“Gun trafficking” refers to the diversion of guns from lawful commerce into the illegal market.1 Studies of gun trafficking have identified the following major channels of trafficked guns:
Corrupt gun dealers
ATF data confirms that corrupt or irresponsible gun dealers are the leading source of guns on the black market, responsible for “nearly half of the total number of trafficked firearms” uncovered in ATF investigations.2 Though stolen firearms are also a major source of black market guns, 4.5 times as many guns are obtained from dealers as are stolen from any source.3 According to ATF, gun dealers’ “access to large numbers of firearms makes them a particular threat to public safety when they fail to comply with the law.”4 On average, ATF trafficking investigations implicating a gun dealer involve over 350 black market guns per investigation, or over 550 guns in cases in which the dealer was the sole trafficker.5 Strong dealer regulations, such as laws requiring licensing, inspections, employee background checks, and videotaping of gun purchases, can prevent this conduct. For more information about the role gun dealers play in gun trafficking and laws regulating gun dealers, see our summary on Gun Dealers.
Federal law allows people who are not licensed gun dealers to sell guns at gun shows, online, and in person. These unlicensed “private” sellers are not required to conduct background checks or maintain records of purchasers. As a result, they play a significant role in gun trafficking.6 Some states have addressed this problem by passing laws requiring universal background checks. For more information, see our summary on Universal Background Checks.
Lost or stolen guns
Gun traffickers often falsely claim that guns they purchased were lost or stolen in order to hide their involvement in crime. Laws that require the reporting of lost or stolen firearms to law enforcement can provide a check against this behavior and are discussed in our summary on Reporting Lost & Stolen Firearms.
Bulk Firearm Sales
Gun traffickers often buy large quantities of guns at once in order to supply them to convicted felons and other prohibited persons. A 2007 University of Pennsylvania report to the National Institute of Justice found that guns purchased in bulk were up to 64% more likely to be used for illegal purposes than guns purchased individually.7 Laws limiting the number of guns that may be purchased in a single transaction help deter this conduct. See our summary on Bulk Gun Purchases for more information.
A “straw purchase” occurs when the actual buyer of a firearm uses another person, a “straw purchaser,” to execute the paperwork necessary to purchase a firearm from a firearms dealer. People who are prohibited from purchasing firearms and people who do not want to be identified through crime gun tracing often obtain firearms through straw purchases. By intentionally buying firearms for someone else, straw purchasers undermine background checks and gun safety laws and allow firearms to be funneled to violent criminals, domestic abusers, and other prohibited people.8
- An ATF study of 1,530 gun trafficking cases determined that straw purchasers were involved in almost one-half (46%) of the investigations, and were associated with nearly 26,000 illegally trafficked firearms.9
- Subsequent ATF investigations at gun shows also uncovered “widespread” straw purchasing from gun dealers, where guns were diverted to “convicted felons and local and international gangs.”10
- In 2009, New York City officials conducted their own investigation at gun shows across the US to test whether, among other things, gun dealers would be willing to sell guns to someone who appeared to be a straw purchaser.11 New York’s investigation found that 16 out of 17 (or 94% of) dealers approached by investigators willingly sold to an apparent straw purchaser.12
- A 2007 study found that straw purchases were significantly more common at gun shows in states with little regulation (Arizona, Florida, Nevada, and Texas) than at gun shows in California, which regulates gun shows and requires background checks for all firearm transfers.13
Guns move from states with weak gun laws into states with strong gun laws. Gun traffickers frequently obtain guns in states that lack anti-trafficking laws such as dealer regulations, background check requirements, and lost and stolen reporting requirements, and re-sell them in states that have these laws.14
Trafficking channels are identified through the use of crime gun tracing.15 Crime gun trace data is generated when law enforcement recovers a firearm from a crime scene and requests that ATF or another law enforcement agency conduct an investigation to determine who originally sold and purchased the gun. As detailed in our summary on Maintaining Records of Gun Sales, crime gun trace data is crucial to individual criminal investigations and, when aggregated, can reveal patterns regarding who is trafficking firearms and how they are being trafficked.
Unfortunately, ATF’s ability to investigate and prosecute gun trafficking has been significantly hampered by Congress. According to an investigation by the Washington Post in 2010, ATF’s efforts are hindered by a lack of sufficient funding, as well as statutory limitations on the use of crime gun trace data.16 In addition, the number of ATF agents—2,500—has not changed since 1972. During the same period of time, the staffs of other government agencies have increased dramatically (for example, the staff of the Drug Enforcement Agency more than tripled during the time period).17
Guns trafficked from the US also play a major role in arming Mexico’s violent drug cartels. According to data from ATF, approximately 87% of firearms seized by Mexican authorities and traced over Fiscal Years 2004 to 2008 originated in the US.18 Since Mexico’s laws regarding the possession of guns by civilians are strict,19 the Mexican drug cartels obtain the firearms that fuel drug-related violence legally—and easily—in the US.
