Posted on May 21, 2012
Click here to see current summaries of all fifty states’ laws in this area.
The following material has been updated from our February 2008 edition of Regulating Guns in America – An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws.
Private sales are firearm sales by persons other than federally licensed firearms dealers. Private sellers are not subject to federal laws governing licensed dealers.
Although the “private sale” loophole is frequently referred to as the “gun show” loophole (because of the particular problems associated with gun shows), it applies to all firearm sales, regardless of where they occur.1
Summary of Federal Law
Federal law imposes various duties on federally licensed firearms dealers. Firearms dealers must, among other things: (1) perform background checks on prospective firearm purchasers; (2) maintain records of all gun sales; (3) make those records available to law enforcement for inspection; (4) report multiple sales; and (5) report the theft or loss of a firearm from the licensee’s inventory.2 Federal law imposes none of these requirements on unlicensed sellers, however.
The Gun Control Act of 1968 provides that persons “engaged in the business” of dealing in firearms must be licensed.3 Although Congress did not originally define the term “engaged in the business,” it did so in 1986 as part of the McClure-Volkmer Act (also known as the “Firearms Owners’ Protection Act”). That Act defined the term “engaged in the business,” as applied to a firearms dealer, as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”4
Significantly, however, the term was defined to exclude a person who “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”5
Consequently, unlicensed sellers may sell firearms without conducting background checks or documenting the transaction in any way. In addition, because federal law does not require private sellers to inspect a buyer’s driver’s license or any other identification, there is no obligation for such sellers to confirm that a buyer is of legal age to purchase a firearm. As a result, convicted felons, minors and other prohibited purchasers can easily buy guns from unlicensed sellers.
According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the current definition of “engaged in the business” often frustrates the prosecution of “unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons.”6 A June 2000 ATF report found that unlicensed sellers were involved in about a fifth of the trafficking investigations and associated with nearly 23,000 diverted guns.7 A national survey of firearm ownership conducted in 1994 determined that 60 percent of all firearm sales in the U.S. involved federally licensed dealers, while the remaining 40 percent of firearms were acquired from unlicensed sellers.8
SUMMARY OF STATE REGULATION OF PRIVATE SALES
(This summary was last updated August 7, 2012.)
Five states (California, Connecticut, Maryland, Pennsylvania and Rhode Island) and the District of Columbia require universal background checks on some or all firearm purchasers, including purchases from unlicensed sellers. In California, Rhode Island and the District of Columbia, universal background checks are required for transfers of all classes of firearms; Maryland’s law applies only to handguns and assault weapons; the Connecticut and Pennsylvania laws are limited to handguns. Delaware, Nevada and Oregon have laws allowing voluntary background checks by unlicensed sellers.
As detailed below, Illinois, Massachusetts, and each of the jurisdictions requiring universal background checks also have recordkeeping requirements that apply to private transactions.
For information about state laws requiring background checks at gun shows, please see our Gun Shows policy summary. In addition, some states require anyone purchasing a firearm to obtain a permit or registration certificate after a background check, even if the seller is unlicensed. These laws are detailed in our Licensing of Gun Owners or Purchasers policy summary, and our Registration of Firearms policy summary.
States Imposing Recordkeeping or Reporting Requirements on Private Sellers
Description of State Laws Regulating Private Sales
1. Universal Background Checks for All Firearm Transfers: The most comprehensive approach to ensuring that guns are not sold to prohibited persons is through a requirement for universal background checks prior to all firearm transfers. Processing transfers by private sellers through licensed dealers or a law enforcement agency helps to ensure that a background check will be conducted prior to any transfer.
In California, all firearm transfers must be processed through licensed dealers, who must conduct background checks on prospective firearm purchasers. Rhode Island requires all sellers to obtain a completed application form from the prospective purchaser, and to submit the form to law enforcement for purposes of conducting a background check. Concealed handgun permit holders in Rhode Island are exempt. In the District of Columbia, firearms may be transferred only by or to a licensed dealer.
