Background Check Procedures Policy Summary

Posted on November 4, 2013

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Background checks are designed to identify persons who are ineligible to purchase firearms under federal, state or local law, and prevent those persons from obtaining firearms.1 As described below, federal law requires federally licensed firearms dealers to conduct background checks on potential firearm purchasers.2  Since the federal background check requirement was adopted in 1994, over two million prohibited persons have been denied a firearm transfer or permit through the FBI’s background check system.3  Federal law has several flaws, however, that allow ineligible individuals to obtain firearms.

 1.         Private Sales:  The single largest gap in the federal background check requirement is that unlicensed, private sellers are not required to conduct background checks.  As a result, convicted felons and other ineligible people are able to easily buy guns in most states nationwide.  This issue is addressed in detail in our summary on Universal Background Checks & the Private Sale Loophole.

2.         Default Proceeds: Under federal law, if a firearms dealer who has initiated a background check has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default.4  This “default proceed” provision allowed 3,722 prohibited purchasers to buy guns in 2012.5  In each of these instances, ATF received a referral from the FBI requesting further review and possible retrieval of firearms that had been sold to an ineligible person by default.6  As a result, the FBI has recommended extending the three-day period 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.7 A January 2013 poll found that 76.3% of Americans -  including 67% of gun owners -  support giving law enforcement up to 5 business days, if needed, to complete a background check for gun buyers.8

3.         State “Points of Contact”:  States have the option of requiring dealers to conduct background checks through state or local agencies, called “Points Of Contact,” or directly through the FBI.  States that conduct their own background checks can search records and databases in addition to those that the federal law requires to be searched.  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). Research has found that the practice of conducting firearm purchaser background checks through state or local agencies, as opposed to through the FBI, is associated with reduced firearm death rates, especially with respect to suicides.9

 4.         Exemptions for Permit Holders:  Federal law allows individuals who hold certain firearms-related permits issued by state or local governments (such as concealed weapons permits) to bypass the federally-required background check.  This exemption — the so-called “Brady exemption” — allows some prohibited persons to acquire firearms when a state permit holder falls into a prohibited category after issuance of the state permit and the state fails to immediately revoke the permit.

 5.         Reporting of Records:  Federal law cannot require states to make information identifying people ineligible to possess firearms available to the federal or state agencies that perform background checks,10 and many states fail to voluntarily report the necessary records to the proper databases. As a result, the information that is searched by law enforcement during a background check is often incomplete. This problem applies to every category of person prohibited from possessing firearms, including:

  • Criminal history records:  A survey of the states conducted in December 2010 found that only twelve states reported that 80% or more of their felony charges had a final disposition recorded in their criminal history databases.11  Without a disposition record, law enforcement cannot immediately determine whether a person who was arrested for a crime was ultimately convicted of that crime and became prohibited from possessing firearms.
  • Mental health records:  States have also inconsistently reported records identifying people whose mental health histories prevent them from legally possessing firearms.  For more information about this issue, see our summary on Mental Health Reporting.
  • Drug abuse records: Federal law prohibits unlawful users and individuals addicted to illegal drugs from possessing firearms, and federal regulations define these terms to include any person found through a drug test within the preceding year to have used a controlled substance unlawfully.12  There are now hundreds of drug court programs across the country that require periodic drug testing as part of their programs, yet this positive test data is rarely available for firearm purchaser background checks.13 According to a November 2011 report by Mayors Against Illegal Guns, 44 states have submitted fewer than ten records to the controlled substance file of a centralized nationwide database, and 33 states have not submitted any records at all.14
  • Domestic violence records: Federal law prohibits firearm possession by individuals subject to a domestic violence protective order or who have been convicted of a domestic violence misdemeanor.15  Yet, states have had difficulty identifying and reporting individuals who fall within these categories.16 For more information about this issue, see our summary on Domestic Violence and Firearms.

