I’m Chip Brownlee, The Trace’s federal correspondent, and I’ve been tracking the gun reform negotiations on Capitol Hill. This week, I’ll be writing dispatches about the negotiations, with a focus on adding context and fact-checking legislators’ claims on the policies that are up for discussion. Stay tuned here, follow me on Twitter, and subscribe to our daily newsletter for more.
Following mass shootings in Uvalde, Texas, and Buffalo, New York, a bipartisan group of 20 senators revived talks in the hopes of ending a nearly three-decade logjam on significant gun legislation. On June 12, the negotiating group announced an agreement on some key principles. Though it’s limited in scope and in detail, the framework will be a guide for legislation.
June 17: Stalemate
It’s been nearly a week since a bipartisan group of senators announced that they’d reached a deal on a framework for gun reforms. But cracks in that agreement emerged. With the Senate nearing a two-week recess for the July 4 holiday, it’s still unclear whether senators will have a bill to vote on before they leave town.
As the lead negotiators — Republican Senators John Cornyn and Thom Tillis, and Democratic Senators Chris Murphy and Kyrsten Sinema — began to work out the details, they clashed on how to enact two of the key components of the framework: funding for states to enact and improve red flag laws, and an effort to keep guns out of the hands of abusive dating partners.
The stalemate led Cornyn to walk out of an hours-long meeting on Thursday afternoon. “It’s fish or cut bait,” he told reporters, before hopping on a plane to Texas. “I don’t know what they have in mind, but I’m through talking.” Despite Cornyn’s exit, the other three negotiators remained optimistic. Murphy and Sinema, who say they have been trying to compromise instead of pushing for more expansive provisions, still promised a breakthrough was coming, and Tillis said negotiations were in their final stages.
June 16: How gun seller licensing rules could change
It’s looking less and less likely that the Senate will vote on a gun bill before the July 4 holiday. Four bipartisan negotiators met again on June 16, but didn’t reach an agreement on the “boyfriend loophole,” which we covered previously.
Senator Thom Tillis, a Republican from North Carolina, told reporters that they are in the “final stages,” but Senator John Cornyn, the lead Republican, was less optimistic: “I’m frustrated … but we’re continuing to work,” he said after the meeting.
The negotiating group was aiming to agree on legislative language before the end of the week to give the Senate time to review a draft bill before a potential floor vote next week. With the Senate now out until June 21, there’s little time to get a bill finalized and to a vote before June 24, when the Senate breaks for a two-week holiday recess.
How would the legislation affect background checks?
Under federal law, all federally licensed firearms dealers, known as Federal Firearms Licensees, must initiate a background check on anyone who is buying a gun from them. But under federal law, not every seller has to be licensed, and unlicensed sellers don’t have to run background checks.
The idea behind that exception is that two private individuals — say, you and your neighbor, or a father and a son — would be able to exchange a firearm without the red tape that registering as a gun dealer could entail.
In a literal sense, federal law only requires someone who is “engaged in the business of dealing in firearms” to get a license. But Congress has never clearly defined that term, and there’s no threshold for the number of firearms that someone can sell, nor a cap on how much money they can make, before they’re required to seek FFL licensing.
This ambiguity has allowed many sellers — even those who routinely sell guns online or at places like gun shows — to avoid registering and conducting background checks. It’s the basis of what’s often referred to as the “gun show loophole,” even though not all sales at gun shows are exempt from background checks — just those by unlicensed dealers.
Exactly how many guns are sold without a background check is hard to estimate, but a 2017 study found that 22 percent of new gun owners obtained their guns without undergoing a background check, and 13 percent who purchased the firearms said they had done so without a background check. The same study found that 45 percent of gun owners who bought a gun online in the previous two years did not undergo a background check.
The bipartisan group of senators negotiating the gun legislation agreed in their framework to clarify who must obtain an FFL. Setting a clearer threshold could subject more gun sales to background checks, but without more details, it’s hard to say how many. This would not be the first time the federal government tried to crack down on unlicensed sellers. In 2016, President Barack Obama sought to clarify who needed to be licensed, but the effort mostly failed, largely because the Bureau of Alcohol, Tobacco, Firearms and Explosives did not end up prosecuting more people for violating the rules.
June 15: Red flag laws and the ‘boyfriend loophole’
Before we dig deeper, here’s where things stand: Senators are still trying to decide on language for a draft bill, but Senator John Cornyn, who’s leading talks for the Republicans, said during a June 15 floor speech that the senators have “run into a couple of bumps in the road.”
With that news, it’s unclear if the negotiating group will reach a deal by the end of the week. If they don’t, it could delay a floor vote, especially with the Senate approaching a two-week recess on June 24. It could also mean that the agreement gets pared down. “Unless we can resolve these differences over these two provisions and do it soon, hopefully today, then we won’t have time to prepare the text so senators can read the bill for themselves,” Cornyn said. On the other side of negotiations, Senator Chris Murphy, the lead Democrat, remained optimistic: “We are going to get this done. There are always hiccups when you draft something complicated and worthwhile,” he said.
