What is the ‘boyfriend loophole,’ and how does the new gun law close it?

When President Joe Biden signed a bipartisan gun bill into law, he expanded protections for people who are at risk at the hands of their partners. 

Federal law already prohibited convicted domestic abusers from owning a firearm. But that applied largely to married couples, or at most, to abusers "similarly situated to a spouse." 

The Bipartisan Safer Communities Act extends the reach of the gun ban to intimate partners who are dating. In popular terminology, it closed the "boyfriend loophole."

It’s a major change.

In 2020, out of all the murder victims among intimate partners — which includes divorced and homosexual couples —  girlfriends accounted for 37%. Wives accounted for 34%. In contrast, 13% of the victims were boyfriends, and 7% were husbands. 

Women are three times more at risk of being killed by their partners than are men. Not all murders involve firearms, but given that they are used in about 70% of all homicides, closing the boyfriend loophole has been a goal of women’s and public health advocates for some time.

Sen. Amy Klobuchar, D-Minn., first offered a bill to close the loophole in 2013.

"We have so many women killed — 1 every 14 hours, from domestic partners with guns in this country," Klobuchar said as the bill was debated on the Senate floor June 14.  "Sadly, half of those involve dating partners, people who aren't married to someone, but they are in a romantic relationship with them in some way."

Klobuchar said without the new provision, in over 30 states, someone could be convicted of domestic abuse and "go out and buy a gun the next day."

A 2022 online study of about 270 women in abusive relationships found that women who lived with their partners and those who did not faced the same level of firearm-related risks.

The move to close the "boyfriend loophole" is one of several gun policy changes in the new law, passed weeks after the Uvalde, Texas, elementary school shooting. It is the first major federal firearms law in nearly three decades, passing the Senate with a vote of 65-33 and the House 234-193.

The law tackled the loophole for intimate partners by adding people in a "dating relationship" to the scope of the gun ban. It defined the term as people having "a continuing serious relationship of a romantic or intimate nature." Without an official document, such as a marriage license, to define who is dating, the law tells courts and lawyers to look at how long two people have been involved with each other and how often they saw each other.

It specifically states that casual or work relationships don’t apply.

If people are convicted of domestic violence against their partners the abusers are barred from owning a firearm for five years. After that time, they regain the right, so long as they have committed no other offenses. For married couples, and those who have had a child together, the firearm ban is permanent.

The states provided a natural testing ground to see whether extending the firearm ban to dating relationships can save lives. Nineteen states have adopted that provision in one form or another. 

A group of researchers looked at intimate partner homicides in 45 states from 1980 to 2013. They focused on firearm prohibitions linked to domestic restraining orders, which is a bit different than the new law. 

In their 2018 article, researchers saw that when firearm prohibitions linked to domestic restraining orders included people who were dating, deaths dropped by 13%. Daniel Webster, a firearms violence researcher at the Johns Hopkins School of Public Health, was part of the team.

"We found that covering those dating partners was really key to whether there was actually population-wide impacts of a lower rate of intimate partner homicides," Webster said.

Webster noted that no law provides perfect protection, and there will be times when someone who has a domestic violence conviction or a restraining order that should bar them from having a weapon will get a gun. That doesn’t mean these laws don’t work, he argued.

Tragic deaths get covered in the news. Deaths avoided don’t make headlines.

"The public doesn’t have the data on the events that did not happen," Webster said.

Opponents to closing the boyfriend loophole, and the bipartisan package in general, focus on the ambiguities in the law. There can be uncertainty over whether people are dating. Gun ownership is a constitutional right, and any moves to limit that must get over a high bar.

"What the Democrats want is to ensure that the government has the power to take your guns away without giving you due process," Rep. Matt Gaetz, R-Fla., said June 22.

Due process requires clear legal language, and a chance for the person who would be denied a firearm to argue their case.

An analysis by the nonpartisan Congressional Research Service said the U.S. Supreme Court has not ruled specifically on this issue, but it has allowed states to deny firearms when "it must act quickly" to protect health and safety. And the same analysis noted that current law denies firearms to both felons and the mentally ill, so the concept of restrictions based on risk has passed legal muster.

Additional reporting by staff writer Ellie Borst.