With presidential candidates pushing for universal background checks and pro-gun activists raising alarms about personal freedoms, the regulation of private gun sales is a potential bellwether for other gun control measures. But what, exactly, is a private gun sale?
In short, a private gun sale happens when someone who is not a licensed gun dealer sells a gun.
But the laws can be complicated. There are 50 states implementing 50 different sets of gun laws on top of federal firearms regulations, so what’s legal in one place may be illegal in another.
First, let’s talk about federal law. It serves as a sort of regulatory floor, below which no state can drop.
According to federal law, any licensed dealer who sells a gun must first conduct a background check. It’s required whether the sale happens inside a gun store, at a gun show or on the shoulder of a backcountry road. They key factor is if the seller has a federal firearms license (FFL), they must conduct a background check.
Now, not all licensed sellers have store fronts. Many operate small businesses out of their home or garage. In 2017, there were about 135,000 licensed dealers across the country, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Anyone else who sells a gun — be they a stranger, neighbor, friend or relative — is conducting a private transaction.
So for example, a gun collector who has rented a table at a gun show can sell guns through private transaction, so long as they aren’t engaged in buying and selling guns as a business (in the eyes of the ATF, though there’s no clear cut answer to what “being in business” means according to the ATF).
If a gun show attendee who is not a licensed dealer wants to sell a gun, they are also free to do so without conducting a background check, at least under federal law. This is where the phrase “gun show loophole” comes from. It’s an imperfect and controversial term, but it does represent a real phenomenon.
Under federal law, certain individuals such as convicted felons and out-of-state residents are not allowed to buy guns. A private transaction could become illegal if the buyer falls into one of those categories, or fails to meet other criteria.
But the seller is under no obligation to ask about those things. So long as a private seller does not knowingly sell a gun to a prohibited person, they are not breaking federal law.
This is where it gets complicated.
According to data compiled by the Giffords Center, 21 states and the District of Columbia currently have laws that exceed the floor set by federal law.
Some states require background checks on every gun sale, even those between private parties. These laws are often referred to as “universal background checks.”
Other states require background checks on all handgun sales, but leave rifle and shotgun sales to federal standards. Several states have a permitting system that includes a background check for people who wish to buy guns, although some of those systems only cover handguns.
And further complicating matters, some states use the federal National Instant Criminal Background Check System (NICS) to run background checks, while others create their own system or use a combination of the two.
Both private and licensed sellers can advertise guns for sale online.
They cannot sell across state lines without first sending the weapon to a licensed dealer in the recipient’s state to run a background check.
But if a private seller wants to advertise a gun for sale and then meet the buyer in person, the transaction can legally proceed like any other private gun sale. Many people who take this approach post ads on websites that cater exclusively to gun owners, but as the Wall Street Journal recently reported, others find creative ways to sell guns on Facebook’s Marketplace feature.
Are Private Sales Problematic?
It’s impossible to know for sure how many guns change hands privately because so many states have declined to regulate such transactions.
A 2017 survey by researchers from Northeastern University and Harvard University estimates 22% of gun owners who purchased a gun during the previous two years did so without a background check. The survey also found residents of states that regulate private gun sales were less likely to obtain guns without a background check.
Advocates of stricter gun laws argue that people who know they won’t pass a background check can easily obtain a gun via private sale. For example, multiple reports indicate the man who shot and killed seven people and wounded about two dozen others in the Midland-Odessa shooting bought a gun privately after failing a background check in 2014.
Opponents of tighter background checks argue the restrictions can sometimes make innocent actions such as gifting or loaning a firearm illegal.
A bill passed in February by the Democrat-controlled U.S. House of Representatives includes some exemptions to assuage those concerns, but David Kopel, a researcher and University of Denver law professor who generally opposes gun regulations, has argued the bill could still endanger domestic violence victims.
Kopel said opponents also worry that universal background checks would create a paper trail for every gun transaction, which itself could lead to gun registration requirements and enable mandatory gun seizures.
Guns & America is a public media reporting project on the role of guns in American life.