Background checks are lifesaving tools that ensure dangerous people don’t access firearms. While federal law requires background checks for some sales, the law has deadly loopholes. The differences in how states address these background check loopholes have a meaningful impact on the effectiveness of background checks and the safety of Americans from gun violence.

Background

Background checks identify individuals who are ineligible to purchase firearms and prevent those persons from obtaining them, making them a key element in preventing tragic and unnecessary gun deaths in the United States.1

Enacted in 1993, the Brady Act is a federal law that requires federally licensed firearms dealers (FFLs) to conduct background checks on potential firearm purchasers.2 In order to comply with the Brady Act, the FBI created the National Instant Criminal Background Check System (NICS), a centralized catalog of records comprising three separate national databases. Among other things, NICS contains information about individuals’ criminal and mental health histories and any civil orders entered against them that might affect their eligibility to purchase or possess a gun, such as domestic violence restraining orders. To learn more about NICS and how it is used to conduct background checks, visit our NICS policy page.

Between 1994, when the federal background check requirement was adopted, and 2014, nearly three million people have been denied a firearm transfer or permit through the FBI’s background check system. Of those denials, 61% were based on an individual’s status as a convicted felon (42%) or fugitive from justice (19%).3

Summary of Federal Law

Despite the clear effectiveness of the background check system, federal law still has numerous weaknesses that allow dangerous individuals to slip through the cracks and obtain firearms.

Federal Law Loopholes

Private Sale Exemption

The single largest gap in the federal background check requirement is that unlicensed, private sellers are not required to conduct background checks. This means that, unless state law requires a background check for these sales, convicted felons, domestic abusers, and other ineligible people can legally buy guns—even though they would fail a background check if purchasing from an FFL. Fortunately, 19 states have closed the federal loophole to require unlicensed sellers to conduct background checks on some or all firearms purchasers. This issue is addressed in detail in our summary on Universal Background Checks.

Default Proceeds and the Charleston Loophole

The Problem

In 2015, a disturbed young man shot and killed nine African-American worshipers at the Emanuel AME Church in Charleston, South Carolina. Although he should have failed a background check because of his history of unlawful controlled substance use, his background check was not processed within three days. Under federal law, if an FFL who has initiated a background check has not been notified within three business days that the sale would violate federal or state laws, the dealer may proceed with the sale by default.4 In this case, the dealer proceeded to transfer the gun after the three days elapsed. Approximately two months later, the shooter used that gun to murder the churchgoers.

Though 91% of NICS background checks provide an answer within minutes, about 9% of cases require further investigation and review by FBI and ATF agents.5 However, due to the federal “default proceed” rule, those agents only have three business days to conduct and finish their investigation.

This “default proceed” provision allowed 3,722 prohibited purchasers to buy guns in 2012 before a background check cleared,6 and it allowed over 2,500 in 2014.7 Many default proceed cases require extra time and attention precisely because the firearm purchaser has a long record of dangerous red flags; according to data compiled by Mayors Against Illegal Guns, default proceed sales are eight times more likely to involve a prohibited purchaser than other background checks.8 In cases where a sale went through under the default proceed procedure and the ATF was ultimately able to complete a background check, the FBI has reported that nearly 25% of the individuals investigated were determined to be legally prohibited from purchasing or possessing a firearm.9

The Solution

The FBI has recommended extending the three-day period to allow agents more time to complete background check investigations and to reduce the number of prohibited purchasers who are able to purchase firearms by default.10 According to FBI data, for 2,519 default-proceed transfers that resulted in a transfer to a prohibited person, an average of 25 business days elapsed between the initial NICS inquiry and the date the FBI determined that the purchase should have been denied.11 A January 2013 poll found that 76.3% of Americans—including 67% of gun owners—support giving law enforcement up to five business days, if needed, to complete a background check for gun buyers.12 Recognizing the irresponsibility of the default proceed rule, some gun dealers, including Walmart, refuse to engage in default proceed transactions, making it a matter of policy to only sell firearms when the individual affirmatively passes a background check.13

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. The permits must have been 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 The ATF determines which permits in each state do or do not qualify for the exemption.16

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. This exemption can allow a person to acquire a firearm even after he or she becomes prohibited from doing so—for example, due to violent criminal activity—if the state does not immediately revoke the permit when the person becomes prohibited.