Maryland requires a background check on every prospective transferee of “regulated firearms” (defined as handguns and assault weapons), which may be conducted by a licensed dealer or a designated law enforcement agency. Connecticut requires a background check through law enforcement prior to any handgun transfer. Pennsylvania requires that all handgun sales be completed by licensed dealers (thereby necessitating a background check) or through the county sheriff’s office.
2. Voluntary Background Checks by Private Sellers: In Delaware, Nevada and Oregon, private sellers are not required to conduct background checks on purchasers (except, in Oregon, at gun shows), but they may request a background check of the purchaser. In Delaware, the seller makes the request to a licensed dealer, who must facilitate the transfer. In Oregon and Nevada, the seller makes the request to the relevant state agency, which must process the request. In Oregon, subject to certain exceptions, a transferor who receives notification that the transferee is eligible to complete the transfer is immune from civil liability for any use of the firearm after the time of transfer.
3. Recordkeeping and Reporting Requirements for Private Sellers:In California (all firearms), Pennsylvania (handguns), and the District of Columbia (all firearms) because all transfers must be processed through a licensed dealer, private transfers are subject to the recordkeeping and sales reporting requirements for licensed dealers. Licensed dealers in these states are required to maintain records of all transfers, including transfers by private sellers.26 California and Pennsylvania also require dealers to report handgun sales to law enforcement.27
Connecticut requires all sellers of handguns to maintain records of all handgun transfers for at least five years, and to send copies of the transfer receipt to the Commissioner of Emergency Services and Public Protection and the Chief of Police. Illinois requires any person who transfers a firearm to keep records of all such transfers for 10 years. Maryland requires all sellers of regulated firearms to retain a copy of a purchase application for three years, and report the completed transaction to the Secretary of the Maryland State Police. Massachusetts requires all private sellers to submit a written report documenting each firearm transfer to the commissioner of the department of criminal justice information services. Purchasers of firearms from private sellers are also required to submit the same information. In Rhode Island, all sellers of handguns must maintain records of transfers for six years.
4. State Permit and Registration Requirements for Private Purchasers: A number of states prohibit private sellers from transferring firearms to purchasers who do not have the requisite state license, permit, or registration certificate, or who are ineligible under state law. State permits to purchase firearms that have a short duration require purchasers to undergo background checks within a short time prior to taking possession of the firearm. These permits are required for purchases from dealers and private sellers. Hawaii, for example, requires all handgun sellers to receive a handgun permit from the purchaser prior to transfer.28 A handgun permit in Hawaii is valid for 10 days and may only be used for the purchase of one handgun. Any handgun seller must record certain information about the handgun sold on the permit and forward a copy of the permit to the issuing authority within 48 hours.
Massachusetts and Michigan also issue 10-day handgun purchase licenses to some, but not all, handgun purchasers.29 These and other state licensing requirements are discussed in detail in our Licensing of Gun Owners or Purchasers policy summary. The District of Columbia requires all firearm purchasers to obtain a registration certificate for each firearm. Registration requirements are detailed in our Registration of Firearms policy summary.
FEATURES OF COMPREHENSIVE LAW REGULATING PRIVATE SALES
The features listed below are intended to provide a framework from which policy options may be considered and debated. The Law Center has not attempted to include every provision or every creative approach identified in the analysis above, nor have we addressed appropriate exceptions so that the regulation does not produce unintended consequences. A jurisdiction considering modifying existing, or developing new legislation in this area should consult with counsel to ensure its legal sufficiency and compatibility with existing codes and statutes, as appropriate.