In light of these significant reporting deficiencies, the FBI has encouraged states to provide more complete records.17

6.         Verifying Identification:  While each gun purchaser must present proof of identity when applying to purchase a firearm, federal law does not provide a mechanism for dealers to ensure that these identification documents are valid.18 This gap in the federal background check system allows prohibited individuals to purchase firearms without effective background checks using fake or forged identification documents.19 As a result, researchers have suggested that all dealers should be linked to state motor vehicle databases so that they can verify the validity of driver’s licenses offered by potential gun purchasers.20 A national poll conducted for Mayors Against Illegal Guns in April 2008 found that 83% of Americans would support a law requiring gun sellers to install machines that can verify the validity of a gun buyer’s driver’s license.21

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The Brady Act requires federally licensed firearms dealers to perform background checks on prospective firearms purchasers to ensure that the firearm transfer would not violate federal, state or local law.22  Since 1998, the Brady Act has been implemented through the National Instant Criminal Background Check System (NICS), which was used to conduct 174,623,643 background checks between November 30, 1998 and August 31, 2013.23 Since the federal background check requirement was adopted in 1994, over two million prohibited persons have been denied a firearm transfer or permit through the FBI’s background check system.24

States have the option of designating a state or local agency as a Point of Contact (POC) and having that agency conduct NICS checks, or having those checks performed by the FBI.25  Gun dealers 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).26  The FBI or POC must then conduct a name-based search of federal and state databases.  FBI searches include four 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;
  • The Department of Homeland Security’s U.S. Immigration and Customs Enforcement databases, which contain records regarding non-U.S. citizens; and
  • The NICS Index, which contains records of other persons determined to be prohibited under federal or state law from receiving or possessing firearms.27 Notably, on April 16, 2012, the functionality of the NICS Index was expanded to include state-prohibiting records, thereby providing the NICS Section and state users with the ability to effectively and efficiently identify people prohibited from possessing guns by state, as well as federal, law through NICS, provided states have reported those records to the NICS Index.28

As noted above, a state POC search includes the four federal databases, and may include the state’s independent criminal history database, mental health and other records.29

Once the initial search is complete, the FBI or POC notifies the dealer 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 dealer must record on Form 4473.30  The NICS check is valid for a single transaction for up to 30 calendar days from the date NICS was initially contacted.31

If the dealer has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default.32 As noted above, many ineligible people obtain access to firearms because the FBI is not able to complete the background check within this time frame.

Brady Exemption:  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.33  Permits issued after November 30, 1998 qualify as exempt only if the approval process included a NICS check.34  If the state-issued permit qualifies for the exemption, the permit-holder is not required by federal law to undergo a background check before purchasing a gun.  As noted above, this exemption allows a prohibited person to acquire a firearm when the person falls into a prohibited category after issuance of the state permit and the state has not immediately revoked the permit.

NICS Improvement Amendments Act of 2007:  In January 2008, President Bush signed into law the NICS Improvement Amendments Act of 2007, which, among other things, provided financial rewards and penalties to encourage states to provide to NICS information relevant to whether a person is prohibited from purchasing or possessing firearms.35  The Act also authorized 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.36

According to the Government Accountability Office, 15 states received NICS Act grants during at least one fiscal year from 2009-2011.37

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The strongest state laws regarding background checks are those that apply to both licensed and unlicensed dealers.  For information about such background check laws, see our summary on  Universal Background Checks & the Private Sale Loophole. The summary that follows below describes how states have implemented the federal requirement that only applies when a licensed dealer sells or transfers a firearm.

As listed below, about half the states have a law governing the scope and procedure for a background check when a firearm is purchased from a licensed dealer, with 17 states applying these laws to sales of all types of firearms.38 An additional nine states address the background check for purchase of handgun, but not a long gun (rifle or shotgun), from a licensed dealer.  Minnesota addresses the background check for purchase of a handgun or assault weapon from a licensed dealer.  All but five of these laws (Alabama, Delaware, Georgia, Indiana, and New Hampshire) impose requirements beyond the requirements of federal law, as described below.39

Alabama40
California41
Colorado42
Connecticut43
Delaware44
District of Columbia45
Florida46
Georgia47
Hawaii48
Illinois49
Indiana (handguns only)50
Iowa (handguns only)51
Maryland (handguns only) 52
Massachusetts53
Michigan (handguns only)54
Minnesota (handguns and certain assault weapons only)55
Nebraska (handguns only)56
New Hampshire (handguns only)57
North Carolina (handguns only)58
Oregon59
Pennsylvania60
Rhode Island61
Tennessee62
Utah63
Virginia64
Washington (handguns only)65
Wisconsin (handguns only)66

Description of State Laws Governing Background Checks

1. State Points of Contact: Background checks conducted by state or local authorities are more thorough than those performed by the FBI because states can access their independent own databases in addition to databases maintained by NICS. As noted above, states where state or local authorities conduct the background check are known as “point of contact” or “POC” states.  Thirteen states use a state or local POC for all firearm transfers.67 Eight states use a state or local POC for handgun background checks only, using the FBI for background checks on long gun transfers.68 The remaining 29 states and the District of Columbia process all background checks through the FBI.69

