Comprehensive reporting improves our existing background checks system and keeps guns out of the hands of individuals at an elevated risk of committing violence.
A critical component of the federal background check process, the databases that make up the National Instant Criminal Background Check System allow gun dealers to quickly ascertain whether a potential purchaser falls into a prohibited category before going through with a gun sale. While the information NICS provides is essential to making sure guns stay out of the hands of individuals at an elevated risk of causing violence, states and federal agencies must do more to improve the process and ensure more thorough and effective background checks.
Keeping guns out of the hands of individuals with a high risk of committing violence—people convicted of felonies or domestic abuse, and those experiencing a mental health crisis—is crucial to preventing deadly shootings. By strengthening our existing background checks system, we can keep more deadly weapons from falling into the wrong hands, preventing shootings before they happen and saving lives.
For the Record: NICS & Public Safety
Dec 07, 2016
A set of databases maintained by the FBI, the National Instant Criminal Background Check System (NICS) is a crucial component in the fight against gun violence. NICS was created to implement the 1993 Brady Handgun Violence Prevention Act, which requires background checks for firearms sales and transfers conducted through a licensed dealer (though not when a sale is conducted by a seller who is unlicensed). Since the Brady Act took effect, background checks have stopped 3 million ineligible purchasers from obtaining a gun from a federally licensed dealer.1
In 2017 alone, NICS stopped 181,000 prohibited people attempting to buy guns from licensed dealers. 2 But far too many others are slipping through the cracks due to missing or incomplete background check records, often with deadly consequences. The FBI provides its own records of those who commit federal crimes, but the only way NICS receives records of state-level convictions, mental health adjudications, and other records is through voluntary submissions. As one would expect, some states do a far better job than others sharing this potentially lifesaving information.
Most NICS denials are due to felony or misdemeanor convictions. For example, between the end of 1998 and August 31, 2016, 735,527 people convicted of felonies and certain misdemeanors were denied after a NICS check.3 Unfortunately, data also shows that the records in NICS are incomplete, since states submit their records on a voluntary basis. The FBI estimates that, on average, about 3,000 people pass a NICS background check each year despite being prohibited under state or federal law from purchasing a gun.4 But this number could be even higher. It is essential that states improve the submission of records to NICS to maximize the effectiveness of background check laws, ensuring that people convicted of felonies and other people at elevated risk of committing violence do not have easy access to deadly weapons.
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State “Points of Contact” Can Access Additional Information
States have the option of requiring dealers to conduct background checks through state or local agencies, called “Points Of Contact,” instead of directly through the FBI. States that conduct their own background checks often search records and databases in addition to those that federal law requires to be searched. State databases typically include information that is incomplete in FBI databases, including outstanding felony warrants, mental health records, domestic violence restraining orders, and final disposition records (records that show whether an arrest resulted in an acquittal or a conviction). Research has found that the practice of conducting firearm purchaser background checks through state or local agencies, as opposed to through the FBI, is associated with reduced firearm death rates, especially with respect to suicides.5
Reporting Records Is Vital to Thorough Background Checks
Federal law cannot require states to make information identifying people ineligible to possess firearms available to the federal or state agencies that perform background checks,6 and many states fail to voluntarily report the necessary records to the proper databases. As a result, the information that is searched during a background check is often incomplete. This problem applies to every category of person prohibited from possessing firearms, including:
- Criminal History Records: A survey in December 2010 found that out of all 50 states, only 12 reported that 80% or more of their felony charges had a final disposition recorded in their criminal history databases.7 Without a disposition record, it cannot immediately be determined whether a person who was arrested for a crime was ultimately convicted of that crime and became prohibited from possessing firearms.
- Mental Health Records: States have also inconsistently reported records identifying people whose mental health histories prevent them from legally possessing firearms. (For more information about this issue, see our summary on Mental Health Reporting.)
- Drug Abuse Records: Federal law prohibits unlawful users and individuals addicted to illegal drugs from possessing firearms, and federal regulations define these terms to include any person found through a drug test within the preceding year to have used a controlled substance unlawfully.8 There are now hundreds of drug court programs across the country that require periodic drug testing, yet this positive test data is rarely available for firearm purchaser background checks.9 According to a November 2011 report by Mayors Against Illegal Guns, 44 states have submitted fewer than 10 records to the controlled substance file of a centralized nationwide database, and 33 states have not submitted any records at all.10
- Domestic Violence Records: Federal law prohibits firearm possession by individuals subject to a domestic violence protective order or who have been convicted of a domestic violence misdemeanor.11 Yet, states have had difficulty identifying and reporting individuals who fall within these categories.12 For more information about this issue, see our summary on Domestic Violence and Firearms.
