Americans overwhelmingly support background checks for all gun sales to prevent individuals who have become prohibited under state and federal laws from possessing guns.
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 & Reporting Procedures policy page.
Since February 28, 1994, when the federal background check requirement became effective, more than 4 million applications have been denied for a firearm transfer or permit through the FBI’s background check system. In 2021, there were approximately 154,000 denials, of which nearly half were based on a felony conviction. 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, people convicted of felonies and domestic abuse and other ineligible people can legally buy guns—even though they would fail a background check if purchasing from an FFL.
Fortunately, 21 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
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. In most cases 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 usually 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.
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Though more than 90% of NICS background checks provide an answer within minutes, about 10% of cases require further investigation and review by FBI and ATF agents.5 Most of those background checks are completed within three business days, but about 3% of cases require more than three days of investigation and review. However, due to the federal “default proceed” rule, firearm dealers are usually authorized, if they choose, to complete a sale and deliver a firearm to a person who has not yet passed the background check, if more than three business days have elapsed since the dealer initiated the background check.
Background checks that are delayed tend to take longer for a reason; in 2019, they were more than four times more likely to involve purchasers who were legally prohibited from buying guns. They are especially likely to involve purchasers who are prohibited from accessing guns because of their history of domestic violence, in part due to the complexities of background checks in this area. (Federal law prohibits people from purchasing or possessing firearms if they have committed violent crimes against certain family or household members but not people who have perpetrated the same crimes against other people outside the context of that family or domestic relationship. As a result, if background check records indicate that a prospective gun buyer was convicted of a misdemeanor for violently assaulting a victim, but don’t specify the domestic relationship between the perpetrator and the victim, the FBI will have to conduct further review before they can make a final determination about the legality of the gun sale–this will often require contacting local, state or tribal courts or agencies for arrest, conviction, or hospitalization records, for instance, a process that can take time and depend on how quickly local agencies respond to the FBI with needed information. That’s why a US Government Accountability Office report found that from 2006-2015, nearly one-third of all background check denials involving people convicted of misdemeanor domestic violence offenses took longer than three business days. In other words, the Charleston Loophole made it possible for nearly one-third of people prohibited from owning guns because of their criminal domestic violence history to receive a firearm anyway.
The FBI has reported that that this “default proceed” provision allows thousands of prohibited purchasers to buy guns every year before their background check was completed.6 The FBI reported that the agency referred at least 5,203 prohibited purchasers to ATF for firearm recovery operations in 2021 alone after those individuals were able to illegally purchase firearms because their background checks had not been resolved within three business days.7 Note, however, that this number likely substantially undercounts the true number of prohibited purchasers able to acquire guns as a result of the Charleston Loophole because it only counts purchases where the FBI actually completed the background check. In 2020, however, the FBI did not report a final disposition for 77% of background check cases that took longer than three business days.8
In 2022, Congress enacted and President Biden signed a new law that requires the background check system to contact state juvenile justice and mental health repositories and local law enforcement whenever a person under age 21 tries to buy a gun.9 The repositories and local law enforcement then have three business days to identify whether there might be a potentially disqualifying record for the person. If there is a potentially disqualifying record for a person under age 21, NICS has ten business days from when the FFL first contacted the system for a background check to determine whether the person is disqualified from possessing a gun. These provisions, which only apply if the gun buyer is under age 21, will expire on September 30, 2032, unless Congress renews them.10
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.11
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.12 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.13 Recognizing the irresponsibility of the default proceed rule, some more responsible gun dealers, including Walmart, refuse to engage in default proceed transactions, making it a matter of policy to only sell firearms to people who have actually affirmatively passed a background check.14
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.15 Permits issued after November 30, 1998 qualify as exempt only if the approval process included a NICS check.16 The ATF determines which permits in each state do or do not qualify for the exemption.17
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.
