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Kelly supports Department of Justice proposal to close unlicensed gun seller loophole

On Thursday, Aug. 31, Congresswoman Robin Kelly, D-Matteson, announced her support for Attorney General Merrick Garland’s decision to sign a notice of proposed rulemaking to amend the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) regulations to conform with The Bipartisan Safer Communities Act’s licensing requirements for gun sellers. 

For decades, unlicensed gun sellers have been permitted to sell high volumes of weapons online and at gun shows without having to conduct background checks on each purchaser. This “background check loophole” has allowed unlicensed gun sellers to turn a profit by funneling firearms into the hands of convicted felons, domestic abusers, gun traffickers, and other prohibited persons. The Bipartisan Safer Communities Act addressed this loophole by changing the definition of “engaged in the business” to include any seller that “predominantly earns a profit” from the sale of firearms. These sellers will have to register as a Federal Firearms Licensee and conduct background checks for every firearm sale.

Today’s notice of proposed rulemaking seeks to implement this new classification criteria by:

  • Clarifying the definition of “dealer” and defining the terms “purchase” and “sale” as they apply to dealers.
  • Clarifying when a person would not be engaged in the business of dealing in firearms as an auctioneer, or when purchasing firearms for, and selling firearms from, a personal collection.
  • Setting forth conduct that is presumed to constitute “engaging in the business” of dealing in firearms, and presumed to demonstrate the intent to “predominantly earn a profit” from the sale or disposition of firearms, absent reliable evidence to the contrary.
  • Clarifying that the intent to “predominantly earn a profit” does not require the person to have received pecuniary gain and that intent does not have to be shown when a person purchases or sells a firearm for criminal or terrorism purposes.
  • Adding a single definition for the term “personal collection, personal collection of firearms, or personal firearms collection” and adding a definition for the term “responsible person.”
  • Addressing how former licensees, and responsible persons acting on behalf of former licensees, may lawfully liquidate business inventory upon revocation or other termination of their license.
  • Clarifying that licensees must follow the verification and recordkeeping procedures in 27 CFR 478.94 and Subpart H, rather than using an ATF Form 4473 when firearms are transferred to other licensees, including transfers by a licensed sole proprietor to that person’s personal collection.

Kelly earlier signed two Congressional letters, in December of 2022 and May of 2023, urging for expedient and clear rule making for the “engaged in the business” definition provision of the Bipartisan Safer Communities Act.

“Today’s announcement from the Department of Justice is a crucial step toward ensuring that all firearm sellers “predominately earning a profit” from sales, are properly licensed, and conduct the necessary criminal background checks to keep our communities safe,” Kelly said. “As co-chair of the Congressional Gun Violence Prevention Taskforce, I am working closely with the Biden-Harris Administration to see that this crucial provision of the Bipartisan Safer Communities Act is implemented.”  

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