The Biden Administration’s New Restrictions on Firearms Sales

The Biden Administration’s New Restrictions on Firearms Sales

May 29, 2024
The Biden Administration’s New Restrictions on Firearms Sales
Federal firearms policies and changes to firearms
firearms is required to be a licensed gun dealer and obtain
regulations are subjects of ongoing congressional interest.
an FFL if the objective of their gun sales is to
The Biden Administration made several recent changes to
predominantly earn a profit. Thus, generating profit more
firearms regulations, including those that affect licensing
broadly (rather than earning a livelihood more narrowly) is
and associated requirements to perform background checks
now considered being engaged in the business of dealing
and those that govern private gun sales both within and
firearms and thus requires licensure.
across U.S. borders. The Biden Administration notes that
these changes are intended to reduce the flow of “illegally
Additionally, ATF’s rule makes private firearm transfers
acquired firearms” and “hold accountable those who supply
subject to Gun Control Act (GCA, 18 U.S.C. §§921 et seq.)
the firearms used in crime.” Policymakers may examine
recordkeeping and background check requirements if the
how these regulatory changes affect both lawful domestic
transfers are made by profit-oriented, repetitive firearms
firearms dealers and criminal networks engaged in firearms
buyers and sellers, regardless of where a potential purchaser
trafficking.
resides. These sellers now need FFLs, thus requiring them
to conduct National Instant Criminal Background Check
Federal Firearms Licenses and Background Checks
System (NICS) background checks. While states may still
The Department of Justice’s Bureau of Alcohol, Tobacco,
set additional background check requirements, the ATF rule
Firearms, and Explosives (ATF) is primarily tasked with
change may reduce the number of individuals crossing state
regulating domestic sales of firearms. Following the
lines to purchase firearms in states with less restrictive
enactment of the Bipartisan Safer Communities Act
background check requirements.
(BSCA; P.L. 117-159), the Biden Administration made
regulatory changes to reduce unregulated private gun sales.
The Department of Justice estimates that 23,006 unlicensed
In order to implement the provisions of the BSCA, ATF
persons currently engaged in the business of firearms
issued a rule (finalized May 11, 2024) redefining who is
dealing will need to apply for licenses.
engaged in the business of dealing firearms and thus
required to obtain a Federal Firearms License (FFL). Prior
Commerce Department Rule on Revision of
to this final rule and the BSCA, individuals were required
Firearms License Requirements
to have an FFL if their firearms sales had the principal
The Commerce Department’s Bureau of Industry and
objective of livelihood.
Security (BIS) is tasked with regulating private sales of
firearms to other countries. On April 30, 2024, BIS released
Individuals with FFLs are licensed gun dealers and are
an interim final rule (IFR) that restricts private transfers of
required to conduct background checks before completing a
firearms out of the United States.
firearms transfer. Federal law requires that sellers with
FFLs conduct background checks on any person seeking to
To sell a weapon across international borders prior to the
purchase a firearm from them (18 U.S.C. §922(t)). Because
April 2024 IFR, U.S. citizens needed to receive an export
different states have different background check
license and undergo end-use monitoring designed to ensure
requirements, prior to the ATF’s May 2024 final rule
that weapons sent are not those in short supply nor being
individuals who were unable to purchase a firearm from a
received by individuals sanctioned by the United States or
seller with an FFL in one state, for various reasons
who wish to do harm or engage in activity that could harm
including because they could not pass that state’s
the United States.
background check requirements, might have been able to
buy a firearm from a seller in a different state with less
In 2020, new regulations shifted export control of certain
strict background check requirements. Private firearm
small arms and light weapons from the State Department’s
transfers that do not require background checks are
(DOS’s) United States Munitions List to BIS’s Commerce
colloquially called private sale exemptions or gun show
Control List. BIS initially did not have access to DOS’s
loophole transfers.
internal watch list for end-use monitoring, resulting in BIS
lacking prior end-use monitoring information. BIS was also
ATF’s rule change alters who is required to have an FFL
lacking in other areas of end-use monitoring compared to
and thus who is required to conduct background checks on
DOS, including having no requirements for written
prospective firearm purchasers. Prior to the May 2024 final
certification of the purchaser agreeing not to resell,
rule, unlicensed sellers were able to transfer firearms to
allowing multiple end-users on a single license, granting
another person without conducting a background check as
more license exemptions, and not having public notification
long as they did not have reasonable cause to believe that
requirements.
the person was prohibited from receiving or possessing
firearms. Following this rule change, a person who sells
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The Biden Administration’s New Restrictions on Firearms Sales
According to a CRS analysis of data issued by BIS between
Additionally, there may be a decrease in private firearms
March 2020 and July 2023 and a separate report from the
sales to foreign buyers. Prior to the October 2023 pause in
Government Accountability Office examining DOS
issuing export licenses, individuals who sold weapons
approval of these licenses between 2013 and 2017, the
internationally could often charge more for the firearms
average yearly total dollar value from approved export