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.18 This gap in the federal background check system allows prohibited individuals to purchase firearms without effective background checks using fake or forged identification documents.19 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.20 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.21
Notice of NICS Denials
Beginning in 2022, the Attorney General is required to notify local law enforcement—in the state the person attempted to purchase the firearm and, if different, in the state the person resides—whenever a person fails a NICS background check to buy a gun.22
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), 25 states issue permits or licenses that exempt the holder from the federal background check requirement at the point of sale, referred to as Brady Permits. For one of these permits to qualify as a background check alternative, it must have been issued within the last five years.23
Brady Permit States
- 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, both optional as of 7/1/21)
- 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)
- 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 (concealed weapons 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)
- South Dakota (gold card and enhanced permits issued on or after 1/1/17)
- Texas (concealed weapons permits)
- Utah (concealed weapons permits)
- 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.24 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.25
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.26 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
Multiple states require people to obtain a permit or license, pursuant to a background check, in order to acquire or possess firearms. Massachusetts, for instance, requires a license for the purchase of any firearm, and requires gun dealers prior to transferring firearms to verify the validity of a potential transferee’s license a firearm through electronic contact with a state database. Illinois requires unlicensed sellers to contact the State Police at the point of sale to verify the that the transferee’s firearms license remains valid, and requires the State Police to continuously monitor relevant databases to ensure that license holders remain eligible to keep their firearm license.27 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.
Extensions for Background Checks under State Laws
As noted above, in most cases under federal law, 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. In response to this massacre, in 2016, Delaware passed a law prohibiting a dealer from transfering a firearm until a background check clears or 25 days has elapsed since the dealer requested the background check.28
Several states extend the time allowed for completion of a background check by:
- Prohibiting dealers from transferring a firearm until a background check clears or after the expiration of a certain amount of time greater than three days;
- Requiring prospective purchasers or owners to obtain a license prior to purchase or ownership and providing the licensing authority extra time to issue the license, and/or
- Requiring mandatory waiting periods before the purchaser can take possession of firearms.
State Laws Addressing the Default Proceeds Loophole (AKA “The Charleston Loophole”)
The following states have at least partially addressed the Charleston Loophole in federal law by prohibiting a dealer from transferring a firearm to a purchaser until a background check clears or at least providing law enforcement with a longer period of time to complete the background check before the dealer is authorized to complete the sale. Some states also impose waiting period or licensing requirements on the purchase of a firearm, which may in practice also have the impact of extending the amount of time law enforcement agencies have to complete firearm background checks. The time periods below refer to the period a dealer must wait prior to transferring a firearm in cases where a background check has not yet cleared:
- California, 30 days29
- Colorado, indefinite until a background check has cleared.30
- Delaware, 25 days31
- Florida, indefinite until a background check has cleared.32
- New York, 30 days (rifles and shotguns)33
- Oregon, indefinite until a background check has cleared.34
- Pennsylvania, indefinitely to determine whether a misdemeanor conviction involved domestic violence that would disqualify the purchaser under federal law.35
- Tennessee, 15 days if the purchaser has been charged with a crime that would make him or her ineligible to possess a firearm and there has been no final disposition of the case, or the final disposition is not noted.36
- Utah, indefinite until background check clears.37
- Virginia, five business days.38
- Vermont, seven business days.39
- Washington, 10 days for long guns;40 10, 30, or 60 days for handguns. If records indicate that a prospective handgun purchaser has an arrest for a potentially disqualifying offense, the purchase may not proceed without a completed background check for 30 days pending receipt of the disposition, or longer upon a judicial order for good cause.41 If a handgun purchaser does not have a valid permanent Washington driver’s license or state identification card or has not been a resident of the state for the previous consecutive 90 days, the purchase may not proceed without a completed background check for 60 days.42
Adding Time for a Background Check through Licensing and Registration 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.
- Connecticut, 90 days for handguns43; 60 days for long guns44
- District of Columbia, 60 days to issue registration certificate45
- Hawaii, 20 days46
- Illinois, 30 days47
- Maryland, 30 days to issue license upon approval or denial notification (handguns only). The law does not state, however, that the transaction must proceed at the expiration of the 30 day period.48
- Massachusetts, 40 days49
- Michigan, No specific time frame given but the licensing authority must issue handgun licenses with “due speed and diligence.”50
- Minnesota, 30 days51
- New Jersey, 30 days (45 days for non-residents)52
- New York, 180 days (handguns only)53
Adding Time for a Background Check through Waiting Period Laws
States may also impose mandatory waiting periods before a purchaser may take possession of a firearm. These waiting periods also give state and federal agencies more time to process a background check. For more information about state waiting period laws, visit our policy page on Waiting Periods.
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.54 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.55
- 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.56
- 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.57
- 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.
- Categories of persons who are prohibited from possessing firearms under federal and state law are detailed in our summary on Categories of Prohibited People.
- 18 U.S.C. § 922(t).
- Connor Brooks, “Background Checks for Firearm Transfers, 2018,” US Department of Justice: Bureau of Justice Statistics (2021), https://bjs.ojp.gov/content/pub/pdf/bcft18.pdf.