POC States for All Firearms
California
Colorado
Connecticut
Florida
Hawaii (via a Brady exemption)*
Illinois
Nevada
New Jersey†
Oregon
Pennsylvania
Tennessee
Utah
Virginia

* Hawaii acts as a POC state for all firearm purchases because state law requires a gun dealer to ensure that the purchaser has the permit that state law requires for the purchase of any firearm, and which qualifies the purchaser for an exemption from the background check at the point of sale under federal law (a “Brady exemption”).  County police chiefs in Hawaii must conduct a background check, including a search of NICS, prior to issuing a permit.  In the other states that act as POCs for all firearm purchases, the dealer must contact a state or local agency to conduct the background check when the sale occurs.

† Although no state statute explicitly requires New Jersey to act as a POC, New Jersey authorities have chosen to do so. 70  In addition, New Jersey requires the purchaser of a firearm to obtain a permit prior to the purchase; a background check is conducted prior to issuance of a permit. 71 However, unlike Hawaii’s permit, New Jersey’s permit does not exempt the holder from the federally required background check at the point of sale.  As a result, a dealer in New Jersey must contact the Division of State Police, which conducts the federally-required NICS check when the sale is conducted, and must also ensure that the purchaser has the permit that is required under state law.

POC States for Handguns:  The following five states act as POC states for handguns only, because dealers must contact a state or local agency at the time of sale of a handgun.  The state or local agency conducts the background check, including a search of NICS. In these states, dealers who are transferring long guns must contact the FBI directly for a NICS check.  In Nebraska, a background check is not required at the point of sale of a firearm if the purchaser has already obtained a transferee permit, after a background check.  The transferee permit qualifies the holder for an exemption from the federal background check requirement.

Maryland
Nebraska
New Hampshire
Washington
Wisconsin

POC States for Handguns via a Brady Exemption:  The following three states act as POC states for all handgun sales because state law requires every handgun purchaser to obtain a permit from a state or local agency prior to purchasing a handgun.  Under federal law, the permit qualifies the holder for an exemption from the federal background check at the point of sale, in part because the state or local agency conducts a background check, including a search of NICS, before issuing the permit.  Permit holders in these three partial POC states, like all holders of a permit that exempts the person from the federal background check requirement, may buy both handguns and long guns without a background check at the point of sale.

Iowa
Michigan
North Carolina

2. States that Issue Permits that Qualify the Holder for an Exemption from a NICS Check: Pursuant to 18 U.S.C. § 922(t)(3), twenty-two states issue permits or licenses that exempt the holder from the federal background check requirement at the point of sale.72

States that Issue Permits or Licenses that Qualify the Holder for an Exemption from a NICS Check73

Alaska (concealed weapons permits)
Arizona (concealed weapons permits)
Arkansas (concealed weapons permits)
California (“entertainment firearms permits” only)
Georgia (concealed weapons permits)
Hawaii (permits to acquire and licenses to carry)
Idaho (concealed weapons permits)
Iowa (permits to acquire a handgun and concealed weapons permits)
Kansas (concealed weapons permits issued on or after 7/1/10)
Kentucky (concealed weapons permits)
Michigan (licenses to purchase a pistol and concealed pistol licenses)
Mississippi (concealed weapons permits, but not security guard permits)
Montana (concealed weapons permits)
Nebraska (handgun purchase certificates and concealed handgun permits)
Nevada (concealed weapons permits issued on or after 7/1/11)
North Carolina (permits to purchase a handgun and concealed handgun permits)
North Dakota (concealed weapons permits)
South Carolina (concealed weapons permits)
Texas (concealed weapons permits)
Utah (concealed weapons permits)
Washington (concealed weapons permits issued on or after 7/22/11)
Wyoming (concealed weapons permits)

3. Laws Requiring or Authorizing the State to Act as a Point of Contact:  Connecticut and Illinois have laws requiring the states to act as POCs. California, Colorado, New Hampshire have laws explicitly authorizing the state to act as a POC, although the New Hampshire state agency has chosen to act as a POC for handgun sales only. California law requires the state to act as a POC if funding is available, which it is. Indiana’s law requires the state to act as a POC if federal funds are available to assist the state in participating in NICS.  However, Indiana is not currently acting as a POC. 

