Internet Firearm and Ammunition Sales
Released: 2012-08-28T00:00:00

Introduction

As the Internet has become a significant venue for facilitating commercial transactions, it may be more common in this day and age for a consumer to first turn to the Internet to purchase goods rather than to go to a store. This could be said for almost all types of goods, including firearms and ammunition. A simple search for the terms "sale" and "firearm" results in a multitude of websites devoted to the sale of firearms or ammunition. Accordingly, questions and concerns have arisen regarding the extent to which federal law regulates the sale of such goods. A review of applicable federal laws, discussed below, establishes that Internet-based firearm sales are not imbued with a special character by virtue of their medium of transfer, and are in fact subject to the same degree of regulation as any other type of firearm transaction. The unique qualities of Internet transactions, however, may pose significant obstacles to enforcing these firearm regulations. The sale of ammunition, however, is subject to less federal regulation than firearms. It is this latter fact that has become the subject of heightened scrutiny in the aftermath of the tragic mass shooting that occurred in a Colorado movie theater in July 2012. The suspected shooter, who killed 12 persons and injured at least 58, reportedly purchased at least 6,000 rounds of ammunition online. Following this incident, Senator Frank Lautenberg and Representative Carolyn McCarthy have introduced new legislation, the Stop Online Ammunition Sales Act ( S. 3458 / H.R. 6241 ), that would more strictly regulate the online sale of ammunition.

The Gun Control Act of 1968

Congress enacted the Gun Control Act of 1968 (GCA or Act) to "keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background or incompetency, and to assist law enforcement authorities in the states and their subdivisions in combating the increasing prevalence of crime in the United States." To this end, the GCA prohibits certain classes of individuals from possessing firearms and establishes a comprehensive regulatory scheme designed to prevent the transfer of firearms to such individuals.

In particular, the GCA establishes nine classes of individuals who are prohibited from shipping, transporting, possessing, or receiving firearms in interstate commerce. The individuals targeted by this provision include (1) persons convicted of a crime punishable by a term of imprisonment exceeding one year; (2) fugitives from justice; (3) individuals who are unlawful users or addicts of any controlled substance; (4) persons legally determined to be mentally defective, or who have been committed to a mental institution; (5) aliens illegally or unlawfully in the United States, as well as those who have been admitted pursuant to a nonimmigrant visa; (6) individuals who have been discharged dishonorably from the Armed Forces; (7) persons who have renounced United States citizenship; (8) individuals subject to a pertinent court order; and, finally, (9) persons who have been convicted of a misdemeanor domestic violence offense.

These nine categories of persons are also prohibited from shipping, possessing, or receiving ammunition in interstate commerce. When the GCA was enacted, the transfer and sale of ammunition appear to have been regulated in the same manner as firearms. In 1986, Congress passed the Firearm Owners' Protection Act (FOPA), which repealed many of the regulations regarding ammunition. Consequently, as discussed below, the transfer and sale of ammunition are not as strictly regulated as the transfer and sale of firearms.

Restrictions on Sales

In order to effectuate the general prohibitions outlined above, the GCA imposes significant requirements on the transfer of firearms. Pursuant to the Act, any person who is "engaged in the business" of importing, manufacturing, or dealing in firearms must apply and be approved as a Federal Firearms Licensee (FFL or licensee). FFLs are subject to several requirements designed to ensure that a firearm is not transferred to an individual disqualified from possession under the Act. For example, a licensee must verify the identity of a transferee by examining a government-issued identification document bearing a photograph of the transferee, such as a driver's license; conduct a background check on the transferee using the National Instant Criminal Background Check System (NICS); maintain records of the acquisition and disposition of firearms; report multiple sales of handguns to the Attorney General; respond to an official request for information contained in the licensee's records within 24 hours of receipt; and comply with all other relevant state and local regulations.

Not all sellers of firearms are required to be approved FFLs, however. The GCA contains a specific exemption for any person who makes "occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms." Although private sellers are not required to conduct a background check or maintain official records of transactions under federal law, they are prohibited from transferring a firearm if they know or have reasonable cause to believe that the transferee is a disqualified person.

When the GCA was originally enacted in 1968, the sale and transfer of ammunition were regulated in nearly the same manner as firearms. This meant that an individual "engaged in the business" of dealing ammunition, among other things, had to be licensed under the GCA, and was required to maintain records of the ammunition sale. In 1986, however, Congress enacted the Firearm Owners' Protection Act (FOPA), which repealed these types of regulations for sales and transfer of ammunition. Consequently, one does not need to be an FFL to deal in ammunition, nor are such sellers (including FFLs) required to keep a record of ammunition sales. Notably, while FFLs have never been required under federal law to conduct a background check for purchasers of ammunition, they still may choose to do so because it remains unlawful for any seller of ammunition to transfer ammunition knowing or having reasonable cause to believe that such person is a prohibited possessor.

