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 or state law, and to prevent those persons from obtaining firearms. According to the U.S. Department of Justice, between February 29, 1994 and December 31, 2005, federal and state law enforcement officials performed 69.9 million background checks and prevented 1.36 million gun sales to convicted felons and other prohibited purchasers.¹

Summary of Federal Law

Federal law establishes the baseline regarding the types of persons who are ineligible to purchase firearms. The federal Gun Control Act of 1968, codified at 18 U.S.C. § 922, prohibits the sale of firearms to any person who:

• Is underage;²
• Has been convicted of, or is under indictment for, a crime punishable by imprisonment for more than one year;
• Is a fugitive from justice;
• Is an unlawful user of or addicted to a controlled substance;
• Has been adjudicated as a mental defective or committed to a mental institution;³
• Is an illegal alien;
• Has been dishonorably discharged from the military;
• Has renounced his or her U.S. citizenship;
• Is subject to a court order restraining him or her from harassing, stalking or threatening an intimate partner, his or her child or a child of a partner or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child;⁴ or
• Has been convicted of a misdemeanor offense of domestic violence.⁵

SUMMARY OF STATE LAWS GOVERNING PROHIBITED PURCHASERS

(This summary was last updated August 24, 2012.)

State Laws that Prohibit Possession of Firearms by Certain Individuals

Only Vermont has no state law prohibiting possession of a firearm by certain categories of individuals.⁶ Other state laws identifying persons prohibited from possessing firearms are listed below:

State Laws Prohibiting the Sale of Firearms to, But Not Possession by, Certain Individuals⁵⁷

Description of State Laws Governing Prohibited Possessors

The federal categories of prohibited purchasers are the prevailing minimum for all states. States may adopt laws prohibiting additional persons from purchasing and/or possessing firearms. Most states incorporate at least some classes of federally-prohibited purchasers into their state laws so that they may prosecute violators. In some cases states apply broader standards than federal law, or designate additional classes of prohibited persons. State provisions that incorporate or go beyond federal law are described below:

1. Felons and Misdemeanor Offenders: All states except Vermont restrict access to firearms by convicted felons. Most state laws mirror federal law, and apply the standard definition of felony to bar persons convicted of crimes punishable by imprisonment for more than one year. Other states prohibit a broader category of offenders. Twenty-three states and the District of Columbia either specifically prohibit the transfer, purchase or possession of firearms to persons convicted of certain designated misdemeanors, or define the disqualifying offenses to include some misdemeanors.

New Jersey, for example, prohibits firearm purchases by persons who have been convicted of a “crime,” defined as an offense punishable by imprisonment in excess of six months. New York includes specified felonies and “serious offenses” including child endangerment, certain kinds of disorderly conduct, and certain kinds of stalking.

California specifies that certain felonies and violent or firearm-related misdemeanors disqualify persons from owning firearms.

In Illinois, felony or misdemeanor convictions within the previous five years for battery, assault, aggravated assault, or violation of an order of protection, in which a firearm was used or possessed, are disqualifying offenses.

State laws restricting access to firearms by persons with certain misdemeanor convictions⁷¹

2. Persons with Mental Illness: Thirty-four states and the District of Columbia have laws that restrict access to firearms by persons who are mentally ill. While most states use definitions of mental illness similar to the federal Brady Act⁷² and its implementing regulations, several states have broadened the category of mentally ill persons who are prohibited from purchasing or possessing firearms.⁷³

For example, under federal law persons who are voluntarily committed to a mental hospital are not prohibited from possessing firearms.⁷⁴ Illinois and the District of Columbia have closed this gap by prohibiting firearm purchase or possession by persons who have been voluntarily committed to a mental hospital within the preceding five years.

Several other states define more broadly than federal law those persons who are disqualified from possessing firearms due to mental illness. California law includes an extensive list of disqualifying factors relating to mental illness, including: communicating a serious threat of violence against an identifiable individual to a licensed psychotherapist during the last six months,⁷⁵ or being held for treatment for mental illness for 72 hours within the last five years.⁷⁶

Hawaii prohibits possession by any person who is or has been diagnosed as having a significant behavioral, emotional, or mental disorder. Maryland law prohibits any person who is suffering from a mental disorder and has a history of violent behavior against others from possessing a firearm. Illinois bars persons who have been patients of a mental institution within the past 5 years, persons impaired by a mental condition “of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community,” and persons who are mentally retarded, from obtaining a Firearm Owner’s Identification (FOID) card.⁷⁷

States that restrict access to firearms by persons with mental illness⁷⁸

3. Persons Subject to a Domestic Violence Protective Order: Twenty states and the District of Columbia bar persons who are subject to a domestic violence protective order from purchasing or possessing some or all firearms. Many states exceed federal law by including a broader category of victims who may apply for a domestic violence protective order prohibiting firearms. Other states also apply the prohibition to ex parte protective orders. Additional information on state laws governing access to firearms by domestic abusers is contained in our Domestic Violence and Firearms policy summary.