4. Laws Detailing the Procedure for a Background Check in POC States:  Seventeen of the 21 POC states have laws explaining the procedure for the background check. These laws typically require the purchaser to fill out a firearm transfer application form (or an application for a Brady-exempt permit to purchase), present photo identification, and pay a fee.  The dealer must then transmit the application to a state agency that conducts the background check.  If the transfer is approved, the agency transmits an approval number to the dealer, who is prohibited from transferring the firearm until an approval number is received or the statutory time period has expired.  Michigan, Nevada, New Hampshire and New Jersey are the only POC states without laws that describe the procedure in this manner.

In California, dealers must obtain the purchaser’s name, date of birth, and driver’s license or identification number electronically from the magnetic strip on the license or ID card. When a purchaser or transferee seeks to obtain a handgun, he or she must present additional documentation indicating California residency.74  Virginia also requires all firearm purchasers to present additional documentation establishing residency.

5. Background Check Laws in Non-POC states: 

A.  States That Incorporate the Federal Requirement:  Four states (Alabama, Delaware, Georgia, and Indiana) that do not act as POCs nevertheless facilitate enforcement of the federal background check requirement through a state law that reiterates that requirement. Indiana law also spells out that the dealer and purchaser must use Form 4473, the purchaser must present documentation of Indiana residency, and the dealer must contact NICS directly. Indiana’s law appears to apply only to handguns, although federal law requires that a similar procedure be used for long guns as well.

B. Independent State Background Check Requirements at the Point of Sale:  Minnesota and Rhode Island do not function as POCs, but have their own independent background check requirements.75 In these states, the dealer must contact the FBI directly for the federally required background check, and must also contact a state or local agency for the background check required by the state. In Rhode Island, a firearm purchaser must fill out a state form, which the seller must forward to the local police authority.  The local police authority must then conduct a background check on the purchaser. If the seller receives no disqualifying information from the local police authority within the state’s seven-day waiting period, state law allows him or her to transfer the firearm. 76

In Minnesota, if a person wishes to acquire a handgun or semiautomatic military-style assault weapon from a federally licensed dealer but does not have a state-issued “transferee permit” or a permit to carry a handgun, Minnesota law requires the dealer to file a report with the local police chief or sheriff, who then performs a background check. 77  Since Minnesota is not a POC state and no Minnesota-issued permit qualifies the holder for a Brady exemption, the federal law requiring the dealer to contact the FBI directly for a NICS check also applies.

C. State Background Checks Prior to Issuance of a Permit to Purchase:  Massachusetts is not a POC state, and an administrative regulation confirms that dealers must contact NICS directly prior to sale of a firearm.78  However, Massachusetts requires a license for the purchase of any firearm, and requires dealers to verify the validity of a potential transferee’s license prior to transferring a firearm through electronic contact with a state database.  Similarly, the District of Columbia does not function as a POC, but firearm purchasers must first obtain a registration certificate, after an extensive background check.  See our summary on Licensing Gun Owners & Purchasers for more information about licensing requirements.

6. State Laws Addressing the Problem of “Default Proceeds”:79 As noted above, if an FFL has not been notified within three business days after initiating a background check that a sale would violate federal or state laws, the sale may proceed by default. These sales by default, known as “default proceeds,” allow many prohibited purchasers to buy guns.  Several states have taken measures to extend the time allowed for completion of a background check, so that firearms cannot be transferred by default when a background check cannot be completed within three days.

A. Time for Background Check under State Background Check Laws:  The background check laws in several POC states extend the time allowed for a background check.  In California, all firearm transfers are subject to a 10-day waiting period.80 If the California Department of Justice (“DOJ”) cannot determine within the 10-day period whether the prospective purchaser is prohibited from possessing a firearm, DOJ may notify the dealer and prospective purchaser of this fact and obtain up to a total of 30 days to complete the background check.

Maryland gives the Secretary of State Police seven days in which to approve or disapprove the transfer of a handgun.  Maryland also prohibits the transfer of a handgun if the application is placed on hold because of an open disposition of criminal proceedings.

Washington allows five days to complete a background check on prospective handgun purchasers. However, if records indicate that a prospective purchaser has an arrest for a potentially disqualifying offense, a hold may be placed on the transaction for up to 30 days, pending receipt of the disposition, or longer upon a judicial order for good cause.81

In Tennessee, the Bureau of Investigation must deny a transfer if the background check reveals that the purchaser has been charged with a crime for which the purchaser, if convicted, would be prohibited from possessing a firearm, and either there has been no final disposition of the case, or the final disposition is not noted.  However, the transfer may go forward if the Bureau receives written notice from the court indicating that no final disposition information is available.82

Pennsylvania law allows the State Police to temporarily delay a firearm transfer to determine whether a misdemeanor conviction involved domestic violence that would disqualify the purchaser under federal law.

