Biden administration announces plans to expand background checks to close "gun show loophole"

The Biden administration announced Thursday final plans to expand requirements to perform background checks for those who buy firearms at gun shows or online, aiming to effectively close what gun control advocates have long referred to as the "gun show loophole." 

The new federal rules will not create new law but will expand the definition of licensed firearms dealers. This move will also sharpen existing enforcement measures to ensure that the background screenings — which have not traditionally been necessary at certain gun sale locations — are carried out in more circumstances. 

The Justice Department estimates there are around 23,000 unlicensed firearms dealers who will now be required to complete background checks when selling guns, although senior administration officials said that predictions about the unlicensed gun market are imprecise.

The expanded background requirements emerged from Congress' passage of the Bipartisan Safer Communities Act in 2022 and will go into effect 30 days after the rule is published in the federal registry this week.  

Implementation of the 2022 law focused on the Justice Department's provision of public clarification about who qualifies as a firearms dealer. The approximate 80,000 licensed firearms dealers in the United States are already required to conduct a background check on buyers while individuals who sell guns online or at gun shows are at times not required to obtain a federal license or perform background checks. 

This latest federal action specifically stipulates that any individual who repeatedly sells weapons to "predominantly earn a profit" must now obtain a gun dealer license and start conducting background checks on buyers. Purchasing online ads, record keeping, and operating credit card systems are some indicators that an unlicensed seller would now need to be licensed as a gun dealer, the officials said.

While President Biden supports background checks for all gun sales and transfers, Thursday's announcement does not require "universal" background checks. Instead, officials said the move expands the definition of a firearm dealer, which as a result, will expand requirements.

There are several carveouts for when gun transfers will not require a background check, including private transfers among family members and the liquidation of a personal collection without restocking.

In making the announcement, Vice President Kamala Harris noted next week is the 25th anniversary of the Columbine High School shooting, and the weapons in that massacre were acquired through the gun-show loophole.

Anticipating political pushback, the vice president defended the move. "We know how to prevent these tragedies and it's a false choice to suggest you are either in favor of the Second Amendment or you want to take everyone's guns away," Harris said. "I'm in favor of the Second Amendment and I am in favor of reasonable gun safety laws."

The plan already has been met with disapproval, with a spokesperson for Republican Sen. John Cornyn calling it an "unconstitutional rule." Cornyn, who is in the running to replace Senate Majority Leader Mitch McConnell, and Sen. Thom Tillis plan to introduce a joint resolution of disapproval under the Congressional Review Act. They submitted criticisms of the proposed rule to the ATF last year in which they argued the new regulation attempted to "rewrite the law" and "go against congressional intent," according to a copy of their submission reviewed by CBS News.

Like other firearms-related federal actions in recent years, challenges to these increased background checks are expected. Because of this, administration officials said the Justice Department hewed closely to the definitions assigned by Congress in the original law. Justice Department officials said they expect the law will hold up to legal scrutiny in the courts. 

Attorney General Merrick Garland said in a statement Thursday that the regulation is a "historic step" that will "save lives," pointing to federal data that says illegally or black-market firearms are increasingly being found at shooting scenes. The final rule — which followed a public input period that saw over 300,000 comments — will not affect firearms dealers who already have licenses to sell guns, official said, but will bring unlawful dealers into compliance with federal law.

In:
• Gun Control
• Joe Biden
• Gun Laws

Bo Erickson

Bo Erickson is a reporter covering the White House for CBS News Digital.

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