Background Checks Policy Summary

Posted on May 21, 2012

Click here to see current summaries of all fifty states’ laws in this area.

The following material has been updated from the Law Center’s February 2008 edition of Regulating Guns in America – An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws.

Background

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. (Categories of persons who are prohibited from possessing firearms under federal and state law are detailed in our Prohibited Purchasers policy summary.) At the federal level, background checks are conducted pursuant to the Brady Handgun Violence Prevention Act (the “Brady Act”), 18 U.S.C. § 921 et seq., which is described in detail below, whenever the sellers is a federally licensed dealer.

Federal law does not require  a background check when a firearm is sold by someone who is not licensed as a dealer.  For information about that issue, please see our Private Sales policy summary.

The discussion below addresses the scope and procedure for background checks by licensed firearms dealers.

Summary of Federal Law

The 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.1 Since 1998, the Brady Act has been implemented through the National Instant Criminal Background Check System (NICS).2 NICS is used for purchasers of handguns and long guns, and for persons who redeem a pawned firearm.3 The Brady Act does not apply to unlicensed 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 FBI.4 FBI checks are provided at no charge; state law determines the cost of background checks performed by POCs.5 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).6 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.7

A state POC search includes the three federal databases, and may include the state’s independent criminal history database and mental health records.8

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 4473.9 The NICS check is valid for a single transaction for up to 30 calendar days from the date NICS was initially contacted.10

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.11

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.12 Permits issued after November 30, 1998 qualify as exempt only if the approval process included a NICS check.13 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 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), FBI and other federal agencies have made several recommendations to strengthen the law. Those recommendations include the following:

Close 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.14

Extend 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.15

This default provision, known as a “default proceed,” allowed 3,849 prohibited purchasers to buy guns during the first year of operation (November 30, 1998 through November 30, 1999) of NICS.16

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.17 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.18

Improve access to state records – At the end of 2003, only three out of four criminal history records were accessible through the NICS system.19

According to the FBI, state background checks are more thorough than those performed by the FBI because the 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.20

Increase 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 this 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.21

Although the number of mental health records provided to NICS has increased – in 2007 there were approximately 400,00022 – mental illness remains significantly underreported. 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 our Mental Health Reporting policy summary.

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, provides financial incentives for states to provide to NICS information relevant to whether a person is prohibited from purchasing or possessing firearms.23 Under the Act, states are eligible to receive a waiver of the 10% matching requirement for National Criminal History Improvement Grants24 if they provide at least 90% of relevant records concerning persons who are prohibited from purchasing or possessing a firearm within specified deadlines.25

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.26

SUMMARY OF STATE LAWS GOVERNING BACKGROUND CHECKS

(This summary was last updated October 15, 2012.)

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 Private Sales policy summary. 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.

Seventeen states have a law governing the scope and procedure for a background check when a firearm is purchased from a licensed dealer.27  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.

The list that follows does not include state statutes that require a background check before a firearms permit is issued, unless the firearms permit qualifies for a Brady exemption and is required by state law for the purchase of a firearm.

Alabama28

California29

Colorado30

Connecticut31

Delaware32

District of Columbia33

Florida34

Georgia35

Illinois36

Indiana (handguns only)37

Hawaii38

Iowa (handguns only)39

Maryland(handguns only) 40

Massachusetts41

Michigan (handguns only)42

Minnesota (handguns and certain assault weapons only)43

Nebraska (handguns only)44

New Hampshire (handguns only)45

North Carolina (handguns only)46

Oregon47

Pennsylvania48

Rhode Island49

Tennessee50

Utah51

Virginia52

Washington (handguns only)53

Wisconsin (handguns only)54

Description of State Laws Governing Background Checks

1. State Points of Contact: According to the FBI, background checks conducted by state 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.55 As noted above, states where state authorities conduct the background check are known as “point of contact” or “POC” states.  Thirteen states serve as POC states for all firearm transfers.56 Eight states use a state or local POC for handgun background checks only, using the FBI for background checks on long gun transfers.57 The remaining twenty-nine states and the District of Columbia process all background checks through the FBI.58

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. 59  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. 60 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.61

States that Issue Permits or Licenses that Qualify the Holder for an Exemption from a NICS Check62

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.63  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, that the purchaser must present documentation of Indiana residency, and that 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.64 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. 65

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. 66  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.67  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 the Licensing of Gun Owners or Purchasers policy summary for more information about licensing requirements.