- A June 2009 US Government Accountability Office (GAO) report found that certain federal firearms laws, including restrictions on the collection and reporting of information regarding gun purchases and the lack of a background check requirement for private gun transfers, present significant challenges to US efforts to fight firearms trafficking into Mexico.20
- Another study points out that the near absence of ammunition sales regulation in the US also contributes substantially to the cross-border trafficking problem.21
A 2010 analysis of trace data regarding crime guns exported to Mexico revealed significant differences in the states that serve as sources for these guns.22 Not surprisingly, the four states with the highest number of exports were the four that share a border with Mexico—Arizona, California, New Mexico, and Texas. However, after controlling for population, three of these states—Arizona, New Mexico and Texas—each exported firearms to Mexico at a rate that is more than three times as high as California, a state with some of the strongest gun laws.23 This data supports the argument that strong state gun laws are the key to reducing gun trafficking.
Summary of Federal Law
No clear and effective federal statute makes gun trafficking a federal crime. Federal law makes certain people, such as convicted felons, ineligible to purchase or possess firearms.24 Federal law also makes it unlawful for any person to sell or otherwise dispose of a firearm to a person if the seller has “reasonable cause to believe” he or she falls within one of these categories.25 As described in our summary on Universal Background Checks, however, federal law only requires licensed dealers, and not unlicensed private sellers, to conduct background checks on purchasers and maintain records of sales. As a result, guns are often sold or transferred to dangerous people even though they are ineligible to purchase or possess firearms.
Gun traffickers exploit the loopholes in federal law by purposefully purchasing guns through sales that do not require background checks or sale records. Federal law does not generally prohibit this behavior except in the context of straw purchases.26
As described above, a straw purchaser buys a firearm from a licensed firearms dealer on behalf of another person. Straw purchases are illegal because federal law criminalizes the making of false statements to a dealer about a material fact on ATF Form 4473, which must be filled out when a firearm is purchased from a licensed dealer.27 Form 4473 asks the purchaser to confirm that he or she is the “actual transferee/buyer of the firearm(s)” and states, “You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.”28 A straw purchaser therefore commits a federal crime by falsely stating that he or she is the actual gun buyer. In a successful straw purchase, the actual buyer has also committed a federal crime by aiding and abetting the straw purchaser or causing the making of the false statements.29 In the 2013 case of Abramski v. US, the US Supreme Court again affirmed that these federal laws prohibit straw purchases.30
Crime gun tracing and the Tiahrt amendments
Under federal regulations, ATF must maintain and operate the National Tracing Center to process requests from federal, state, local, and foreign law enforcement agencies for the tracing of crime guns.31 However, provisions that have been attached to US Department of Justice appropriations bills since 2003 have significantly impeded efforts to trace crime guns. These provisions are referred to as “the Tiahrt Amendments” after their original sponsor, former US Representative Todd Tiahrt (R-KS). Among other things, the Tiahrt Amendments prohibit ATF from releasing firearm trace data for use by cities, states, researchers, litigants, and members of the public, except in aggregate form.32
On January 16, 2013, President Obama released a memorandum to federal agencies requiring them to submit any firearm taken into their custody to the National Tracing Center to be traced.33 In the absence of state and local laws, however, other law enforcement officials are not subject to this requirement.
Summary of State Law
The strongest laws against firearms trafficking are those that require a background check before any transfer of a firearm. See our summary on Universal Background Checks for information about these laws.35 See also our summaries on:
- Gun Dealers;
- Gun Shows;
- Maintaining Records of Gun Sales;
- Bulk Gun Purchases; and
- Reporting Lost & Stolen Firearms.
Some states, including California, Connecticut, Maryland, and Massachusetts, have additional strong laws that may be used to prosecute firearms traffickers, as described below.
State Laws that Prevent Transfers to Traffickers
Apart from the laws mentioned above, the strongest laws against firearms trafficking prohibit the sale or transfer of a firearm if the seller has knowledge or reason to believe the buyer intends to subsequently transfer or resell the firearm to a third party without a background check. The buyer or transferee in this situation may be a “straw purchaser,” i.e., someone who is acquiring a gun on behalf of a specific person (referred to below as the “actual purchaser” or “true purchaser”), or may instead simply intend to resell the firearms at a later time for profit without a background check.
