Gun policy has become so politically divisive that lawmakers have found it nearly impossible to pass federal legislation on it in recent years. A window opened in 2022 after a mass school shooting in Uvalde, Texas: Congress passed, and President Joe Biden signed, the Bipartisan Safer Communities Act, which became the first major piece of legislation to limit guns since 1993.
One act provision strengthens federal licensing requirements for gun sellers. Having a federal license requires a dealer to check prospective buyers' backgrounds; not having a license has long meant that sellers didn't have to run such checks.
Groups seeking tighter gun regulation referred to a lack of licensing requirements for certain gun sellers as the "gun show loophole," although we have found this is something of a misnomer.
As a 2020 presidential candidate, Biden promised to "require background checks for all gun sales."
The Bipartisan Safer Communities Act's passage provided a road map for expanding background checks. But the Justice Department had to align its existing regulations with the new law before it could be applied. In 2023, Biden signed an executive order to accelerate this process, and Sept. 8, 2023, the Justice Department published a proposed rule that initiated a 90-day public comment period.
OnApril 10, 2024, after receiving 388,000 comments, Attorney General Merrick Garland officially published the new rule, which is poised to take effect May 10.
The new rule specifies that people need licenses to repetitively sell guns of the same or similar make and model within a year of buying them. Even a single transaction may be enough to trigger the need for a license if the seller's other behavior suggests commercial activity (such as telling others they're willing and able to purchase more firearms for resale).
The rule more tightly defines what constitutes a "personal" gun collection as it relates to selling those guns.
"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," Garland said in announcing the rule. "This regulation is a historic step in the Justice Department's fight against gun violence. It will save lives."
How far does the new rule go toward fulfilling Biden's campaign promise? A bit, experts say, but not a lot.
Guns displayed at a store in Auburn, Maine, in 2022. (AP)
The United States has more than 80,000 licensed gun dealers, and the Justice Department estimates more than 20,000 unlicensed sellers operate online, at gun shows or in other ways. Many of these 20,000 would fall under the new definition and be required to obtain licenses.
Therefore, although the new rule limits which firearm sales can proceed without a background check, "there are still plenty of other opportunities to buy and sell," said Michael P. Lawlor, a University of New Haven criminologist. These include private sales, such as those between family members.
Nick Perrine, a National Rifle Association spokesperson, highlighted two rule passages that distinguish public gun sales from private ones. One passage says the new rule "does not require or implement universal background checks for private firearm sales between individuals." The other passage says that "because of the myriad circumstances under which a person may sell a firearm, it would be difficult, if not impossible, for the (Justice Department) to outline all the circumstances in which firearms might lawfully be sold without a license."
Jay Corzine, an emeritus professor of sociology and a specialist in gun policy at the University of Central Florida, pointed to the yard sales he regularly sees in his neighborhood as an example of what the new rule doesn't cover.
"Every time we had a yard sale at my house, we had at least one person approach me or my spouse and ask if we have any guns for sale," Corzine said.
Experts don't know how the number of sellers who will now need to register under the new rule compares with the number who could continue to operate without a license. Gary Kleck, an emeritus criminology and criminal justice professor at Florida State University, said he suspects that thefts, especially residential burglaries, and voluntary transfers from friends and relatives will continue to be significant sources of guns in circulation.
"The new rule, if it survives (legal) challenges, would be a sensible but tiny step towards universal background checks," Kleck said. "However, the new rule does nothing to require background checks on transfers between private parties, such as between a nondealer selling a gun to a relative or a personal friend. This would require new legislation that Biden would have a hard time getting enacted."
Kleck said the law, "really doesn't matter much from the standpoint of reducing violence," because the number of sellers needing licenses would probably have little effect on the overall flow of firearms.
Passing gun legislation was Biden's initial plan, but he faced roadblocks even in his presidency's first two years, when his fellow Democrats controlled both chambers of Congress. When Biden made this promise as a candidate, he said legislation was necessary because the goal could not be met "by executive action alone."
Garland's finalized rule is the fruit of that effort.
Tess Fardon, senior counsel for policy at Brady United Against Gun Violence, said her group strongly supports the new rule, which is "still far from universal background checks" but is "a step in the right direction."
The administration's rule represents a tangible step toward expanding the reach of background checks in firearm purchases, but experts say it's a modest one. We rate this promise a Compromise.