In light of these significant reporting deficiencies, the FBI has strongly encouraged states to provide more complete records.13
Federal departments and agencies like the Department of Defense also produce records regarding criminal convictions and mental health adjudications that affect a person’s eligibility to possess firearms. Historically, there have been significant gaps in reporting to NICS by federal departments and agencies which, in some cases, has led to tragedy.14
Efficiency of NICS Checks
NICS background checks do not create a barrier to the legal sale or transfer of a gun. In 2015, the NICS call centers processed background checks in an average of just over two minutes.15 Calls transferred to NICS Examiners for further investigation were handled in less than eight minutes on average, including wait and processing time. The fastest processing time for a background check is through the NICS E-Check System, which averages less than two minutes.16 The vast majority of background checks are executed during the time it takes for a commercial break.
Summary of Federal Law
The Brady Act requires federally licensed firearms dealers to perform background checks on prospective firearms purchasers to ensure that the firearm transfer would not violate federal, state, or local law.17 Since 1998, the Brady Act has been implemented through the National Instant Criminal Background Check System (NICS).
The NICS Databases
NICS is comprised of several separate data systems: the National Crime Information Center, the Interstate Identification Index, and the NICS Index. In addition, the Department of Homeland Security’s US Immigration and Customs Enforcement databases are searched during a NICS check when a non-citizen attempts to buy a gun.
The National Crime Information Center
The FBI has maintained the National Crime Information Center (NCIC) since 1967.18 Among other things, law enforcement uses NCIC to learn crucial information about a person or property they encounter. For example, when a police officer stops a vehicle, he or she may check NCIC to determine whether the occupant of the vehicle is currently wanted for a crime and if the vehicle has been stolen. In addition to these types of records, NCIC contains domestic violence protective orders, missing person reports, fugitive records, and many others.
A NICS check includes a search of NCIC records because some records in the database, such as fugitive and domestic violence protective orders, result in firearms prohibitions. During a background check, the NICS system accesses NCIC to determine whether there is a match with a prohibiting record.
The Interstate Identification Index
Law enforcement, employers, professional licensing agencies, and others use the Interstate Identification Index (III) to check criminal backgrounds—essentially, III is a catalogue of identifying information about individuals who have been arrested or indicted anywhere in the country for a serious crime.19 Serious crimes include all felonies and some misdemeanors. Misdemeanors that are deemed to be minor crimes, such as trespassing or loitering, are generally not included in the III. The FBI has maintained the III since 1983. NICS accesses III during a background check search to determine whether a person has committed a felony or misdemeanor that would result in a firearm prohibition.
The NICS Index
Unlike NCIC and III, the FBI maintains the NICS Index solely for firearms background checks. The NICS Index functions as a catchall database for records that do not fit within NCIC or III but do indicate that an individual is prohibited from purchasing firearms.20 For example, mental health records are typically found only in the NICS Index because they do not fall into the categories contained in NCIC or III. On April 16, 2012, the functionality of the NICS Index was expanded to include state-prohibiting records, thereby providing the NICS Section and state users with the ability to effectively and efficiently identify people prohibited from possessing guns by state, as well as federal, law through NICS, provided states have reported those records to the NICS Index.21
In addition, because federal law prohibits gun ownership by a person who is unlawfully in the United States, has been admitted to the US under a nonimmigrant visa, or has renounced citizenship, a NICS check includes a search of the Department of Homeland Security’s US Immigration and Customs Enforcement databases, which contain records regarding non-US citizens.
How Does a NICS Check Work?
A Firearms Transaction Record, more commonly referred to as ATF Form 4473, is the first step in the background check process. Federal law requires a completed form for every firearm transfer conducted by a dealer.22 A transfer generally includes sale, gift, lease, loan, or disposal of a firearm. Form 4473 records the transferee’s name, address, and identifying information such as height, weight, and date of birth, which are matched against records in NICS. The transferee must show a valid government-issued photo ID and the dealer must record the type of ID, its identification number, and its expiration date on the form.
Matthew Miller, Lisa Hepburn & Deborah Azrael, “Firearm Acquisition Without Background Checks,” Annals of Internal Medicine 166, no. 4 (2017): 233–239.
