Gun Trafficking & Straw Purchases Policy Summary

Posted on October 16, 2013

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The term “gun trafficking” refers to the diversion of guns from lawful commerce into the illegal market.1 Studies of gun trafficking have identified the following major channels of trafficked guns:

  • Corrupt gun dealers:  Licensed firearms dealers are associated with the largest number of diverted guns.2  While most gun dealers comply with the law, some dealers fail to adequately monitor their inventory, and some sell guns off the books to gun traffickers. Strong dealer regulations, such as laws requiring employee background checks and the videotaping of gun purchases, can prevent this conduct. For more information about the role gun dealers play in gun trafficking and laws regulating gun dealers, see our summary on Dealer Regulations.
  • Private sellers: Federal law allows people who are not licensed as gun dealers to sell guns at gun shows, online, and elsewhere. Unlicensed private sellers are not required to conduct background checks or maintain records of purchasers.  As a result, they play a significant role in gun trafficking.3  Some states have addressed this problem by passing laws requiring universal background checks.  For more information, see our summary on Universal Background Checks & the Private Sale Loophole.
  • Lost or stolen guns:  Gun traffickers sometimes falsely claim that guns they have purchased were lost or stolen in order to hide their involvement in crime.  Laws that require the reporting of lost or stolen firearms to law enforcement can prevent this behavior and are discussed in our summary on Reporting Lost or Stolen Firearms.
  • Sales of Multiple Guns:  Gun traffickers often buy multiple guns at once and then resell them to convicted felons and other prohibited persons.  Laws limiting the number of guns that may be purchased in a single transaction help deter this conduct.  See our summary on Sales of Multiple Guns for more information.

Straw purchasers play a special role in gun trafficking. A “straw purchase” occurs when the actual buyer of a firearm uses another person, a “straw purchaser,” to execute the paperwork necessary to purchase a firearm from a federally licensed firearms dealer. People who are prohibited from purchasing firearms and people who do not want to be identified through crime gun tracing often obtain firearms through straw purchases.

According to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), straw purchasers “represent a significant overall crime and public safety problem.”4  By intentionally buying firearms for someone else, straw purchasers thwart the background check requirement and allow firearms to be funneled to criminals, domestic abusers and gangs.5

  • According to a study ATF conducted in 2000 of 1,530 firearms trafficking investigations, straw purchasing accounted for almost one-half (46%) of all investigations, and was associated with nearly 26,000 illegally trafficked firearms.6
  • Subsequent ATF investigations at gun shows from 2004 – 2006 also uncovered “widespread” straw purchasing from firearms dealers, where guns were diverted to “convicted felons and local and international gangs.”7
  • In 2009, New York City officials conducted their own investigation at gun shows across the U.S. to test whether, among other things, firearms dealers would be willing to sell guns to someone who appeared to be a straw purchaser.8  New York’s investigation found that 16 out of 17 (or 94% of) dealers approached by investigators willingly sold to an apparent straw purchaser.9
  • A 2007 study found that straw purchases were significantly more common at gun shows in states with little regulation (Arizona, Florida, Nevada and Texas) than at gun shows in California, which regulates gun shows and requires background checks for all firearm transfers.10

Guns move from states with weak gun laws into states with strong gun laws.  More specifically, gun traffickers frequently obtain guns in states that lack laws such as dealer regulations, background check requirements, and lost and stolen reporting requirements, and re-sell them in states that have these laws.11

Trafficking channels are identified through the use of crime gun tracing.12  Crime gun trace data is generated when law enforcement recovers a firearm from a crime scene and requests that ATF or another law enforcement agency conduct an investigation to determine who originally sold and purchased the gun. As detailed in our summary on Maintaining Records & Reporting Gun Sales, crime gun trace data is crucial to individual criminal investigations and, when aggregated, can reveal patterns regarding who is trafficking firearms and how they are being trafficked.

Unfortunately, ATF’s ability to investigate and prosecute gun trafficking is significantly limited. According to an investigation by the Washington Post in 2010, ATF’s efforts are hindered by a lack of sufficient funding, as well as limitations on the use of crime gun trace data.13 In addition, the number of ATF agents – 2,500 – has not changed since 1972.  During the same period of time, the staffs of other government agencies have increased dramatically (for example, the staff of the Drug Enforcement Agency more than tripled during the time period).14

Guns trafficked from the U.S. play a major role in violence south of the border.  According to data from ATF, approximately 87% of firearms seized by Mexican authorities and traced over Fiscal Years 2004-2008 originated in the U.S.15  Since Mexico’s laws regarding the possession of guns by civilians are strict,16 the Mexican drug cartels obtain the firearms that fuel drug-related violence legally – and easily – in the U.S.