B. Time for a Background Check under Licensing Laws:  State laws that require a person to obtain a license or certificate before purchasing a firearm can provide law enforcement with longer periods of time to conduct a background check on the applicant.  In the District of Columbia, a dealer cannot deliver a firearm unless the buyer has obtained a registration certificate from the Chief of Police. The Chief has 60 days from the date the application is received to determine “through inquiry, investigation, or otherwise,” whether the applicant is entitled and qualified to receive a certificate.  See our summary on Licensing Gun Owners & Purchasers for more information about licensing procedures.

7. The Scope of the Search:  Certain states, such as Connecticut and Florida, require the agency conducting the background check to search any state or local records that are available.  Other states are more specific about which records must be searched during a background check.   Most state background check laws require a search of NICS and state criminal history records, as well as other records as described below.

A. Mental Health Records: Although persons who have been adjudicated as mental defectives or involuntarily committed to mental institutions are prohibited by federal law from possessing firearms, not all mental health records have been reported to NICS. Detailed discussion of state laws governing mental health reporting is contained in our summary on Mental Health Reporting.  As a result of the inadequacy of the states’ reporting of mental health records to NICS, seven states explicitly require a search of in-state mental health files as part of the background check process (California, Connecticut83 Illinois, Massachusetts, Minnesota, New York,84 Oregon, Pennsylvania, and Washington).    Three states (Hawaii, Minnesota, and New Jersey)85 require the purchaser to authorize a search of mental health files as part of the background check process.86 In Minnesota, the authorization also applies to certain alcohol and drug abuse records.

In Washington, a signed application to purchase a handgun constitutes “a waiver of confidentiality and written request that the department of social and health services, mental health institutions, and other health care facilities release, to an inquiring court or law enforcement agency, information relevant to the applicant’s eligibility to purchase a pistol.”  This disclosure is mandatory.

B. Juvenile court records:  As described in our summary on Categories of Prohibited People, a number of states prohibit firearm purchase or possession by individuals with certain juvenile convictions. In order to enforce these laws, Pennsylvania, Utah, and Wisconsin explicitly require a search of juvenile court records as part of a firearm purchaser background check. Colorado authorizes, but does not require, the disclosure of juvenile delinquency records for this purpose.  Other states may include juvenile records in their definition of “criminal history records” or a similar term.87

C. Protective order and warrant information:  Federal law and the laws in certain states prohibit firearm purchase or possession by individuals subject to domestic violence protective orders or for whom warrants have been issued.  Wisconsin’s law regarding the background check at the point of sale of a firearm and Massachusetts’ law regarding the background check it conducts before issuing a firearms license both explicitly require a search for protective order records.  The laws in Minnesota and Massachusetts also mention a search for outstanding warrants.  Other states may conduct similar searches, although the laws are not explicit.

50 State Summary

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The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.

  • Universal background checks are required on all firearm purchasers (California, Colorado, Connecticut, Delaware, New York, Rhode Island, District of Columbia; Maryland and Pennsylvania require universal background checks only for purchases of handguns)88
  • State acts as a Point of Contact for all firearm transfers(13 states); if the state does not act as a Point of Contact for all firearm transfers, the state requires an independent background check, utilizing state’s independent records (Minnesota (handguns and assault weapons), Rhode Island)
  • If the state requires a permit or certificate for the purchase of a firearm, the permit or certificate does not exempt the holder from a background check at the point of sale (California (handguns), Connecticut, District of Columbia, Massachusetts, New Jersey, New York (handguns))
  • Transfer of any firearm is prohibited until the background check process has been completed (California)
  • Background check process includes search of all relevant in-state criminal records, mental health records (seven states), juvenile delinquency records (Pennsylvania, Utah, Wisconsin), warrants (Massachusetts, Minnesota)  and protective order information (Massachusetts, Wisconsin)
  • An applicant seeking to purchase a firearm must authorize disclosure of relevant mental files (Hawaii, New Jersey), including files related to drug and alcohol abuse (Minnesota)
  • Mental health information and information about drug and alcohol abuse is reported to federal and state databases of prohibited purchasers ((Additional information on access to mental health records for firearm purchaser background checks is contained in our summary on Mental Health Reporting.))
  • Criminal history information, including relevant juvenile delinquencies, warrants, and orders of protection, are reported to federal and state databases of prohibited purchasers
  • Fee for background check is set at least at a level sufficient to cover administrative costs associated with background check system

