Federal law establishes the baseline regarding the types of persons who are ineligible to purchase firearms. The federal Gun Control Act of 1968, codified at 18 U.S.C. § 922, prohibits the sale of firearms to any person who:
Is underage;
Has been convicted of, or is under indictment for, a crime punishable by imprisonment for more than one year;
Is a fugitive from justice;
Is an unlawful user of or addicted to a controlled substance;
Has been “adjudicated as a mental defective” (defined by Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) regulations to include persons who have been determined to be a danger to themselves or to others, or who lack the mental capacity to contract or manage their own affairs, including persons found insane by a court in a criminal case, persons found incompetent to stand trial, and persons found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §§ 850a, 876b (27 C.F.R. § 478.11);
Has been “committed to a mental institution” (defined by ATF regulations to mean involuntary commitment (27 C.F.R. § 478.11));
Is an illegal alien;
Has been dishonorably discharged from the military;
Has renounced his or her U.S. citizenship;
Is subject to a court order restraining him or her from harassing, stalking or threatening an intimate partner, his or her child or a child of a partner or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, provided that the order: 1) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; and 2) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child, or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury (18 U.S.C. § 922(d)(8)); or
Has been convicted of a misdemeanor offense of domestic violence.
18 U.S.C. § 922(b)(1), (d), (x)(1). Federal law does not prohibit persons with convictions for misdemeanors other than domestic violence misdemeanors from purchasing firearms. Misdemeanor convictions have been found to be a risk factor for future criminal activity among handgun owners, however. Garen J. Wintemute et al., Prior Misdemeanor Convictions as a Risk Factor for Later Violent and Firearm-Related Criminal Activity Among Authorized Purchasers of Handguns, 280 JAMA 2083 (1998).
Additional information on the federal minimum age to purchase and/or possess firearms is contained in the section on Minimum Age to Purchase and Possess Firearms. Additional information about the federal prohibition on persons subject to domestic violence restraining orders is contained in the section on Domestic Violence and Firearms, as is information about the federal prohibition on persons with domestic violence misdemeanor convictions.
In 2008 President Bush signed into law the NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, § 105, 121 Stat. 2559 (2008), which, inter alia, changes the standard for persons deemed to be “adjudicated as a mental defective” or “committed to a mental institution” by a federal agency or department. The Act also deems an adjudication as a mental defective or commitment to a mental institution “not to have occurred” if a state grants an application for relief pursuant to a state created relief from disabilities program. For more information on these changes and other provisions relating to persons prohibited from purchasing or possessing firearms as a result of mental illness, see the section on Mental Health Reporting.
The Brady Handgun Violence Prevention Act of 1993 ("Brady Act") requires federally licensed firearms dealers (FFLs) to perform background checks on prospective firearms purchasers to ensure that the firearm transfer would not violate federal, state or local law. 18 U.S.C. § 922(s). As originally adopted, the Brady Act included interim as well as permanent provisions. The Act’s interim provisions, implemented on February 28, 1994, applied to handgun sales only. On November 30, 1998, the permanent provisions of the Brady Act went into effect, establishing the National Instant Criminal Background Check System (“NICS”) (see below), and extending the Act’s application to purchasers of long guns and persons who redeem a pawned firearm.
Since 1998, the Brady Act has been implemented through the NICS. NICS is used to check the backgrounds of prospective purchasers of both handguns and long guns, and for persons who redeem a pawned firearm. 18 U.S.C. § 922(t). The Brady Act does not apply to unlicensed firearm sellers.
States have the option of serving as a state Point of Contact (“POC”) and conducting their own NICS checks, or having those checks performed by the Federal Bureau of Investigation (“FBI”). Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Procedures Related to Firearm Transfers, 2005 3-4 (Nov. 2006). FBI checks are provided at no charge; state law determines the cost of background checks performed by POCs. Id. at 3.
