Introduction
Almost immediately after governors began to issue orders in early March directing nonessential businesses to close and individuals to stay at home to prevent the spread of the coronavirus, news stories began to emerge of increased traffic at gun stores.1 One photo of a line of buyers outside of a California gun shop is likely to become one of the most recognizable images from this moment in modern American history.2 Anecdotes emerged of individuals who had never considered buying guns before rushing to gun stores to make their first purchase, motivated by the fear and uncertainty of this unprecedented moment. Since this early reporting, data have confirmed a dramatic increase in the number of guns purchased during the pandemic. The Federal Bureau of Investigation (FBI), the federal agency responsible for conducting background checks for gun sales, revealed that nearly 2 million guns were sold in March—the second highest monthly number since these data have been tracked.3 April gun sales were nearly as high, with an estimated 1.6 million guns sold—a 71 percent increase over April 2019.4 The trend in gun sales continued in May and June; June saw the biggest increase yet, with an estimated 2.3 million guns sold.5
Just as the coronavirus pandemic has exposed gaps within the U.S. health care and economic systems, the surge in gun sales during this period brings to the forefront weaknesses in the current laws and systems governing the sale and ownership of firearms and ammunition. Far too many gun sales are allowed to proceed without background checks, and gun owners face minimal legal requirements to ensure that guns are handled and stored safely. These gaps in the law create risks for all U.S. communities vulnerable to gun violence, and both federal and state policymakers should take this opportunity to strengthen these laws to help reduce gun violence.
In addition, policymakers should use this moment to consider enacting a system of gun licensing that would address many gun law gaps at once, rather than through piecemeal legislation. Laws that require individuals to obtain a government-issued firearm license prior to purchasing a gun could minimize the risks associated with delays in the background check system, as well as require that all sales proceed only after a background check has been completed and the purchaser has completed a gun safety training class, which includes instruction on methods of safe storage. A comprehensive system of gun licensing, whether enacted at the federal level or by individual states, would alleviate many of the weaknesses in current gun laws that are being exacerbated by the pandemic.
Weakness in the background check system
Under the Brady Handgun Violence Prevention Act, current federal law requires licensed gun dealers to conduct a background check prior to completing a gun sale in order to ensure that the prospective purchaser is not disqualified from gun ownership under state or federal law. In states that have opted to take on the responsibility of conducting these background checks—known as “point of contact” states—a state law enforcement agency conducts the checks. In all other states, background checks are conducted by the FBI using the National Instant Criminal Background Check System (NICS). The intent of this law is to reduce the risk that individuals who are prohibited from gun possession, for reasons such as a history of domestic abuse or violent felony convictions, can easily access guns. The system has been broadly effective, preventing more than 3 million sales to prohibited purchasers since its implementation in 1994.6 However, the current system contains serious flaws that allow guns to continue to be sold without background checks, undermining other crucial gun safety laws, enabling gun trafficking, and stymying efforts to solve gun-related crimes.7 These flaws predate the current surge in gun sales; however, the increased volume in sales is putting unprecedented pressure on the system and exacerbating its weaknesses.