  • A June 2009 U.S. Government Accountability Office (GAO) report found that certain federal firearms laws, including restrictions on the collection and reporting of information regarding gun purchases and the lack of a background check requirement for private gun transfers, present significant challenges to U.S. efforts to fight firearms trafficking into Mexico.17
  • Another study points out that the near absence of ammunition sales regulation in the U.S. also contributes substantially to the cross-border trafficking problem.18

A 2010 analysis of trace data regarding crime guns exported to Mexico revealed significant differences in the states that serve as sources for these guns.19  Not surprisingly, the four states with the highest number of exports were the four that share a border with Mexico – Arizona, California, New Mexico and Texas.  However, after controlling for population, three of these states – Arizona, New Mexico and Texas – each exported firearms to Mexico at a rate that is 169% higher than any other state and more than three times as high as California, a state with some of the strongest gun laws.20 This data supports the argument that strong state gun laws are the key to reducing gun trafficking.

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No clear and effective federal statute makes gun tra­fficking a federal crime. Federal law makes certain people, such as convicted felons, ineligible to purchase or possess firearms.21 Federal law also makes it unlawful for any person to sell or otherwise dispose of a firearm to a person he or she has a “reasonable cause to believe” falls within one of these categories.22 As described in our summary on Universal Background Checks & the Private Sale Loophole, however, federal law only requires licensed dealers, and not unlicensed private sellers, to conduct background checks on purchasers and maintain records of sales. As a result, guns are often sold or transferred to dangerous people even though they are ineligible to purchase or possess firearms.

Gun traffickers exploit the loopholes in federal law by purposefully purchasing guns to resell or transfer them without background checks.  Federal law does not generally prohibit this behavior except in the context of straw purchases.23  As described above, a straw purchaser buys a firearm from a federally licensed firearms dealer on behalf of another person. Straw purchases are illegal because federal law criminalizes the making of false statements to a dealer about a material fact on ATF Form 4473, which must be filled out when a firearm is purchased from a licensed dealer.24  Form 4473 asks the purchaser to confirm that he or she is the “actual transferee/buyer of the firearm(s)” and states “You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person.”25 A straw purchaser therefore commits a federal crime by falsely stating that he or she is the actual gun buyer. In a successful straw purchase, the actual buyer has also committed a federal crime by aiding and abetting the straw purchaser or causing the making of the false statements.26

Crime gun tracing and the Tiahrt amendments:  Under federal regulations, ATF must maintain and operate the National Tracing Center to process requests from federal, state, local, and foreign law enforcement agencies for the tracing of crime guns.27  Provisions that have been attached to U.S. Department of Justice appropriations bills every year since 2003 have significantly impeded efforts to trace crime guns, however.  These provisions are referred to as the Tiahrt Amendments after their sponsor, U.S. Representative Todd Tiahrt (R-KS). Among other things, the Tiahrt Amendments currently prohibit ATF from releasing firearm trace data for use by cities, states, researchers, litigants and members of the public, except in aggregate form.28

On January 16, 2013, President Obama released a memorandum to federal agencies requiring them to submit any firearm taken into their custody to the National Tracing Center to be traced.29  In the absence of state and local laws, however, other law enforcement officials are not subject to this requirement.

For additional information about the records used in crime gun tracing, including additional information about the Tiahrt Amendments, see our summary on Maintaining Records and Reporting Gun Sales.30

Supreme Court Affirms that Federal Laws Prohibit Straw Purchases:  The Supreme Court recently affirmed that federal law creates criminal liability for the “straw purchase” of a firearm. The case, Abramsky v. U.S., involved a question of whether a set of federal statutes prohibit the “straw purchase” of a firearm, which is when one person buys a firearm with the intention of immediately transferring it to another person in exchange for money.  The petitioner had been convicted for purchasing a firearm in Virginia on behalf of his uncle, who lived in Pennsylvania, under 18 U.S.C.§ 922(a)(6) (which criminalizes knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun) and §924(a)(1)(A) (which criminalizes making a false statement “with respect to the information required . . . to be kept” in the gun dealer’s records). 

In a 5-4 decision, with Justice Kennedy providing the decisive swing vote, the majority rejected the argument that these federal laws were not intended to apply to straw purchases.  The majority pointed out that if one were to read the statute the way plaintiff wanted it to be read, the provisions would not apply to any straw purchases under any circumstances—even where the in-store buyer knowingly purchases a gun for a prohibited person, such as a convicted felon.  The court noted that this interpretation of the law would allow a prohibited person to obtain a weapon for a dangerous individual without that person undergoing any of the protective measures enacted by Congress—like background checks—to prevent weapons from falling into the wrong hands.  Moreover, the laws were intended to aid law enforcement by creating a paper trail leading back to the actual purchaser in cases where firearms are later used to commit crimes.

