed 87% support for background checks on private gun sales. Garen J. Wintemute, Anthony A. Braga, and David M. Kennedy, “Private–party Gun Sales, Regulation, and Public Safety,” 363 New England Journal of Medicine, no. 6 (2010): 508–511. ⤴︎
  15. “U.S. Support For Gun Control Tops 2-1, Highest Ever, Quinnipiac University National Poll Finds; Let Dreamers Stay, 80 Percent Of Voters Say,” Quinnipiac University Poll, February 20, 2018, https://poll.qu.edu/national/release-detail?ReleaseID=2521. ⤴︎
  16. Brett Samuels, “Poll: Most NRA Members Support Comprehensive Background Checks,” The Hill, March 8, 2018, https://thehill.com/blogs/blog-briefing-room/377455-poll-most-nra-members-support-comprehensive-background-checks. ⤴︎
  17. 18 U.S.C. §§ 922(t), 923(g). ⤴︎
  18. 18 U.S.C § 921(a)(21)(C). ⤴︎
  19. Id. ⤴︎
  20. Id. ⤴︎
  21. U.S. Department of Justice & Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Gun Shows: Brady Checks and Crime Gun Traces 13-14 (Jan. 1999). ⤴︎
  22. effective January 2, 2020 ⤴︎
  23. effective July 1, 2019. ⤴︎
  24. These states adopted their universal background check laws in this order: Washington D.C. (conducts universal background checks as part of a firearm registration law that was enacted in 1975), Rhode Island (1990), California (1991), New York (2013), Colorado (2013), Connecticut (2013), Delaware (2013), Washington (2014 by voter initiative), Oregon (2015),  Vermont (2018), Nevada (2019), and New Mexico (2019). ⤴︎
  25. N.J. Stat. Ann. § 2C:58-3. ⤴︎
  26. Cal. Penal Code §§ 27545, 27850-28070. ⤴︎
  27. Colo. Rev. Stat. § 18-12-112; 2013 Colo. H.B. 1229. See also Colo. Rev. Stat. §§ 12-26.1-101 – 12-26.1-108. ⤴︎
  28. Conn. Gen. Stat. §§ 29-33(c), 29-36l(f), 29-37a(e)-(j). 2013 Ct. ALS 3. See also Conn. Gen. Stat. § 29-37g (pre-existing law requiring a background check before a firearm is sold at a gun show). ⤴︎
  29. Del. Code tit. 11, § 1448B, tit. 24, § 904A. ⤴︎
  30. D.C. Code Ann. § 7-2505.02. ⤴︎
  31. Md. Code Ann., Pub. Safety §§ 5-101(t), 5-124. Maryland’s requirement applies to “regulated firearms,” which is defined to include handguns and assault weapons. However, assault weapons are now generally banned in Maryland. ⤴︎
  32. 2019 NV SB 143. ⤴︎
  33. N.J. Stat. Ann. § 2C:58-3. ⤴︎
  34. 2019 NM S 8. ⤴︎
  35. N.Y. Gen. Bus. Law § 898. 2013 NY ALS 1. See also N.Y. Gen. Bus. Law §§ 895-897; N.Y. Penal Law § 400.00 (pre-existing law requiring a background check before sale of a firearm at a gun show). ⤴︎
  36. Or. Rev. Stat. § 166.435. At gun shows, Oregon law allows a transferor who is not a licensed dealer to contact the Department of State Police directly to conduct the background check. Or. Rev. Stat. § 166.436. ⤴︎
  37. 18 Pa. Cons. Stat. § 6111(b), (c), (f)(2). ⤴︎
  38. R.I. Gen. Laws §§ 11-47-35 – 11-47-35.2. ⤴︎
  39. Vt. Stat. Ann. tit. 13, § 4019, enacted by 2017 SB 55, Sec. 6. ⤴︎
  40. Rev. Code Wash. § 9.41.113. In 2014, Washington became the first state to enact a law requiring background checks on private sales by voter initiative. See Initiative Measure No. 594, available at http://sos.wa.gov/_assets/elections/initiatives/FinalText_483.pdf. ⤴︎
  41. Conn. Gen. Stat. §§ 29-33, 29-36f – 29-36i, 29-37a, 29-38g – 29-38j. ⤴︎
  42. D. C. Code Ann. §§ 7-2502.01 – 7-2502.10; D.C. Mun. Regs. tit. 24, D.C. Mun. Regs. tit. 24, §§ 2311 – 2320. ⤴︎
  43. Haw. Rev. Stat. Ann. §§ 134-2, 134-13. ⤴︎
  44. 430 Ill. Comp. Stat. 65/1 – 65/15a, 720 Ill. Comp. Stat. 5/24-3(k). Since 2014, Illinois has required a seller to contact law enforcement and verify the validity of the purchaser’s permit (called a FOID Card) at the time of the sale. ⤴︎
  45. Iowa Code §§ 724.15 – 724.20. ⤴︎
  46. Md. Code Ann. Pub. Safety § 5-117.1. ⤴︎
  47. Mass. Gen. Laws ch. 140, §§ 121, 129B, 129C, 131, 131A, 131E, 131P. ⤴︎
  48. Mich. Comp. Laws §§ 28.422, 28.422a. ⤴︎
  49. Neb. Rev. Stat. Ann. §§ 69-2404, 69-2407, 69-2409. ⤴︎
  50. N.J. Stat. Ann. § 2C:58-3. ⤴︎
  51. N.Y. Penal Law §§ 400.00 – 400.01. ⤴︎
  52. N.C. Gen. Stat. §§ 14-402 – 14-404. ⤴︎
  53. R. I. Gen. Laws §§ 11-47-35 – 11-47-35.1. ⤴︎
  54. 430 Ill. Comp. Stat. 65/3, 65/3.1. ⤴︎
  55. Or. Rev. Stat. § 166.436. ⤴︎
  56. Va. Code Ann. § 54.1-4201.2 as amended by 2016 VA H 1386/S 715. ⤴︎