Charleston loophole
In the vast majority of cases, when an individual seeks to buy a gun and submits to a background check, the FBI returns a definitive result within a matter of minutes indicating whether the buyer is legally eligible to buy a gun.8 However, in a small number of cases, the system is unable to make an immediate determination. Under current federal law, the FBI has three business days to continue to investigate. If the FBI has not concluded the investigation after three days, the seller has the discretion to proceed with the sale despite the lack of an affirmative finding that the individual is eligible to buy a firearm. These sales are called “default proceed” sales.9 The default proceed sale process has become known as the “Charleston loophole” because it allowed the shooter who committed a horrific hate crime in 2015 at the Emanuel AME Church in Charleston, South Carolina, to obtain his firearm.10 Allowing gun sales to proceed without a completed background check enables individuals who are prohibited from gun possession to evade the law and buy guns. This is not a hypothetical risk: In 2018, 4,240 background checks were denied after the three-day investigation period elapsed—cases that are referred to as “delayed denials”—with guns being sold to prohibited purchasers in at least 3,960 of those cases.11
The risk that prohibited purchasers will be able to buy guns through default proceed transactions is particularly acute in the context of domestic violence. Under current federal law, individuals who have been convicted of a misdemeanor crime of domestic violence or subject to a domestic violence restraining order are barred from buying guns.12 There are often challenges in determining whether a particular conviction or restraining order qualifies as gun prohibiting under federal law, as this determination can turn on factual issues such as the nature of the relationship between a perpetrator and a victim. This means that, even prior to the surge in sales related to the pandemic, a significant number of default proceed sales were made to a buyer who was prohibited from owning guns due to domestic violence. In 2018, 22 percent of the cases in which a gun was transferred to a prohibited purchaser through a default proceed transaction involved someone with a misdemeanor conviction of domestic violence or a domestic violence restraining order—a total of more than 850 guns.13
The recent surge in gun sales has put unprecedented strain on NICS; four straight months to date have seen exponentially higher volume, with no sign that sales are slowing down. This increase comes even as the NICS was already struggling with a lack of resources,14 which has led to insufficient staffing to conduct the investigations required to determine whether prospective buyers are legally eligible to buy guns, especially in cases that require additional legwork. In addition to delays caused by an overwhelmed NICS staff, some background checks have taken longer to complete because of municipal office and court closures or reduced hours or staffing numbers in communities across the country due to the pandemic. These obstacles prevent NICS examiners from having timely access to necessary court documents. In early May, the U.S. Department of Justice reportedly asked Congress for additional funding to hire more staff to allow the FBI to keep up with the surge in background checks. It also asked for additional funding for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to increase capacity to retrieve firearms that were erroneously sold to prohibited purchasers through a default proceed sale.15
The Charleston loophole transforms what would be a simple administrative inconvenience caused by the pandemic into a potential public safety emergency. The background check system simply does not offer any breathing room for unanticipated surges in demand that slow down the background check investigation process. The way the current federal law is structured places the burden on the point-of-sale retail gun dealer to determine whether to proceed with a gun sale when there is a delay in completing the background check. In March, the National Shooting Sports Foundation—the trade association for gun dealers—issued a bulletin advising dealers of the NICS delays and urging that dealers “may want to consider waiting on a definitive response from the NICS before opting to proceed with a sale on any delayed transaction.”16
The 2015 shooting in Charleston brought new attention to the problem of default proceed sales and led to renewed advocacy to close this gap in the law and ensure that all gun sales facilitated by gun dealers require a completed background check. In February 2019, the U.S. House of Representatives passed a bill to address this problem by extending the time allowed for background check investigations; however, this legislation has languished in the Senate.17 According to an analysis of state laws by the Giffords Law Center, seven states have enacted laws to extend the default proceed period beyond three days to give investigators additional time for background checks to be completed.18
Private sale loophole
Federal law contains another significant gap that allows gun sales facilitated by an individual who is not a licensed gun dealer, often referred to as a private seller, to proceed without a background check.19 While private sellers are not permitted under federal law to sell guns to someone they “[know] or [have] reasonable cause to believe” is prohibited from possessing guns under federal law, they are not obligated to take any affirmative steps to ensure a buyer’s eligibility.20 Because private sales exist completely outside of the background check system, there is no official count of how many take place each year. However, a recent survey found that 22 percent of gun owners reported having purchased their most recent gun through a transaction that did not require a background check.21
The lack of universal background checks undermines the effectiveness of nearly every other gun safety law, particularly those that prohibit certain individuals from gun ownership and those intended to deter illegal gun trafficking. As gun stores in some states have closed or operated with reduced capacity during the pandemic, the risk has increased that buyers will turn to private sales for their gun purchases, potentially increasing the number of guns sold without a background check and with no records kept of the sale.22 To date, 22 states and Washington D.C., have acted to close this gap in the federal law by requiring background checks for at least some categories of private sales.23 In February 2019, the House of Representatives passed H.R. 8, a bill that would close the private sale loophole in federal law and require background checks for all gun sales, including those facilitated by private sellers.24
Lack of a mandatory waiting period
Under current federal law, there is no mandatory waiting or “cooling off” period when someone seeks to buy a gun. In most cases, once the background check has returned with a positive result, the sale can proceed immediately. Nearly 90 percent of background checks are determined within minutes,25 meaning that an individual can go through the entire process of deciding to buy a gun, going to the store, and walking out with a gun and ammunition in less than an hour.