State Laws That Penalize Buyers Who Intend to Traffic the Firearm
About a third of the states have laws that prosecutors may use to penalize gun purchasers who intend to traffic the gun, in certain circumstances. California has the strongest anti-trafficking law of this type. California law prohibits acquiring a firearm for the purpose of selling, loaning, or transferring it in violation of California law. Unlike most states, California law requires a background check for every sale of a firearm. Therefore, subject to limited exceptions, any person who acquires a firearm in order to transfer it to someone else without a background check violates California law.36
Maryland, Massachusetts, and Pennsylvania also have strong laws aimed at buyers who intend to traffic the firearm. Massachusetts law prohibits any person from using any of the state’s gun licenses for the purpose of purchasing a firearm for resale or transfer to an unlicensed person.37
The law in Maryland is more limited, because it presumes that the true purchaser played an active role in soliciting the person who filled out the required forms and underwent a background check. Maryland prohibits any person from knowingly or willfully participating in a “straw purchase” of a handgun or assault weapon. “Straw purchase” is broadly defined as a sale in which a person uses another, known as the straw purchaser, to: (1) complete the application to purchase; (2) take initial possession of the firearm; and (3) subsequently transfer the firearm to the person.38
Pennsylvania law requires a buyer of a handgun to affirm, on a form, that he or she is the “actual buyer” of the handgun, with a statement that a person is not the actual buyer if he or she is acquiring the firearm on behalf of another person, with an exception for gifts to certain family members.39
The remaining states only penalize a narrower category of “straw purchasers”: those who purchase or acquire a firearm on behalf of, or with the intent to resell the firearm to, an individual who is prohibited by law from possessing a firearm. Some state laws, including those in Connecticut,40 Colorado,41 Nevada,42 North Dakota,43 Virginia,44 and Wisconsin45 impose penalties if the initial buyer has a reason to know that the third party is prohibited from possessing firearms, even if he or she does not have actual knowledge of the third party’s prohibited status.46 Other state laws only impose penalties if the buyer actually knows that the third party is ineligible.47
State Laws That Penalize Sellers Who Supply Firearms to Traffickers
Seven states (California, Connecticut, Maryland, Minnesota, New Jersey, Pennsylvania, and Rhode Island) have laws that may facilitate prosecution of individuals who transfer firearms to traffickers under certain circumstances.48
Maryland prohibits any person from transferring a handgun or assault weapon to a transferee that the transferor has reasonable cause to believe is a participant in a “straw purchase,” as defined above.49
California prohibits a person from transferring a firearm to any person he or she has cause to believe is not the actual transferee of the firearm, provided he or she knows that the firearm is to be subsequently transferred illegally.50 California also prohibits people from supplying ammunition to any person they know or reasonably should know is prohibited from possessing ammunition.51 In addition, it is illegal in California for a person to supply ammunition to straw purchaser with knowledge or cause to believe that the straw purchaser would subsequently provide that ammunition to a prohibited person.52
Rhode Island prohibits any person from selling a handgun to someone whom he or she has reasonable cause to believe is providing false information.53 Minnesota has a similar law that applies to handguns and assault weapons.54
Pennsylvania penalizes any seller who knowingly or intentionally sells, delivers, or transfers a firearm “under circumstances intended to provide a firearm to” any person who is ineligible to possess a firearm under Pennsylvania law.55 Connecticut law prohibits a person from directly or indirectly causing a firearm to come into the possession of another individual that the transferor knows or has reason to believe is prohibited from possessing a firearm under state or federal law.56 New Jersey enacted a law in 2013 that prohibits a licensed dealer from selling or transferring a firearm to a person knowing that the person intends to sell, transfer, assign, or otherwise dispose of that firearm to a person who is disqualified from possessing a firearm under state or federal law.57
In addition, although federal law requires licensed dealers to conduct background checks, ATF does not have the resources to fully enforce this requirement. As a result, state laws that mirror the federal requirement enable prosecution of dealers who sell firearms “off the books” to ineligible individuals. See our summary on Background Checks Procedure for information about such laws.