The most pressing disagreements are over two key provisions: incentives for states to implement red flag laws and how to address what’s often called the boyfriend loophole.
What could this mean for red flag laws?
Red flag laws give courts the ability to quickly and temporarily take firearms from people who pose a threat to themselves or others. Who can request such an order varies by state, but in most cases, a close family member or a member of law enforcement can request a red flag or emergency risk protection order, as they’re often called. A judge then has to agree.
Republicans want to give funding to states that have assisted outpatient treatment programs, drug courts, mental health courts, and veterans courts — even if they don’t have a red flag law on the books. While some of those programs may ultimately result in a court order for a person’s firearms to be seized, they don’t necessarily provide family or law enforcement means to quickly petition for their removal in an emergency.
But Democrats worry that this broader definition misses the point of providing a way to get guns away from potentially dangerous people in an emergency, and they want to give states incentives specifically for implementing and improving more narrowly defined red flag laws.
What about closing the boyfriend loophole?
Current federal law only prohibits domestic violence abusers from buying or possessing a gun if their victim is a current or former spouse, child, co-parent, or cohabiting partner. In their framework, the bipartisan senators agreed to extend that prohibition to romantic and intimate partners convicted of misdemeanor abuse or subject to emergency restraining orders. The disagreement now is over how to define those relationships, whether the relationship needs to meet a certain time requirement, and how to handle cases that involve a former partner.
June 14: A Deep Dive Into Background Checks
First, here’s the latest update on negotiations: A bill could be ready by the end of the week. Senator John Cornyn of Texas, the lead Republican negotiator, said he hopes the bipartisan group can finish draft legislation in the next few days, queuing up a potential floor vote next week, though disagreements could still emerge. “I believe the principles we’ve articulated — if carried out in legislative texts, which I expect them to be — will save lives. That’s our goal,” Cornyn said on June 13. And in a sign of growing support, Republican Senate Minority Leader Mitch McConnell is backing the deal. “If the legislation ends up reflecting what the framework indicates, I’ll be supportive,” McConnell said June 14 at a news conference.
And now, some additional context on one of the key provisions: What would the deal mean for those 18 to 21?
Currently, federal law prohibits licensed gun dealers from selling handguns to those under 21, and from selling long guns to those under 18. The agreement includes what the bipartisan negotiating group is calling an enhanced background check process for those under 21. This element would apply to those between 18 and 21 who can legally purchase a long gun — like a rifle or shotgun — from a licensed dealer. Federal law does not require background checks when a seller isn’t licensed.
The framework has very few details, but once drafted, the bill’s text is likely to direct the FBI and some state agencies that perform background checks to check with state and local law enforcement for juvenile criminal and prohibitive mental health records, when feasible. The deal would require an “investigative period” to conduct that more detailed review. Currently, federal law allows for a transaction to proceed after three days, even if a background check is incomplete, which is often referred to as the Charleston Loophole. But it’s unclear if the final legislation will change that rule. Remember: All they’ve agreed to so far is a framework — scroll down for more on that.
There are also some legal questions about how exactly this provision will be implemented. Congress cannot force states to report records to the FBI’s National Instant Criminal Background Check System, which has long been an issue. So there is no guarantee that juvenile criminal and mental health records will be submitted to the databases that make up NICS. Congress could try to work around that limitation by providing incentives for states to submit more information to NICS, as it’s done in the past, or simply direct the FBI to check with state databases and local law enforcement, when possible.
There are also other concerns. Record-keeping practices for juveniles vary by state and even by county. In at least 15 states, juvenile records are automatically sealed or expunged in certain circumstances. The possibility of including records in NICS or rolling back privacy protections for those with juvenile records has raised some questions among progressives like Senator Sheldon Whitehouse and Representative Alexandria Ocasio-Cortez, along with juvenile justice advocates. “Any proposal that rolls back or harms juvenile record expungement progress will harm children and communities, and we oppose it,” the Juvenile Law Center, a legal advocacy group for youth in the child welfare and justice systems, wrote on Twitter.
June 13: Getting Up to Speed on the Framework
What’s included in the deal?
Investments in mental health services: The deal would fund an expansion of community behavioral health centers, suicide prevention and mental health programs, and school-based mental health services. Notably, community violence intervention programs would also be eligible for funding, a congressional aide with close knowledge of the negotiations said on June 13.
Closing the so-called boyfriend loophole: Current federal law allows people convicted of misdemeanor domestic abuse to pass background checks and keep their guns if their victim is not a current or former spouse, child, co-parent, or cohabiting partner. The proposal would extend prohibitions on possessing a gun to romantic partners who’ve been convicted of misdemeanor domestic abuse and those subject to domestic violence restraining orders.