Restrictions on Interstate Transfers

In addition to the aforementioned requirements imposed upon the sale of firearms by licensed and unlicensed individuals generally, federal law also places significant limitations on the actual interstate transfer of weapons. These provisions are of particular interest in analyzing Internet-based firearm sales, given the inherently interstate quality of such activity and the perceived potential for abuse in the Internet sale context.

Although FFLs have the ability to sell and ship firearms in interstate or foreign commerce, the GCA places several restrictions on the manner in which a transfer may occur. Specifically, while a licensee may make an in-person, over-the-counter sale of a long gun (i.e., shotgun or rifle) to any qualified individual regardless of her state of residence, a licensee may only sell a handgun to a person who is a resident of the state in which the dealer's premises are located. Relatedly, a licensee is prohibited from shipping firearms, both handguns and long guns, directly to consumers in other states. Instead, FFLs making a firearm sale to a non-resident must transfer the weapon to another FFL that is licensed in the transferee's state of residence and from whom the transferee may obtain the firearm after passing the required NICS background check.

Firearm transfers between non-FFL sellers are also strictly regulated. Specifically, whereas FFLs may transfer a long gun to a non-resident non-licensee in an over-the-counter sale, the GCA specifically bars a non-FFL from directly selling or transferring any firearm to any person who is not a resident of the state in which the non-FFL resides. Instead, interstate transactions between non-FFLs result in the transferring party shipping the firearm to an FFL located in the transferee's state of residence.

On the other hand, ammunition sales are currently less extensively regulated than firearm sales. Prior to 1986, however, not only were sales of ammunition conducted through FFLs who were required to be licensed to engage in the business of dealing ammunition, but FFLs were prohibited from shipping ammunition to a private person (non-FFL). The transfer of ammunition to an out-of-state purchaser, therefore, had to be conducted much like a handgun sale to an out-of-state purchaser, with the FFL transferring the ammunition to another FFL located in the state of the purchaser. After FOPA repealed these provisions in 1986, sellers are no longer required to have a license to deal in ammunition, and they are not prohibited from shipping ammunition directly to a private person regardless of the purchaser's state of residence. While there is less regulation of ammunition at the federal level, a few states have enacted legislation that requires either, or both, a seller and purchaser of ammunition to be licensed by the state.

The GCA and the Internet

It is these aforementioned provisions on interstate transfers that arguably control the present inquiry regarding the extent to which Internet-based firearm and ammunition transactions are regulated under federal laws. The panoply of provisions discussed above establishes a federal scheme that regulates every firearm sale, irrespective of the medium of transaction. Even though these laws do not specifically address online or Internet sales, they broadly address the transfer of any firearm in interstate or foreign commerce. The mere fact that a firearm transaction is negotiated over the Internet does not exempt it from the requirements that apply to traditional sales conducted in person or those facilitated through classified advertisements in newspapers. In other words, FFLs who advertise firearms over the Internet are still prohibited from directly shipping a firearm to a non-FFL purchaser. If an out-of-state non-FFL purchaser desired to buy a firearm (i.e., a handgun or long gun) from the FFL, then the FFL would have to arrange for the firearm to be transferred to another FFL located in the purchaser's state and from whom the non-FFL purchaser could obtain the firearm after passing a background check. Similarly, private sellers of firearms who advertise the sale of firearms over the Internet could only make a direct transfer to a purchaser who is a resident of the seller's own state. The private seller would still be prohibited from directly transferring his firearms to an out-of-state non-FFL purchaser, and would be required to arrange for the firearm to be transferred to an FFL located in the purchaser's state. Internet-based sales and transfers of ammunition, on the other hand, may be conducted freely by FFL and non-FFL sellers to in- or out-of-state purchasers, given the GCA's lack of proscription against such conduct.

Concerns and Proposed Legislation

Although existing GCA provisions encompass Internet-based firearm transactions and freely permit the direct transfer of ammunition between seller and purchaser, concerns have arisen since the beginning of the Internet revolution that there is ample opportunity for abuse of the existing firearm regulations or an increased potential for violations of federal law.