State Laws That Prohibit Individuals from Knowingly Encouraging Sellers to Conduct an Illegal Firearm Transfer
A weaker set of laws, including laws in Alabama,58 Louisiana,59 and West Virginia,60 prohibit any person from knowingly soliciting, encouraging, persuading, or enticing a dealer or other firearm seller to transfer a firearm under circumstances the person knows would violate federal or state law.61 Many of these laws apply to ammunition sales as well. Similarly, Georgia62 and Virginia penalize any person who attempts to solicit, persuade, encourage, or entice any dealer to transfer or otherwise convey a firearm other than to the actual buyer. Virginia also penalizes any other person who willfully and intentionally aids or abets such person. Unlike the federal Form 4473, Virginia law defines “actual buyer” to mean a person who executes the required consent form, or other such firearm transaction records as required by federal law.63
State Laws that Penalize the Actual Buyer in a Straw Purchase
A small number of states have laws that allow the prosecution of the actual buyer in a straw purchase situation, even if the straw purchase was ultimately unsuccessful.64 Connecticut65 and Virginia66 penalize any ineligible buyer who solicits another person to purchase a firearm on behalf of that person.67 Maryland penalizes any willing participant in a straw purchase, as defined above.68 New Jersey prohibits causing someone else to give false information when acquiring a firearm.69 Other states, including Kentucky,70 Missouri,71 and West Virginia,72 penalize a person who willfully procures another person to entice a firearm seller to transfer a firearm knowing the transfer is illegal.73
State Laws that Prohibit Individuals From Providing False Information in a Firearms Transfer
Most states prohibit providing false information in connection with a firearms transfer.74 In eight states (Colorado,75 Connecticut,76 Illinois,77 New York,78 Oregon,79 Pennsylvania,80 Utah,81 and Virginia82 ), this law applies to sellers as well as buyers. In other states, including Delaware,83 Missouri,84 Oklahoma,85 and Iowa,86 the law is no broader than federal law, because it only applies to “materially false information,” which is defined as information that portrays an illegal transaction as legal or a legal transaction as illegal, and only if the information is intended or likely to deceive the seller.87
State Laws to Aid Enforcement Agencies in Anti-Trafficking Efforts
Connecticut, Maryland, New York, and the District of Columbia have established programs to help law enforcement combat gun trafficking.88 Connecticut has created a statewide firearms trafficking task force for the “effective cooperative enforcement” of state laws concerning the distribution and possession of firearms. This task force, composed of municipal and state law enforcement officers, is tasked with identifying and prosecuting traffickers, tracking, and removing illegally possessed firearms, and coordinating with other law enforcement agencies within and without the state.89
The District of Columbia has created a “Firearms Bounty Fund” that makes payments of cash rewards to anyone who provides a tip that leads to the conviction of a gun trafficker.90 Maryland has established a Cease Fire Grant Program to help fund activities aimed at reducing gun trafficking,91 and New York has established a gun trafficking interdiction program to implement and fund a strategy for the interdiction of guns illegally entering New York from supplier states.92
State Laws Requiring the Tracing of Crime Guns
Eight states (California, Connecticut, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, and Virginia) have laws requiring law enforcement to use tracing information to identify the source of a recovered firearm.93
State Laws Regulating “Community Guns”
A “community gun” is a firearm generally hidden away in a location known to a small group of individuals, such as members of the same gang, who then access the weapon when it is needed to commit criminal activity.94 States have begun to respond to the increasing use of community guns in dense urban areas. New Jersey, for example, prohibits the possession, use, or transfer of a “community gun,” which is defined as a firearm that is transferred among an association of two or more people who, while possessing the firearm, engage in criminal activity.95 New York also prohibits the use of “community guns,” if at least one person sharing the weapon is prohibited from possessing firearms.96 Idaho makes it illegal to knowingly sell or transfer a firearm to a gang member. 97
Key Legislative Elements
The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.
- Any licensed dealer or unlicensed seller or transferor of a firearm must conduct a background check on the transferee.98
- State law penalizes anyone who:
- Acquires a firearm with the intent to transfer it to anyone else without a background check (California, Massachusetts).
- Sells or transfers a firearm under circumstances where the transferor reasonably should know that the transferee intends to transfer the firearm to a third party without a background check (Maryland penalizes anyone who sells or transfers a firearm to someone with reason to believe that the person is a participant in a straw purchase).
- Solicits someone else to acquire a firearm on his or her behalf, even if the person is ultimately unable to acquire the firearm (Connecticut, Virginia).
- Any false statement made in connection with a firearms transfer is unlawful; this penalty also applies to false statements made by sellers, including licensed firearms dealers (Colorado, Connecticut, Illinois, New York, Oregon, Pennsylvania, Utah, Virginia).
- Law enforcement must cooperate with other agencies to investigate and prosecute firearms traffickers (Connecticut).
- Law enforcement must identify the source of any recovered firearm, using trace information if necessary (Connecticut, Illinois, New York, Pennsylvania).
- State law prohibits the possession, transfer, or use of a “community gun,” defined as a firearm that is transferred among an association of two or more people who, while possessing the firearm, engage in criminal activity (New Jersey).
