The Bipartisan Safer Communities Act: What Does the Law Do and How Might It be Impacted by Bruen?

By: Khoa Nguyen

In the aftermath of tragic mass shootings in Uvalde, Texas, and Buffalo, New York, a bipartisan committee introduced the “Bipartisan Safer Communities Act” (or BSCA) in the Senate on Tuesday, June 21. By week’s end, the bill had passed the Senate. The House of Representatives followed suit on Friday, and the bill was signed into law by President Biden on Saturday, June 25. The new law, which provides more than $13 billion in federal funding, represents the most significant federal gun regulation since the Federal Assault Weapons Ban of 1994, which expired in 2004 under a sunset provision.

Below are some highlights of the new law’s key provisions.

Funding for crisis intervention programs and red flag laws

The BSCA provides a $750 million incentive program, allotted over five years, to states that implement crisis intervention services. These can include mental health courts, drug courts, and extreme risk protection orders, also known as “red flag” laws. Red flag laws generally allow specified parties—primarily law enforcement officers and family members, but sometimes others—to petition courts to order the temporary removal of firearms from individuals who are judicially determined to present a risk of harm to themselves or others. Due to heightened due process concerns, the legislation seeks to guarantee certain protections to individuals who may be subject to red flag laws—such as “the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses,” as well as the right to bring counsel to the hearing. The BSCA does this by conditioning state use of federal funds on the state including such protections in its red flag law. States that choose not to implement red flag laws will not have their share of this funding reduced and may use it for other qualifying crisis intervention programs. As of this date, 19 states and the District of Columbia have enacted red flag laws.

Closing the "boyfriend loophole"

Federal law makes it a felony for an individual “convicted in any court of a misdemeanor crime of domestic violence” to transport, possess or receive a firearm (with a nexus to interstate commerce). 18 U.S.C. § 922(g)(9). It is also a federal crime to knowingly sell or provide a firearm or ammunition to someone convicted of a domestic violence offense. 18 U.S.C. § 922(d)(9). Under federal law as it existed before the BSCA, the definition of “misdemeanor crime of domestic violence” covered only domestic violence committed against a spouse, coparent, or cohabitating partner. The definition did not cover someone convicted of domestic violence against a boyfriend or girlfriend with whom that person did not share a residence or a child.

The new legislation attempts to close the “boyfriend loophole” by expanding the definition of “misdemeanor crime of domestic violence” to include domestic violence crimes committed against an individual with whom the perpetrator has a “continuing serious relationship of a romantic or intimate nature,” based on the length and nature of the relationship and frequency and type of interaction. Thus, the prohibition now applies to an individual convicted of a domestic violence offense against a romantic partner with whom they do not live or share a child, if the relationship is serious and intimate. However, first-time offenders convicted of non-spousal misdemeanor domestic violence will automatically have their gun rights restored after five years if they are not convicted of a violent offense within that time period. The law does not apply retroactively, meaning that only those convicted of domestic violence after the law takes effect will be impacted.

Expanded background checks for gun purchasers between 18 and 21 years old

Federal law requires that all those who purchase guns from licensed dealers undergo a background check through the National Instant Criminal Background Check System, or NICS.  The BSCA requires, for any potential purchaser under 21, that NICS “immediately contact” state and local authorities to determine whether the individual has juvenile criminal or mental health records that would disqualify that person from purchasing a gun. If the initial inquiry finds anything questionable, the FBI will have 7 business days (in addition to the 3 days provided for the initial background check) to further investigate whether the state or local records are disqualifying. After 10 days, the transfer is permitted if there is no final decision from NICS. 

Federal authorities are only permitted to access mental health history records starting from the time the potential buyer turned 16. This enhanced background-check requirement for younger gun purchasers will expire automatically after 10 years if not renewed.

Funding for mental health and school security

The law provides funding for mental health and school safety programs under the STOP School Violence Act, which implements school safety programs, funds school resource officers, and seeks to enhance security in schools. The funds can also be used to expand access to mental health services, such as by making it easier for Medicaid recipients to use telehealth services and work with “community-based mental health and substance use disorder treatment providers and organizations,” as well as by increasing access to mental health services and supporting community violence intervention and prevention initiatives.

Licensed dealers and gun trafficking

The law expands who must register as a “Federally Licensed Firearm Dealer” by changing the definition of “engaged in the business” of firearms to include anyone who sells guns to “predominantly earn a profit”—which means predominantly for pecuniary gain, rather than for personal collection. Post-BSCA, individuals who sell firearms predominantly for pecuniary gain (not only dedicated firearms stores and dealers) must run background checks on potential buyers and keep records of their sales.

Additionally, the BSCA creates new federal criminal statutes banning “straw purchases” and gun trafficking, with harsh penalties. Straw purchasers are those who buy guns on behalf of another individual, knowing that person is disqualified from possessing guns under federal law. Gun trafficking involves otherwise facilitating the transfer of a gun to someone whom the transferor knows is disqualified from possessing the gun.

The million-dollar question: How will the BSCA, and state laws it is intended to encourage, fare under Bruen’s “text, history, and tradition” test?

The new law was signed just two days after the Supreme Court’s first major Second Amendment decision in 12 years, New York State Rifle & Pistol Association v. Bruen, 597 U. S. ____ (2022). In Bruen, the Supreme Court struck down New York’s requirement that concealed-carry permit applicants show “proper cause” and set forth a history-only test for future Second Amendment challenges. Will the BSCA, and state laws that might be introduced under its funding incentives, pass constitutional muster after Bruen?

It’s difficult to predict how lower courts will apply Bruen’s test in practice and what impact this will have on the BSCA.  For example, there are no directly-analogous 18th or early 19th century prohibitions on gun ownership by domestic abusers or comprehensive background checks on gun purchasers.  Under a narrow interpretation of Bruen’s historical-analogue test, these laws seem destined to fail.  However, it’s possible that courts may uphold these laws under one of two approaches.  First—as two of the Bruen concurrences emphasize—laws prohibiting gun possession by certain high-risk groups and “imposing conditions and qualifications on the commercial sale of arms” are still presumptively constitutional (as stated in Heller and McDonald) because they are not covered by the Second Amendment’s plain text and don’t even make it to the historical-analogue step.  Second, it could be that historical laws motivated by a desire to keep guns out of the hands of those viewed as most likely to engage in dangerous behavior are sufficiently analogous to these modern regulations, even if historical regulations were aimed at different groups or used different legislative means.