Justice Scalia’s dissent focused on the fact that, taken literally, the statutes do not apply to straw purchases where the initial purchaser is not prohibited from possessing firearms.  However, as the majority pointed out, this interpretation would have completely ignored the aim of the law to prevent prohibited persons from obtaining firearms through straw purchases.  The majority’s ruling ensures that the “straw purchasing” of firearms—a major source of illegal trafficking—remains punishable under federal criminal law.

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The strongest laws against firearms trafficking are those that require a background check before any transfer of a firearm.  See our summary on Universal Background Checks & the Private Sale Loophole for information about these laws.31  See also our summaries on:

Some states, including California, Connecticut, Maryland, and Massachusetts, have additional strong laws that may be used to prosecute firearms traffickers, as described below.

1.             State Laws that Prevent Transfers to Traffickers:  Apart from the laws mentioned above, the strongest laws against firearms trafficking prohibit any sale or transfer of a firearm where the buyer intends to subsequently transfer or resell the firearm to a third party without a background check.  The buyer or transferee in this situation may be a “straw purchaser,” i.e., someone who is buying a gun on behalf of a specific person (referred to below as the “actual purchaser” or “true purchaser”), or he or she may simply intend to resell the firearms at a later time for profit without conducting a background check.

A.            State Laws That Penalize Buyers Who Intend to Traffic the Firearm

About a third of the states have laws that prosecutors may use to penalize gun purchasers who intend to traffic the gun, in certain circumstances.  California has the strongest anti-trafficking law of this type.  California law prohibits acquiring a firearm for the purpose of selling, loaning, or transferring it in violation of California law.  Unlike most states, California law requires a background check for every sale of a firearm.  Hence, any person who acquires a firearm in order to transfer it to someone else without a background check violates California law.32

Maryland, Massachusetts, and Pennsylvania also have strong laws aimed at buyers who intend to traffic the firearm.  Massachusetts law prohibits any person from using any of the state’s gun licenses for the purpose of purchasing a firearm for resale or to give it to an unlicensed person.33

The law in Maryland is more limited, because it presumes that the true purchaser played an active role in soliciting the person who filled out the required forms and underwent a background check. Maryland prohibits any person from knowingly or willfully participating in a “straw purchase” of a handgun or assault weapon. “Straw purchase” is broadly defined as a sale in which a person uses another, known as the straw purchaser, to:  (1) complete the application to purchase; (2) take initial possession of the firearm; and (3) subsequently transfer the firearm to the person.34

Pennsylvania law requires a buyer of a handgun to affirm, on a form, that he or she is the “actual buyer” of the handgun, with a statement that a person is not the actual buyer if he or she is acquiring the firearm on behalf of another person, with an exception for gifts to certain family members.35

The remaining states only penalize a narrower category of “straw purchasers”:  those who purchase or acquire a firearm on behalf of, or with the intent to resell the firearm to, an individual who is prohibited by law from possessing a firearm.  Some state laws, including those in Connecticut,36 Colorado,37 North Dakota,38 and Virginia,39 impose penalties if the initial buyer has a reason to know that the third party is prohibited from possessing firearms, even if he or she does not have actual knowledge of the third party’s prohibited status.40 Other state laws only impose penalties if the buyer actually knows that the third party is ineligible.41

B.            State Laws That Penalize Individuals Who Transfer to Traffickers

Seven states (California, Connecticut, Maryland, Minnesota, New Jersey, Pennsylvania, and Rhode Island) have laws that may facilitate prosecution of individuals who transfer firearms to traffickers under certain circumstances.42

Maryland prohibits any person from transferring a handgun or assault weapon to a transferee that the transferor has reasonable cause to believe is a participant in a “straw purchase,” as defined above.43

California prohibits a person from transferring a firearm to any person he or she has cause to believe is not the actual transferee of the firearm, provided he or she knows that the firearm is to be subsequently transferred illegally.44

Rhode Island prohibits any person from selling a handgun to someone who he or she has reasonable cause to believe is providing false information.45  Minnesota has a similar law that applies to handguns and assault weapons.46

Pennsylvania penalizes any seller who knowingly or intentionally sells, delivers or transfers a firearm “under circumstances intended to provide a firearm to” any person who is unqualified or ineligible to possess a firearm under Pennsylvania law.47  Connecticut law prohibits a person from directly or indirectly causing a firearm to come into the possession of another individual that the transferor knows or has reason to believe is prohibited from possessing a firearm under state or federal law.48 New Jersey enacted a law in 2013 that prohibits a licensed dealer from selling or transferring a firearm to a person knowing that the person intends to sell, transfer, assign, or otherwise dispose of that firearm to a person who is disqualified from possessing a firearm under state or federal law.49

In addition, although federal law requires licensed dealers to conduct background checks, ATF does not have the resources to fully enforce this requirement. As a result, state laws that mirror the federal requirement enable prosecution of dealers who sell firearms “off the books” to ineligible individuals.  See our summary on Background Checks Procedure for information about such laws.