Expanding who needs to register as a firearms dealer: Right now, anyone “engaged in the business of dealing in firearms” must obtain a Federal Firearms License, but that term’s exact meaning has never been clearly defined. There is no threshold of gun sales after which a dealer must register as an FFL. The ambiguity has allowed many sellers to avoid registering, even though they routinely sell at places like gun shows. Sales by private, unregistered dealers are largely unregulated. Because FFLs must run background checks on all gun sales, this provision could subject many more gun purchases to the checks.
Enhanced background checks for those under 21: For the first time, juvenile and mental health records could be included in background checks for those under 21. Federal law already bars licensed gun dealers from selling handguns to those under 21, so this provision would apply to long guns like rifles, which dealers can sell to those 18 and older. Senate negotiators also want to require an investigative period for reviewing the records after an initial instant check, and before a firearm can be handed over.
Model red-flag laws and incentives to pass them: Nineteen states, including at least two Republican-led states, have adopted extreme risk protection laws, or red flag laws, which allow for courts to temporarily take firearms from people who pose a threat to themselves or others. The framework would give states incentives for adopting red flag laws.
The framework also includes funding to support safety measures in schools and school violence-prevention efforts. It would increase penalties for interstate gun trafficking and straw purchasing.
The deal is not nearly as far-reaching as some Democrats and gun reform advocates had hoped. It does not include proposals to ban semiautomatic assault rifles like AR-15s, raise the age to purchase semiautomatic rifles from 18 to 21, or prohibit high-capacity magazines. It also doesn’t include a plan to implement background checks on all gun purchases or institute a federal red flag law.
Is this based on the gun reform package the House already passed?
The House of Representatives passed an expansive gun reform package on June 8 that would have raised the minimum age for purchasing most semiautomatic rifles to 21, banned high-capacity magazines, mandated safe storage, and codified executive orders on ghost guns and bump stocks. The House also voted on a red flag measure that would have allowed federal courts to issue extreme risk protection orders.
That package was considered dead on arrival in the Senate. This Senate deal is separate, and far narrower in scope. If the Senate deal passes, it would need to go to the House for a vote. House Democrats have signaled they would approve the Senate package. “While more is needed, this package will take steps to save lives,” Speaker Nancy Pelosi said Sunday in a statement.
Are Republicans backing the deal?
Ten Democrats and 10 Republicans were part of the negotiations that led to the framework announced Sunday. If the 10 Republicans stay on board as the bill text is drafted, the package of reforms will have enough support to overcome the Senate’s 60-vote filibuster rule. The filibuster has long been the main obstacle to passing significant gun legislation.
The 10 Republicans backing the framework as of June 13 are:
- John Cornyn of Texas
- Thom Tillis of North Carolina
- Roy Blunt of Missouri
- Richard Burr of North Carolina
- Bill Cassidy of Louisiana
- Susan Collins of Maine
- Lindsey Graham of Maine
- Rob Portman of Ohio
- Mitt Romney of Utah
- Pat Toomey of Pennsylvania
Notably, these Republicans can legislate without fear of immediate electoral consequences. Four of them are retiring from the Senate this year. None of the others are up for reelection in 2022, and only Romney will face voters in 2024. The distance from an election is giving the Republican senators some room to navigate a dangerous issue for the GOP base.
What about the Democrats?
Senator Chris Murphy of Connecticut led negotiations for the Democrats. Every Democrat is expected to back the package. Conservative Democrats Joe Manchin of West Virginia and Kirsten Sinema of Arizona support the framework, too.
President Joe Biden has said he would sign the legislation.
Has the Senate approved the deal?
The agreement is just a preliminary framework.
Though the 10 Republicans who took part in negotiations have agreed to this framework, the senators and their staffers still need to write the bills.
Once senators file the legislation, support could grow to include other Republicans who weren’t part of the negotiations, like Senator Lisa Murkowski of Alaska and Senators Rick Scott and Marco Rubio of Florida.
On the other hand, Republicans who took part in these negotiations could back out if they think the legislation goes further than the framework. It’s not yet clear that each of the components of the framework will garner the 60 votes needed to break through a filibuster and survive to a floor vote.
When could the Senate vote on the package?
There are likely to be sticking points as senators work out the details. Senate Majority Leader Chuck Schumer will likely use a procedural move to bring the legislation directly to the Senate floor, bypassing the committee process. But even with that shortcut, it could take some time. Negotiations dragged on for six weeks last summer after a bipartisan group agreed to a framework for an infrastructure bill. The Senate is set to recess for two weeks on June 24. In a statement on Sunday, Schumer said he would put a bill on the floor for a vote as soon as possible after the text is finalized.
Biden has urged the Senate to pass the deal quickly: “With bipartisan support, there are no excuses for delay,” he said in a statement. “Each day that passes, more children are killed in this country.”