The Bipartisan Safer Communities Act: How Does This New Federal Law Change the Criminal Law Landscape? 

Aug 1, 2022

Photo courtesy of the New York Times.

In late June 2022, President Joe Biden signed the Bipartisan Safer Communities Act. According to the White House, the legislation is “one of the most significant steps Congress has taken to reduce gun violence in decades, giving our law enforcement and prosecutors new tools to prosecute gun traffickers.” The Act’s key highlights include:

  • The creation of several new firearm offenses
  • Increased penalties for existing firearm offenses
  • Narrowing the “boyfriend loophole” by prohibiting someone convicted of a misdemeanor crime of domestic violence as part of a dating relationship from purchasing or possessing a firearm
  • Amending the current law to clarify who needs a Federal license to buy and sell firearms

New and Amended Firearms Crimes

The Act creates two new crimes: (1) straw purchasing of firearms, in violation of 18 U.S.C. § 932, and (2) trafficking of firearms, in violation of 18 U.S.C. § 933. Both offenses carry maximum sentences of fifteen years.** The Act also amends 18 U.S.C. §§ 924(h) and 924(k).

** If someone violates § 932 “knowing or with reasonable cause to believe that any firearm involved will be used to commit a crime of violence,” the maximum sentence increases to twenty-five years.

Straw Purchasing of Firearms

§ 932 criminalizes straw purchases (i.e., “firearm purchases … by one person on behalf of another person“). Under this law, it is unlawful to knowingly purchase or conspire to purchase a gun for someone else if the person knows or reasonably believes (1) the other person is, among other categories, a felon, fugitive, or addict, or (2) the other person intends to use the gun in furtherance of a felony, terrorist act, or drug trafficking crime.

Trafficking of Firearms

Under § 933, it is unlawful to ship, transport, or transfer a gun to someone else if they know or reasonably believe that the use or possession of the gun by the recipient is a felony under § 932(a). Similarly, it is unlawful to receive a gun under the same circumstances.

The Boyfriend Loophole

In 1996, Congress amended the Gun Control Act of 1968. The amendment, known as the Domestic Violence Offender Gun Ban, or the Lautenberg Amendment, prohibited people convicted of a misdemeanor crime of domestic violence, or MCDV, from buying, using, shipping, and selling guns. Under the previous version of the law, codified as § 921(a), a “misdemeanor crime of domestic violence” was defined as an offense that

  • Is a misdemeanor under Federal, State, or Tribal law;
  • Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
  • Is committed by a current or former spouse, parent, or guardian, by a person with whom the victim shares a child in common, by a person living with or who has lived with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian.

Because the Act only applied to people “convicted of domestic violence against someone they were married to, lived with, or with whom they have a child,” it didn’t apply to people who were dating but living separately and didn’t have kids together. Advocates referred to this as the “boyfriend loophole.”

The Bipartisan Safer Communities Act expanded this provision and now, the ban applies to someone convicted of a misdemeanor domestic violence crime in a “dating relationship.” The Act defines “dating relationship” as “a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.” While the Act does not ostensibly apply to a “ casual acquaintanceship or ordinary fraternization in a business or social context,” the legal contours of what exactly constitutes a dating relationship remain unclear. As such, the exact meaning of “dating relationship” in the MCDV context will likely be litigated for decades to come.

Federal Licensing and Background Checks

Under the law, firearm dealers must conduct background checks. Before the Act’s passage, “dealer” was vaguely defined as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit.” However, the Act now defines a dealer as someone who acts to “predominantly earn a profit.” In turn, the “term ‘to predominantly earn a profit’ means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain.” Advocates of this change have explained that this provision makes “is clearer when unlicensed people selling guns to strangers are required to obtain a Federal Firearms License and run background checks on all sales.”

Conclusion

The Bipartisan Safer Communities Act represents a dramatic update to longstanding federal firearms laws. Further, because this Act creates new offense types and broadens the persons covered under the Act, it is likely that prosecutions for firearm-related offenses will increase.