States that restrict access to firearms by persons subject to a restraining order⁸⁰

4. Drug and Alcohol Abusers and Misdemeanants: Federal law prohibits persons who are unlawful users of or addicted to a controlled substance from purchasing or possessing firearms. Twenty-eight states and the District of Columbia also prohibit drug abusers, persons convicted of drug-related misdemeanors, and/or persons under the influence of controlled substances from purchasing or possessing some or all firearms. Twenty states and the District of Columbia prohibit persons who are alcohol abusers, misdemeanants, and/or under the influence of alcohol, from purchasing or possessing firearms.

States that restrict access to firearms by drug abusers, misdemeanants, and/or persons under the influence of controlled substances⁸¹

States that restrict access to firearms by alcohol abusers, offenders, and/or persons under the influence of alcohol

5. Minors:  In addition to the laws listed above, every state has a law restricting access to firearms by juveniles. Detailed information on restrictions on the transfer of firearms to minors is contained in our Minimum Age to Purchase and Possess Firearms policy summary.

6. Juvenile Offenders: Federal law does not restrict purchases of firearms by persons with juvenile convictions. Twenty-seven states prohibit persons with certain juvenile convictions from purchasing or possessing firearms.

States restricting access to firearms by juvenile offenders

7.         Disarming Prohibited Possessors:  Federal law does not provide a mechanism for the removal of guns from individuals who have become prohibited from possessing firearms.  Most states allow law enforcement to seize firearms when they are discovered in the possession of a person who is in one of the categories listed above.   However, few states have a procedure for the removal of firearms when individuals become prohibited from possessing them.

For example, Massachusetts requires the revocation of an individual’s firearm identification card following any event that renders the cardholder prohibited from possessing firearms. Upon receipt of the written notice of revocation from the licensing authority, the prohibited person must “without delay” surrender all firearms. The licensing authority may then transfer the firearms to a licensed firearms dealer for storage. The prohibited person then has one year in which to transfer the firearms to any eligible person. Similarly, in Connecticut, a person who becomes ineligible to possess firearms has two business days to transfer firearms in his or her possession to an eligible person or surrender them to a state official.  If the person surrenders firearms to the state official, he or she then has a year to sell or transfer them to an eligible person.

In Hawaii, any person who becomes disqualified from possessing firearms must surrender his or her firearms to law enforcement or sell the firearms to a licensed dealer within 30 days.  If the person does not do so, law enforcement must seize the firearms.

Pennsylvania gives a person who has become prohibited from possessing firearms 60 days in which to sell the firearms to an eligible person outside his or her own household.

California courts must notify convicted defendants and persons determined to have a mental health condition that they are prohibited from possessing a firearm. The form that California uses states that the prohibition is effective “immediately upon occurrence of the prohibiting event.” The prohibited person must immediately designate an eligible third party who then has 30 days to relinquish them to law enforcement, sell them to a third party through a licensed firearms dealer, or sell them to a dealer. In addition, California’s Department of Justice maintains a Prohibited Armed Persons File, an on-line database that tracks persons who once lawfully owned a firearm but subsequently fell into a prohibited category.⁸²

Upon the occurrence of certain mental health-related events, Wisconsin state courts must determine whether federal law prohibits the individual from possessing firearms.  If the person is deemed prohibited, the court must order the seizure of any firearm owned by the individual.

Many states have a procedure to notify certain domestic abusers about the firearm prohibition or require domestic abusers to surrender firearms when they become prohibited.  For further information about such laws, see Domestic Violence and Firearms.  Additional states also require certain other categories of individuals to be notified that they must surrender firearms when they become prohibited from possessing them.⁸³

8.         Removal of firearms from manifestly dangerous individuals:  Both Connecticut and Indiana provide a procedure by which a law enforcement officer may seek a warrant for the seizure of firearms from an individual that the law enforcement officer believes to be dangerous.  In both states, the court must issue the warrant if it finds that there is probable cause that the person poses a risk of imminent personal injury to self or others and is possession of firearms.  In certain circumstances, a law enforcement officer in Indiana may seize a firearm before issuance of a warrant if the officer subsequently submits a written statement to a court describing the basis for believing the person to be dangerous.  The court must then determine whether the firearm must be returned.