 

  1. Categories of persons who are prohibited from possessing firearms under federal and state law are detailed in our summary on Categories of Prohibited People. []
  2. While federal law requires licensed dealers to conduct a background check on a gun purchaser, state laws often lack this requirement.  State laws that mirror the federal law requiring dealers to conduct a background check enable local prosecution and incarceration of dealers who sell guns to individuals who have not undergone a background check. Mayors Against Illegal Guns, Trace the Guns:  The Link Between Gun Laws and Interstate Gun Trafficking 11 (Sept. 2010), at http://www.tracetheguns.org/report.pdf. According to a report by Mayors Against Illegal Guns, states that do not have these laws are the source of crime guns at a 53% greater rate than states that do have such laws. Id. []
  3. Bureau of Justice Statistics, U.S. Dep’t of Justice, Background Checks for Firearm Transfers, 2010 – Statistical Tables, at http://bjsdata.ojp.usdoj.gov/content/pub/pdf/bcft10st.pdf. These statistics cover the period March 1, 1994 – Dec. 31, 2010, the most recent period for which this data is available. []
  4. 18 U.S.C. § 922(t)(1). []
  5. Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operations 2012, at http://www.fbi.gov/about-us/cjis/nics/reports/2012-operations-report. []
  6. Id. []
  7. U.S. General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System 13 (Feb. 2000), at http://www.gao.gov/new.items/g100064.pdf. []
  8. Colleen L. Barry et al., Perspective:  After Newtown — Public Opinion on Gun Policy and Mental Illness, 368 New Eng. J. Med. 1077-1081 (March 21, 2013) at http://www.nejm.org/doi/full/10.1056/NEJMp1300512?query=featured_home&&. []
  9. Steven Sumner et al., Firearm Death Rates and Association with Level of Firearm Purchase Background Check, 35 Am. J. Prev. Med. 1 (July 2008), at http://www.ajpmonline.org/article/S0749-3797(08)00310-3/fulltext. []
  10. See 28 C.F.R. § 25.4. Case law suggests that a federal statute requiring states to disclose records to the FBI would violate the Tenth Amendment. In Printz v. U.S., 521 U.S. 898 (1997), a 5-4 decision, the Supreme Court struck down the interim provisions of the Brady Act obligating local law enforcement officers to conduct background checks on prospective handgun purchasers. The Court held that Congress cannot compel state officials to enact or enforce a federal regulatory program. []
  11. Nat’l Consortium of Justice Information and Statistics, Improving the National Instant Background Screening System for Firearm Purchases: Recommendations by SEARCH 13, 19 (Feb. 2013), at  http://www.search.org/files/pdf/ImprovingNICSforFirearmsPurchases.pdf. []
  12. 18 U.S.C. § 922(g)(3); 27 C.F.R. § 478.11. []
  13. Nat’l Consortium of Justice Information and Statistics, Improving the National Instant Background Screening System for Firearm Purchases: Recommendations by SEARCH 19 (Feb. 2013), at http://www.search.org/files/pdf/ImprovingNICSforFirearmsPurchases.pdf.  See also United States General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks 20-24 (July 2012), at  www.gao.gov/assets/600/592452.pdf‎. []
  14. Mayors Against Illegal Guns, Fatal Gaps:  How Missing Records in the Federal Background Check System Put Guns in the Hands of Killers, Nov. 2011, at http://www.mayorsagainstillegalguns.org/downloads/pdf/maig_mimeo_revb.pdf. []
  15. 18 U.S.C. § 922(g). []
  16. See U.S. Dep’t of Justice, Information Needed to Enforce the Federal Prohibition Misdemeanor Crimes of Domestic Violence (Nov. 2007), at http://www.ncdsv.org/images/MCDV_Info%20needed%20to%20enforce%20the%20firearm%20prohibition.pdf. []
  17. Gun Control: Implementation of the National Instant Criminal Background Check System, supra note 9, at 12-13. []
  18. Center for American Progress, Recommendations for Executive Action to Combat Illegal Gun Trafficking and Gun Crime 4 (June 10, 2013), at http://www.americanprogress.org/wp-content/uploads/2013/06/ExecActionGuns-4.pdf. []
  19. Id. []
  20. Id. []
  21. Greenberg Quinlan Rosner Research & the Tarrance Group for the Mayors Against Illegal Guns, Americans Support Common Sense Measures to Cut Down on Illegal Guns 3, 6 (Apr. 10, 2008), at http://www.mayorsagainstillegalguns.org/downloads/pdf/polling_memo.pdf. []