Almost 12 years ago, the Department of Justice (DOJ) identified several factors it found unsettling regarding firearm sales over the Internet. In addition to the possibility that prohibited persons may be successful in acquiring firearms over the Internet, DOJ stated that the Internet "provides convenient fora" for the advertisement and sale of firearms by non-licensed individuals who are not required to conduct background checks or retain records of sales. Because non-FFL transactions are regulated less strictly, DOJ observed that non-licensed individuals might be encouraged to illegally engage in the business of dealing in firearms. Furthermore, there could be an increase in violations of federal law, as the prospect of quick profits from Internet sales may "create a temptation on the part of FFLs to circumvent" existing federal laws. During this time, the Working Group on Unlawful Conduct on the Internet (Working Group), established by President Clinton in 2000, stated that the sale of firearms over the Internet poses "unique problems" for law enforcement. The Working Group first maintained that illegal online sales would be more difficult to detect than sales facilitated through traditional venues such as print advertisements, since "the [I]nternet provides people with the means to advertise guns for sale on message boards, through e-mail, in chat rooms, or other websites that will be difficult to find and may even be inaccessible to law enforcement." Another hindrance to law enforcement efforts suggested by the Working Group is the lack of a fixed physical location for the execution of Internet-based sales. Whereas the Bureau of Alcohol, Tobacco, Firearms and Explosives may conduct inspections and review records of transactions with traditional sales made at gun stores or gun shows, Internet-based transactions would be much more difficult to monitor. It is unclear the extent to which law enforcement has experienced problems in detecting illegal firearm transactions, or whether it has the investigatory resources or capabilities to devote to enforcing firearm laws over the Internet.

It should also be noted that when these reports were issued, there was little substantive evidence to support the assumption that individuals advertising firearms over the Internet were more likely to ignore firearm laws than those employing traditional methods of sale. Even though the observations from DOJ and the Working Group have an intuitive appeal and appear logically sound, an investigation by the General Accounting Office (GAO) from 2001 on Internet-based firearm sales detected no illegal activity with respect to FFLs. The GAO investigation was limited in scope, but none of the FFLs solicited by the undercover investigator agreed to engage in any illegal activity. More recently, however, the city of New York issued a report in December 2011 on its undercover investigation, which specifically examined online gun sales from private sellers. The results from this investigation present a marked contrast from the earlier GAO investigation. The city of New York's investigation examined 125 private sellers from 14 states who advertised on 10 different websites. Investigators indicated to these private sellers that they "probably couldn't pass a background check." Of the 125 private sellers, 77 agreed to sell a gun to someone who said he could not pass a background check. While these investigations were conducted several years apart and were both limited in scope, results from the GAO investigation could be interpreted as undermining the contention that the use of the Internet to facilitate firearm transactions will result in increased illegal activity with respect to FFLs. In contrast, the city of New York's investigation could give credence to the observation that the Internet increases the potential for abuse by private sellers to make unlawful sales of firearms to prohibited purchasers.

In addition to these long-existing concerns regarding the sale of firearms over the Internet, concerns have also been raised with respect to online ammunition sales, especially in light of reports that the suspected gunman in the Colorado movie theater shootings purchased at least 6,000 rounds of ammunition online. In response to this, Senator Frank Lautenberg and Representative Carolyn McCarthy introduced S. 3458 and H.R. 6241 , the Stop Online Sales Ammunition Act of 2012. Primarily, this legislation would reinstitute the ammunition regulation that had been repealed when FOPA was passed in 1986. It would require an individual who wishes to sell ammunition to be a licensed dealer, irrespective of whether such business is conducted with the principal objective of livelihood and profit, because the amendment does not include the phrase "engaged in the business." Accordingly, the bill would arguably prevent any secondary sales of ammunition, that is, sales between non-FFLs, an action that is currently permitted with respect to secondary sales of firearms. Although a licensee selling ammunition would not be required to conduct a NICS background check under the bill, the licensee would be required to examine a valid photo identification of the transferee before completing the transfer. It would also make it unlawful for a licensee to directly transfer or deliver ammunition to any non-licensee and would require licensees to keep track of ammunition transfers to the same extent that they keep track of firearm transfers. These requirements would have the likely effect of requiring the seller and buyer to meet in person to complete the transaction. Furthermore, one component of the bill that was not a part of the original ammunition regulations from 1968 is the requirement that licensees prepare a report of multiple sales for federal and local authorities whenever the licensee disposes of more than 1,000 rounds of ammunition to a non-licensee during any five consecutive business days.

In contrast to the proposed ammunition bill discussed above, proposed gun control measures have primarily focused on extending the background check requirements to private sellers rather than targeting the interstate scheme under the GCA. Such measures, like the Fix Gun Checks Act of 2011 ( H.R. 1781 / S. 436 ), would effectively require some in-person contact to be made through an FFL or a law enforcement agency because they would require a background check be conducted for every firearm sale. These measures perhaps focus on extending background check requirements because, as discussed above, the existing scheme on the interstate transfer of firearms arguably encompasses Internet-based firearms transactions, such that most firearm transactions are transferred through FFLs, unless it is an intrastate sale between two non-FFLs.