Though federal legislation to strengthen requirements hasn’t passed, many individual states have plugged some of the gaps.
Jun 15, 2023Federal law doesn’t require background checks on private gun sales, but 20 states have expanded background checks.
There’s perhaps no policy more central to the gun debate in the United States than background checks.
A universal background check requirement is one of the most popular gun reform proposals, with dozens of polls finding that between 80 and 90 percent of Americans support the idea, including a majority of Republicans and gun owners.
Despite that support, thousands of guns are sold every year without a check to see if the buyer is prohibited from possessing firearms. Though federal legislation to strengthen requirements hasn’t passed, many individual states have passed their own laws.
Below, we break down the gaps in federal law and which states have tried to fill them.
In 1993, Congress passed the Brady Act, which mandated that every gun dealer with a Federal Firearms License (FFL) conduct background checks on all potential buyers. The law, however, exempted sales and transfers between private parties.
The private sale exemption was intended to avoid placing a burden on people who only occasionally offload a firearm — like a person selling a gun to a neighbor or transferring one to a family member. But gun reform advocates quickly pointed out that it created an opening for people prohibited from owning firearms to obtain weapons without any form of screening.
This led the private sales exemption to be dubbed “the gun show loophole” because many private sellers frequent gun shows and online sites, where they sell firearms without checks. While the practice certainly occurs, the name is misleading: Many sellers at gun shows are licensed and perform background checks, and private sales occur in a variety of venues.
Efforts to expand background checks to private sales have repeatedly failed in Congress, but a provision in the federal Bipartisan Safer Communities Act aimed to clarify FFL licensing requirements, which could ultimately result in more background checks. Exactly how effective that will be remains to be seen and depends heavily on enforcement.
Because private sales and transfers are exempted from checks and records requirements, it’s unclear how many take place. Our gun sales tracker, for example, relies on background check data and doesn’t include sales that happen without one.
Some estimates do exist, though: A 2017 survey found that 13 percent of new gun owners reported that they had purchased their gun without a background check. The same survey found that 45 percent of gun owners who bought a gun online in the previous two years did not undergo a background check. A separate study found that roughly 80 percent of guns acquired for criminal purposes are obtained through unlicensed sellers.
With upward of 400 million guns in circulation, the number of guns sold without a background check could be in the millions.
Expanding background check requirements for firearm sales has been one of the gun safety movement’s biggest successes. At least 20 states have enacted laws to expand background checks to cover all or most private sales, going beyond the federal requirements. Some, like Washington, did so through ballot initiatives.
Universal background check states require checks on all or most private gun sales.
While these expanded background check laws are dubbed “universal,” they almost always include some exceptions, and in a couple of states cover only some types of firearms.
Many states with universal background check laws exclude sales or gifts between family members, short-term loans, and, in some cases, emergency transfers intended to prevent suicide or imminent harm — for example, if someone gives their gun to someone else for safekeeping during a mental health crisis.
While most states that have expanded background checks extend the requirement to all types of firearms, at least one state (Pennsylvania) includes only handguns, not long gun sales between private parties. In Minnesota, the requirement covers handguns and firearms dubbed semiautomatic assault-style weapons, like the AR-15, but not other long guns.
In some states that have expanded checks, a background check isn’t necessarily required for every individual sale. Illinois, Massachusetts, and Oregon, for example, achieve universal checks by requiring anyone seeking to buy a firearm to first obtain a permit to purchase, which requires a background check. The dealer may still need to contact law enforcement to verify that the permit remains valid.
The FBI runs the National Instant Criminal Background Check System (NICS), a set of databases composed of criminal, mental health, and civil records that could potentially bar a prospective purchaser from possessing a firearm under federal law.
In most states, gun dealers contact the FBI directly to start the check. The FBI then runs the potential buyer’s name and details through NICS before informing the gun dealer of whether the buyer is prohibited from purchasing or possessing a gun.
In point of contact states , dealers contact local or state agencies for background checks. The FBI is responsible for most background checks in most states.
In some states, known as point of contact states, federally licensed dealers contact a state or local law enforcement agency instead of the FBI. The agency then queries NICS and often searches additional state records and databases, resulting in a more holistic search that can include records that may not have been voluntarily entered into NICS.
In partial point of contact states, state or local agencies handle background checks for handgun purchases and some private sales, while the FBI typically handles background checks on long guns. In Maryland, for example, the State Police handle background checks on handguns and assault-style weapons, while the FBI handles background checks for other long guns.
Chip is a reporter at The Trace covering federal policy related to violence prevention and firearms. He is also the author of The Trajectory newsletter, which spotlights the people, policies, and programs grappling with America’s gun violence crisis.
Before joining The Trace as an investigative fellow in June 2020, Chip worked as a reporter and the editor-in-chief of his collegiate newspaper, The Auburn Plainsman . He also covered the state legislature, governor, courts, and elections for the Alabama Political Reporter. As an undergraduate, Chip studied political science and journalism at Auburn University. He also earned an M.A. with a concentration in politics from the Columbia Journalism School.
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