Background Checks For Firearms: A Historical Legal Perspective

Background checks for firearms in the US have been conducted through the National Instant Criminal Background Check System (NICS) since November 1998. The NICS was established as a result of the Brady Handgun Violence Prevention Act of 1993, which amended the Gun Control Act of 1968 to require background checks for the purchase of firearms from a retailer. The NICS is operated by the FBI and used by Federal Firearms Licensees (FFLs) such as gun shop owners, pawn shop dealers, and retailers to determine whether a person can legally buy or own a firearm. While background checks are not required for intrastate firearm transfers between private parties, federal law states that only FFL holders may transport a firearm across state lines for the purpose of sale.

The National Instant Criminal Background Check System (NICS)

Operated by the FBI, NICS was developed with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and state and local law enforcement agencies. The system was launched in 1998 and is currently used by 30 states and five districts, as well as the District of Columbia, to check the backgrounds of those wishing to purchase firearms. Those states that opt not to use the NICS have their own point of contact (POC) to complete background checks.

The NICS applies a person's identifying characteristics, including name and date of birth, to its own index, as well as the National Crime Information Center (NCIC) database and the Interstate Identification Index. These systems compare the intended purchaser's demographic information against national databases to see if they match someone deemed a prohibited person. Prohibited persons include those who are or were:

• Convicted of a crime punishable by imprisonment for a year or more
• Fugitives from justice
• Users of or addicted to a controlled substance
• Adjudicated as a mental defective or committed to a mental health institution
• Aliens admitted to the U.S. under a nonimmigrant visa
• Dishonorably discharged from the U.S. Armed Forces
• Renounced their U.S. citizenship
• Subject to a court order restraining their interactions with an intimate partner or child
• Convicted of domestic violence

When purchasing a firearm, the buyer must complete a Firearm Transaction Record, or ATF Form 4473, which requires the intended purchaser's name, address, and birth date, as well as a government-issued photo ID. Once the form is completed, the gun seller can call the 1-800 number for NICS or use the online system to run the background check. In most cases, the results are almost immediate, with the system either approving, delaying, or denying the purchase within minutes.

If there is a delay, the NICS and FBI investigate the inquiry over the next three days. If the FFL does not hear anything within that time frame or if a determination cannot be made, then the retailer can choose to proceed with the firearm transfer. This is often referred to as a "default proceed" sale.

In the case of a denial, which occurs in about two percent of background checks, the retailer is unable to sell or transfer the firearm to the individual in question. The buyer must submit a request to the NICS to receive the reason for the denial, which is most commonly due to a history of felony conviction. If the buyer believes the denial is erroneous, they can appeal the decision by completing a Voluntary Appeal File (VAF), either online or by mailing their request to the FBI, along with their fingerprints.

The Brady Handgun Violence Prevention Act

The Brady Act was introduced by U.S. Representative Chuck Schumer of New York and was a landmark legislative enactment during the Clinton administration. The Act amended the Gun Control Act of 1968, requiring background checks for the purchase of firearms from a retailer. It also led to the development of the NICS, which is currently the law on background checks for gun purchases in the U.S.

The NICS, operated by the FBI, is a system that firearm dealers, manufacturers, or importers with a Federal Firearms License (FFL) use to determine whether a person can legally buy or own a firearm. Under the system, FFL holders are required to conduct a background check on prospective buyers before transferring a firearm. The NICS is not intended to be a gun registry but is a list of persons prohibited from owning or possessing a firearm. By law, upon successfully passing the background check, the buyer's details are to be discarded, and no record of the firearm purchase is made on the NICS. However, as an FFL holder, the seller is required to keep a record of the transaction.

The Brady Act mandates that FFL dealers run background checks on their buyers. At first, the law applied only to handgun sales, but since 1998, when the NICS was implemented, it has applied to all firearms purchases from FFL dealers, including long guns. A prospective buyer from an FFL dealer must complete and sign an ATF Form 4473 - Firearms Transaction Record, and then the FFL dealer contacts the NICS by telephone or the Internet to initiate the background check. When the background check is initiated, three databases are accessed: the National Crime Information Center (NCIC), the Interstate Identification Index (III), and the NICS Index. According to the FBI, checks are usually determined within minutes of initiation. If there is no match in any of the checked databases, the dealer is cleared to proceed with the transfer. Otherwise, the FBI's NICS Section must contact the appropriate judicial and/or law enforcement agencies for more information. Per the Brady Act, the FBI has three business days to make its decision to approve or deny the transfer. If the FFL dealer has not received the decision within that time, they may legally proceed with the transaction.

The Brady Act was named after James Brady, who was press secretary to President Ronald Reagan. On March 30, 1981, Brady and President Reagan, along with Secret Service agent Tim McCarthy and District of Columbia police officer Thomas Delehanty, were shot during an assassination attempt by John Hinckley Jr. Brady was shot in the head and suffered a serious wound that left him partially paralyzed for life. John Hinckley Jr. had bought the revolver used in the shooting at a pawn shop in Texas, and his purchase application included a false home address and an old Texas driver's license. Additionally, Hinckley had been arrested four days earlier at an airport in Nashville, Tennessee, when he attempted to board a flight with handguns and ammunition in his carry-on bag. According to Sarah Brady, James Brady's wife, if a background check had been conducted on Hinckley, it could have detected his criminal and mental health history.