- 18 U.S.C. § 922(t)(1).
- Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operational Report 2020-2021, at https://www.fbi.gov/file-repository/nics-2020-2021-operations-report.pdf/view.
- See, e.g., Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, National Instant Criminal Background Check System (NICS) Operational Report 2020-2021, at https://www.fbi.gov/file-repository/nics-2020-2021-operations-report.pdf/view.
- 18 U.S.C. § 922(t)(1)(C); 34 U.S.C. § 40901(l).
- Bipartisan Safer Communities Act, Pub. L. No. 117-159, sec. 12001, 136 Stat. 1313, 1324 (2022).
- U.S. General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System 13 (Feb. 2000), at https://www.ojp.gov/ncjrs/virtual-library/abstracts/gun-control-implementation-national-instant-criminal-background.
- 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 https://www.nejm.org/doi/full/10.1056/NEJMp1300512?.
- 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://www1.nyc.gov/office-of-the-mayor/news/374-08/mayor-bloomberg-final-settlement-groundbreaking-litigation-against-gun-dealers-caught.
- 18 U.S.C. § 922(t)(3); 27 C.F.R. § 478.102(d).
- 27 C.F.R. § 478.102(d).
- 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.
- 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.
- 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 https://web.archive.org/web/20091128023131/http://www.mayorsagainstillegalguns.org/downloads/pdf/polling_memo.pdf.
- 18 U.S.C. § 925B.
- Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice, Permanent Brady Permit Chart (Last updated March 3, 2020), 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.
- 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.
- Concealed handgun license holders in Rhode Island are exempt from the Rhode Island background check requirement, but not the federal background check requirement.
- 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.
- See 2021 IL HB 562; 430 ILCS 65/3(a-10).
- Del. Code Ann. tit. 11, § 1448A(b).
- Cal. Penal Code § 28220(f)(4).
- Colo. Rev. Stat. § 18-12-112.5.
- Del. Code Ann. tit. 11, § 1448A(b).
- Fla. Stat. § 790.0655(1). See also, Fla. Stat. § 790.065(2)(b).
- N.Y. Penal Law § 400.20. At the point of sale, handguns are also subject to a 30 day default proceed duration. However, in order to purchase a handgun in New York, a person must first obtain a license. The New York state police has up to 180 days to issue a license. N.Y. Penal Law § 400.00(4-a).
- Or. Rev. Stat. § 166.412(3)(c) (as amended by 2022 OR Ballot Measure 114, Section 6).
- 18 Pa. Cons. Stat. Ann. § 6111(b)(7).
- Tenn. Code Ann. § 39-17-1316(n)-(p).
- Utah Code Ann. § 76-10-526(5)(b).
- Va. Code Ann. § 18.2-308.2:2(B)(2).
- Vt. Stat. Ann. tit. 13, § 4019(d)(2).
- Wash. Rev. Code Ann. § 9.41.092(1)(b).
- Wash. Rev. Code Ann. §§ 9.41.092(1)(b); 9.41.090(5).
- Wash. Rev. Code Ann. § 9.41.092(1)(b).
- Conn. Gen. Stat. § 29-36g(b).
- Conn. Gen. Stat. § 29-37q(a).
- D.C. Code § 7-2502.07(b).
- Haw. Rev. Stat. Ann. § 134-2(e).
- 430 Ill. Comp. Stat. § 65/5.
- Md. Code Ann., Pub. Safety § 5-117.1(h)(1).
- Mass. Gen. Laws ch. 140, §§ 129B(2), (3), 131(e).
- Mich. Comp. Laws Serv. § 28.422(3).
- Minn. Stat. § 624.7131, subd. 5.
- N.J. Stat. Ann. § 2C:58-3(f).
- N.Y. Penal Law § 400.00(4-a). Even with a permit, handgun purchasers must undergo a background check when purchasing from a licensed dealer. These background checks have a 30 day default proceed duration. N.Y. Penal Law § 400.00(12).
- Conn. Gen. Stat. §§ 29-33(c), 29-37a(d); Fla. Stat. § 790.065(2)(a).
- Additional information on jurisdictions requiring universal background checks is contained in our policy page on Universal Background Checks.
- Additional information on records searched during the background check process is on our policy page on NICS and Reporting Procedures.
- Additional information on access to mental health records for firearm purchaser background checks is contained in our summary on Mental Health Reporting.