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.17 This gap in the federal background check system allows prohibited individuals to purchase firearms without effective background checks using fake or forged identification documents.18 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.19 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.20

Summary of State Law

What follows is a discussion of various state laws affecting the implementation of the federal background check requirement.

States that Issue Permits that Qualify the Holder for an Exemption from a NICS Check

Pursuant to 18 U.S.C. § 922(t)(3), 26 states issue permits or licenses that exempt the holder from the federal background check requirement at the point of sale.21

Alabama (concealed weapons permit issued on or after 8/1/13)
Alaska (concealed weapons permits marked NICS-Exempt)
Arizona (concealed weapons permits)
Arkansas (concealed weapons permits issued on or after 4/1/99)
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 issued on or after 7/12/06)
Louisiana (concealed handgun permits issued on or after 3/9/15)
Michigan (licenses to purchase a pistol and concealed pistol licenses issued on or after 11/22/05)
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 issued on or after 12/1/99)
Ohio (concealed weapons permits issued on or after 3/23/15)
South Carolina (concealed weapons permits)
Texas (concealed weapons permits)
Utah (concealed weapons permits)
Washington (concealed weapons permits issued on or after 7/22/11)
West Virginia (concealed handgun license issued on or after 6/4/14)
Wyoming (concealed weapons permits)

States Enforcing Independent Background Check Requirements at the Point of Sale

Minnesota and Rhode Island have their own independent background check requirements.22 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.23

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.24 The federal law requiring the dealer to contact the FBI directly for a NICS check also applies.

States that Require Background Checks Prior to Issuance of a Permit to Purchase

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 requires firearm purchasers to first obtain a registration certificate, after an extensive background check. See our policy page on Licensing for more information about licensing requirements.

State Laws Addressing the Problem of Default Proceeds aka “The Charleston Loophole”

As noted above25, 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, including the mass shooter who murdered nine people at a Bible study at Emanuel AME Church in Charleston, SC, in 2015.

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.

Extensions for Background Checks under State Laws

The background check laws in several states extend the time allowed for a background check. In California, all firearm transfers are subject to a 10-day waiting period.26 If the California Department of Justice (DOJ) cannot determine within the 10-day period whether the prospective purchaser is prohibited from possessing a firearm, the 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.27 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.28

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 there has either 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.29

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.30

Adding Time for a Background Check through 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 of police 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.31 See our policy page on Licensing for more information about licensing procedures.

Scope of a Background Check 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.32 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.