Gun Control Act of 1968

The Gun Control Act of 1968 (GCA) was a U.S. federal law that regulated the firearms industry and gun ownership. It was signed into law by President Lyndon B. Johnson on October 22, 1968, and was the first major gun control measure in 30 years. The GCA was primarily based on regulating interstate commerce in firearms, generally prohibiting interstate firearms transfers except by manufacturers, dealers, and importers licensed under a scheme set up under the Act.

The GCA was prompted by the assassinations of President John F. Kennedy, Attorney General Robert Kennedy, and Dr. Martin Luther King Jr. The bill had been floating around Congress for several years, with discussions beginning after the JFK assassination in 1963. The GCA imposed stricter licensing and regulation on the firearms industry, established new categories of firearms offenses, and prohibited the sale of firearms and ammunition to felons and certain other "prohibited persons". It also imposed the first federal jurisdiction over "destructive devices," including bombs, mines, and grenades.

The GCA banned interstate shipments of firearms and ammunition to private individuals, sales of guns to minors, drug addicts, and "mental incompetents," and convicted felons. It also strengthened the licensing and record-keeping requirements for gun dealers, banning the importation of foreign-made surplus firearms except those suitable for sporting purposes.

The GCA was amended in 1993 by the Brady Handgun Violence Prevention Act, which introduced a background check requirement for prospective gun purchasers by licensed sellers. This act also created the National Instant Criminal Background Check System (NICS) to prevent firearms sales to prohibited people.

Federal Firearms Act of 1938

Background checks for gun purchases have been a topic of discussion as early as the 1930s, but it wasn't until the Federal Firearms Act of 1938 (FFA) that the first significant restrictions on gun sales were implemented. This landmark legislation imposed a federal license requirement on those in the business of manufacturing, importing, and selling firearms. The key provisions of the FFA included:

Federal Firearms License (FFL): The FFA mandated that individuals and businesses involved in the firearms industry obtain a federal firearms license. This license, also referred to as FFL, was required for gun manufacturers, importers, and sellers.

Customer Record-Keeping: Licensees were required to maintain records of their customers' purchases. This included collecting and retaining information such as the name and address of individuals who purchased firearms.

Prohibited Persons: The FFA made it illegal to transfer firearms to certain classes of individuals, commonly referred to as "prohibited persons" or "prohibited purchasers." This category included convicted felons, who were now prohibited by law from owning, purchasing, or possessing firearms.

Enforcement: The FFA was enforced by the Alcohol Tax Unit, a precursor to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

While the FFA was a significant step towards regulating the firearms industry, it was later repealed by the Gun Control Act of 1968 (GCA). However, many of its provisions were reenacted and expanded upon in the GCA, which continued to evolve with subsequent amendments and legislation.

The history of gun control legislation in the United States is complex and ongoing, with various acts and amendments being introduced over the years to address the issue of gun violence. The Federal Firearms Act of 1938 played a pivotal role in establishing the framework for regulating the firearms industry and restricting the sale of firearms to certain individuals.

Fix NICS Act of 2017

Background checks for firearms became law in 1993 with the Brady Handgun Violence Prevention Act. This act required a national name-check system for federal firearms licensees (FFL). The National Instant Criminal Background Check System (NICS) was subsequently launched by the Federal Bureau of Investigation (FBI) in 1998.

The Fix NICS Act of 2017 was introduced in the 115th United States Congress following the Sutherland Springs church shooting. The gunman, Devin Patrick Kelley, was prohibited by law from purchasing or possessing firearms and ammunition due to a domestic violence conviction in a court-martial while in the United States Air Force. However, the Air Force failed to record the conviction in the FBI's National Crime Information Center database, which the NICS uses to flag prohibited purchases.

The Fix NICS Act of 2017 aims to address such issues by amending the Brady Handgun Violence Prevention Act and other relevant legislation to improve information-sharing and record-keeping. Specifically, the Act:

• Requires federal agencies and departments, including federal courts, to certify whether they have provided the NICS with disqualifying records of individuals prohibited from receiving or possessing firearms.
• Mandates that these entities establish and comply with an implementation plan to maximize record submissions and verify their accuracy.
• Modifies the NICS Act Record Improvement Program (NARIP) to include a domestic abuse and violence prevention initiative as a priority area for grant funding. It also creates funding preferences for states with implementation plans that use grant funds to upload felony conviction and domestic violence records.
• Amends the Crime Identification Technology Act of 1998 to modify the National Criminal History Improvement Program (NCHIP). It specifies that facilitating full participation in the NICS includes increasing efforts to pre-validate felony conviction and domestic violence records. The Act also allows the federal share of an NCHIP grant to exceed 90% of program costs if a state complies with its implementation plan.
• Directs the Department of Justice (DOJ) to establish an implementation plan with benchmarks to maximize the automation and submission of mental health and criminal history records to the NICS, in coordination with state and tribal governments.
• Requires the DOJ to conduct and publish compliance determinations for state and tribal governments and gives preference to certain discretionary grant applicants that comply with an implementation plan.
• Mandates that the NICS notify law enforcement agencies when a firearm is transferred to an individual subsequently found to be prohibited from receiving or possessing a firearm.
• Requires the DOJ's Bureau of Justice Assistance to report to Congress on the use of bump stocks in crimes, including the types of firearms involved and the number of instances.

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