FEATURES OF COMPREHENSIVE LAW GOVERNING PROHIBITED PURCHASERS

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.

• At a minimum, categories of prohibited purchasers are as extensive as federal law to allow state or local prosecution of violators (Hawaii and Tennessee incorporate all federal categories by reference)
• Access to firearms is restricted for persons with convictions for violent, firearm-related and other serious misdemeanors  (23 states, District of Columbia)
• Access to firearms is restricted for persons with mental illness, including persons voluntarily committed to a mental hospital (Illinois, District of Columbia) and persons with serious mental conditions (California, Hawaii, Illinois, Maryland)
• Access to firearms is restricted for persons subject to a domestic violence restraining order  (20 states, District of Columbia)((Additional information about laws governing prohibitions on firearm purchase and possession by domestic abusers is contained in our Domestic Violence and Firearms policy summary.))
• Access to firearms is restricted for persons who are drug abusers and/or misdemeanants (28 states, District of Columbia)
• Access to firearms is restricted for persons who are alcohol abusers and/or offenders (20 states, District of Columbia)
• Access to firearms is restricted for persons with certain juvenile convictions (27 states)
• Access to firearms is restricted for persons under certain ages⁸⁴
• Selling or transferring a firearm to a person who is prohibited from possessing firearms is prohibited⁸⁵
• A state agency tracks armed individuals who have become prohibited from possessing firearms (California, Hawaii, Massachusetts) and these individuals must surrender their firearms soon after (Connecticut – 2 business days, Hawaii- 30 days, Massachusetts – without delay); if a prohibited person fails to surrender firearms, law enforcement must seize them (Hawaii)
• A law enforcement officer may seize firearms from a person shown to be dangerous (Connecticut, Indiana)

