August 9, 2022
Gun Control: Straw Purchase and Gun Trafficking Provisions
On June 25, 2022, President Joe Biden signed into law the
is a person prohibited from being transferred a firearm
Bipartisan Safer Communities Act (S. 2938; P.L. 117-159).
under 18 U.S.C. §922(d);
This law includes the Stop Illegal Trafficking in Firearms
plans to use, carry, possess, or sell (dispose of) the
Act, provisions of which amend the Gun Control Act of
firearm(s) in furtherance of a felony, federal crime of
1968 (GCA, 18 U.S.C. §§921 et seq.) to more explicitly
terrorism, or drug trafficking crime; or
prohibit straw purchases and illegal gun trafficking. Related
plans to sell or otherwise dispose of the firearm(s) to a
provisions expand federal law enforcement investigative
person who would meet any of the conditions described
authorities.
above.
Federal Firearms Law
Violations are punishable by a fine and up to 15 years’
The GCA is the principal statute regulating interstate
imprisonment. Violations made knowing or having
firearms commerce in the United States. The purpose of the
reasonable cause to believe that any firearm involved will
GCA is to assist federal, state, and local law enforcement in
be used to commit a felony, federal crime of terrorism, or
ongoing efforts to reduce violent crime. Congress
drug trafficking crime are punishable by a fine and up to 25
constructed the GCA to allow state and local governments
years’ imprisonment.
to regulate firearms more strictly within their own borders,
so long as state law does not conflict with federal law or
Gun Trafficking Provision
violate constitutional provisions. Hence, one condition of a
Gun trafficking entails the movement or diversion of
federal firearms license for gun dealers, which permits the
firearms from legal to illegal channels of commerce in
holder to engage in interstate firearms commerce, is that the
violation of the GCA. P.L. 117-159 amends the GCA with a
licensee must comply with both federal and state law. Also,
new provision, 18 U.S.C. §933, to prohibit any person from
under the GCA, there are several classes of persons
shipping, transporting, causing to be shipped or transported,
prohibited from shipping, transporting, receiving, or
or otherwise disposing of any firearm to another person,
possessing firearms or ammunition (e.g., convicted felons,
with the knowledge or reasonable cause to believe that the
fugitives, and unlawful drug users). It was and remains
transferee’s use, carrying, or possession would constitute a
unlawful under the GCA for any person to transfer
felony. It would also prohibit the receipt of such firearm, if
knowingly a firearm or ammunition to a prohibited person
the transferee knows or has reasonable cause to believe that
(18 U.S.C. §922(d)). Violations are punishable by up to 10
receiving such firearm would constitute a felony. Attempts
years’ imprisonment. The Bureau of Alcohol, Tobacco,
and conspiracies to violate these provisions are proscribed
Firearms and Explosives (ATF) is the principal agency that
as well. Violations are punishable by a fine and up to 15
administers and enforces the GCA, as well as the 1934
years’ imprisonment.
National Firearms Act (NFA, 26 U.S.C. §§5801 et seq.).
The NFA further regulates certain firearms deemed to be
Forfeiture, Fines, and Sentencing Provisions
especially dangerous (e.g., machine guns and short-barreled
P.L. 117-159 amends the GCA with a follow-on provision,
shotguns) by taxing all aspects of the making and transfer
18 U.S.C. §934, that makes any person convicted under
of such weapons, and requiring the registration of such
either Sections 932 or 933 subject to civil forfeiture and
weapons with the Attorney General.
fines. Convicted persons could forfeit any property
constituting, or derived from, any proceeds obtained,
Straw Purchase Provision
directly or indirectly, from straw purchasing or gun
Straw purchases are illegal firearms transactions in which a
trafficking, as well as any property used, or intended to be
person serves as a middleman by posing as the transferee,
used, in the commission of such crimes. Persons convicted
but is actually acquiring the firearm for another person. As
of such crimes could also be fined twice the gross profits or
discussed below, straw purchases are unlawful under two
other proceeds of such offenses. P.L. 117-159 amends
existing laws. However, prosecutions under those
federal electronic surveillance, racketeering, and money
provisions have sometimes been characterized as mere
laundering provisions, making violations of 18 U.S.C.
paperwork violations and, hence, inadequate in terms of
§§932 or 933 predicate offenses.
deterring unlawful gun trafficking. P.L. 117-159 amends
the GCA with a new provision, 18 U.S.C. §932, to prohibit
P.L. 117-159 directs the U.S. Sentencing Commission to
any person from knowingly purchasing, or conspiring to
review sentencing guidelines to reflect Congress’s intent
purchase any firearm for, on behalf of, or at the request or
that straw purchasers without significant criminal histories
demand of any other persons, if the purchaser knows or has
receive sentences that are sufficient to deter participation in
reasonable cause to believe that the actual buyer:
such activities and reflect the defendant’s role and
culpability, and any coercion, domestic violence survivor
history, or other mitigating factors. Other persons convicted
of any offense under 18 U.S.C. §§932 or 933, who are
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Gun Control: Straw Purchase and Gun Trafficking Provisions
affiliated with a criminal gang, cartel, organized crime ring,
license). The purchaser attests on Form 4473 that he or she
or other such enterprise should be subject to higher
is not a prohibited person and is the actual transferee/buyer.
penalties than an otherwise unaffiliated individual.