FFLs initiate a NICS check by contacting the FBI or state POC (typically by telephone or computer) after the prospective purchaser has provided a government-issued photo I.D. and completed a federal Firearms Transaction Record (also known as Form 4473). 27 C.F.R. § 478.124. The prospective purchaser completes a portion of Form 4473 by providing identifying information, including name, gender, home address, date and place of birth, etc., and signing and dating the form. The FFL is required to verify the identity of the prospective purchaser. Id.
The FBI or POC must then conduct a name-based search of federal and state databases. FBI searches include three federal databases:
The National Crime Information Center (NCIC), which includes records regarding wanted persons (fugitives) and persons subject to protective/restraining orders;
The Interstate Identification Index, which contains state criminal history records; and
The NICS Index, which contains records of other persons prohibited under federal law from receiving or possessing firearms.
A state POC search includes the three federal databases, and may include the state’s independent criminal history database and mental health records. Survey of State Procedures Related to Firearm Transfers, 2005, supra, at 3-4.
Once the initial search is complete, the FBI or POC notifies the FFL that the sale: 1) may proceed; 2) may not proceed; or 3) is delayed pending further investigation. If the transaction may proceed, NICS provides the dealer with a unique identification number which the FFL must record on Form 4473. 27 C.F.R. § 478.102(a). After recording the unique identification number provided by NICS, the dealer records certain information about the firearm to be transferred, including the manufacturer, type, model, caliber or gauge and serial number. 27 C.F.R. § 478.124(c)(4). The dealer is required to retain Form 4473, regardless of whether the transaction is approved or denied or whether the firearm is actually transferred. 27 C.F.R. § 478.102.
The NICS check is valid for a single transaction for up to 30 calendar days from the date NICS was initially contacted. 27 C.F.R. § 478.102(c). The 30-day period covers only a single transaction as reflected on Form 4473. The transaction may, however, involve the transfer of multiple firearms.
If the FFL has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default. 18 U.S.C. § 922(t)(1).
A person holding a state-issued permit allowing the person to acquire or possess firearms (e.g., a concealed weapons permit) is not required to undergo a background check if the permit was issued: 1) within the previous five years in the state in which the transfer is to take place; and 2) after an authorized government official has conducted a background investigation to verify that possession of a firearm would not be unlawful. 18 U.S.C. § 922(t)(3); 27 C.F.R. § 478.102(d). Permits issued after November 30, 1998 qualify as exempt only if the approval process included a NICS check. 27 C.F.R. § 478.102(d). This exemption could allow some prohibited persons to acquire firearms, in cases where a state permit holder falls into a prohibited category after issuance of the state permit. Under the federal exemption, no background check is required and the seller would have no way to learn that the prospective purchaser is prohibited from possessing firearms.
Although the Brady Act provides an essential mechanism for keeping guns away from convicted felons and other prohibited purchasers, the ATF, FBI and other federal agencies have made several recommendations to strengthen the law, including:
Closing the private sale loophole – The Brady Act applies only to sales by FFLs. Accordingly, persons who purchase firearms from private sellers – estimated to be 40 percent of all gun purchasers – are not required to undergo background checks. See Educational Fund to Stop Gun Violence, Closing Illegal Gun Markets: Extending Criminal Background Checks to All Gun Sales (May 2002). Additional information about private transfers is contained in the section on Private Sales.
Extending the three-day limit for background checks – Under the Brady Act, if the FFL has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default. 18 U.S.C. § 922(t)(1). See also Survey of State Procedures Related to Firearm Transfers, 2005, supra, at 3-4.
Know as “default proceed,” this loophole in federal law allowed 3,849 prohibited purchasers to buy guns during the first year of operation (November 30, 1998 through November 30, 1999) of NICS. Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operations Report (November 30, 1998 through November 30, 1999) 11 (March 2000). In fact, the FBI has found that a purchaser whose NICS check takes longer than 24 hours to complete is 20 times more likely to be a prohibited purchaser than other applicants. Id. at 6.