1. Bureau of Justice Statistics, U.S. Department of Justice, Bulletin: Background Checks for Firearm Transfers, 2005 2 (Nov. 2006). [↩]
2. Additional information on the federal minimum age to purchase and/or possess firearms is contained in Federal Law on the Minimum Age to Purchase and Possess Firearms. [↩]
3. Regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) define “[a]djudicated as a mental defective” to include persons who have been determined to be a danger to themselves or to others, or who lack the mental capacity to contract or manage their own affairs. 27 C.F.R. § 478.11. The regulations further define “[a]djudicated as a mental defective” to include those persons found insane by a court in a criminal case, those persons found incompetent to stand trial, and those persons found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §§ 850a, 876b. Id. ATF regulations define “[c]ommitted to a mental institution” to mean involuntary commitment. 27 C.F.R. § 478.11.
   In 2008 President Bush signed into law the NICS Improvement Amendments Act of 2007, which, inter alia, changes the standard for persons deemed to be “adjudicated as a mental defective” or “committed to a mental institution” by a federal agency or department. The Act also deems an adjudication as a mental defective or commitment to a mental institution “not to have occurred” if a state grants an application for relief pursuant to a state created relief from disabilities program. Pub. L. No. 110-180, § 105, 121 Stat. 2559 (2008). For more information on these changes and other provisions relating to persons prohibited from purchasing or possessing firearms as a result of mental illness, see our Mental Health Reporting policy summary. [↩]
4. Persons subject to restraining orders are prohibited from possessing firearms provided that the order: (1) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; and (2) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child, or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. 18 U.S.C. § 922(d)(8). For more information on the prohibition on purchase and possession of firearms by persons subject to a domestic violence protective order, see our Domestic Violence and Firearms policy summary. [↩]
5. 18 U.S.C. § 922(b)(1), (d), (x)(1). Federal law does not prohibit persons with other misdemeanor convictions from purchasing firearms. Misdemeanor convictions have been found to be a risk factor for future criminal activity among handgun owners. Garen J. Wintemute et al., Prior Misdemeanor Convictions as a Risk Factor for Later Violent and Firearm-Related Criminal Activity Among Authorized Purchasers of Handguns, 280 JAMA 2083 (1998). For more information on the prohibition on purchase and possession of firearms by domestic violence misdemeanants, see our Domestic Violence and Firearms policy summary. [↩]
6. Federal law requiring background checks for all dealer sales does apply in Vermont, however, as it does in all other states. [↩]
7. Ala. Code § 13A-11-72. [↩]
8. Alaska Stat. § 11.61.200. [↩]
9. Ariz. Rev. Stat. §§ 13-904(A)(5), (H), 13-3101(A)(7), 13-3102(A)(4), 13-3113. [↩]
10. Ark. Code Ann. § 5-73-103. [↩]
11. Cal. Penal Code §§ 23515, 29800-30010; Cal. Welf. & Inst. Code §§ 8100, 8101, 8103, 8105. [↩]
12. Colo. Rev. Stat § 18-12-108. [↩]
13. Conn. Gen. Stat. §§ 29-36k, 29-36n, 29-38c, 53-202aa(a), 53a-217, 53a-217c. [↩]
14. Del. Code Ann. tit. 11, § 1448. [↩]
15. D.C. Code Ann. §§ 7-2502.02 – 7-2502.03, 7-2502.08, 22-4503. [↩]
16. Fla. Stat. Ann. §§ 790.23, 790.233, 790.235. [↩]
17. Ga. Code Ann. §§ 16-11-131. [↩]
18. Haw. Rev. Stat. Ann. § 134-7. [↩]
19. Idaho Code Ann. § 18-3316. [↩]
20. 405 Ill. Comp. Stat. 5/1-116, 430 Ill. Comp. Stat. 65/2, 4, 8, 8.2. [↩]
21. Ind. Code Ann. §§  35-47-4-5, 35-47-4-6, 35-47-14-1 – 35-47-14-9. [↩]
22. Iowa Code § 724.26. [↩]
23. Kan. Stat. Ann. §§ 21-6301(a)(10), (13), 21-6304. [↩]
24. Ky. Rev. Stat. Ann. §§ 237.070, 527.040. [↩]
25. La. Rev. Stat. Ann. § 14:95.1. [↩]
26. Me. Rev. Stat. Ann. tit. 15, § 393. [↩]
27. Md. Code Ann., Pub. Safety §§ 5-101, 5-133, 5-205, 5-206. [↩]
28. Mass. Gen. Laws ch. 140, §§ 129B, 129C,  129D, 131, 131E, 131F. [↩]
29. Mich. Comp. Laws §§ 28.422, 28.426, 750.224f. [↩]
30. Minn. Stat. §§ 518B.01, 609.224, 609.2242, 609.749, 624.713, 624.719. [↩]
31. Miss. Code Ann. §§ 97-37-5. [↩]
32. Mo. Rev. Stat. § 571.070. [↩]
33. Mont. Code Ann. §§ 45-8-313. [↩]
34. Neb. Rev. Stat. Ann. § 28-1206. [↩]
35. Nev. Rev. Stat. Ann. § 202.360. [↩]
36. N.H. Rev. Stat. Ann. §§ 159:3, 173-B:5. [↩]
37. N.J. Stat. Ann. §§ 2C:1-4, 2C:39-7. [↩]
38. N.M. Stat. Ann. § 30-7-16. [↩]
39. N.Y. Penal Law §§ 265.00, 265.01, 400.00. [↩]
40. N.C. Gen. Stat. §§ 14-415.1, 14-415.3, 14-269.8. [↩]
41. N.D. Cent. Code § 62.1-02-01. [↩]
42. Ohio Rev. Code Ann. §§ 2923.13. [↩]
43. Okla. Stat. tit. 21, § 1283. [↩]
44. Or. Rev. Stat. §§ 166.250(1)(c), 166.270. [↩]
45. 18 Pa. Cons. Stat. § 6105. [↩]
46. R.I. Gen. Laws §§ 11-47-5, 11-47-6, 11-47-7. [↩]
47. S.C. Code Ann. § 16-23-30. [↩]
48. S.D. Codified Laws §§ 22-14-15, 22-14-15.1, 22-14-15.2. [↩]
49. Tenn. Code Ann. §§ 39-17-1307, 39-17-1321. [↩]
50. Tex. Penal Code Ann. § 46.04. [↩]
51. Utah Code Ann. § 76-10-503(1)-(3). [↩]
52. Va. Code Ann. §§ 18.2-308.1:1 – 18.2-308.1:3, 18.2-308.2-18.2-308.2:01(b). [↩]
53. Wash. Rev. Code Ann. §§ 9.41.010, 9.41.040, 9.41.171, 9.41.175. [↩]
54. W. Va. Code § 61-7-7. [↩]