- For all firearm transfers, private sellers are subject to similar requirements as licensed dealers, including background checks and recordkeeping requirements:
- The most comprehensive option requires all firearm transfers to be conducted through licensed dealers, so that background checks will be completed on all purchasers (including purchases from unlicensed sellers), and sales records will be maintained (California, District of Columbia)30
- If the jurisdiction does not require that all firearm transfers be conducted through licensed dealers, private sellers are required to:
- conduct background checks through a central law enforcement agency that has access to federal and state databases of prohibited purchasers (Rhode Island requires private sellers to conduct background checks through licensed dealers or law enforcement);
- maintain records of all firearm transfers for a lengthy period (Illinois requires all sellers to retain sales records for 10 years); and
- report all transfers to state and local law enforcement (Massachusetts)
- Issues specific to gun shows are discussed in the Gun Shows policy summary. [↩]
- 18 U.S.C. §§ 922(t), 923(g). [↩]
- 18 U.S.C § 921(a)(21)(C). [↩]
- Id. [↩]
- Id. [↩]
- U.S. Department of Justice & Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Gun Shows: Brady Checks and Crime Gun Traces 13-14 (Jan. 1999). [↩]
- Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Following the Gun: Enforcing Federal Laws Against Firearms Traffickers xi (June 2000). [↩]
- Philip J. Cook & Jens Ludwig, Guns in America: National Survey on Private Ownership and Use of Firearms, U.S. Department of Justice, National Institute of Justice Research in Brief 6-7 (May 1997), at http://www.ncjrs.gov/pdffiles/165476.pdf. [↩]
- Cal. Penal Code §§ 27545, 27850-28070. [↩]
- Conn. Gen. Stat. §§ 29-33(c), 29-36l(f). [↩]
- D.C. Code Ann. § 7-2505.02. [↩]
- Md. Code Ann., Pub. Safety §§ 5-101(r), 5-124. In Maryland, “regulated firearms” are defined to include handguns and assault weapons. [↩]
- 18 Pa. Cons. Stat. § 6111(b), (c), (f)(2). [↩]
- R.I. Gen. Laws §§ 11-47-35 – 11-47-35.2. [↩]
- Del. Code Ann. tit. 24, § 904A. [↩]
- Nev. Rev. Stat. Ann. § 202.254. [↩]
- Or. Rev. Stat. § 166.436. [↩]
- Cal. Penal Code §§ 26900(a), 28210, 28250. [↩]
- Conn. Gen. Stat. § 29-33(e). [↩]
- D.C. Code Ann. § 7-2504.04(a)(3)(C). [↩]
- 430 Ill. Comp. Stat. 65/3(b). [↩]
- Md. Code Ann., Pub. Safety §§ 5-101(p), 5-123(d), 5-124. [↩]
- Mass. Gen. Laws ch. 140, §§ 128A, 128B. [↩]
- 18 Pa. Cons. Stat. § 6111(b)(1), (c), (f)(2). [↩]
- R.I. Gen. Laws § 11-47-35(a)(2). [↩]
- Federally licensed firearms dealers are required to maintain sales records indefinitely. 27 C.F.R. §§ 478.124(b), 478.125(e). Laws in California, D.C. and Pennsylvania also require dealers to retain sales records. [↩]
- Pennsylvania’s requirement applies to transfers of handguns, and rifles and shotguns of specified dimensions. Additional information about recordkeeping and sales reporting requirements applicable to dealers is contained in Retention of Firearm Sales and Background Check Records. [↩]
- Haw. Rev. Stat. Ann. § 134-2. [↩]
- Mass. Gen. Laws ch. 140, §§ 131A, 131E; Mich. Comp. Laws §§ 28.422, 28.422a. In both states, certain license holders need not obtain a handgun purchase permit, and therefore would not be subject to a background check within 10 days of purchase from a private seller. [↩]
- A 2007 report by the International Association of Chiefs of Police (IACP) recommended that all gun sales be proceed through an FFL, thereby ensuring that a mandatory background check will be conducted on the transferee. International Association of Chiefs of Police, Taking a Stand: Reducing Gun Violence in Our Communities 14 (Sept. 2007). IACP also noted that the requirement that FFLs keep a record of gun sales would allow law enforcement to trace the gun to the last point of sale should it be criminally misused, lost or stolen. [↩]