One reported dynamic of the surge in gun sales due to the coronavirus pandemic is that many people are choosing to make their first gun purchase in a time of increased anxiety and fear. Not only would a mandatory waiting period help alleviate some of the stress on the background check system, but it would also encourage would-be gun buyers to give additional thought to their decision and reduce the risk of impulsivity. Nine states and Washington, D.C., have enacted laws requiring a waiting period before at least some gun sales can be completed.26 These laws are proven to be effective: A 2017 study found that state laws that require waiting periods before completing handgun sales result in lower rates of gun-related homicide and suicide.27
Insufficient oversight of gun ownership
There are few barriers to gun ownership under current federal law. As long as a person is at least 21 years old and is not prohibited from possessing a gun because of one of the nine enumerated reasons listed in the federal code, they can purchase a handgun from a licensed gun dealer. The age threshold drops to 18 to purchase a rifle or shotgun, including semi-automatic assault rifles.28 But there are no requirements that a prospective gun owner must demonstrate any level of proficiency with a firearm and no mandates on how guns should be stored or carried to prevent against theft and unauthorized access. Again, these concerns predate the coronavirus pandemic. However, the current influx of first-time gun buyers raises new concerns about the thousands of new gun owners bringing deadly weapons into their homes without the proper supports to ensure that they are able to do so safely.
Safety training
Federal law does not impose any minimal safety training requirements before an individual can buy a gun. The delivery of safety instruction has been entirely delegated to the gun industry, and availing oneself of the myriad private gun safety educational classes and hands-on training programs—including the new online courses and videos being offered during the pandemic—is entirely voluntary.29
Only a handful of states have enacted laws designed to ensure a minimum level of competency with a firearm before an individual is permitted to buy one. California and Washington state, for example, require prospective gun purchasers to provide documentation that they have completed a firearm safety training program within five years.30 Six other states require gun safety training as part of the process for obtaining a license to own firearms, a process discussed in more detail below.31
Safe storage
One topic often covered in voluntary gun safety courses is the need to store guns securely to prevent people from gaining unauthorized access. Storing firearms locked, unloaded, and separate from their ammunition is crucial to preventing guns from falling into the wrong hands, particularly those of children, household members experiencing suicidal ideation, or thieves. But under federal law and the laws of most states, taking this advice is entirely voluntary. Similarly, there are no requirements for the proper storage of ammunition, even when it is purchased in bulk. The dangers of improperly stored ammunition are not theoretical, with numerous reports of ammunition stockpiles igniting and exploding, resulting in injury and death.32
Again, the problem of insufficient requirements for the proper storage of firearms predates the pandemic. A 2018 study found that roughly half of all gun owners store at least one of their guns without any lock or secure storage device,33 and a national survey of gun owners conducted in 2015 found that an estimated 4.6 million children in the United States live in homes that contain an unlocked firearm.34 However, this problem is exacerbated by the influx of first-time gun owners who may not have availed themselves of training programs or safe storage devices. While federal law does require licensed gun dealers to offer gun locks at the point of sale for every purchase, it places no onus on the gun owner to actually use them.35 Massachusetts is the only state that requires all guns to be locked when not in use, while New York, Connecticut, and California impose this requirement under certain circumstances.36 Twenty-seven states and Washington, D.C., have enacted “child access prevention” laws, which are designed to incentivize the safe storage of guns through the threat of civil or criminal liability should a child gain access to a gun that was not stored securely.37
Firearm licensing: A big-picture solution for a system rife with problems
