Internet Firearm Sales

Internet Firearm Sales

Order Code RS20957
July 6, 2001
CRS Report for Congress
Received through the CRS Web
Internet Firearm Sales
name redacted
Legislative Attorney
American Law Division
Summary
With the increasing utilization of the internet to facilitate commercial transactions,
concerns have arisen regarding the use of this medium to transfer firearms. This report
discusses the sale of firearms over the internet, with a focus on the extent to which
federal law regulates such activity. A review of the relevant factors indicates that while
firearms transferred in an illegal manner via the internet may pose special investigatory
problems for law enforcement, internet firearm sales are subject to the same regulatory
scheme as traditional firearm transactions.
The rapid growth of the internet as a venue for commercial transactions has raised
concerns regarding the sale of firearms over the internet. These concerns have been
magnified by reports that there are approximately 4,000 firearm sales-related websites, as
well as 80 sites where guns may be purchased via auction.1 In particular, it has been
asserted that current firearm laws either do not regulate internet-based sales, or are
insufficient to combat illegal firearm sales in the internet context.2 A review of applicable
federal law, discussed below, establishes that internet-based firearm sales are not imbued
with a special character by virtue of their medium of transfer, and are in fact subject to the
same degree of regulation as any other type of firearm transaction. It should be noted
however, that while current federal laws regulating the transfer of firearms are fully
applicable in the internet context, the unique qualities of internet transactions may pose
significant obstacles to their enforcement.3
1 See U.S. Dept. of Justice, “Gun Violence Reduction: National Integrated Firearms Violence
Reduction Strategy,” at 28, located at [http://www.usdoj.gov/opd/gunviolence.htm].
2 See n. 21-26 and accompanying text, infra.
3 See n. 24 and accompanying text, infra. This report addresses the specific issue of whether
current federal firearm laws apply to internet-based firearm sales and whether such laws are
effective in the internet context. It does not purport to broach the related policy issue of whether
additional firearm laws, either generally or specifically applicable to internet transactions, are
warranted. For a thorough analysis of current policy issues and legislative activity regarding
firearms, See CRS Issue Brief IB10071, Gun Control Legislation in the 107th Congress, by
William Krouse.
Congressional Research Service ˜ The Library of Congress

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The Gun Control Act of 1968
Congress enacted the Gun Control Act of 1968 (GCA) to “keep firearms out of the
hands of those not legally entitled to possess them because of age, criminal background
or incompetency, and to assist law enforcement authorities in the states and their
subdivisions in combating the increasing prevalence of crime in the United States.”4 To this
end, the GCA prohibits certain classes of individuals from possessing firearms, and
establishes a comprehensive regulatory scheme designed to prevent the transfer of firearms
to such individuals.5
In particular, the GCA delineates nine classes of individuals who are prohibited from
shipping, transporting, possessing, or receiving firearms or ammunition in interstate
commerce.6 The individuals targeted by this provision include: (1) persons convicted of
a crime punishable by a term of imprisonment exceeding one year; (2) fugitives from
justice; (3) individuals who are unlawful users or addicts of any controlled substance; (4)
persons legally determined to be mentally defective, or who have been committed to a
mental institution; (5) aliens illegally or unlawfully in the United States, as well as those
who have been admitted pursuant to a nonimmigrant visa; (6) individuals who have been
discharged dishonorably from the Armed Forces; (7) persons who have renounced United
States citizenship; (8) individuals subject to a pertinent court order; and, finally, (9)
persons who have been convicted of a misdemeanor domestic violence offense.7
A. Restrictions on Sales.
In order to effectuate the general prohibitions outlined above, the GCA also imposes
significant requirements on the transfer of firearms. Pursuant to the Act, any person who
is engaged in the business of importing, manufacturing, or dealing in firearms must possess
a Federal Firearms License (FFL) issued by the Secretary of the Treasury.8 The possession
of a FFL grants an individual the ability to ship, transport, and receive firearms in interstate
and foreign commerce, while also imposing several requirements on the licensee designed
to ensure that a firearm is not transferred to an individual disqualified from possession
under the Act. For example, a licensee must verify the identity of a transferee by examining
a government issued identification document bearing a photograph of the transferee, such
as a driver’s license;9 conduct a background check on the transferee using the National
4 S.Rep. No. 90-1097 (1968).
5 18 U.S.C. §921 et seq.
6 18 U.S.C. §922(g)(1)-(9).
7 The GCA also prohibits the receipt, transport, or shipment of firearms by individuals under felony
indictment. 18 U.S.C. §922(n). Furthermore, the GCA places significant restrictions on the transfer
to, and possession of, firearms by persons under 18. See 18 U.S.C. §922(x).
8 18 U.S.C. §922(a); §923. An individual is “engaged in the business” of dealing in firearms if he
or she “devotes time, attention and labor to dealing in firearms as a regular course of trade or
business with the principal objective of livelihood and profit through the repetitive purchase and
resale of firearms.” 18 U.S.C. §922(a)(21)(C).
9 18 U.S.C. §922(t)(1)(c).

