Durbin Bill Would Close Gun Loophole in Visa Waiver Program

9/11 co-conspirator Zacarias Moussaoui and shoe-bomber Richard Reid both used the Visa Waiver Program to travel to the United States

WASHINGTON—Assistant Senate Democratic Leader Dick Durbin (D-IL) today introduced legislation to close a loophole in federal law that permits foreign nationals who have entered the United States through the Visa Waiver Program to buy and wield firearms. Current law prohibits visa holders from other countries from purchasing guns, but excludes travelers from the 38 Visa Waiver Program countries.


The horrific terror attacks in Paris last week have given new urgency to protecting our own communities from similar terrorism,” said Durbin. “But let’s be absolutely clear about where the greatest threat lies. It is not in the refugee children, women, and families who are the most carefully screened travelers to America. We know that dangerous people like Zacarias Moussaoui and Richard Reid have used the relatively light screening of the Visa Waiver Program to seek entry into the U.S., and we know that current law does not block visitors from Visa Waiver countries from buying and possessing firearms. It’s time to close this loophole that terrorists could very easily exploit to get guns and use them to kill in this country.” 


Since 1998, federal law has prohibited visiting foreign nationals from buying or possessing a firearm in the United States if the foreigner “has been admitted to the United States under a nonimmigrant visa.” This 1998 provision, which was authored by Senator Durbin, was enacted after Ali Hassan Abu Kamal shot seven people at the Empire State Building in 1997.


For years, the Bureau of Alcohol, Tobacco, Firearms and Explosives interpreted this provision to prohibit the sale of firearms to all foreign visitors, not just those visitors who required a visa to be admitted to the United States. In other words, the provision was construed to apply both to visaholders and to foreigners who visited the United States through the Visa Waiver Program.  However, the Justice Department’s Office of Legal Counsel reconsidered this interpretation in 2011 and determined that under the statute foreign nationals entering the country through the Visa Waiver Program could legally purchase firearms because they had not technically “been admitted to the United States under a nonimmigrant visa.”


There is serious risk in permitting Visa Waiver Program participants to come to the United States and buy firearms. Richard Reid, the “shoe bomber,” is a British citizen who flew to the U.S. under the Visa Waiver Program. Zacarias Moussaoui, a 9/11 co-conspirator and French citizen, also entered the U.S. through the Visa Waiver Program. Under current regulations, foreign nationals from any of the 38 current Visa Waiver Program countries can easily travel to the United States, buy a gun, and use it to cause harm. Durbin’s bill would close this Visa Waiver Program loophole and clarify that the prohibition on buying firearms applies to foreign visitors whether they come with a visa or not.