2.            State Laws That Prohibit Persuading a Seller to Transfer a Firearm Knowing It is Illegal

A weaker set of laws, including laws in Alabama,50 Louisiana51 and West Virginia,52 prohibit any person from knowingly soliciting, encouraging, persuading, or enticing a dealer or other firearm seller to transfer a firearm under circumstances the person knows would violate federal or state law.53  Many of these laws apply to ammunition sales as well. Similarly, Georgia54 and Virginia penalize any person who attempts to solicit, persuade, encourage, or entice any dealer to transfer or otherwise convey a firearm other than to the actual buyer. Virginia also penalizes any other person who willfully and intentionally aids or abets such person. Unlike the federal Form 4473, Virginia law defines “actual buyer” to mean a person who executes the required consent form, or other such firearm transaction records as required by federal law.55

3.            State Laws that Penalize the Actual Buyer in a Straw Purchase

A small number of states have laws that allow the prosecution of the actual buyer in a straw purchase situation, even if the straw purchase was ultimately unsuccessful.56  Connecticut57 and Virginia58 penalize any ineligible buyer who solicits another person to purchase a firearm on behalf of that person.59  Maryland penalizes any willing participant in a straw purchase, as defined above.60  New Jersey prohibits causing someone else to give false information when acquiring a firearm.61 Other states, including Kentucky,62 Missouri,63 and West Virginia,64 penalize a person who willfully procures another person to entice a firearm seller to transfer a firearm knowing the transfer is illegal.65

4.            State Laws that Prohibit Providing False Information in a Firearms Transfer

Most states prohibit providing false information in connection with a firearms transfer.66  In eight states (Colorado,67 Connecticut,68 Illinois,69 New York,70 Oregon,71 Pennsylvania,72 Utah73 and Virginia74 ), this law applies to sellers as well as buyers. In other states, including Delaware,75 Missouri,76 and Oklahoma,77 the law is no broader than federal law, because it only applies to “materially false information,” which is defined as information that portrays an illegal transaction as legal or a legal transaction as illegal, and only if the information is intended or likely to deceive the seller.78

5.            State Laws to Aid Enforcement Agencies in Anti-Trafficking Efforts

Connecticut, Maryland, New York and the District of Columbia have established programs to help law enforcement combat gun trafficking.79  Connecticut has created a statewide firearms trafficking task force for the “effective cooperative enforcement” of state laws concerning the distribution and possession of firearms. This task force, composed of municipal and state law enforcement officers, is tasked with identifying and prosecuting traffickers, tracking and removing illegally possessed firearms, and coordinating with other law enforcement agencies within and without the state.80

The District of Columbia has created a “Firearms Bounty Fund” that makes payments of cash rewards to anyone who provides a tip that leads to the conviction of a gun trafficker.81 Maryland has established a Cease Fire Grant Program to help fund activities aimed at reducing gun trafficking,82 and New York has established a gun trafficking interdiction program to implement and fund a strategy for the interdiction of guns illegally entering New York from supplier states.83

6.            State Laws Requiring the Tracing of Crime Guns: Five states (Connecticut, Illinois, New Jersey, New York, and Pennsylvania) have laws requiring law enforcement to use tracing information to identify the source of a recovered firearm.84

7.            State Laws Regulating “Community Guns”:   A “community gun” is a firearm generally hidden away in a location known to a small group of individuals, such as members of the same gang, who then access the weapon when it is needed to commit criminal activity.85  States have begun to respond to the increasing use of community guns in dense urban areas.  New Jersey, for example, prohibits the possession, use, or transfer of a “community gun,” which is defined as a firearm that is transferred among an association of two or more people who, while possessing the firearm, engage in criminal activity.86  New York also prohibits the use of “community guns,” but requires that at least one person sharing the weapon must be prohibited from possessing firearms.87

50 State Summary

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The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.