- See William J. Krouse, Congressional Research Service, Gun Control Legislation 19 (Nov. 14, 2012) at https://fas.org/sgp/crs/misc/RL32842.pdf. ⤴︎
- ATF, Following the Gun: Enforcing Federal Laws against Firearms Traffickers x (Jun. 2000), available at http://everytown.org/wp-content/uploads/2014/08/Following-the-Gun_Enforcing-Federal-Laws-Against-Firearms-Traffickers.pdf. ⤴︎
- Id. at x, xi. ⤴︎
- Id. ⤴︎
- Id. at xi. Additional research on this topic is described in our summary on Gun Dealers. ⤴︎
- Id. at xi. ⤴︎
- Koper, Christopher S.; Jerry Lee Center of Criminology, Univ. of Penn., Crime Gun Risk Factors: Buyer, Seller, Firearm, and Transaction Characteristics Associated with Gun Trafficking and Criminal Gun Use—A report to the National Institute of Justice, US Department of Justice (2007). https://www.ncjrs.gov/pdffiles1/nij/grants/221074.pdf. ⤴︎
- For information on the ease by which straw purchases of guns can be made, see Everytown For Gun Safety, Inside Straw Purchasing: How Criminals Get Guns Illegally, at https://everytownresearch.org/reports/inside-straw-purchasing-criminals-get-guns-illegally/. ⤴︎
- Following the Gun,supra note 2, at ix, xi., 18. ATF’s trafficking investigations during this period that specifically involved youth and juveniles found that the source of 50.9% of the trafficked guns were via straw purchasers or straw purchasing rings. Bureau of Alcohol, Tobacco and Firearms, US Dep’t of Treasury, Commerce in Firearms in the United States 22 (Feb. 2000), at http://permanent.access.gpo.gov/lps4006/020400report.pdf. ⤴︎
- Office of the Inspector General, US Dep’t of Justice, The Bureau of Alcohol, Tobacco, Firearms and Explosives’ Investigative Operations at Gun Showsv-vi (June 2007), at http://www.justice.gov/oig/reports/ATF/e0707/final.pdf. From 2004-2006, ATF conducted 202 investigative operations at 195 guns shows, or roughly 3% of the gun shows held nationwide during this period. The investigations resulted in 121 arrests and the seizure of 5,345 firearms. Id. at iv-v. ⤴︎
- The City of New York, Gun Show Undercover: Report on Illegal Sales at Gun Shows6, 20-23 (Oct. 2009), at http://www.nyc.gov/html/om/pdf/2009/pr442-09_report.pdf. The City’s investigations took place at seven gun shows in Nevada, Ohio, and Tennessee from May through August 2009. Id. at 13. ⤴︎
- Id. at 20. A study of more than 1,000 gun-related prosecutions, including interviews with over 100 witnesses, found that, while some gun dealers and employees are able to identify straw purchases and will reject these sales, others are willing to sell guns despite suspicions that a sale is a straw purchase, and some gun dealers even coach customers on how to conduct a straw purchase. Everytown For Gun Safety, Inside Straw Purchasing: How Criminals Get Guns Illegally, at https://everytownresearch.org/reports/inside-straw-purchasing-criminals-get-guns-illegally/. ⤴︎
- See Garen J. Wintemute, Gun Shows Across a Multistate American Gun Market: Observational Evidence of the Effects of Regulatory Policies, 13 Inj. Prevention 150, 153-54 (2007), at http://injuryprevention.bmj.com/content/13/3/150.full.pdf. ⤴︎
- Mayors Against Illegal Guns, Trace the Guns: The Link Between Gun Laws and Interstate Gun Trafficking (Sept. 2010), at http://www.tracetheguns.org/report.pdf; Brain Knight, State Gun Policy and Cross-State Externalities: Evidence from Crime Gun Tracing, NBER Working Paper No. 17469 (Sept. 2011), at https://www.princeton.edu/rppe/speaker-series/speaker-series-2011-12/Knight.pdf. ⤴︎
- Id. at 1. ⤴︎
- Sari Horwitz and James V. Grimaldi, ATF’s Oversight Limited in Face of Gun Lobby, Wash. Post, Oct. 26, 2010, at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/25/AR2010102505823.html. ⤴︎
- Id. See also Mayors Against Illegal Guns, A Blueprint for Federal Action on Illegal Guns: Regulation, Enforcement, and Best Practices to Combat Illegal Gun Trafficking, Section III. ATF Resources & Structure (Aug. 2009), at http://www.joycefdn.org/assets/images/blueprint_federal_action.pdf. ⤴︎
