Private/Secondary Sales

Persons who are not “engaged in the business” of selling firearms (“private sellers”) are not required to obtain a federal license to sell firearms, and are not required to process sales through the Brady Act procedures.  Federal law prohibits private sellers from selling handguns and ammunition for handguns to any person the private seller knows or reasonably should know is under the age of eighteen.  18 U.S.C. § 922(x)(1), (5).  A private seller is also prohibited from selling firearms to persons who are prohibited by law from purchasing them. 18 U.S.C. § 922 (d)(1) though (9).   However, because private sellers are not required to comply with the Brady Act background check procedures, any information regarding whether the prospective purchaser can lawfully receive or possess a firearm is provided by that purchaser on his or her good faith.  No mechanism is in place under federal law that provides notice to a private seller from law enforcement that the sale to a prospective purchaser is prohibited.  Sometimes called the “gun show loophole,” this loophole exists whenever a private seller sells or transfers a firearm, except in those few states (e.g., California, Massachusetts, New Jersey) that have closed this loophole.   Secondary sales is another term used to describe such sales and transfers by non-licensed individuals.

 

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