6. State Laws Addressing the Problem of “Default Proceeds”:68 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.69 If the background check information received is incomplete, preventing the background check from being approved or denied within the 10-day period, the California Department of Justice (DOJ) may notify the dealer of that fact.70 The DOJ interprets this provision to allow (but not require) DOJ to notify the dealer to delay the transfer until the background check can be completed.

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.71

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.72

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 the Licensing of Gun Owners or Purchasers policy summary 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 Mental Health Reporting policy summary.  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, Connecticut73 Illinois, Massachusetts, Minnesota, New York,74 Oregon, Pennsylvania, and Washington).    Three states (Hawaii, Minnesota, and New Jersey)75 require the purchaser to authorize a search of mental health files as part of the background check process.76 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 the Prohibited Purchasers Generally policy summary, 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.77

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.

FEATURES OF COMPREHENSIVE BACKGROUND CHECK LAW

The features listed below are intended to provide a framework from which policy options may be considered and debated. The Law Center has not attempted to include every provision or every creative approach identified in the analysis above, nor have we addressed appropriate exceptions so that the regulation does not produce unintended consequences. A jurisdiction considering modifying existing, or developing new legislation in this area should consult with counsel to ensure its legal sufficiency and compatibility with existing codes and statutes, as appropriate.

  • 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)78
  • 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 Mental Health Reporting policy summary.))
  • 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. 18 U.S.C. § 922(s). [↩]
  2. 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 NICS system and extending the Act’s application to purchasers of long guns and persons who redeem a pawned firearm. [↩]
  3. 18 U.S.C. § 922(t). [↩]
  4. Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Procedures Related to Firearm Transfers, 2005 3-4 (Nov. 2006), available at http://www.ojp.usdoj.gov/bjs/abstract/ssprfs05.htm. [↩]
  5. Id. at 3. [↩]
  6. 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. The FFL is required to verify the identity of the prospective purchaser. Id. [↩]
  7. Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operations 2005 2 (Jan. 2006), available at http://www.fbi.gov/hq/cjisd/nics/ops_report2005/ops_report2005.pdf. [↩]
  8. Survey of State Procedures Related to Firearm Transfers, 2005, supra note 4, at 3-4. [↩]
  9. 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. [↩]
  10. 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. [↩]
  11. 18 U.S.C. § 922(t)(1). [↩]
  12. 18 U.S.C. § 922(t)(3); 27 C.F.R. § 478.102(d). [↩]
  13. 27 C.F.R. § 478.102(d). [↩]
  14. 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 our Private Sales policy summary. [↩]
  15. 18 U.S.C. § 922(t)(1). See also, Survey of State Procedures Related to Firearm Transfers, 2005, supra note 4, at 3-4. [↩]
  16. 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-December 31, 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. [↩]
  17. NICS Operations 2005, supra note 7, at 12. [↩]
  18. 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. [↩]