55. Wis. Stat. §§ 51.20 (13)(cv), 51.45(13)(i)(1), 54.10(3)(f)(1), 55.12(10)(a), 941.29. [↩]
56. Wyo. Stat. Ann. §§ 6-8-102, 6-8-404. [↩]
57. For a list of state laws that prohibit sale or transfer of a firearm to individuals who are prohibited from possessing them under state law, see the Firearms Trafficking policy summary. [↩]
58. Alaska Stat. § 11.61.200(a)(4) (individuals impaired by alcohol or drugs). [↩]
59. Ark. Code § 5-73-132 (all federally prohibited possessors). [↩]
60. Del. Code Ann. tit. 24, § 903 (intoxicated individuals). [↩]
61. Ind. Code §§ 35-47-2-7, 35-47-4-1 (handguns only) (certain felons, certain juvenile offenders, drug and alcohol abusers, the mentally incompetent). [↩]
62. Iowa Code § 724.15 (handguns only) (all federally prohibited possessors). [↩]
63. Miss. Code Ann. §§ 41-30-30, 97-37-14 (intoxicated individuals). [↩]
64. N.J. Stat. Ann. §§ 2C:1-4, 2C:58-3 (certain juvenile offenders, alcohol abusers). [↩]
65. N.C. Gen. Stat. §§ 14-402, 14-404 (handguns only)(drug abusers, the mentally ill, protective order defendants). [↩]
66. Okla. Stat. tit. 21, §§ 1289.10, 1289.12 (mentally or emotionally disturbed, under influence of drugs or alcohol). [↩]
67. Or. Rev. Stat. § 166.470 (certain violent misdemeanants). [↩]
68. Tenn. Code Ann. § 39-17-1316 (stalkers, addicted to alcoholic, certain mentally ill). [↩]
69. Tex. Penal Code Ann. § 46.06(a)(3) (intoxicated individuals). [↩]
70. Va. Code Ann. § 18.2-308.1:4, 18.2-308.1:5 (protective order defendants (all firearms), certain drug misdemeanants (handguns) ). [↩]
71. This list does not include states like Virginia whose firearm prohibition for misdemeanants only applies to drug misdemeanants.  Those states are included in the list below entitled, “States that restrict access to firearms by drug abusers, misdemeanants, and/or persons under the influence of controlled substances.” [↩]
72. 18 U.S.C. § 922. See also supra note 3. [↩]
73. Even under state laws defining mental illness more broadly than federal law, states may not properly report mental health records to agencies conducting background checks. Additional information on the availability of mental health records for background checks is contained in our Mental Health Reporting policy summary. [↩]
74. 27 C.F.R. § 478.11. [↩]
75. The prohibition applies only if the psychotherapist complies with a state law requiring him or her to notify local law enforcement of the threat.  Cal. Welf. & Inst. Code §§ 8100, 8105.  The person may, however, possess a firearm if a Superior Court finds that the person is likely to use a firearm in a safe and lawful manner.  Cal. Welf. & Inst. Code § 8100. [↩]
76. The person may, however, possess a firearm if a Superior Court finds that the person is likely to use a firearm in a safe and lawful manner.  Cal. Welf. & Inst. Code § 8103(f). [↩]
77. In Illinois, no person may acquire or possess any firearm or ammunition without a valid FOID card. Upon request by the Illinois Department of State Police (DSP), applicants must sign a release waiving any right to confidentiality and requesting disclosure to the DSP of “limited mental health institution admission information” from another state, the District of Columbia or a foreign country. No mental health treatment records may be requested. The information must be destroyed within one year of receipt. 430 Ill. Comp. Stat. 65/4(a)(3). [↩]
78. This list does not include states that only prohibit mentally ill individuals from possessing firearms if they have been found not guilty by reason of insanity or incompetent to stand trial in a criminal case. [↩]
79. In 2010, Wyoming enacted a “Firearms Freedom Act” purporting to exempt from federal regulation any firearm manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming. The Act prohibits possession of such firearms by certain mentally ill individuals. [↩]
80. Other states authorize, but do not require, issuance of domestic violence protective orders that prohibit firearm purchase or possession. For more information on these and other state laws governing access to firearms by domestic abusers, see our Domestic Violence and Firearms policy summary. [↩]
81. This list does not include states, such as South Dakota and Washington, that only prohibit drug users from possessing firearms if they have been convicted of a felony drug offense. [↩]
82. The database cross-references firearm transfer records against a list of individuals who have become ineligible to own or possess firearms.  This information can be shared with a limited group of public and private entities and individuals, including law enforcement, for the purpose of determining if persons are armed yet prohibited from possessing firearms. [↩]
83. Colorado requires the Department of Corrections to notify certain inmates upon discharge that they are prohibited from possessing firearms.  West Virginia requires any person who has been adjudicated as a mental defective or involuntarily committed to a mental institution to be “duly notified” that he or she must surrender any firearms he or she owns. [↩]
84. Additional information about laws governing minimum age to purchase and possess firearms is contained in the Minimum Age to Purchaser and Possess Firearms policy summary. [↩]
85. Additional information about laws limiting sales to prohibited individuals is contained in the Firearms Trafficking policy summary. [↩]