Heinrich Joins Bicameral Letter Urging ATF to Fully Implement Federal Rules to Help Close Gun Seller Background Check Loophole

WASHINGTON – U.S. Senator Martin Heinrich (D-N.M.) joined a bicameral letter, led by U.S. Senator Bob Menendez (D-N.J.) and U.S. Representatives Lucy McBath (D-Ga.-07) and Robin Kelly (D-Ill.-02), of over nearly 90 Congressional colleagues urging the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to implement federal rules that clarify who is classified as a gun seller. This transparency would help ensure that any consumer – whether purchasing a firearm from a brick-and-mortar store, or at a gun show or online — is subject to a background check.

The letter comes on the heels of a deadly mass shooting this past Saturday in Allen, Texas, and as the somber one-year anniversary approaches for the Buffalo supermarket shooting that killed 10 people on May 14, 2022 and the Uvalde school shooting that killed 19 Texas fourth graders and two teachers on May 24, 2022.

The Bipartisan Safer Communities Act—the first significant federal gun safety legislation in 30 years—was signed into law by President Biden on June 25, 2022. Senator Heinrich was a member of the core bipartisan group that negotiated the legislation, specifically leading the successful effort to stop illegal gun trafficking across our borders and to increase penalties for straw purchasing.

“Today, we write to highlight one directive in particular: the President’s clarion call to clarify the definition of who is “engaged in the business” of dealing in firearms—a step that moves us closer to closing the background check loophole. The background check loophole in federal law permits unlicensed gun sellers—those who are not “engaged in the business” of dealing in the firearms—to sell guns without conducting a background check on the purchaser. These sellers have, for decades, taken advantage of commercial marketplaces, like gun shows, to turn a profit by funneling firearms into the hands of convicted felons, domestic abusers, gun traffickers, and other prohibited persons,” the lawmakers wrote to Attorney General Merrick Garland and ATF Director Steve Dettelbach.

In their letter, the lawmakers cite President Biden’s executive order, signed March 14, 2023, which was the most recent call to action urging the ATF to implement rule-making as outlined by the Bipartisan Safer Communities Act.

According to Everytown for Gun Safety, of the over nine million posts on Armslist; 68-percent of the posts listed firearms for sales. Of those posts, 78-percent were by unlicensed sellers.

“To that end, we write to encourage the Department and ATF to heed the President’s directive and move swiftly to finish the job that Congress started. We believe that the Department and ATF should both issue guidance and complete a rulemaking that makes clear who is “engaged in the business” of dealing in firearms under Bipartisan Safer Communities At,” added the lawmakers. “We also believe that this guidance and rulemaking should include a presumption that individuals making commercial sales—whether at a gun show or an online marketplace—are “engaged in the business” and required to become licensed. In addition, we urge the Department and ATF to further define the “occasional sales,” “personal collection,” and “hobby” exceptions to the “engaged in the business” rule. These exceptions should now be read pursuant to how BSCA narrowed the definition.”

Endorsing groups include Everytown for Gun Safety, Giffords, and The Brady Campaign to Prevent Gun Violence.

The full text of the letter can be found below and here:

Dear Attorney General Garland and Director Dettelbach:

On March 14, 2023, President Biden signed an Executive Order on Reducing Gun Violence and Making Our Communities Safer. The President did so from Monterey Park, California—where, on January 21, 2023, 11 individuals were shot and killed, and nine more were injured. This signing was a solemn occasion in which President Biden remembered those whose lives were taken, recognized survivors and heroes, and reminded all of us that we have more work to do to prevent senseless gun violence. This Executive Order is the President’s latest call to action. We echo his call, and encourage the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to ensure that this Executive Order is implemented fully, robustly, and swiftly.

As you well know, the Executive Order includes directives to encourage effective use of extreme risk protection orders—which keep firearms out of the hands of individuals who pose a danger to themselves or others—and to promote secure firearm storage. It also contains directives to hold the gun industry accountable by publicly releasing inspection reports of Federal Firearms Licensees who have violated existing laws and regulations and by encouraging the Federal Trade Commission to issue a public report on how gun manufacturers market firearms to minors and to civilians, including through the use of militaristic images. We applaud these directives, and the many others outlined in the Executive Order, and we commend the President’s strong commitment to ending gun violence.

Today, we write to highlight one directive in particular: the President’s clarion call to clarify the definition of who is “engaged in the business” of dealing in firearms—a step that moves us closer to closing the background check loophole. The background check loophole in federal law permits unlicensed gun sellers—those who are not “engaged in the business” of dealing in firearms—to sell guns without conducting a background check on the purchaser. These sellers have, for decades, taken advantage of commercial marketplaces, like gun shows, to turn a profit by funneling firearms into the hands of convicted felons, domestic abusers, gun traffickers, and other prohibited persons. The internet—with websites like Armslist—has only expanded the no- background-check-required marketplace. For example, between 2018 and 2020, investigators from Everytown for Gun Safety collected over nine million posts on Armslist; 68-percent of the posts listed firearms for sales. Of those posts, 78-percent were by unlicensed sellers.

The shooting in Monterey Park took place almost six months to the day that President Biden signed the Bipartisan Safer Communities Act (BSCA)—the first significant gun violence prevention legislation in almost three decades—into law. With BSCA, Congress, on a strong bipartisan basis, revised the definition of “engaged in the business” and gave the President an administrative tool to close the background check loophole. The previous definition only covered firearms dealers who devote time, attention, and labor to dealing in firearms as a regular course of trade or businesses with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. BSCA changed that. Now, “engaged in the business” refers to firearms dealers who devote time, attention, and labor to dealing in firearms as a regular trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms.

It was—and remains—our intent, in making this statutory change, that more firearms dealers be required to become licensed firearms dealers because with more licensed firearms dealers, there will be more firearms sales that require a background check. And with more firearms sales requiring background checks, there will be fewer firearms that end up in the hands of gun traffickers and prohibited persons, trafficked in our communities and across state lines, and used in violent crime. That is why we support regulatory action—including rulemaking—in an attempt to get “as close to universal background checks as possible without additional legislation.”

To that end, we write to encourage the Department and ATF to heed the President’s directive and move swiftly to finish the job that Congress started. We believe that the Department and ATF should both issue guidance and complete a rulemaking that makes clear who is “engaged in the business” of dealing in firearms under BSCA. We also believe that this guidance and rulemaking should include a presumption that individuals making commercial sales—whether at a gun show or an online marketplace—are “engaged in the business” and required to become licensed. In addition, we urge the Department and ATF to further define the “occasional sales,” “personal collection,” and “hobby” exceptions to the “engaged in the business” rule. These exceptions should now be read pursuant to how BSCA narrowed the definition.

BSCA was a landmark moment for us in Congress, the President and his Administration, and— most importantly—communities all across the nation. But now, it must be implemented swiftly. In March, President Biden directed the Department and ATF to do just that, and we ask you to do the same.