Did we close the "Boyfriend Loophole"?
And what does it mean for Rahimi?
By Corey Ciorciari, Molly Voigt, Arman Abrishamchian, and Lucas Burgard
The Bipartisan Safer Communities Act (BSCA) was supposed to close – or at least narrow – the “Boyfriend Loophole,” so called because it often allowed abusers to purchase guns simply because they were dating, not married to, their victims.
The reform was long overdue; nearly half of all intimate partner homicides are committed by a non-spouse partner. With a decision on Rahimi expected any day, we wanted to ask: Is the loophole actually closed?
We dug into the data and were surprised by what we found. Last year, fewer gun sales were denied on the basis of “misdemeanor crimes of domestic violence” – the provision at the heart of the loophole – than in the two years before the BSCA became law. And after accounting for the recent drop in gun sales, we still see no meaningful change in the rate of denials. (Check out our receipts).
To understand how that’s possible, you need to know three things:
The loophole exists because it’s unclear what crimes count as “domestic violence.” It’s long been a federal crime to buy a gun if you’ve been “convicted of a misdemeanor crime of domestic violence.” But what counts as DV? Before the BSCA, abusers and victims had to: (1) be married, (2) share a kid, (3) live together, or (4) be “similarly situated” to spouses. That last one left a ton of room for interpretation, and because of it, many perpetrators in very serious dating relationships were still able to buy guns. The “Boyfriend Loophole” was born.
The BSCA tried to close the loophole by including “dating relationship” violence in the definition of “domestic violence.” But again, which dating relationships would trigger a failed background check? The law lists several factors to consider – including the “length” and “nature” of the relationship – but doesn’t provide much guidance on how to interpret them. Is dating for one year enough? Six months? What if a couple shares a bank account? 🤷
That lack of clarity is limiting the BSCA’s effectiveness. Given the expanded definition of DV, you’d expect the number of gun sales denied based on DV to increase. But that’s not what’s happening. Is there another explanation? Maybe the prevalence of DV in the US is just declining? (It’s not.)
That’s not to say the BSCA didn’t help at all (only the ATF has the data needed to determine that). But the publicly available data make one thing clear: There has not been a substantial increase in the number of domestic abusers being blocked from buying guns.
WE’VE GOT A FIX!
The ATF can solve this issue without Congress by clarifying the definitions at the heart of the loophole: “similarly situated to a spouse” and “dating relationship.” But how they do that matters.
The ATF should issue a rule that has three central elements:
First, it should lay out sufficient factors — like cohabitation, relationships lasting six months or more, or marital engagement — that alone establish two people are “similarly situated” to spouses.
Second, it should lay out other balancing factors — like shared expenses or regularly spending nights together — to determine two people are “similarly situated” to spouses even without a sufficient factor.
Finally, it should clarify that even if a “similarly situated” relationship doesn’t exist, a less serious “dating relationship” could. Yes, the BSCA says “dating relationships” must be “serious.” But as Justice Scalia repeatedly argued: When Congress uses different words, they have different meanings. "Dating partners” must be an entirely different (and far less demanding) category from “similarly situated” spousal-type relationships.
THE HIDDEN STAKES OF RAHIMI
We found another surprising trend in the background check data: While the number of federal gun denials based on misdemeanor DV crimes might have flatlined, the number based on DV restraining orders has ballooned.
In fact, from 2019-2023, while the number of denials based on misdemeanor DV crimes increased by just 8%, the number based on DV restraining orders increased by 335%.
The restraining order prohibitor is increasingly doing more work to disarm abusers than the DV crimes prohibitor. And that means the stakes of Rahimi — where the Supreme Court could overturn the restraining order prohibitor entirely — are even higher than we thought.
EVERGREEN PARTNER SPOTLIGHT
Readout of White House Office of Gun Violence Prevention Convening with 160 Health-Care Executives
Featuring Northwell Health
Featuring the Coalition to Advance Public Safety (CAPS)
Implementing the Bipartisan Safer Communities Act
Featuring Giffords