  • Any licensed dealer or unlicensed seller or transferor of a firearm must conduct a background check on the transferee88
  • State law penalizes anyone who:
    • Acquires a firearm with the intent to transfer it to anyone else without a background check (California, Massachusetts)
    • Sells or transfers a firearm under circumstances where the transferor reasonably should know that the transferee intends to transfer the firearm to a third party without a background check (Maryland penalizes anyone who sells or transfers a firearm to someone with reason to believe that the person is a participant in a straw purchase)
    • Solicits someone else to acquire a firearm on his or her behalf, even if the person is ultimately unable to acquire the firearm (Connecticut, Virginia)
  • Any false statement made in connection with a firearms transfer is penalized, even if the statement is not likely to deceive the seller; this penalty also applies to false statements made by sellers, including licensed firearms dealers (Colorado, Connecticut, Illinois, New York, Oregon, Pennsylvania, Utah, Virginia)
  • Law enforcement must cooperate with other agencies to investigate and prosecute firearms traffickers (Connecticut)
  • Law enforcement must identify the source of any recovered firearm, using trace information if necessary (Connecticut, Illinois, New York, Pennsylvania)
  • State law prohibits the possession, transfer, or use of a “community gun,” defined as a firearm that is transferred among an association of two or more people who, while possessing the firearm, engage in criminal activity (New Jersey)

 