  19. 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) available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ichrbc05.pdf. 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). [↩]
  20. Gun Control: Implementation of the National Instant Criminal Background Check System, supra note 18, at 12-13. [↩]
  21. Gun Control: Options for Improving the National Instant Criminal Background Check System, supra note 19, at 8. [↩]
  22. 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). [↩]
  23. Pub. L. No. 110-180, §§ 102, 104, 121 Stat. 2559 (2008). [↩]
  24. See generally 42 U.S.C. § 14601. [↩]
  25. Pub. L. No. 110-180, § 102, 121 Stat. 2559 (2008). [↩]
  26. 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 Mental Health Reporting policy summary. [↩]
  27. 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. [↩]
  28. Ala. Code §§ 13A-11-79, 41-9-649. [↩]
  29. Cal. Penal Code §§ 26815, 26825, 26845, 28100-28415. [↩]
  30. Colo. Rev. Stat. §§ 19-1-304(1)(a)(VII.5), (c)(II.5), (2)(a)(II.5), 24-33.5-424. [↩]
  31. Conn. Gen. Stat. §§ 29-33, 29-36l(d)(1), 29-37a(a), 29-37g(c). [↩]
  32. Del. Code Ann. Tit. 11, § 1448A. [↩]
  33. D.C. Code §§ 7-2502.01, 7-2502.03, 7-2502.04, 7-2502.05, 7-2502.07(a)-(b). [↩]
  34. Fla. Stat. § 790.065. [↩]
  35. Ga. Code Ann. §§ 16-11-171, 16-11-172. [↩]
  36. 430 Ill. Comp. Stat. 65/3.1. [↩]
  37. Ind. Code Ann. §§ 35-47-2.5-1 – 35-47-2.5-15. [↩]
  38. Haw. Rev. Stat. §§ 134-2, 134-3.5. [↩]
  39. Iowa Code §§ 724.16, 724.17 – 724.21A. [↩]
  40. Md. Code Ann., Pub. Safety §§ 5-117 – 5-126. [↩]
  41. Mass. Gen. Laws ch. 140, §§ 123, 129B, 131. [↩]
  42. Mich. Comp. Laws Serv. §§ 28.422. [↩]
  43. Minn. Stat. §§ 624.7131, 624.7132. [↩]
  44. Neb. Rev. Stat. § 69-2401– 69-2423. [↩]
  45. N.H. Rev. Stat. Ann. § 159-D:1. [↩]
  46. N.C. Gen. Stat. §§ 14-102 – 14-404. [↩]
  47. Or. Rev. Stat. §§ 166.412, 166.432, 166.434. [↩]
  48. 18 Pa. Cons. Stat. §§ 6111 – 6111.3. [↩]
  49. R.I. Gen. Laws § 11-47-35, 11-47-35.2. [↩]
  50. Tenn. Code Ann. § 39-17-1316 . [↩]
  51. Utah Code § 76-10-526. [↩]
  52. Va. Code Ann. §§ 18.2-308.2:2, 52-4.4. [↩]
  53. Wash. Rev. Code Ann. §§  9.41.090, 9.41.094, 9.41.097. [↩]
  54. Wis. Stat. § 175.35.  See also Wis. Admin. Code Jus § 10.01-10.12. [↩]
  55. Gun Control: Implementation of the National Instant Criminal Background Check System, supra note 18, at 12-13. See also NICS Operations 2005, supra note 7, at 5. [↩]
  56. (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. [↩]
  57. Id. [↩]
  58. Id. [↩]
  59. See N.J. Admin. Code §§ 13:54-3.12, 13:54-3.13(a)(6), 13.54-3.19. [↩]
  60. N.J. Stat. § 2C:58-3. [↩]
  61. 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). [↩]
  62. 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. [↩]
  63. 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. [↩]
  64. 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. [↩]
  65. Concealed handgun license holders in Rhode Island are exempt from the Rhode Island background check requirement, but not the federal background check requirement. [↩]
  66. 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. [↩]
  67. 803 Mass. Code Regs. 10.06. [↩]
  68. 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. [↩]
  69. Cal. Penal Code §§ 26815, 27540, 28220-28225. [↩]
  70. Cal. Penal Code § 28220. [↩]
  71. Wash. Rev. Code Ann. § 9.41.090(3), (4). [↩]
  72. 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. [↩]
  73. 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). [↩]
  74. 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. [↩]
  75. 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). [↩]
  76. 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). [↩]
  77. 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. [↩]
  78. Additional information on jurisdictions requiring universal background checks is contained in our Private Sales policy summary. [↩]
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