Crime and murder rates have fallen over the past two years, and a new Biden-Harris regulation aimed at the black market in guns could drive them even lower. But voters should know that if Donald Trump gets re-elected, major progress on guns could end with the stroke of a pen.
There are two pathways to purchasing guns in America. The typical way is through a brick-and-mortar gun store that is federally licensed and regulated. Roughly 20 million guns are purchased that way each year, and every buyer must submit to a background check before the sale is completed. About 200,000 people fail the background check, usually because of a past felony conviction.
The second path is the more lightly regulated private market. Individuals seeking to sell or transfer ownership of their personally owned guns may do so, as long as the seller is not deemed “engaged in the business” of selling firearms. This was meant to allow a grandfather to transfer a hunting rifle to a grandchild, or to sell a used handgun to friend or neighbor, without the paperwork and background check.
But over the years, this tiny loophole became a gaping chasm, such that today, for every 10 guns used by criminals, four are purchased without background checks. In what became known as the gun show and internet loopholes, private buyers and sellers now flock to physical sites at gun shows or to internet websites to sell guns to strangers — no strings attached, no background check necessary.
Unsurprisingly, criminals and gun traffickers got wind of this. One million ads for guns are posted online each year that could escape background checks. Of inmates who have been convicted of gun offenses, 96 percent of those prohibited from having firearms when they committed their crimes got them from unlicensed sellers.
We’ve known about his loophole for years, but the gun lobby and extreme right-wing politicians kept it open — until now.
These sales are now regulated thanks to an underappreciated law and clever executive action by the Biden-Harris administration. The gauzy “engaged in the business” language that created the private sale loophole was replaced with “make a profit” in the Bipartisan Safer Communities Act passed in 2022. That simple change allowed the administration to issue new regulations to require people selling their own guns for a profit to obtain a federal firearms license and perform background checks on all buyers, whether the transaction takes place at a store, gun show or online.
This has made America safer. The Department of Justice says 20,000 unlicensed sellers now must conduct background checks because of the change. That means fewer criminals can capitalize on gaps in federal law to buy the weapons that terrorize our communities.
But the fight is not over. Executive orders can be reversed by any president. Donald Trump has attacked the new law and the Biden-Harris regulations. Trump is also endorsed by the National Rifle Association and other gun extremists who have convinced a federal judge in Texas to temporarily block the background check requirement from taking effect. With Trump as president, gun rights extremists won’t need courts to rule on their weak legal case. And it won’t matter to Trump that 86 percent of Americans want background checks for all firearm sales.
Closing the gun show and internet loophole is not a magic bullet for solving gun violence in this country. That’s why the administration has also cracked down on homemade guns and illegal gun trafficking; improved active shooter drills; and increased funding for law enforcement. But violent crime is near a 50-year low, mass shootings are down 20 percent, and the homicide rate dropped by 11.6 percent in 2023 year over year.
Until recently, a patchy background check system meant that millions of firearms were available to bad actors at the drop of a hat. A few clicks on the internet or a quick drive to the local gun show meant you could obtain a weapon regardless of your criminal history.
The Biden-Harris administration recognized that with rights come responsibilities, and that those who exercise their Second Amendment right must do so without subverting our background check system. But this new regulation only exists at the whim of whoever is president.
Jim Kessler is executive vice president for policy at Third Way, a center-left think tank. Jeremy Odrich is a social policy fellow at Third Way.