  1. See William J. Krouse, Congressional Research Service, Gun Control Legislation 19 (Nov. 14, 2012) at http://assets.opencrs.com/rpts/RL32842_20121114.pdf. []
  2. See Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Following the Gun: Enforcing Federal Laws Against Firearms Traffickers ix-x (June 2000), at http://www.mayorsagainstillegalguns.org/downloads/pdf/Following_the_Gun%202000.pdf.   Additional research on this topic is described in our summary on Dealer Regulations. []
  3. Id. at xi. []
  4. Id. at 18. []
  5. For information on the ease by which straw purchases of guns can be made, see Mayors Against Illegal Guns, Inside Straw Purchasing:  How Criminals Get Guns Illegally, at http://www.mayorsagainstillegalguns.org/downloads/pdf/inside-straw-purchases.pdf. []
  6. Following the Gun, supra note 2, at ix, xi., 18.  ATF’s trafficking investigations during this period that specifically involved youth and juveniles found that the source of 50.9% of the trafficked guns were via straw purchasers or straw purchasing rings.  Bureau of Alcohol, Tobacco and Firearms, U.S. Dep’t of Treasury, Commerce in Firearms in the United States 22 (Feb. 2000), at http://permanent.access.gpo.gov/lps4006/020400report.pdf. []
  7. Office of the Inspector General, U.S. Dep’t of Justice, The Bureau of Alcohol, Tobacco, Firearms and Explosives’ Investigative Operations at Gun Shows v-vi (June 2007), at http://www.justice.gov/oig/reports/ATF/e0707/final.pdf.  From 2004-2006, ATF conducted 202 investigative operations at 195 guns shows, or roughly 3% of the gun shows held nationwide during this period.  The investigations resulted in 121 arrests and the seizure of 5,345 firearms.  Id. at  iv-v. []
  8. The City of New York, Gun Show Undercover: Report on Illegal Sales at Gun Shows 6, 20-23 (Oct. 2009), at http://www.nyc.gov/html/om/pdf/2009/pr442-09_report.pdf.  The City’s investigations took place at seven gun shows in Nevada, Ohio and Tennessee from May through August 2009.  Id. at 13. []
  9. Id. at 20.  A study of more than 1,000 gun-related prosecutions, including interviews with over 100 witnesses, found that, while some gun dealers and employees are able to identify straw purchases and will reject these sales, others are willing to sell guns despite suspicions that a sale is a straw purchase, and some gun dealers even coach customers on how to conduct a straw purchase. Mayors Against Illegal Guns, Inside Straw Purchasing: How Criminals Get Guns Illegally, at http://www.mayorsagainstillegalguns.org/downloads/pdf/inside-straw-purchases.pdf. []
  10. See Garen J. Wintemute, Gun Shows Across a Multistate American Gun Market: Observational Evidence of the Effects of Regulatory Policies, 13 Inj. Prevention 150, 153-54 (2007), at http://injuryprevention.bmj.com/content/13/3/150.full.pdf. []
  11. Mayors Against Illegal Guns, Trace the Guns: The Link Between Gun Laws and Interstate Gun Trafficking (Sept. 2010), at http://www.tracetheguns.org/report.pdf; Brain Knight, State Gun Policy and Cross-State Externalities: Evidence from Crime Gun Tracing, NBER Working Paper No. 17469 (Sept. 2011), at https://www.princeton.edu/rppe/speaker-series/speaker-series-2011-12/Knight.pdf. []
  12. Id. at 1. []
  13. Sari Horwitz and James V. Grimaldi, ATF’s Oversight Limited in Face of Gun Lobby, Wash. Post, Oct. 26, 2010, at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/25/AR2010102505823.html?sub=AR. []
  14. Id. See also Mayors Against Illegal Guns, A Blueprint for Federal Action on Illegal Guns:  Regulation, Enforcement, and Best Practices to Combat Illegal Gun Trafficking, Section III. ATF Resources & Structure (Aug. 2009), at http://www.mayorsagainstillegalguns.org/downloads/pdf/blueprint_federal_action.pdf. []
  15. U.S. Gov’t Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges 3, 15 (June 2009), at http://www.gao.gov/products/GAO-09-709. Further estimates finding the U.S. as the overwhelming source of illegal guns in Mexico are even higher:  around 90% to 95% of guns seized in drug crimes in Mexico originate in the U.S. Spencer S. Hsu, U.S.-Mexico Task Force Seeks Renewed Ban on Assault Weapons, Wash. Post, Nov. 13, 2009 at http://www.washingtonpost.com/wp-dyn/content/article/2009/11/12/AR2009111211331.html (reporting statements from Mexican officials finding that 90% of guns seized in drug crimes in Mexico and submitted for tracing to ATF originate in the U.S., including most assault rifles); and Alicia A. Caldwell, ATF: Most Illegal Guns in Mexico Come from U.S., Associated Press, Aug. 11, 2008 (ATF states that nearly all illegal guns seized in Mexico – 90 to 95 percent – originally come from the U.S.). U.S. guns have also been shown to play a significant role in gun violence in Guatemala. Colby Goodman, U.S. Firearms Trafficking to Guatemala and Mexico, Woodrow Wilson International Center for Scholars (April 2013), at http://www.wilsoncenter.org/sites/default/files/US%20Firearms%20to%20Guatemala%20and%20Mexico_1.pdf. []
  16. See Damien Cave, At a Nation’s Only Gun Shop, Looking North in Disbelief, N.Y. Times, July 24, 2012, at http://www.nytimes.com/2012/07/25/world/americas/in-mexico-a-restrictive-approach-to-gun-laws.html. []
