Online Firearms Sales: The Song Remains The Same

If you are engaged in the business of selling firearms online must you perform background checks? The answer is still yes. This has not changed under President Obama’s recent executive actions concerning gun sales.

Internet marketers of firearms have long been required to conduct background checks to sell firearms. Sales are conducted through the holders of a Federal Firearms Licensee (FFL), who conduct background checks, and then ship the gun to a local FFL who will then make the firearm available to the purchaser. The exception, or so-called “private seller” loop hole, concerns purported occasional sellers, hobbyists, individuals who are not “engaged in the business of selling” firearms, and thus do not need to obtain a Federal Firearms License. In fact, private sellers in more than 30 states have no obligation to conduct background checks at all prior to selling firearms. They cannot, however, ship across state lines which would run afoul of existing federal regulations. The private seller exception, however, has been subject to abuse by some sellers of large quantities of guns who can skirt the registration process by claiming they are simply very active hobbyists and collectors.

What is new, then? AFT has been tasked with providing better guidance with respect to exactly who is “engaged in the business of selling.” While no specific sales volume has been set, ATF and in turn prosecutors, will use a number of factors to determine whether a seller is engaged in the business – these include the volume and frequency of sales, how long the guns are held prior to sale, and how much a seller markets themselves and their products. According to the White House fact sheet, courts have upheld sales of as few as two guns, if other factors are present. In addition, ATF is establishing an Internet Investigations Center to track illegal online sales. While funding for the additional 200 ATF agents has yet to occur, it is clear that there will be additional focus on those selling firearms on line.