The completed and signed ATF Form 4473 serves as the
authorization for the FFL to initiate a firearms eligibility
GCA Interstate Transfer Prohibitions
check through the National Instant Criminal Background
To deter unlawful firearms commerce, or gun trafficking,
Check System (NICS), pursuant to 18 U.S.C. §922(t). In the
the GCA requires all persons “engaged in the business” of
case of a system “proceed” response, the FFL may
importing, manufacturing, and selling firearms to be
complete the transfer. In the case of a system “delayed”
licensed as federal firearms licensees (FFLs). The GCA
response, the FFL may proceed with the transfer at their
generally prohibits anyone who is not an FFL from
discretion after three business days have elapsed if they
acquiring a firearm from an out-of-state source. Interstate
have not received a final NICS eligibility determination.
transfers among unlicensed persons may be facilitated
through an FFL in the state where the transferee resides. In
NICS denials, or “lying and trying,” are sometimes subject
addition to 18 U.S.C. §§932 and 933, under the GCA, it
to prosecution under one of the two provisions described
was and remains unlawful for:
below, under which persons are also prosecuted for straw
purchases. As noted above, straw purchases are the illegal
a non-FFL to transport into or receive in the state where
purchase of a firearm by one person for another, and are
they reside firearms obtained in another state (18 U.S.C.
referred to colloquially as “lying and buying for the other
§922(a)(3));
guy.” In addition to 18 U.S.C. §§932 and 933, under the
a non-FFLs to transfer, sell, trade, give, transport, or
GCA, it was and remains unlawful for:
deliver firearms to any person who does not reside in
their state of residence (18 U.S.C. §922(a)(5));
a purchaser to make any false statement to an FFL with
respect to any fact material to the lawfulness of a
a non-FFL to ship a firearm out-of-state to anyone other
prospective firearms transfer under 18 U.S.C.
than an FFL (18 U.S.C. §922(e));
§922(a)(6), punishable by up to 10 years’ imprisonment;
a non-FFL to ship a concealable firearm (handgun)
and
through the U.S. Mail, though they may ship handguns
any person knowingly to make any false statement with
by common or contract carrier to an out-of-state FFL
respect to the records that FFLs are required to maintain
(18 U.S.C. §§922(e) and 1715);
under 18 U.S.C. §924(a)(1)(A), punishable by a fine and
an FFL to transfer firearms to a non-FFL, out-of-state
up to five years’ imprisonment.
resident, except for long guns (rifles and shotguns), as
Straw purchases are not easily detected, because their
long as such a transfer takes place in person and is
illegality only becomes apparent when the straw
lawful in the FFL’s state and the customer’s state of
purchaser’s true intent is revealed by a subsequent transfer
residence (18 U.S.C. §922(b)(3)).
to the actual buyer (third party). The actual buyer may be a
FFLs may display and transfer firearms to non-FFLs at gun
prohibited person, who would not pass a background check.
shows held in their own state, and may display firearms, but
may not transfer them, at gun shows held in another state.
Other GCA Gun Trafficking Prohibitions
FFLs may not transfer firearms outside of their licensed
According to ATF, gun trafficking often entails an unlawful
business premises or the curtilage of a gun show. Intrastate,
flow of firearms from jurisdictions with less restrictive
private firearm transfers between non-FFLs are not covered
firearms laws to jurisdictions with more restrictive firearms
by the recordkeeping or the background check provisions of
laws, both domestically and internationally. Such unlawful
the GCA. However, such transfers and other matters such
activities can include, but are not limited to, the following:
as possession, registration, and the issuance of licenses to
firearms owners may be covered by state laws or local
straw purchasers or straw purchasing rings in violation
ordinances. Some gun control advocates refer to intrastate,
of the provisions described above;
private firearm transfers as the “gun show loophole” and
persons engaging in the business of dealing in firearms
call for comprehensive/universal background checks.
without a license in violation of 18 U.S.C.
Related legislation has passed the House in the 116th and
§921(a)(1)(A), punishable by up to five years’
117th Congresses. See CRS In Focus IF11781, Firearm
imprisonment;
Background Checks Under H.R. 8 and H.R. 1446.
corrupt federally licensed gun dealers dealing off-the-
books in an attempt to escape federal regulation in
GCA Recordkeeping and Straw Purchases
violation of 18 U.S.C. §922(b)(5), punishable by up to
Under the GCA (18 U.S.C. §926), Congress authorized a
five years’ imprisonment; and
decentralized system of recordkeeping that allows ATF to
trace a firearm’s chain of commerce, from manufacturer or
trafficking in stolen firearms in violation of 18 U.S.C.
§922(j), punishable by up to 10 years’ imprisonment.
importer to dealer, and to the first retail purchaser of record.
FFLs must maintain certain records, including ATF Form
Under current law, offenders could potentially be charged
4473s, on transfers to non-FFLs as well as a parallel
with multiple offenses under both the preexisting GCA
acquisition/disposition log. As part of a firearms
provisions like those discussed above and 18 U.S.C. §§932
transaction, both the FFL and purchaser must truthfully fill
and 933 (P.L. 117-159).
out and sign the ATF Form 4473. The FFL must verify the
purchaser’s name, date of birth, and other information by
William J. Krouse, Specialist in Domestic Security and
examining government-issued identification (e.g., driver’s
Crime Policy
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Gun Control: Straw Purchase and Gun Trafficking Provisions
IF12190
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https://crsreports.congress.gov | IF12190 · VERSION 1 · NEW