Firearm Background Checks: When Did Legal Regulation Begin?

The topic of firearm background checks has been a highly debated issue in the United States for decades. While background checks for gun purchases were first introduced after the Civil War to suppress the freedoms of Black Americans, the modern conversation around firearm background checks began in the 1930s. The Federal Firearms Act of 1938 was the first to restrict the sale of firearms, requiring sellers to obtain a Federal Firearms License (FFL) and maintain a list of purchasers. In 1968, the Gun Control Act mandated that all firearm dealers hold an FFL and created a system to prevent prohibited persons from buying guns. However, it wasn't until 1993 that the Brady Handgun Violence Prevention Act, also known as the Brady Act, required background checks for the purchase of firearms from retailers. This act also led to the development of the National Instant Criminal Background Check System (NICS), which was launched in 1998 and is currently the law for gun background checks in the U.S.

The National Instant Criminal Background Check System (NICS)

When an FFL initiates a NICS transaction, a name check is conducted to search three national databases for possible matches. These databases are the National Crime Information Center (NCIC), which contains information on wanted persons, protection orders, and other persons identified as relevant to the NICS searches; the Interstate Identification Index (III), which accesses criminal history records; and the NICS Indices, which contain information on prohibited persons as defined in the Gun Control Act of 1968, as amended.

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 a record of the firearm purchase is not to be made on NICS. However, as an FFL holder, the seller is required to keep a record of the transaction.

Nearly 30 million NICS background checks were performed in 2023. Since its conception, NICS has completed over 300 million background checks and has issued more than 1.3 million denials. The NICS is available 17 hours a day, seven days a week, except for Christmas Day.

The NICS was launched by the Federal Bureau of Investigation (FBI) in 1998. It is located at the FBI's Criminal Justice Information Services Division in Clarksburg, West Virginia. The NICS is currently used by 30 states and five districts, as well as the District of Columbia, to check the backgrounds of those who wish to purchase firearms. Those states that opt not to use the NICS have their own point of contact (POC) to complete background checks.

The Brady Handgun Violence Prevention Act of 1993

The Brady Act was introduced in response to the attempted assassination of President Ronald Reagan in March 1981, in which White House press secretary James Brady was seriously wounded. Brady's wife, Sarah, subsequently became an advocate for gun control and helped spearhead the push to pass the legislation. The Act was also a landmark legislative enactment during the Clinton administration.

The Brady Act amended the Gun Control Act of 1968 to require background checks for the purchase of firearms from retailers. It established the NICS, operated by the FBI, which conducts background checks on prospective gun buyers to prevent firearm sales to individuals prohibited under the Act. These include people who:

• Have been convicted of a crime punishable by more than one year in prison
• Are fugitives from justice
• Are unlawful users of or addicted to controlled substances
• Have been adjudicated as mentally defective or committed to a mental institution
• Are aliens admitted to the U.S. under a nonimmigrant visa
• Have been dishonorably discharged from the U.S. Armed Forces
• Have renounced their U.S. citizenship
• Are subject to a court order restraining their interactions with an intimate partner or child
• Have been convicted of domestic violence
• Are under indictment for a crime punishable by more than one year in prison

Under the Brady Act, firearm dealers, manufacturers, or importers with a Federal Firearms License (FFL) are required to initiate a NICS background check on prospective buyers. The NICS checks the individual's identifying characteristics, such as name and date of birth, against its own index and other national databases to determine eligibility. In most cases, the results are immediate, and the system either approves, delays, or denies the purchase within minutes. If there is no determination within three business days, the transfer may legally proceed.

The NICS is not intended to be a gun registry, and by law, the buyer's details are to be discarded upon successful completion of the background check. However, the seller is required to keep a record of the transaction. As of 2014, over 202 million Brady background checks have been conducted, resulting in approximately 1.2 million blocked firearm purchases (about 0.6%).

Gun Control Act of 1968

The Gun Control Act of 1968 (GCA) was a response to a series of high-profile assassinations in the 1960s, including that of President John F. Kennedy, Attorney General Robert Kennedy, and Dr. Martin Luther King Jr. The GCA was signed into law by President Lyndon B. Johnson on October 22, 1968, and it regulates the firearms industry and firearms ownership.

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. This marked the first time that federal jurisdiction was imposed on "destructive devices," including bombs, mines, grenades, and similar weapons. The Act also established new categories of firearms offenses and prohibited the sale of firearms and ammunition to felons and certain other "prohibited persons."

Under the GCA, gun purchases became illegal for those who:

• Had been convicted of a non-business-related felony
• Were found to be mentally incompetent
• Were users of illegal substances

To purchase a firearm, individuals had to complete a questionnaire of yes/no questions, such as "Are you a convicted felon?" and "Are you a fugitive from justice?" However, these answers did not require verification from the gun seller. The GCA also mandated the licensing of individuals and companies engaged in the business of selling firearms, effectively prohibiting the direct mail order of firearms (except antique firearms) by consumers.

The GCA was later amended by the Brady Handgun Violence Prevention Act of 1993, which introduced a background check requirement for prospective gun purchasers by licensed sellers, and created a list of categories of individuals to whom the sale of firearms is prohibited.

Federal Firearms Act of 1938

Background checks for gun purchases in the US were first discussed in the 1930s, but it wasn't until 1993 that the Brady Handgun Violence Prevention Act mandated a national name-check system for federal firearms licensees.

However, the Federal Firearms Act of 1938 was the first legislation to restrict the sales of firearms. It imposed a federal license requirement on gun manufacturers, importers, and those selling firearms. The term "Federal Firearms Licensee" (FFL) is used to refer to those on whom the license requirement is imposed, and the license itself.

In addition to the licensing component, the FFA required licensees to maintain customer records and made it illegal to transfer firearms to certain classes of people, such as convicted felons. These classes of people were referred to as "prohibited persons", and the circumstances resulting in prohibition were referred to as "disabilities".

The FFA was enforced by the Alcohol Tax Unit, one of the precursors to the Bureau of Alcohol, Tobacco, Firearms and Explosives. It was eventually repealed by the Gun Control Act of 1968, though many of its provisions were reenacted as part of the new legislation.

Firearm Owners Protection Act (FOPA)

The Firearm Owners Protection Act (FOPA) of 1986 is a United States federal law that revised provisions of the Gun Control Act of 1968. The FOPA addressed abuses noted in a 1982 Senate Judiciary Subcommittee report, which found that the ATF was repeatedly inspecting FFL holders, giving rise to allegations of harassment.

The FOPA included the following reforms:

• Reopening interstate sales of long guns on a limited basis
• Legalization of ammunition shipments through the US Postal Service
• Removal of the requirement for record-keeping on sales of non-armor-piercing ammunition
• Federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal
• A ban on the sale of machine guns manufactured after the enactment date to civilians, restricting sales to the military and law enforcement
• ATF compliance inspections limited to once per year, with an exception for follow-up inspections in the case of multiple record-keeping violations

The FOPA also clarified the definition of "transport", stating that as long as an individual is legal to own a firearm at their origin and destination, they are also legal during their journey. This provision protects those transporting firearms for lawful purposes from local restrictions that would otherwise prohibit passage.

The FOPA was endorsed by the National Rifle Association (NRA) but faced opposition from police organizations, including the Federal Law Enforcement Officers Association, the Police Foundation, and the International Association of Chiefs of Police, among others.

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