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Instant Criminal Background Check System (NICS);10 maintain records of the acquisition
and disposition of firearms;11 report multiple sales to the Secretary;12 respond to an official
request for information contained in the licensee’s records within 24 hours of receipt;13 and
comply with all other relevant state and local regulations.14
Federal law does not impose licensing requirements on all sellers of firearms,
however. The GCA contains a specific exemption for any person who makes “occasional
sales, exchanges, or purchases of firearms for the enhancement of a personal collection or
for a hobby, or who sells all or part of his personal collection of firearms.”15 Such private
sellers are prohibited from knowingly transferring a firearm to a disqualified individual, but
are not required to conduct Brady background checks or maintain official records of
transactions.16

B. Restrictions on Interstate Transfers.
In addition to the aforementioned requirements imposed upon the sale of firearms
by licensed and unlicensed individuals generally, federal law also places significant
limitations on the actual interstate transfer of weapons.17 These provisions are of particular
interest in analyzing internet-based firearm sales, given the inherently interstate quality of
such activity and the perceived potential for abuse in the internet sale context.
While the possession of a FFL grants a dealer the ability to sell and ship firearms in
interstate or foreign commerce, the GCA places several restrictions on the manner in
which a transfer may occur. Specifically, while a licensee may make an over-the-counter
sale of a shotgun or rifle to any qualified individual, the licensee may not make such a sale
of a handgun to a resident of a state other than that in which the dealer’s licensed premises
is located.18 Relatedly, a licensee is prohibited from shipping firearms directly to consumers
in other states. Instead, a licensee making a firearm sale to a non-resident must transfer the
weapon to a licensee in the destination state, from whom the transferee may obtain the
firearm after passing the required NICS check.19
10 18 U.S.C. §922(t).
11 §923(g)(D)(2).
12 §923(g)(D)(3)(A).
13 §923(g)(D)(7).
14 §923(d).
15 18 U.S.C. §921(a)(21)(C).
16 18 U.S.C. §922(d); §922(t).
17 Regarding the mailing of firearms, 18 U.S.C. §1715 prohibits the shipment of any firearm other
than a shotgun or rifle via the United States Postal Service, except for firearms shipped for official
law enforcement purposes. Firearms, including handguns, may be shipped by common carrier upon
disclosure and subject to the restrictions discussed above. See 18 U.S.C. §922(a)(2)(A); §922(3);
27 C.F.R. §178.31.
18 18 U.S.C. §922(b)(3).
19 18 U.S.C. §922(b)(3); §922(t).

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Substantial restrictions are also placed on firearm transfers between non-licensees.
Specifically, whereas a licensee may transfer a rifle or shotgun to a non-resident non-
licensee in an over-the-counter sale, the GCA specifically bars a non-licensee from directly
selling a firearm to any person who does not reside in the transferring non-licensee’s
state.20 Instead, a non-licensee wishing to transfer a firearm to a non-licensee in another
state must ship the firearm to a licensed dealer in the transferee’s state.
The GCA and the Internet
The aforementioned provisions control the present inquiry, given that much of the
concern surrounding internet-based firearm transactions centers on the notion that such
sales are effectively beyond the purview of existing restrictions.21 Specifically, the panoply
of laws discussed above establish a federal scheme that regulates every firearm sale,
irrespective of the medium of transaction. Given that these laws address the transfer of any
firearm in interstate or foreign commerce, the mere fact that a firearm transaction is
negotiated over the internet does not except it from requirements adhering to traditional
“brick and mortar” sales or those facilitated through classified advertisements in
newspapers.22 Accordingly, it would appear that the proper analytical focus should center
on whether there are fundamental differences between internet transactions and traditional
sales methods that render the existing regulatory framework insufficient or obsolete.
The Department of Justice has identified several factors it finds unsettling regarding
firearm sales over the internet.23 In addition to the possibility that prohibited persons may
be successful in acquiring firearms over the internet, the DOJ is troubled that the internet
“provides convenient fora” for the advertisement and sale of firearms by unlicensed
individuals who are not required to conduct background checks or retain records of sales,
and may encourage these individuals to illegally engage in the business of dealing in
forearms without a license. Additionally, the DOJ asserts that the prospect of quick profits
from internet sales may “create a temptation on the part of FFL’s to circumvent” existing
federal laws.24
Relatedly, the President’s Working Group on Unlawful Conduct on the Internet
(“Working Group”), created by Executive Order 13,133, has stated that the sale of
firearms over the internet poses “unique problems” for law enforcement.25 First, the
20 18 U.S.C. §922(a)(3); §922(a)(5); §922(b)(3).
21 For example, a publication by the Violence Policy Center states that “[t]he secondary gun market
- i.e., the selling of guns at gun show or over the internet - is in reality totally unregulated.” See
Violence Policy Center, “Unsafe in Any Hands: Why America Needs to Ban Handguns,” located
at [http://www.vpc.org/studies/unsafe.htm].
22 See,18 U.S.C. §922.
23 Supra, n. 1.
24 Id.
25 See, President’s Working Group on Unlawful Conduct on the Internet, “The Electronic Frontier:
The Challenge of Unlawful Conduct Involving the Use of the Internet,” Appendix E, at 3. Report
Located at [http://www.usdoj.gov:80/criminal/cybercrime/unlawful.pdf], with appendix located at
(continued...)