  17. U.S. Gov’t Accountability Office, supra note 15, at 24–28. []
  18. Colby Goodman and Michel Marizco, U.S. Firearms Trafficking to Mexico: New Data and Insights Illuminate Key Trends and Challenges 198, Woodrow Wilson International Center for Scholars, September 2010, at http://www.wilsoncenter.org/sites/default/files/Chapter%206-%20U.S.%20Firearms%20Trafficking%20to%20Mexico,%20New%20Data%20and%20Insights%20Illuminate%20Key%20Trends%20and%20Challenges.pdf. []
  19. Mayors Against Illegal Guns, Issue Brief: The Movement of Illegal Guns Across the U.S.-Mexico Border, Sept. 2010, at http://www.mayorsagainstillegalguns.org/downloads/pdf/issue_brief_mexico_2010.pdf. []
  20. Id. at 3. []
  21. 18 U.S.C. § 922(g). []
  22. 18 U.S.C. § 922(d). []
  23. See Gun Control Legislation, supra note 1, at 21-25. 3. Under federal law, a handgun purchased over the Internet or via mail-order from a seller in a different state must be shipped to a dealer in the purchaser’s home state. A person may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee’s premises in any state, provided the sale complies with state laws applicable in the state of sale and the state where the purchaser resides. A person may borrow or rent a firearm in any state for temporary use for lawful sporting purposes. 18 U.S.C § 922(a)(3), (5), (b)(3). However, in the absence of state or local laws on this issue, only licensed dealers, and not unlicensed private sellers, are required to view purchasers’ identification documents and verify the state of residence of the purchase, making it all too easy for traffickers to transfer firearms across state lines. []
  24. 18 U.S.C. §§ 922(a)(6),  924(a)(1)(A). []
  25. The instructions for Form 4473 specify that a person is the actual transferee/buyer if he or she is buying the gun as a gift for someone else. []
  26. See Following the Gun, supra note 2, at 5. Federal law also makes it unlawful for anyone to transport, receive, possess, sell, or otherwise dispose a firearm knowing or having reasonable cause to believe it was stolen, 18 U.S.C. § 922(i), (j), and makes it unlawful for anyone to possess, transport, ship, or receive, a firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered. 18 U.S.C. § 922(k). []
  27. 28 C.F.R. § 0.131(f). []
  28. Consolidated and Further Continuing Appropriations Act 2012, Pub. L. 112 P.L. 55; 125 Stat. 552, 4 (2011). []
  29. Memorandum of January 16, 2013, Tracing of Firearms in Connection With Criminal Investigations, Memorandum for the Heads of Executive Departments and Agencies, 78 Fed. Reg. 4301 (The President January 22, 2013). []
  30. See also our webpage on the Tiahrt Amendments at http://smartgunlaws.org/federal-law-on-tiahrt-amendments/. []
  31. An alternative approach penalizes anyone who sells or transfers a firearm to a person who is prohibited from possessing it.  Connecticut imposes strict criminal liability in this situation with respect to handguns, meaning that the person transferring a handgun to a prohibited person is guilty of a criminal offense regardless of whether he or she knew or had reason to know the transferee was a prohibited person.  Conn. Gen. Stat. § 29-33(a), (i).  Like federal law, other states prohibit sale or transfer of a firearm to a person the transferor knows or has reason to believe is ineligible to possess it. []
  32. Cal. Penal Code §§ 27515, 27520. []
  33. Mass. Gen. Laws ch. 140, § 131E(b). []
  34. Md. Code Ann., Pub. Safety §§ 5-101(v), 5-114(b)(viii), 5-134(b)(13), 5-136, 5-141(a), See Md. Code Regs. 29.03.01.24. []
  35. 18 Pa. Cons. Stat. § 6111(b)(1). []
  36. Conn. Gen. Stat. § 29-37j. []
  37. Colo. Rev. Stat. § 18-12-111. []
  38. N.D. Cent. Code § 62.1-02-08. []
  39. Va. Code Ann. § 18.2-308.2:2(M). []
  40. See also Del. Code Ann. tit. 11, § 1455; R.I. Gen. Laws § 11-47-37. []
  41. See e.g., Fla. Stat. § 790.065(12)(d); 720 Ill. Comp. Stat 5/24-3.5; Ind. Code § 35-47-2-7(c); Neb. Rev. Stat. § 69-2422; N.Y. Penal Law § 265.17(2), Utah Code Ann. § 76-10-527. See also Ohio Rev. Code § 2923.20(A)(2) (prohibiting possessing a firearm in order to “recklessly” sell, lend, give, or furnish it to a prohibited person). []
  42. In addition, Ohio law penalizes anyone who sells or furnishes a firearm knowing or having reason to know that the person is purchasing or receiving the firearm for the purpose of selling or furnishing the firearm illegally to a person who is under age. Ohio Rev. Code Ann. § 2923.21(A). []
  43. Md. Code Ann., Pub. Safety §§ 5-101(v), 5-114(b)(viii), 5-134(b)(13), 5-136, 5-141(a), See Md. Code Regs. 29.03.01.24. []
  44. Cal. Penal Code § 27515. []
  45. R.I. Gen. Laws §§ 11-47-23, 11-47-37. []
  46. Minn. Stat. § 624.7132, subd. 15(a)(2), (4). []
  47. 18 Pa. Cons. Stat. Ann. § 6111(g)(2). []
  48. Conn. Gen. Stat. § § 53-202aa. []
  49. N.J. Stat. § 2C:39-10(a)(4). []
  50. Ala. Code § 13A-11-58.1. []
  51. La. Rev. Stat. § 14:95.1.3. []
  52. W. Va. Code § 61-7-10(f). []