- US Gov’t Accountability Office, Firearms Trafficking: US Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges 3, 15 (June 2009), at http://www.gao.gov/products/GAO-09-709. Further estimates finding the US as the overwhelming source of illegal guns in Mexico are even higher: around 90% to 95% of guns seized in drug crimes in Mexico originate in the US Spencer S. Hsu, US-Mexico Task Force Seeks Renewed Ban on Assault Weapons, Wash. Post, Nov. 13, 2009 at http://www.washingtonpost.com/wp-dyn/content/article/2009/11/12/AR2009111211331.html (reporting statements from Mexican officials finding that 90% of guns seized in drug crimes in Mexico and submitted for tracing to ATF originate in the US, including most assault rifles); and Alicia A. Caldwell, ATF: Most Illegal Guns in Mexico Come from US, Associated Press, Aug. 11, 2008 (ATF states that nearly all illegal guns seized in Mexico—90% to 95%— originally come from the US). US guns have also been shown to play a significant role in gun violence in Guatemala. Colby Goodman, US Firearms Trafficking to Guatemala and Mexico, Woodrow Wilson International Center for Scholars (April 2013), at http://www.wilsoncenter.org/sites/default/files/US%20Firearms%20to%20Guatemala%20and%20Mexico_1.pdf. ⤴︎
- See Damien Cave, At a Nation’s Only Gun Shop, Looking North in Disbelief, N.Y. Times, July 24, 2012, at https://www.nytimes.com/2012/07/25/world/americas/in-mexico-a-restrictive-approach-to-gun-laws.html. ⤴︎
- US Gov’t Accountability Office, supra note 15, at 24–28. ⤴︎
- Colby Goodman and Michel Marizco, US Firearms Trafficking to Mexico: New Data and Insights Illuminate Key Trends and Challenges 198, Woodrow Wilson International Center for Scholars, September 2010, at http://www.wilsoncenter.org/sites/default/files/Chapter%206-%20U.S.%20Firearms%20Trafficking%20to%20Mexico,%20New%20Data%20and%20Insights%20Illuminate%20Key%20Trends%20and%20Challenges.pdf. ⤴︎
- Mayors Against Illegal Guns, Issue Brief: The Movement of Illegal Guns Across the US-Mexico Border, Sept. 2010, at https://tracetheguns.org/Issue_Brief_Mexico_2010.pdf. ⤴︎
- Id. at 3. ⤴︎
- 18 U.S.C. § 922(g). ⤴︎
- 18 U.S.C. § 922(d). ⤴︎
- See Gun Control Legislation, supra note 1, at 21-25. 3. Under federal law, a handgun purchased over the Internet or via mail-order from a seller in a different state must be shipped to a dealer in the purchaser’s home state. A person may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee’s premises in any state, provided the sale complies with state laws applicable in the state of sale and the state where the purchaser resides. A person may borrow or rent a firearm in any state for temporary use for lawful sporting purposes. 18 U.S.C § 922(a)(3), (5), (b)(3). However, in the absence of state or local laws on this issue, only licensed dealers, and not unlicensed private sellers, are required to view purchasers’ identification documents and verify the state of residence of the purchase, making it all too easy for traffickers to transfer firearms across state lines. ⤴︎
- 18 U.S.C. §§ 922(a)(6), 924(a)(1)(A). ⤴︎
- The instructions for Form 4473 specify that a person is the actual transferee/buyer if he or she is buying the gun as a gift for someone else. ⤴︎
- See Following the Gun, supra note 2, at 5. Federal law also makes it unlawful for anyone to transport, receive, possess, sell, or otherwise dispose a firearm knowing or having reasonable cause to believe it was stolen, 18 U.S.C. § 922(i), (j), and makes it unlawful for anyone to possess, transport, ship, or receive, a firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered. 18 U.S.C. § 922(k). ⤴︎
- The Abramski petitioner had purchased a firearm in Virginia on behalf of his uncle, who lived in Pennsylvania. The petitioner was convicted under 18 U.S.C.§ 922(a)(6) (which criminalizes knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun) and §924(a)(1)(A) (which criminalizes making a false statement “with respect to the information required . . . to be kept” in the gun dealer’s records.
In a 5-4 decision, the majority rejected the argument that these federal laws were not intended to apply to straw purchases. The majority pointed out that if one were to read the statute the way petitioner proposed, the provisions would not apply to any straw purchases under any circumstances—even where the in-store buyer knowingly purchases a gun for a prohibited person, such as a convicted felon. The court noted that this interpretation of the law would allow a prohibited person to obtain a weapon for a dangerous individual without that person undergoing any of the protective measures enacted by Congress—like background checks—to prevent weapons from falling into the wrong hands. Moreover, the laws were intended to aid law enforcement by creating a paper trail leading back to the actual purchaser in cases where firearms are later used to commit crimes.
