Gun Control: Straw Purchase and Gun Trafficking Provisions in P.L. 117-159

Gun Control: Straw Purchase and Gun Trafficking Provisions in P.L. 117-159

Updated February 9, 2024
Gun Control: Straw Purchase and Gun Trafficking Provisions
in P.L. 117-159
On June 25, 2022, President Joe Biden signed into law the
• is a person prohibited from being transferred a firearm
Bipartisan Safer Communities Act (BSCA; S. 2938; P.L.
under 18 U.S.C. §922(d);
117-159). This law includes the Stop Illegal Trafficking in
• plans to use, carry, possess, or sell (dispose of) the
Firearms Act, provisions of which amend the Gun Control
firearm(s) in furtherance of a felony, federal crime of
Act of 1968 (GCA, 18 U.S.C. §§921 et seq.) to more
terrorism, or drug trafficking crime; or
explicitly prohibit straw purchases and illegal gun
• plans to sell or otherwise dispose of the firearm(s) to a
trafficking. Related provisions expand federal law
person who would meet any of the conditions described
enforcement investigative 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 by a person knowing or
firearms commerce in the United States. The purpose of the
having reasonable cause to believe that any firearm
GCA is to assist federal, state, and local law enforcement in
involved will be used to commit a felony, federal crime of
ongoing efforts to reduce violent crime. Congress
terrorism, or drug trafficking crime are punishable by a fine
constructed the GCA to allow state and local governments
and up to 25 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, unlawful drug users). It was and remains unlawful
transferee’s use, carrying, or possession would constitute a
under the GCA for any person to transfer knowingly a
felony. It would also prohibit the receipt of such firearm if
firearm or ammunition to a prohibited person (18 U.S.C.
the transferee knows or has reasonable cause to believe that
§922(d)). Violations are punishable by up to 10 years’
receiving it would constitute a felony. Attempts and
imprisonment. The Bureau of Alcohol, Tobacco, Firearms
conspiracies to violate these provisions are proscribed as
and Explosives (ATF) is the principal agency that
well. Violations are punishable by a fine and up to 15 years’
administers and enforces the GCA, as well as the 1934
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, 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 their registration with the
either Sections 932 or 933 subject to civil forfeiture and
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. Prosecutions under those provisions have
federal electronic surveillance, racketeering, and money
been characterized by some as mere paperwork violations
laundering provisions, making violations of 18 U.S.C.
and, hence, inadequate in terms of deterring unlawful gun
§§932 or 933 predicate offenses.
trafficking. P.L. 117-159 amends the GCA with a new
provision, 18 U.S.C. §932, to prohibit any person from
GCA Interstate Transfer Prohibitions
knowingly purchasing or conspiring to purchase any
The GCA generally prohibits anyone who is not a federal
firearm for, on behalf of, or at the request or demand of any
firearms licensee (FFL) from acquiring a firearm from an
other persons if the purchaser knows or has reasonable
out-of-state source. Interstate transfers among unlicensed
cause to believe that the actual buyer
persons may be facilitated through an FFL in the state
https://crsreports.congress.gov