  53. See also Ky, Rev. Stat. § 527.090; Miss. Code § 97-37-105; Mo. Rev. Stat. § 571.063(2)(1); Okla. Stat. Ann. tit. 21, § 1289.28(C); N.C. Gen. Stat. § 14-408.1(b); Utah Code Ann. §§ 76-10-503(9). []
  54. Ga. Code Ann. § 16-11-113. []
  55. Va. Code Ann. § 18.2-308.2:2(G), (K), (L1). []
  56. The actual buyer in a straw purchase situation may also be prosecuted as an ineligible buyer attempting to purchase a firearm.  For example, New York prohibits a person from attempting to purchase a firearm knowing that he or she is ineligible to possess it. N.Y. Penal Law. § 265.17(1). Georgia has a similar law limited to certain felons. Ga. Code § 16-11-131(b.1). []
  57. Conn. Gen. Stat. § 29-37j. []
  58. Va. Code Ann. § 18.2-308.2:2(M), (N). []
  59. Oregon prohibits a person who knows that he or she is ineligible to possess a firearm but attempts to purchase a firearm. Or. Rev. Stat. § 166.425. []
  60. Md. Code Ann. Pub. Safety §§ 5-101(v), 5-114(b)(viii), 5-134(b)(13), 5-136, 5-141(a). See Md. Code Regs. 29.03.01.24. []
  61. N.J. Stat. Ann. § 2C:39-10(c), (d), (g). []
  62. Ky. Rev. Stat. § 527.090. []
  63. Mo. Rev. Stat. § 571.063. []
  64. W. Va. Code § 61-7-10(f). []
  65. See also La. Rev. Stat. § 14:95.1.3; N.C. Gen. Stat. § 14-408.121; Okla. Stat. Ann. tit. 21, § 1289.28. []
  66. A Tennessee administrative regulation states that a firearm transfer must be denied if the purchaser “provide[s] false information to purchase or transfer a firearm.” Tenn. Code Ann. § 39-17-1316(q)(1); Tenn. Comp. R. & Regs. R. 1395-1-3-.02(30), 1395-1-3-.05(1)(n). []
  67. Colorado provides that it is unlawful for any person, in connection with the acquisition or attempted acquisition of a firearm from any transferor, to willfully make any false statement or to exhibit any false identification that is intended or likely to deceive such transferor with respect to any fact material to the lawfulness of the sale or other disposition of such firearm under federal or state law. Colorado also specifically penalizes anyone who gives false information in connection with the making of a record of a handgun transfer. Colo. Rev. Stat. §§ 12-26-103, 24-33.5-424(10). []
  68. Conn. Gen. Stat. §§ 29-34, 29-37e. []
  69. 720 Ill. Comp. Stat. 5/24-3.5(c). []
  70. N.Y. Penal Law § 175.30. []
  71. Or. Rev. Stat. § 166.416. []
  72. 18 Pa. Cons. Stat. Ann. § 6111(g)(4). []
  73. Utah penalizes anyone who provides to a dealer or other person what the person knows to be “materially false information” with intent to deceive the dealer or other person about the legality of a sale, transfer or other disposition of a firearm. “Materially false information” means information that portrays an illegal transaction as legal or a legal transaction as illegal.  However, Utah also penalizes any person who willfully and intentionally makes a false statement of the information required for a criminal background check. Utah Code Ann. §§ 76-10-503(9), 76-10-527. []
  74. Va. Code Ann. §§ 18.2-204.1(C), 18.2-308.2:2(G), (K). []
  75. Del. Code Ann. tit. 11, §§ 1448A(f). []
  76. Mo. Rev. Stat. § 571.063. []
  77. Okla. Stat. Ann. tit. 21, § 1289.28. []
  78. 18 U.S.C. § 922(a)(6). In some states, such as Missouri and Oklahoma, this law also applies to ammunition sales, as does the federal law. []
  79. In addition, a number of states impose higher penalties for the illegal transfer of firearms in certain gun trafficking situations.  For example, New Jersey prohibits conspiring with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, transport, ship, sell or dispose of any firearm. N.J. Stat. Ann. § 2C:39-16.  New Jersey also prohibits any person from knowingly bringing a firearm into the state for the purpose of an unlawful transfer.  N.J. Stat. Ann. § 2C:39-9(i).  Texas prohibits knowingly engaging in the business of transporting or transferring a firearm that the person knows was illegally acquired.  A person is considered to be “engaged in the business of transporting or transferring a firearm” if the transaction is for profit or any other form of payment, or if the person engages in the conduct on more than one occasion.  Tex. Penal Code § 46.14. []
  80. Conn. Gen. Stat. § 29-38e, 54-36n. []
  81. D.C. Code Ann. § 7-2531.04. []
  82. Md. Code Ann., Pub. Safety § 5-504. []
  83. N.Y. Exec. Law § 230. []
  84. Conn. Gen. Stat. § 54-36n; Ill. Comp. Stat. 5/24-8; N.J. Stat. §§ 52:17B-9.18, 52:17B-5.3; N.Y. Exec. Law § 230; 18 Pa. Cons. Stat. Ann. § 6127. New Jersey’s law was enacted in 2013. See 2013 N.J. ALS 162. []
  85. For more information on community guns, see Michael Wilson, In Mailbox: A Shared Gun, Just for the Asking, N.Y. Times, Feb. 10, 2012, available at http://www.nytimes.com/2012/02/11/nyregion/hidden-communal-guns-are-more-common.html. []
  86. N.J. Stat. Ann. §§ 2C:39-4a(2). []
  87. N.Y. Penal Law § 115.20.  Idaho makes it illegal to knowingly sell or transfer a firearm to a gang member.  Idaho Code Ann. § 18-8505. []
  88. Additional information on jurisdictions requiring universal background checks is contained in our summary on Universal Background Checks & the Private Sale Loophole. []