The majority’s ruling ensures that the “straw purchasing” of firearms—a major source of illegal trafficking—remains punishable under federal criminal law. ⤴︎
- 28 C.F.R. § 0.131(f). ⤴︎
- Consolidated and Further Continuing Appropriations Act 2012, Pub. L. 112 P.L. 55; 125 Stat. 552, 4 (2011). ⤴︎
- Memorandum of January 16, 2013, Tracing of Firearms in Connection With Criminal Investigations, Memorandum for the Heads of Executive Departments and Agencies, 78 Fed. Reg. 4301 (The President January 22, 2013). ⤴︎
- See also our webpage on the Tiahrt Amendments at https://lawcenter.giffords.org/federal-law-on-tiahrt-amendments/. ⤴︎
- Another approach is to penalize anyone who sells or transfers a firearm to a person who is prohibited from possessing it. Connecticut imposes strict criminal liability in this situation with respect to handguns, meaning that the person transferring a handgun to a prohibited person is guilty of a criminal offense regardless of whether he or she knew or had reason to know the transferee was a prohibited person. Conn. Gen. Stat. § 29-33(a), (i). Like federal law, other states prohibit sale or transfer of a firearm to a person the transferor knows or has reason to believe is ineligible to possess it. ⤴︎
- Cal. Penal Code §§ 27515, 27520. ⤴︎
- Mass. Gen. Laws ch. 140, § 131E(b). ⤴︎
- Md. Code Ann., Pub. Safety §§ 5-101(v), 5-114(b)(viii), 5-134(b)(13), 5-136, 5-141(a), See Md. Code Regs. 29.03.01.24. ⤴︎
- 18 Pa. Cons. Stat. § 6111(b)(1). ⤴︎
- Conn. Gen. Stat. § 29-37j. ⤴︎
- Colo. Rev. Stat. § 18-12-111. ⤴︎
- Nev. Rev. Stat. Ann. § 202.362. ⤴︎
- N.D. Cent. Code § 62.1-02-08. ⤴︎
- Va. Code Ann. § 18.2-308.2:2(M). ⤴︎
- Wis. Stat. § 941.2905. ⤴︎
- See also Del. Code Ann. tit. 11, § 1455; R.I. Gen. Laws § 11-47-37. ⤴︎
- See e.g., Fla. Stat. § 790.065(12)(d); 720 Ill. Comp. Stat 5/24-3.5; Ind. Code § 35-47-2-7(c); Minn. Stat. § 624.7133; Neb. Rev. Stat. § 69-2422; N.Y. Penal Law § 265.17(2), Utah Code Ann. § 76-10-527. See also Ohio Rev. Code § 2923.20(A)(2) (prohibiting possessing a firearm in order to “recklessly” sell, lend, give, or furnish it to a prohibited person). ⤴︎
- In addition, Ohio law penalizes anyone who sells or furnishes a firearm knowing or having reason to know that the person is purchasing or receiving the firearm for the purpose of selling or furnishing the firearm illegally to a person who is under age. Ohio Rev. Code Ann. § 2923.21(A). ⤴︎
- Md. Code Ann., Pub. Safety §§ 5-101(v), 5-114(b)(viii), 5-134(b)(13), 5-136, 5-141(a), See Md. Code Regs. 29.03.01.24. ⤴︎
- Cal. Penal Code § 27515. ⤴︎
- Cal. Penal Code § 30306(a). ⤴︎
- Cal. Penal Code § 30306(b). ⤴︎
- R.I. Gen. Laws §§ 11-47-23, 11-47-37. ⤴︎
- Minn. Stat. § 624.7132, subd. 15(a)(2), (4). ⤴︎
- 18 Pa. Cons. Stat. Ann. § 6111(g)(2). ⤴︎
- Conn. Gen. Stat. § § 53-202aa. ⤴︎
- N.J. Stat. § 2C:39-10(a)(4). ⤴︎
- Ala. Code § 13A-11-58.1. ⤴︎
- La. Rev. Stat. § 14:95.1.3. ⤴︎
- W. Va. Code § 61-7-10(f). ⤴︎
- See also Iowa Code § 724.29A(2); Ky, Rev. Stat. § 527.090; Miss. Code § 97-37-105; Mo. Rev. Stat. § 571.063(2)(1); Okla. Stat. Ann. tit. 21, § 1289.28(C); N.C. Gen. Stat. § 14-408.1(b); Utah Code Ann. §§ 76-10-503(9). ⤴︎
- Ga. Code Ann. § 16-11-113. ⤴︎
- Va. Code Ann. § 18.2-308.2:2(G), (K), (L1). ⤴︎
- The actual buyer in a straw purchase situation may also be prosecuted as an ineligible buyer attempting to purchase a firearm. For example, New York prohibits a person from attempting to purchase a firearm knowing that he or she is ineligible to possess it. NY Penal Law. § 265.17(1). Georgia has a similar law limited to certain felons. Ga. Code § 16-11-131(b.1). ⤴︎
- Conn. Gen. Stat. § 29-37j. ⤴︎
- Va. Code Ann. § 18.2-308.2:2(M), (N). ⤴︎
- Oregon prohibits a person who knows that he or she is ineligible to possess a firearm but attempts to purchase a firearm. Or. Rev. Stat. § 166.425. ⤴︎
- Md. Code Ann. Pub. Safety §§ 5-101(v), 5-114(b)(viii), 5-134(b)(13), 5-136, 5-141(a). See Md. Code Regs. 29.03.01.24. ⤴︎