Gun Control: Straw Purchase and Gun Trafficking Provisions in P.L. 117-159
where the transferee resides. In addition to 18 U.S.C. §§932
buying for the other guy. In addition to 18 U.S.C. §§932
and 933, under the GCA, it was and remains unlawful for
and 933, under the GCA it was and remains unlawful for
• a non-FFL to transport into or receive in the state where
• a purchaser to make a false statement to an FFL
they reside firearms obtained in another state (18 U.S.C.
regarding any fact material to the lawfulness of a
§922(a)(3));
prospective firearms transfer under 18 U.S.C.
• a non-FFLs to transfer, sell, trade, give, transport, or
§922(a)(6), punishable by up to 10 years’ imprisonment;
deliver firearms to any person who does not reside in
and
their state of residence (18 U.S.C. §922(a)(5));
• any person knowingly to make any false statement with
• a non-FFL to ship a firearm out-of-state to anyone other
respect to the records that FFLs are required to maintain
than an FFL (18 U.S.C. §922(e));
under 18 U.S.C. §924(a)(1)(A), punishable by a fine and
•
up to 5 years’ imprisonment.
a non-FFL to ship a concealable firearm (handgun)
through the U.S. mail, though they may ship handguns
Straw purchases are not easily detected because they only
by common or contract carrier to an out-of-state FFL
become apparent when the straw purchase is revealed by a
(18 U.S.C. §§922(e) and 1715); and
subsequent transfer to a prohibited person.
• an FFL to transfer firearms to a non-FFL, out-of-state
Other GCA Gun Trafficking Prohibitions
resident, except for long guns (rifles and shotguns), as
long as such a transfer takes place in person and is
According to ATF, gun trafficking often entails an unlawful
lawful in the FFL’s and the customer’s state of residence
flow of firearms from jurisdictions with less restrictive
(18 U.S.C. §922(b)(3)).
firearms laws to jurisdictions with more restrictive firearms
laws, both domestically and internationally. Such unlawful
GCA Recordkeeping and Straw Purchases
activities can include, but are not limited to, the following:
Under the GCA (18 U.S.C. §926), Congress authorized a
• straw purchasers or straw purchasing rings in violation
decentralized system of recordkeeping allowing ATF to
of the provisions described above;
trace a firearm’s chain of commerce, from manufacturer or
• persons engaging in the business of dealing in firearms
importer to dealer, and to the first retail purchaser of record.
without a license in violation of 18 U.S.C.
FFLs must maintain certain records, including ATF Forms
§921(a)(1)(A), punishable by up to 5 years’
4473, on transfers to non-FFLs as well as a parallel
imprisonment;
acquisition/disposition log. As part of a firearms
• corrupt FFLs dealing off-the-books in an attempt to
transaction, both the FFL and purchaser must truthfully fill
escape federal regulation in violation of 18 U.S.C.
out and sign the ATF Form 4473. The FFL must verify the
purchaser’s name, date of birth,
§922(b)(5), punishable by up to 5 years’ imprisonment;
and other information by
and
examining government-issued identification (e.g., driver’s
license). The purchaser attests on Form 4473 that he or she
• trafficking in stolen firearms in violation of 18 U.S.C.
is not a prohibited person and is the actual transferee/buyer.
§922(j), punishable by up to 10 years’ imprisonment.
The completed and signed ATF Form 4473 serves as the
Under current law, offenders could potentially be charged
authorization for the FFL to initiate a firearms eligibility
with multiple offenses under both the preexisting GCA
check through the National Instant Criminal Background
provisions such as those discussed above and 18 U.S.C.
Check System (NICS), pursuant to 18 U.S.C. §922(t). In the
§§932 and 933.
case of a system “proceed” response, the FFL may
complete the transfer. In the case of a system “delayed”
Since P.L. 117-159 went into effect on October 31, 2023,
response, the FFL may proceed with the transfer at their
250 defendants have been charged with gun trafficking,
discretion after three business days have elapsed if they
including 80 charged with violating the law’s straw
have not received a final NICS eligibility determination.
purchase provision.
Since the passage of P.L. 117-159, The Office of
In January 2024, the National Shooting Sports
Management and Budget (OMB) authorized ATF to make
Foundation—an industry trade group for the firearms
an emergency change to Form 4473; it now asks the
industry—noted that the ATF has yet to implement two
transferee to attest to whether they live within the city limits
parts of P.L. 117-159: “Firearm Handler Background
of the municipality on their mailing address and if they plan
Checks” (FHCs) and instant point-of-sale background
to sell or otherwise provide the weapon to someone who
checks when an FFL buys from a private individual. The
cannot legally own a firearm or to someone who will use it
former would allow FFLs to use the NICS to background
to commit a felony or other offense punishable by
check FFL employees and has been in regulatory review
imprisonment for more than one year. The form also now
requires FFLs to use the letters “PMF” when recording the
since September 26, 2023. The latter would allow FFLs to
instantly identify if a weapon is stolen at the point of sale
transfer or acceptance of a privately made firearm.
by authorizing importers, manufacturers, and dealers of
NICS denials, colloquially referred to as lying and trying,
firearms to access records of stolen firearms in the National
are sometimes subject to prosecution under one of the two
Crime Information Center; it has been in the interim final
provisions described below, under which persons are also
rule stage since May 17, 2023.
prosecuted for straw purchases. As noted above, straw
purchases are the illegal purchase of a firearm by one
Jordan B. Cohen, Analyst in Firearms Policy
person for another, sometimes referred to as lying and
IF12190
https://crsreports.congress.gov

Gun Control: Straw Purchase and Gun Trafficking Provisions in P.L. 117-159

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https://crsreports.congress.gov | IF12190 · VERSION 3 · UPDATED