  22. 18 U.S.C. § 922(s). []
  23. Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, Total NICS Background Checks, at http://www.fbi.gov/about-us/cjis/nics/reports/total-nics-background-checks-1998_2013_monthly_yearly_totals-083113.pdf. []
  24. Bureau of Justice Statistics, U.S. Dep’t of Justice, Background Checks for Firearm Transfers, 2010 – Statistical Tables, at http://bjsdata.ojp.usdoj.gov/content/pub/pdf/bcft10st.pdf. These statistics cover the period March 1, 1994 – Dec. 31, 2010, the most recent period for which this data is available. []
  25. Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, National Instant Criminal Background Check System (NICS), (April 2012), at http://www.fbi.gov/about-us/cjis/nics/general-information/nics_overview.pdf. []
  26. 27 C.F.R. § 478.124.  The prospective purchaser completes a portion of Form 4473 by providing identifying information, including name, sex, home address, date and place of birth, etc., and signing and dating the form.  Id. []
  27. Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, National Instant Criminal Background Check System (NICS) Operations 2012, at http://www.fbi.gov/about-us/cjis/nics/reports/2012-operations-report. []
  28. Id. []
  29. Bureau of Justice Statistics, U.S. Dep’t of Justice, Background Checks for Firearm Transfers, 2010 – Statistical Tables (Feb. 2013), at http://www.bjs.gov/content/pub/pdf/bcft10st.pdf. []
  30. 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. []
  31. 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. []
  32. 18 U.S.C. § 922(t)(1). []
  33. 18 U.S.C. § 922(t)(3); 27 C.F.R. § 478.102(d). []
  34. 27 C.F.R. § 478.102(d). []
  35. Pub. L. No. 110-180, §§ 102, 104, 121 Stat. 2559 (2008). []
  36. 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 purchase and possession of firearms and ammunition. Id., § 105(a)(1).  For more information on the Act’s application to records of persons with mental illness, see our summary on Mental Health Reporting. []
  37. U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks (July 2012), at  www.gao.gov/assets/600/592452.pdf‎. []
  38. New Hampshire’s law, while not explicitly requiring a background check, acknowledges the federal background check requirement by authorizing the state to act as a POC. []
  39. As well as states with laws governing the background check that is required at the point of sale from a licensed dealer, the list that follows includes Hawaii, Iowa, Michigan, and North Carolina, because these states require certain firearm purchasers to have a permit and the background check that occurs before these permits are issued takes the place of a background check at the point of sale from a licensed dealer under both state and federal law . []
  40. Ala. Code §§ 13A-11-79, 41-9-649. []
  41. Cal. Penal Code §§ 26815, 26825, 26845, 28100-28415. []
  42. Colo. Rev. Stat. §§ 19-1-304(1)(a)(VII.5), (c)(II.5), (2)(a)(II.5), 24-33.5-424. []
  43. Conn. Gen. Stat. §§ 29-33, 29-36l(d)(1), 29-37a(a), 29-37g(c). []
  44. Del. Code Ann. Tit. 11, § 1448A. []
  45. D.C. Code §§ 7-2502.01, 7-2502.03, 7-2502.04, 7-2502.05, 7-2502.07(a)-(b). []
  46. Fla. Stat. § 790.065. []
  47. Ga. Code Ann. §§ 16-11-171, 16-11-172. []
  48. Haw. Rev. Stat. §§ 134-2, 134-3.5. []
  49. 430 Ill. Comp. Stat. 65/3.1. []
  50. Ind. Code Ann. §§ 35-47-2.5-1 – 35-47-2.5-15. []
  51. Iowa Code §§ 724.16, 724.17 – 724.21A. []
  52. Md. Code Ann., Pub. Safety §§ 5-117 – 5-126. []
  53. Mass. Gen. Laws ch. 140, §§ 123, 129B, 131. []
  54. Mich. Comp. Laws Serv. § 28.422. []
  55. Minn. Stat. §§ 624.7131, 624.7132. []
  56. Neb. Rev. Stat. § 69-2401– 69-2423. []
  57. N.H. Rev. Stat. Ann. § 159-D:1. []
  58. N.C. Gen. Stat. §§ 14-402 – 14-404. []
  59. Or. Rev. Stat. §§ 166.412, 166.432, 166.434. []
  60. 18 Pa. Cons. Stat. §§ 6111 – 6111.3. []
  61. R.I. Gen. Laws §§ 11-47-35, 11-47-35.2. []
  62. Tenn. Code Ann. § 39-17-1316 . []
  63. Utah Code § 76-10-526. []
  64. Va. Code Ann. §§ 18.2-308.2:2, 52-4.4. []
  65. Wash. Rev. Code Ann. §§  9.41.090, 9.41.094, 9.41.097. []
  66. Wis. Stat. § 175.35.  See also Wis. Admin. Code Jus § 10.01-10.12. []
  67. (Federal Bureau of Investigation, National Instant Criminal Background Check System Participation Map, at http://www.fbi.gov/about-us/cjis/nics/general-information/participation-map. []