- N.J. Stat. Ann. § 2C:39-10(c), (d), (g). ⤴︎
- Ky. Rev. Stat. § 527.090. ⤴︎
- Mo. Rev. Stat. § 571.063. ⤴︎
- W. Va. Code § 61-7-10(f). ⤴︎
- See also La. Rev. Stat. § 14:95.1.3; N.C. Gen. Stat. § 14-408.121; Okla. Stat. Ann. tit. 21, § 1289.28. ⤴︎
- A Tennessee administrative regulation states that a firearm transfer must be denied if the purchaser “provide[s] false information to purchase or transfer a firearm.” Tenn. Code Ann. § 39-17-1316(q)(1); Tenn. Comp. R. & Regs. R. 1395-1-3-.02(30), 1395-1-3-.05(1)(n). ⤴︎
- Colorado provides that it is unlawful for any person, in connection with the acquisition or attempted acquisition of a firearm from any transferor, to willfully make any false statement or to exhibit any false identification that is intended or likely to deceive such transferor with respect to any fact material to the lawfulness of the sale or other disposition of such firearm under federal or state law. Colorado also specifically penalizes anyone who gives false information in connection with the making of a record of a handgun transfer. Colo. Rev. Stat. §§ 12-26-103, 24-33.5-424(10). ⤴︎
- Conn. Gen. Stat. §§ 29-34, 29-37e. ⤴︎
- 720 Ill. Comp. Stat. 5/24-3.5(c). ⤴︎
- N.Y. Penal Law § 175.30. ⤴︎
- Or. Rev. Stat. § 166.416. ⤴︎
- 18 Pa. Cons. Stat. Ann. § 6111(g)(4). ⤴︎
- Utah penalizes anyone who knowingly provides “materially false information” about the legality of a sale, transfer or other disposition of a firearm. “Materially false information” means information that portrays an illegal transaction as legal or a legal transaction as illegal. Utah also penalizes any person who willfully and intentionally makes a false statement of the information required for a criminal background check. Utah Code Ann. §§ 76-10-503(9), 76-10-527. ⤴︎
- Va. Code Ann. §§ 18.2-204.1(C), 18.2-308.2:2(G), (K). ⤴︎
- Del. Code Ann. tit. 11, §§ 1448A(f). ⤴︎
- Mo. Rev. Stat. § 571.063. ⤴︎
- Okla. Stat. Ann. tit. 21, § 1289.28. ⤴︎
- Iowa Code § 724.29A(3). ⤴︎
- 18 U.S.C. § 922(a)(6). In some states, such as Missouri, Oklahoma, and Iowa, this law also applies to ammunition sales, as does the federal law. ⤴︎
- In addition, a number of states impose higher penalties for the illegal transfer of firearms in certain gun trafficking situations. For example, New Jersey prohibits conspiring with others as an organizer, supervisor, financier, or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, transport, ship, sell, or dispose of any firearm. NJ Stat. Ann. § 2C:39-16. New Jersey also prohibits any person from knowingly bringing a firearm into the state for the purpose of an unlawful transfer. NJ Stat. Ann. § 2C:39-9(i). Texas prohibits knowingly engaging in the business of transporting or transferring a firearm that the person knows was illegally acquired. A person is considered to be “engaged in the business of transporting or transferring a firearm” if the transaction is for profit or any other form of payment, or if the person engages in the conduct on more than one occasion. Tex. Penal Code § 46.14. ⤴︎
- Conn. Gen. Stat. § 29-38e, 54-36n. ⤴︎
- D.C. Code Ann. § 7-2531.04. ⤴︎
- Md. Code Ann., Pub. Safety § 5-504. ⤴︎
- N.Y. Exec. Law § 230. ⤴︎
- Cal. Pen. Code § 11108.3; Conn. Gen. Stat. § 54-36n; Ill. Comp. Stat. 5/24-8; Mass. Gen. Laws ch. 140, § 131Q; N.J. Stat. §§ 52:17B-9.18, 52:17B-9.18, and 52:17B-5.3; N.Y. Exec. Law § 230; 18 Pa. Cons. Stat. Ann. § 6127; Va. Code Ann. § 52-25.1. ⤴︎
- For more information on community guns, see Michael Wilson, In Mailbox: A Shared Gun, Just for the Asking, NY Times, Feb. 10, 2012, available at http://www.nytimes.com/2012/02/11/nyregion/hidden-communal-guns-are-more-common.html. ⤴︎
- N.J. Stat. Ann. §§ 2C:39-4a(2). ⤴︎
- N.Y. Penal Law § 115.20. ⤴︎
- Idaho Code Ann. § 18-8505. ⤴︎
- Additional information on jurisdictions requiring universal background checks is contained in our summary on Universal Background Checks. ⤴︎