Key Legislative Elements

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.33
  • 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.
  • Transfer of any firearm is prohibited until the background check process has been completed.
  • Background check process includes search of all relevant in-state criminal records, mental health records, juvenile delinquency records, warrants, and protective order information.34
  • An applicant seeking to purchase a firearm must authorize disclosure of relevant mental health files, including files related to drug and alcohol abuse.
  • Mental health information and information about drug and alcohol abuse is reported to federal and state databases of prohibited purchasers.35
  • Criminal history information, including relevant juvenile delinquencies, warrants, and orders of protection, are reported to federal and state databases of prohibited purchasers.
  • The fee for a background check is set at least at a level sufficient to cover administrative costs associated with the background check system.
Notes
  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. 18 U.S.C. § 922(s). ⤴︎
  3. Bureau of Justice Statistics, U.S. Dep’t of Justice, Background Checks for Firearm Transfers, 2013-2014 – Statistical Tables, at https://www.bjs.gov/content/pub/pdf/bcft1314st.pdf. These statistics cover the period March 1, 1994 – Dec. 31, 2014, 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 2014at https://www.fbi.gov/about-us/cjis/nics/reports/2014-operations-report. ⤴︎
  6. Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operations 2012at http://www.fbi.gov/about-us/cjis/nics/reports/2012-operations-report. ⤴︎
  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 2014at https://www.fbi.gov/about-us/cjis/nics/reports/2014-operations-report. ⤴︎
  8. Mayors Against Illegal Guns, A Blueprint for Federal Action on Illegal Guns: Regulation, Enforcement, and Best Practices to Combat Illegal Gun Trafficking, Section I. Improving Gun Background Checks (Aug. 2009), at http://everytown.org/documents/2014/10/blueprint-federal-action.pdf (citing Letter from Thomas E. Bush, III, Assistant Director, CJIS Division, The Federal Bureau of Investigations, to The Honorable Michael R. Bloomberg, Mayor of New York City (October 21, 2008), available at http://everytown.org/documents/2016/10/2008_10_21-fbi-letter.pdf. ⤴︎
  9. Letter from Thomas E. Bush, III, Assistant Director, CJIS Division, The Federal Bureau of Investigations, to The Honorable Michael R. Bloomberg, Mayor of New York City (October 21, 2008) available at http://everytown.org/documents/2016/10/2008_10_21-fbi-letter.pdf. ⤴︎
  10. 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. ⤴︎
  11. Id. ⤴︎
  12. 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&&. ⤴︎
  13. Office of the NYC Mayor, “Mayor Bloomberg Announces Final Settlement in Groundbreaking Litigation against Gun Dealers Caught Selling In Apparent Violation of Federal Law: Final Settlement Mirrors Responsible Firearms Retailer Partnership Developed by Wal-Mart & Mayors Against Illegal Guns,” (Sept. 23, 2008), http://www.nyc.gov/portal/site/nycgov/menuitem.c0935b9a57bb4ef3daf2f1c701c789a0/index.jsp?pageID=mayor_press_release&catID=1194&doc_name=http%3A%2F%2Fwww.nyc.gov%2Fhtml%2Fom%2Fhtml%2F2008b%2Fpr374-08.html&cc=unused1978&rc=1194&ndi=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. ATF’s list of state permits that qualify for Brady Exemptions is available at https://www.atf.gov/rules-and-regulations/permanent-brady-permit-chart. ⤴︎
  17. 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. ⤴︎
  18. Id. ⤴︎
  19. Id. ⤴︎
  20. 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. ⤴︎
  21. Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice, Permanent Brady Permit Chart (November 2, 2016), available at https://www.atf.gov/rules-and-regulations/permanent-brady-permit-chart. 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); 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. ⤴︎
  22. While South Dakota does not have a state background check requirement, it prohibits sale of a handgun unless the purchaser presents evidence of identity. S.D. Codified Laws § 23-7-18. ⤴︎
  23. Concealed handgun license holders in Rhode Island are exempt from the Rhode Island background check requirement, but not the federal background check requirement. ⤴︎
  24. 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. ⤴︎
  25. 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. ⤴︎
  26. Cal. Penal Code §§ 26815, 27540, 28220-28225. ⤴︎
  27. Md. Code Ann., Pub. Safety §§ 5-123(a), 5-124(a)(1). ⤴︎
  28. Wash. Rev. Code Ann. § 9.41.090(3), (4). ⤴︎
  29. Tenn. Code Ann. § 39-17-1316(p). 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. ⤴︎
  30. 18 Pa. Cons. Stat. Ann. § 6111(b)(7). ⤴︎
  31. D.C. Code Ann. § 7-2502.07(a), (b). ⤴︎
  32. Conn. Gen. Stat. §§ 29-33(c), 29-37a(d); Fla. Stat. § 790.065(2)(a). ⤴︎
  33. Additional information on jurisdictions requiring universal background checks is contained in our policy page on Universal Background Checks. ⤴︎
  34. Additional information on records searched during the background check process is on our policy page on NICS and Reporting Procedures. ⤴︎
  35. Additional information on access to mental health records for firearm purchaser background checks is contained in our summary on Mental Health Reporting. ⤴︎