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Working Group maintains that illegal sales conducted via the internet will be more difficult
to detect than sales facilitated through traditional venues such as print advertisements,
since “the internet provides people with the means to advertise guns for sale on message
boards, through e-mail, in chat rooms, or other websites that will be difficult to find and
may even be inaccessible to law enforcement.”26 Additionally, the Working Group asserts
that the lack of a fixed physical location for the execution of internet-based sales may
hinder enforcement efforts. In particular, the Working Group stresses that, as opposed to
sales made at gun stores or shows where the Bureau of Alcohol, Tobacco and Firearms
may conduct inspections and review records of transactions, internet-based transactions
are much more difficult to monitor.27
Given the facilitative qualities of the internet, the observations by the DOJ and the
President’s Working Group appear logically sound and have an intuitive appeal. It should
be noted, however, that there is currently little substantive evidence to support these
assumptions.

As noted above, the DOJ is particularly concerned that the ease with which firearm
transactions may be advertised and, to some degree, consummated over the internet will
lead to increased violations of federal law.28 However, there is currently no official data
indicating that individuals advertising firearms for sale over the internet are any more
likely to ignore firearm laws than those employing traditional venues. Furthermore, a
recent investigation by the General Accounting Office monitoring individuals advertising
firearms for sale on the internet detected no illegal activity.29 Specifically, an undercover
agent responded to ten of twenty-one advertisements offering firearms for sale on an
unidentified website.30 Eight of the ten advertisers were federally licensed dealers, all of
whom refused to ship the firearms offered for sale to anyone except another federally
licensed dealer in compliance with the GCA.31 Of the two advertisers selling firearms in
an individual capacity, the GAO report states that one refused to ship the firearm to
anyone other than a licensee and states that the other individual “refused to send the
firearm through the mail.”32 While the GAO investigation was limited in scope, the fact
that none of the individuals solicited by the undercover investigator agreed to engage in
any illegal activity could be interpreted as undermining the contention that the use of the
25 (...continued)
[http://www.usdoj.gov:80/criminal/cybercrime/append.pdf].
26 Id.
27 Id.
28 Supra, n. 1.
29 United States General Accounting Office, “Firearms Purchased From Federal Licensees Using
Bogus Identification,” GAO-01-427, March, 2001.
30 Id. at 13.
31 Id. at 13.
32 Id. at 13. According to the GAO report, the two private sellers did agree to sell the firearms to
the undercover agent in an in-person transaction, which was not pursued. The report does not
provide sufficient information to determine whether such a transaction would have violated the
GCA. Id. at 13.

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internet in facilitating firearm transactions will necessarily result in increased illegal
activity.
Likewise, it is important to note that concerns regarding the internet’s effect on law
enforcement efforts appear to be based on assumptions that have yet to be substantiated.
In particular, while the President’s Working Group identified several factors that may pose
barriers to effective enforcement in the internet context, it remains to be seen whether
perceived difficulties in enforcement are related to technological barriers, or are simply the
result of insufficient investigative resources and experience in the internet context.
Furthermore, it is possible that advances in investigative technology may obviate such
concerns. For example, the ATF has implemented the “eZ Check” federal firearm license
verification system, which allows licensed dealers to verify, via an ATF website, that
licenses presented for the purchase or shipment of guns are valid.33 Additionally, the ATF
is reportedly developing a “Cybercrime Branch” to ascertain the scope of illegal firearm
transactions over the internet and develop appropriate mechanisms to respond to such
activity.34 The results of these initiatives should serve to illuminate the validity of the
concerns identified above.

33 See Department of the Treasury, Office of Public Affairs, “ATF Web Page to Prevent use of
F r a u d u l e n t F i r e a r m L i c e n s e s , ” S e p t e m b e r 2 3 , 2 0 0 0 . L o c a t e d a t
[http://ww.ustreas.gov/press/releases/ps903.htm].
34 Supra, n. 1.

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