Moreover, between November 1998 and December 31, 2005, ATF received 26,600 referrals from the FBI requesting further review, evaluation and possible retrieval of firearms that had been sold to ineligible persons by default. NICS Operations 2005, supra, at 12. As a result, the FBI has recommended extending the maximum time allowed for conducting background checks to allow more research time to complete background checks and to reduce the number of prohibited purchasers who are able to purchase firearms by default. U.S. General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System 13 (Feb. 2000). FBI investigations of prohibited purchasers who were allowed to buy firearms by default typically take 25 days to complete. Id.
Improving access to state records – At the end of 2003, only three out of four criminal history records were accessible through NICS. Bureau of Justice Statistics, U.S. Department of Justice, National Criminal History Improvement Program: Improving Criminal History Records for Background Checks, 2005 3 (July 2006). The percentage of criminal records that are accessible for NICS checks varies by state. See U.S. General Accounting Office, Gun Control: Options for Improving the National Instant Criminal Background Check System 12-14 (Apr. 2000).
According to the FBI, state background checks are more thorough than those performed by the FBI because states can access their independent criminal history database in addition to the databases maintained by NICS. State databases typically include information that is unavailable to the FBI, including outstanding felony warrants, mental health records, domestic violence restraining orders and final disposition records (those showing whether an arrest resulted in an acquittal or a conviction). Accordingly, the FBI is encouraging states to provide more complete records to the NICS system. Gun Control: Implementation of the National Instant Criminal Background Check System, supra, at 13.
Increasing access to mental health records – Although federal law prohibits the purchase of a firearm by any person who has been adjudicated as a mental defective or involuntarily committed to a mental institution, many states do not collect information about persons who fit these criteria or provide law enforcement access to this information. There are many Americans who have been involuntarily committed to mental institutions and are barred by federal law from possessing firearms, but, as of November 30, 1999, the FBI had received from all states a total of only 41 records of mentally ill persons. Gun Control: Options for Improving the National Instant Criminal Background Check System, supra, at 8.
Although the number of mental health records provided to NICS has increased – in 2007 there were approximately 400,000 – mental illness remains significantly underreported. Michael B. Mukasey, Prepared Remarks of Attorney General Michael B. Mukasey at the National Association of Attorneys General Winter Meeting, Park City, Utah (Nov. 29, 2007). As a result of the FBI’s lack of information about mentally ill persons, a FBI background check is unlikely to find that a person is ineligible to possess a firearm due to mental illness. Because of these reporting deficiencies, mentally ill persons in this country are easily able to buy guns in violation of federal law.
For more information on access to records of persons with mental illness for firearm purchaser background checks, see the section on Mental Health Reporting.
NICS Improvement Amendments Act of 2007: In January 2008, President Bush signed into law the NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, § 105, 121 Stat. 2559 (2008) which, among other things, provides financial incentives for states to submit to NICS information relevant to whether a person is prohibited from purchasing or possessing a firearm. Under the Act, states are eligible to receive a waiver of the 10% matching requirement for National Criminal History Improvement Grants (see generally 42 U.S.C. § 14601) if they provide at least 90% of relevant records concerning persons who are prohibited from purchasing or possessing a firearm within specified deadlines. Id., § 102.
The Act also authorizes the Attorney General to make grants to the states for use in establishing and upgrading the states’ ability to report information to NICS and to perform background checks pursuant to the Brady Act. Id., § 103(a), (b). In order to be eligible for these grants, a state must implement a “relief from disabilities” program meeting the Act’s requirements, and allowing a person who has been adjudicated as a mental defective or committed to a mental institution to apply to the state for relief from the federal prohibition on purchasing or possessing firearms and ammunition. Id., § 105(a)(1). For more information on the Act’s application to records of persons with mental illness, see LCAV’s policy summary on Mental Health Reporting.
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