Federal Law on Background Checks

Posted on May 21, 2012

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.1 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.2 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).3 FBI checks are provided at no charge; state law determines the cost of background checks performed by POCs.4

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).5 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.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 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.10 The dealer is required to retain Form 4473, regardless of whether the transaction is approved or denied or whether the firearm is actually transferred.11

The NICS check is valid for a single transaction for up to 30 calendar days from the date NICS was initially contacted.12 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.13

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.14 Permits issued after November 30, 1998 qualify as exempt only if the approval process included a NICS check.15 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.16 Additional information about private transfers is contained in  Federal Law 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.17

This loophole in federal law, 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.18 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.19

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.20 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.21 FBI investigations of prohibited purchasers who were allowed to buy firearms by default typically take 25 days to complete.22

Improving access to state records – At the end of 2003, only three out of four criminal history records were accessible through NICS.23 The percentage of criminal records that are accessible for NICS checks varies by state.24

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.25

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.26

Although the number of mental health records provided to NICS has increased – in 2007 there were approximately 400,000 – mental illness remains significantly underreported.27 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 2007,28 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 Grants29 if they provide at least 90% of relevant records concerning persons who are prohibited from purchasing or possessing a firearm within specified deadlines.30

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.31 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.32 For more information on the Act’s application to records of persons with mental illness, see our Mental Health Reporting policy summary.

Click here to view additional information about background checks, including background information and state and local laws on the topic.  For more information about federal categories of prohibited purchases, see Federal Law on Prohibited Purchasers Generally.

  1. 18 U.S.C. § 922(s). []
  2. 18 U.S.C. § 922(t). []
  3. Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Procedures Related to Firearm Transfers, 2005 3-4 (Nov. 2006). []
  4. Id. at 3. []
  5. 27 C.F.R. § 478.124. []
  6. 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). []
  8. Survey of State Procedures Related to Firearm Transfers, 2005, supra, at 3-4. []
  9. 27 C.F.R. § 478.102(a). []
  10. 27 C.F.R. § 478.124(c)(4). []
  11. 27 C.F.R. § 478.102. []
  12. 27 C.F.R. § 478.102(c). []
  13. 18 U.S.C. § 922(t)(1). []
  14. 18 U.S.C. § 922(t)(3); 27 C.F.R. § 478.102(d). []
  15. 27 C.F.R. § 478.102(d). []
  16. See Educational Fund to Stop Gun Violence, Closing Illegal Gun Markets: Extending Criminal Background Checks to All Gun Sales (May 2002). []
  17. 18 U.S.C. § 922(t)(1). See also Survey of State Procedures Related to Firearm Transfers, 2005, supra, at 3-4. []
  18. 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). []
  19. Id. at 6. []
  20. NICS Operations 2005, supra, at 12. []
  21. U.S. General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System 13 (Feb. 2000). []
  22. Id. []
  23. 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). []
  24. See U.S. General Accounting Office, Gun Control: Options for Improving the National Instant Criminal Background Check System 12-14 (Apr. 2000). []
  25. Gun Control: Implementation of the National Instant Criminal Background Check System, supra, at 13. []
  26. Gun Control: Options for Improving the National Instant Criminal Background Check System, supra, at 8. []
  27. 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). []
  28. Pub. L. No. 110-180, § 105, 121 Stat. 2559 (2008). []
  29. See generally 42 U.S.C. § 14601. []
  30. Id., § 102. []
  31. Id., § 103(a), (b). []
  32. Id., § 105(a)(1). []