  68. Id. []
  69. Id. []
  70. See N.J. Admin. Code §§ 13:54-3.12, 13:54-3.13(a)(6), 13.54-3.19. []
  71. N.J. Stat. § 2C:58-3. []
  72. Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice, Permanent Brady Permit Chart (August 26, 2011). The FBI determines whether a state’s permitting process exempts purchasers from background checks, based on the statutory criteria set forth in 18 U.S.C. § 922(t)(3) and 27 C.F.R. § 478.102(d). []
  73. Laws in Delaware, Florida, and Louisiana purport to exempt concealed weapons permit holders in those states from the background check requirement.  Del. Code tit. 11, § 1448A(d)(5); Fla. Stat. § 790.065(1)(b); La. Rev. Stat. § 40:1379.3(T)(1). However, ATF does not recognize permit holders in these states as exempt.  As a result, dealers in these states must conduct a background check even if the purchaser presents a concealed weapons permit. []
  74. Sufficient documentation includes a utility bill from within the last three months, a residential lease, a property deed, military permanent duty station orders indicating assignment within California, or other evidence of residency as permitted by DOJ. Cal. Penal Code § 26845. []
  75. In 2009, South Dakota repealed its background check law.  See 2009 S.D. ALS 121, 4.  However, South Dakota still prohibits sale of a handgun unless the purchaser presents evidence of identity.  S.D. Codified Laws § 23-7-18. []
  76. Concealed handgun license holders in Rhode Island are exempt from the Rhode Island background check requirement, but not the federal background check requirement. []
  77. The identical background check must be run in order for the local police chief or sheriff to issue a transferee permit or permit to carry a handgun. []
  78. 803 Mass. Code Regs. 10.06. []
  79. The Law Center has not undertaken a comprehensive survey of state approaches to “default proceeds.” The states noted provide examples of ways to address this issue. []
  80. Cal. Penal Code §§ 26815, 27540, 28220-28225. []
  81. Wash. Rev. Code Ann. § 9.41.090(3), (4). []
  82. Alternatively, if the purchaser challenges a denial, the Bureau must proceed with efforts to obtain the final disposition information, and the purchaser may assist. If neither the purchaser nor TBI is able to obtain the final disposition information within 15 days, the Bureau must immediately notify the dealer that the transaction may go forward. []
  83. Connecticut requires a search of certain records of the Department of Mental Health and Addiction Services before issuing a firearms license. Conn. Gen. Stat. § 29-38b(a). []
  84. New York is not a POC state, and no Brady exemptions exist for licenses issued by New York. As a result, dealers in New York must contact NICS directly prior to the sale of every firearm.  However, New York state law requires a license for the purchase of a handgun, and authorizes the release of mental health information for purposes of the background check that occurs before issuance of the license. New York licenses to possess handguns must be renewed every five years. N.Y. Penal Code § 400.00. []
  85. New Jersey’s law  requiring authorization for a mental health check is part of its licensing law.  N.J. Stat. Ann. § 2C:58-3e; N.J. Admin. Code § 13:54-1.4(b). []
  86. Similarly, an administrative regulation in Maryland requires an applicant for the transfer of a handgun to authorize the disclosure of mental health records. Md. Code Regs. 29.03.01.03(A)(8).  In addition, Illinois requires an applicant for a Firearm Owners Identification Card to authorize the release of mental health files prior to issuance of a Card.  These Cards are valid for ten years.  Although mental health files are searched during the background check at the point of sale in Illinois, no authorization is required at that time.  430 Ill. Comp. Stat. 65/4(3). []
  87. See, e.g., Fla. Stat. § 943.045.  The Law Center has not conducted a comprehensive search to determine whether juvenile court records are included among criminal history records in all 50 states. []
  88. Additional information on jurisdictions requiring universal background checks is contained in our summary on Universal Background Checks & the Private Sale Loophole. []