A growing number of states have acted to strengthen gun laws to address many of these weaknesses in the background check system and regulations surrounding gun ownership. In addition to a piecemeal approach to these issues, a few states have enacted a comprehensive system of firearm licensing to ensure that gun buyers are both legally eligible to possess guns and properly educated and trained on their safe use and storage. According to an analysis by the Giffords Law Center, eight states have enacted laws requiring that individuals obtain a license prior to purchasing firearms, and another three states require people to have a valid license or permit to possess firearms.38 In addition, Washington, D.C., requires the registration of all guns, which effectively functions as a licensing law.39 Firearm licensing laws vary from state to state, but tend to include the following elements: a completed background check, often requiring fingerprints; review of the application by local law enforcement; completion of safety training; a waiting period prior to completing a sale; and a license of limited duration.40
In addition to addressing many of the dangerous gaps in the law discussed above, a growing body of research demonstrates that gun licensing laws are effective at reducing gun violence. Studies found that after the implementation of Connecticut’s permit-to-purchase law in 1995, the rate of gun homicides decreased by 40 percent and the rate of firearm suicides decreased by 15 percent in the state.41 Conversely, when Missouri repealed a gun licensing law in 2007, the state experienced a 25 percent increase in the rate of firearm homicides and a 16 percent increase in the rate of firearm suicides.42 Additionally, a 2018 study examining 136 urban counties over three decades saw a 14 percent reduction in firearm homicides after their states passed licensing laws,43 and a 2020 study found evidence suggesting that licensing laws are associated with reduced incidents of mass shootings.44 Research also suggests that licensing laws are effective at reducing illegal gun trafficking. A 2019 study from researchers at John Hopkins Bloomberg School of Public Health concluded that licensing laws can reduce the diversion of firearms into the illegal gun market.45 A 2017 study examining the impact of Maryland’s 2013 Firearm Safety Act, which includes a requirement to obtain a permit to purchase a handgun before buying a handgun from a dealer or private seller, found that the law was associated with a significant reduction in the trafficking of handguns into the underground crime gun market.46
While there is a considerable amount of research on the positive impacts of licensing laws to reduce gun violence, there remain significant gaps in examining how these laws are implemented. Given the role of law enforcement in the procedural aspects of licensing, it is crucial that issues of bias be addressed to mitigate the possibility that these laws would disproportionately affect already overpoliced communities, particularly communities of color. In particular, gun licensing laws that give discretion to local law enforcement to deny a license must be carefully scrutinized in design and implementation, as offering broad discretion can lead to discrimination. In addition to passing licensing laws, it is vital that states consider the resources, training, and public education needed to ensure these policies are equitably implemented.
Conclusion
The coronavirus crisis has not created new problems in the laws and systems guiding the sale and ownership of firearms. But the recent surge in gun sales has put new stress on an already weak system and highlighted some of the most dangerous gaps in the law that allow people who are prohibited from buying guns to continue to have easy access to them. It has also put a spotlight on the negligence of the United States’ current approach to ensuring that first-time gun owners have the tools and resources necessary to bring these guns home safely.
The guns sold during this panic will affect communities long after the crisis is over. These guns increase the risk of homicide, especially in the context of families experiencing domestic violence; suicide; unintentional shootings; and theft. Far too many U.S. communities were already struggling with the public health crisis of gun violence before the pandemic hit, and this struggle will continue after the coronavirus crisis has finally ebbed. Policymakers at the state and federal levels should take this opportunity to address the dangerous gaps in the nation’s gun laws before another unprecedented and unforeseeable stressor once again magnifies their risks.
Chelsea Parsons is the vice president of Gun Violence Prevention at the Center for American Progress. Rukmani Bhatia is a senior policy analyst for Gun Violence Prevention at the Center.
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