What does it mean?

Under federal law, anyone who wants to engage in the business of selling firearms must obtain a federal firearms license. The Brady Handgun Violence Prevention Act (the Brady Act) requires a federal firearms licensee (FFL) to contact the Federal Bureau of Investigation’s National Instant Criminal Background Check System (NICS) when selling a firearm, which ensures that the purchaser is not prohibited from possessing firearms. However, the Brady Act does not apply to the sale of firearms by non-licensees (i.e., private sellers). 

Every year, thousands of gun sales occur by unlicensed sellers without background checks on the purchasers. This “private sale loophole” results in guns getting into the hands of criminals who would otherwise not be able to buy firearms. Requiring background checks for all private sales will reduce illegal trafficking and treat all transfers equally.

What would it really do? 

In Illinois, persons buying firearms from private sellers at gun shows must undergo a background check.¹ However, other private handgun sales are not subject to a background check to ensure the buyer is lawfully able to purchase and possess firearms. This loophole allows some buyers to avoid a background check, and could allow convicted felons or other dangerous individuals access to handguns. Requiring those who privately sell or transfer handguns to request the Department of State Police to conduct a background check ensures that the transaction will be subject to all other applicable federal, state, and local laws. Exceptions include transfers of a firearm between spouses, from parent to child or grandparent to grandchild.

What does the public think?

• Eight in 10 Illinois voters strongly support mandating background checks before the sale of guns by private individuals. Sixty percent of all voters with firearms behavior (including voters who are gun owners, members of the NRA, hunters and/or FOID cardholders) expressed strong support of this measure. To read more polling results from the 2007 Voter Survey on Gun Regulations, click here.
   
• A January 2007 Greenberg Quinlan Rosner Research and The Tarrance Group survey, on behalf of Mayors Against Illegal Guns, found that 92 percent of Americans support background checks.²
   
• According to a CBS News/NY Times Poll in May 2000, 71% of Americans think that laws covering handgun sales should be stricter.³

What are the facts?

• In 2004, there were 8,084,000 applications for firearm transfers or permits in the U.S. About 126,000 (1.6%) of the applications were rejected by the FBI and state or local agencies. A felony conviction or indictment, a domestic violence misdemeanor conviction or restraining order, and other criminal history were the most common reasons for rejection by the FBI and by state or local agencies.⁴
• Nationwide, 40% of gun transactions occur through unlicensed sellers and no-questions-asked private deals that require no background checks.⁵
• A 2000 report by the Bureau of Alcohol, Tobacco, Firearms and Explosives found that unlicensed sellers were involved in about one-fifth of trafficking investigations and associated with nearly 23,000 illegal guns.⁶
• Roughly 20% of gun trafficking investigations involve transfers by unlicensed sellers who are not required to conduct a background check.⁷
• Every year, hundreds of prohibited persons are stopped from buying guns in Illinois through background checks.⁸

Have Other States or Jurisdictions Enacted Similar Legislation?

California, Rhode Island and the District of Columbia require background checks for all private gun sales. Connecticut and Pennsylvania require background checks on all private handgun sales.  Maryland requires background checks on private transfers of “regulated firearms,” which include handguns and assault weapons. California has the most comprehensive law, requiring that every firearm sale, including those by private sellers, is subject to a background check conducted by a licensed dealer.⁹

Final Thought

Closing the “private sale loophole” for handgun sales would mean that all handgun buyers are treated equally, so that they would be subject to the same requirements whether they buy from a licensed gun shop, at a gun show, or from a private seller. This would help ensure that persons buying handguns are legally eligible to do so, and it would also help law enforcement track the owners of weapons used in crimes.

Pending Legislation
HB758 (Sponsored by Rep Harry Osterman, Co-Sponsored by Reps Elizabeth Coulson and Barbara Currie)  
This bill would require the private transfer of firearms to occur at the place of business of a federally licensed firearm dealer who will conduct a background check of the buyer and follow all other applicable federal, State, and local laws. Exceptions exist for transfers between spouses, parent and child, or grandparent and grandchild. Transfers at gun shows are also exempt, as they are already subject to background checks.

To read and check the status of the House bill, click here

1 430 Ill. Comp. Stat. 65/3.
2 Mayors Against Illegal Guns, Strong Public Support for Tough Enforcement of Common Sense Gun Laws, January 2007, page 12
3 Mike Dorning, Happy To Bear Arms, Chicago Tribune, May 23, 2000, at 12.
4 U.S. Department of Justice, Office of Justice Programs. Background Checks for Firearm Transfers, 2004. October 2005
5 Philip Cook and Jens Ludwig. Guns in America: National Survey on Private Ownership and Use of Firearms, National Institute of Justice Research in Brief, May 1997
6 Bureau of Alcohol, Tobacco and Firearms, U.S. Department of the Treasury, Following the Gun: Enforcing Federal Laws Against Firearm Traffickers xi (2000).
7 Ibid
8  Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2006 – Statistical Tables.
9 Legal Community Against Violence, Regulating Guns in America: An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws, Aug. 2006; Violence Policy Center, Closing the Gun Show Loophole:  Principles for Effective Legislation, Feb. 2001