than they could in the United States, and were regulated by
licenses for firearms, artillery, and ammunition granted
BIS’s relatively less stringent export requirements.
after this transition rose by over $4.45 billion per year—
nearly a 45% increase.
These rules aim to reduce straw purchases and sales to
individuals in the 36 countries labeled as posing a
On October 23, 2023, BIS paused issuance of new export
“substantial risk” by DOS. According to ATF trace data on
licenses involving firearms from individual private sellers
closed firearms trafficking investigations, in 2021 many
to assess export control review policies for firearms,
firearms legally transferred from the United States to
specifically to “mitigat[e] the risk of firearms being
another country and later trafficked were initially
diverted to entities or activities that promote regional
transferred between private parties (34.2%) or obtained
instability, abuse or violate human rights, or fuel criminal
through straw purchases (50.8%). These data also revealed
activities, including terrorism, extortion, and illicit
that of all closed firearms trafficking investigations where
trafficking of any kind.” Some gun trade groups suggest the
firearms were trafficked into the United States, in 2021
pause has cost U.S. sellers over $250 million since October
29.0% were initially transferred between private parties and
2023. The IFR notes that an ATF analysis of international
7.0% were obtained through straw purchases. The five
crime gun trace requests received between 2017 and 2021
countries that received the most firearms trafficked from the
indicates that 11% of traced firearms were lawfully
United States—Mexico, Canada, the Bahamas, Haiti, and
exported from the United States before being diverted to a
Brazil—made up 86% of all outbound (United States to a
foreign country different from the one listed on the export
foreign country) trafficking cases. Following
license and traced in association with a crime. These
implementation of BIS’s IFR, exporting firearms to these
firearms were reported in various locations around the
countries (with the exception of Canada) will no longer be
world after being diverted post-export.
treated with a policy of general approval. Moreover, three
states (Texas, Arizona, and California) along the Southwest
BIS’s IFR makes three changes affecting private firearms
border accounted for 70% of all outbound closed trafficking
exports. First, 36 countries are labeled by DOS’s Country
cases.
Reports on Human Rights Practices and the Presidential
Determination on Major Drug Transit or Major Illicit Drug
In the explanation for both rules, the agencies refer to a
Producing Countries, as well as by reputable
larger network of illicit activities in which firearms
nongovernmental reports, as having a “substantial risk that
trafficking is only a single part. Transnational criminal
lawful firearms exports to non-governmental end users will
organizations rely on firearms—including trafficked
be diverted or misused.” These countries will be treated
firearms—to protect the activities of the criminal network,
with a “presumption of denial” for granting a license,
including drug smuggling activities and smuggling routes.
whereas the previous policy was one of “general approval.”
For instance, firearms trafficking has been cited as a central
The seller can only overcome this presumption of denial by
component to Mexican drug trafficking organizations’ illicit
successfully arguing their sale does not contain risks, such
activities, as money from the sales of illicit drugs in the
as if the purchaser is protecting U.S. interests or is
United States is used in part to purchase firearms; these
otherwise trustworthy. Additionally, 17 countries in the
weapons, along with cash proceeds from drug sales, are
Organization of American States will no longer be treated
smuggled south across the U.S.-Mexico border, further
with a policy of general approval, and instead will be
fueling the drug trafficking cycle. These weapons may also
considered case-by-case because of their higher risks for
be used by criminal gangs in the United States for purposes
firearms diversion or misuse.
such as enforcing drugs payments and protecting turf.
Second, export licenses will now last one to two years
Law enforcement has noted that criminal networks may
instead of the previous four to five years, resulting in sellers
source firearms in the United States from licensed gun
having to more frequently make the case that the sale meets
dealers using straw purchases or from unlicensed dealers.
existing requirements.
However, the new ATF and BIS rules may reduce the ease
with which individuals may acquire firearms from
Third, in their applications, potential exporters will need to
unlicensed dealers. As such, policymakers and law
include purchase orders and passport identifications from
enforcement may examine how this shifts the dynamics for
the intended recipient to show that it is an actual person
the acquisition of crime guns, including whether it increases
who is interested in and allowed to receive a firearm.
the use of straw purchasers or theft from individuals or
sellers with FFLs.
Effects on U.S. Gun Dealers and Illicit Trafficking
Networks
For further reading, see CRS In Focus IF12197, Firearms
The ATF and BIS rule changes may have effects on certain
Dealers Engaged in the Business.
firearms dealers’ ability to sell weapons. For one, the
unregulated market for firearm sales may be reduced
Jordan B. Cohen, Analyst in Firearms Policy
because ATF’s final rule expands licensure requirements
Kristin Finklea, Specialist in Domestic Security
for sellers, increasing the number of firearm transfers that
require background checks on the prospective purchaser.
IF12679
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The Biden Administration’s New Restrictions on Firearms Sales

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https://crsreports.congress.gov | IF12679 · VERSION 1 · NEW