Gun Sales, Transfers and Trafficking Charges

Buying, selling, and transferring guns in the United States is a complex issue with many nuances and regulations. While the right to bear arms is constitutionally protected, there are also laws in place to prevent guns from ending up in the wrong hands through illegal trafficking or straw purchases. This article provides an overview of key laws and issues related to gun sales, transfers and trafficking charges.

Background on Gun Laws

The Second Amendment to the U.S. Constitution states that “the right of the people to keep and bear Arms, shall not be infringed.” However, this right is not unlimited. There have long been certain restrictions on who can purchase guns, what types of guns they can buy, and how those transactions take place. Some key federal gun laws include:

• The National Firearms Act (1934) – Regulates the manufacture, sale and possession of certain firearms like machine guns, short-barreled rifles, silencers, destructive devices and others. Requires registration and tax stamps for covered weapons.
• The Gun Control Act (1968) – Prohibits interstate gun trafficking and straw purchases. Established categories of restricted people who cannot legally purchase guns, like felons, those convicted of domestic violence, and the mentally ill. Requires licensed dealers to conduct background checks.
• The Brady Handgun Violence Prevention Act (1993) – Requires licensed dealers to conduct background checks on gun buyers through the National Instant Criminal Background Check System (NICS). Established the current system of background checks.
• The Domestic Violence Offender Gun Ban (1996) – Prohibits anyone convicted of a misdemeanor crime of domestic violence from purchasing or possessing guns. Includes those under restraining orders for domestic violence.

In addition to federal laws, states also have their own varying sets of gun laws covering areas like concealed carry permits, waiting periods, purchase limits, background check requirements, and restrictions on assault weapons and high capacity magazines. This patchwork of laws across states complicates efforts to prevent illegal trafficking.

Gun Sales and Transfers

There are several ways that legal gun sales and transfers can take place in the U.S.:

• Licensed Gun Dealers – These sellers are federally licensed and regulated. They must conduct background checks on all buyers through the NICS system. Buyers must fill out a Firearms Transaction Record form. There is generally a waiting period before the gun can be transferred.
• Private Sales – In many states, private individuals can sell guns to each other without background checks or paperwork. These are often called “gun show sales” but can happen anywhere. Critics argue these sales make it easy for prohibited people to obtain guns illegally.
• Intrafamilial Transfers – In most states, family members can transfer guns to each other as gifts or inheritance without paperwork or background checks. Spouses, parents, children, siblings are often exempt.
• Online Sales – Guns can be purchased online, but they still must be shipped to a licensed dealer who will conduct the required background check before transferring the gun to the buyer. Purely internet-based sales are not legal.
• Interstate Sales – Guns can be sold across state lines but the transaction must happen through a licensed dealer in the buyer’s home state, who runs the background check. Buyers generally can’t cross state lines to make purchases in person.

Straw Purchases

A straw purchase is when someone who can legally purchase a gun buys one for someone who cannot legally own one. This is one of the most common ways that criminals and other prohibited people obtain firearms.

Though straw purchases are illegal under federal law, they can be hard to detect and prosecute. The straw buyer often just claims they bought the gun for themselves and then later sold or gave it to the real intended recipient.

Signs that a purchase may be a straw buy include:

• The buyer seems uninterested in details about the gun itself
• They bring in someone else to help pick out the gun
• They buy multiple guns in a short period of time
• The guns are immediately reported as stolen or missing
• The buyer has no other guns registered to them

The Bipartisan Safer Communities Act passed in 2022 included measures aimed at cracking down on straw purchases by increasing penalties and prohibiting buying guns for those who can’t legally own them. But detecting them still relies heavily on licensed dealers being vigilant.

Gun Trafficking

Gun trafficking refers to the illegal diversion of guns into the black market, often across state lines from states with looser laws to those with stricter ones. Trafficking violates federal laws like the Gun Control Act but remains a major source of crime guns.

Common trafficking methods include:

• Using straw buyers as described above
• Exploiting private sale loopholes to sell guns without background checks
• Stealing guns from licensed dealers and individuals
• Corrupt dealers falsifying records and making illegal sales

Trafficked guns typically move along the “Iron Pipeline” from southern states like Florida, Georgia and Texas up the I-95 corridor to major cities in the northeast. Other routes go from states bordering Mexico into the hands of cartels.

The ATF tries to monitor and disrupt trafficking through sting operations and partnerships with local law enforcement. But the agency has faced criticism for not doing enough to crack down on corrupt dealers who continually supply criminals.

Charges for Straw Purchases and Trafficking

While there is no specific federal crime called “gun trafficking,” prosecutors can bring charges under various existing gun laws:

• Lying on ATF Form 4473 – This form must be completed for all sales through licensed dealers. Lying about the true buyer is prosecuted as a false statement.
• False statements in records – For dealers falsifying their official books, like disguising straw sales.
• Sale to a prohibited person – For knowingly selling a gun to someone barred from owning guns, like a felon.
• Possession with intent to re-sell – For those caught with guns they don’t intend to keep, but to sell into illegal markets.

Penalties vary based on the specific charges but can include up to 10 years in prison under federal law, even for a first offense. Trafficking-related charges are often stacked to add up to long sentences.

For straw buyers, claiming they did not know the true recipient was prohibited may be a defense. But it’s weak if there is evidence they should have known or deliberately avoided finding out. It’s very hard to evade culpability under the law.

Preventing Illegal Sales and Trafficking

There are a number of policies that could help reduce straw purchases and trafficking:

• Universal background checks – Requiring checks for all gun sales, including private sales, would make straw buys harder.
• Permit-to-purchase laws – Requiring permits to buy guns that involve background checks and oversight could deter illegal sales.
• Anti-trafficking laws – Some states have laws specifically prohibiting transferring guns to those who can’t possess them or will use them illegally.
• Lost and stolen reporting – Faster reporting of missing guns could disrupt trafficking networks.
• Dealer regulation – Stricter oversight and loss of licenses for corrupt dealers who enable trafficking.
• ATF resources – The ATF needs more staffing and funding to properly monitor dealers and interdict illegal sales.

The balance between the right to bear arms and keeping guns from criminals will continue being debated. But with bipartisan agreement that straw purchases and trafficking need to be reduced, strengthening laws that prevent guns ending up in the wrong hands will remain a priority.

This article has provided an overview of the complex landscape around U.S. gun sales, transfers and trafficking. While regulations differ across states, all gun transactions are subject to a web of federal, state and local laws. Violating these laws can lead to serious criminal charges with steep penalties. It is essential that anyone buying, selling or transferring guns do so legally and responsibly.