As long as the transferee has adequately completed Form 4473, has not indicated on the form that he or she is a prohibited purchaser, has produced a valid ID, and the dealer has no reasonable cause to believe that the transferee is prohibited from possessing a firearm, the next step is for the dealer to contact the FBI’s NICS Operation Center by phone or online via the E-Check System.23
The dealer provides the Operation Center with the customer’s name and descriptive information as reported on Form 4473. In turn, the dealer must record the date of contact with NICS, the transaction number provided by NICS, and the response on Form 4473. Dealers must keep these forms for at least 20 years for completed transactions and for at least five years for incomplete transactions—dealers may discard the records after these time periods have passed. Note that these records are not centralized and are instead kept at the individual locations of the over 60,000 federally licensed dealers all across the United States. A gun lobby–backed appropriations rider prohibits the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the federal agency responsible for enforcing most federal gun laws, from consolidating or centralizing these records.24 This rule is part of a larger gun lobby effort to hamstring ATF efforts to regulate the gun industry.
Once the dealer has provided the identifying information, the system is searched to determine whether the purchaser matches any records in the data systems that make up NICS. If no matches are found, the dealer is instructed to proceed with the transfer of the firearm. The NICS check is valid for a single transaction for up to 30 calendar days from the date NICS was initially contacted.25 Federal law requires ATF to destroy the record of the NICS search within 24 hours when a transferee passes a NICS check. This requirement is another element of the gun lobby’s effort to thwart oversight of the gun industry.26
If a match, also known as a “hit,” is found, a NICS examiner may conduct a more thorough search of the records. After an investigation, the examiner will instruct the dealer to take one of three actions:
- An instruction to proceed at this point means there was no disqualifying record in any of the three databases that make up NICS.
- An instruction to deny means there was a match with a record indicating the transferee is prohibited under federal or state law.
- An instruction to delay signifies that there was a match, but more research is needed to determine if the match is accurate and/or if the record indicates a firearm prohibition.
If the dealer has not been notified within three business days that the sale would violate federal or state laws, the sale may normally proceed by default.27 Many ineligible people obtain access to firearms because the FBI is not able to complete the background check within this time frame and federal law allows the sale to proceed by default. For more information about this issue, see our summary on Background Check Procedures.
If the NICS background check determines the purchaser is ineligible to purchase or possess firearms, the Attorney General must notify local law enforcement–in the state the person attempted to purchase the firearm and, if different, in the state the person resides.28
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.29 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 to run the 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.30
NICS Improvement Amendments Act of 2007
In January 2008, President Bush signed into law the NICS Improvement Amendments Act of 2007, which, among other things, provided financial rewards and penalties to encourage states to provide to NICS information relevant to whether a person is prohibited from purchasing or possessing firearms.31 The act also authorized the attorney general to make grants to the states for use in establishing and upgrading the states’ ability to report information to NICS and to perform background checks pursuant to the Brady Act.32
According to the Government Accountability Office, 15 states received NICS Act grants during at least one fiscal year from 2009 to 2011.33
The NIAA and the Fix NICS Act of 2018 also contained provisions laying out reporting requirements for federal agencies and departments. Under these laws, federal departments or agencies which have information about people prohibited from possessing firearms must submit records at least quarterly to the Attorney General for inclusion in NICS.34 Agencies must submit a semiannual certification to the Attorney General detailing whether they are in compliance with reporting requirements, the number of records they have for each category, and the number they have submitted, as well as an annual report on compliance.35
By 2018, the head of each federal department or agency must have established a plan to ensure “maximum coordination and automated reporting or making available of records” during a 4-year period.36 Each plan must have qualitative goals and quantitative measures, measures to ensure compliance, a needs assessment, and an estimated date by which the agency or department will be in full compliance with NICS requirements.
The Attorney General must publish a semiannual report that lists agencies that are not in compliance with requirements, for reasons ranging from failing to certify the submission of all necessary data to failure to submit a coordination plan, detailing the reasons the department or agency has been found to not be in compliance.37 This report must also contain summary information of the data submitted by each department or agency and the details of each department’s coordination plan.38
The Attorney General can use funding earmarked for NICS to help improve compliance by federal departments or agencies by providing technical assistance.39 Political appointees to federal agencies and departments can also be rendered ineligible for bonus or overtime pay for their agency’s noncompliance with NICS reporting.40
The Department of Homeland Security in particular must report quarterly to NICS, specifying that it must also make a quarterly report of people who should be removed from NICS due to a change in citizenship or residency status (e.g., people who have become naturalized citizens or permanent residents during the latest reporting period.)41
The Attorney General is required to ensure that the information submitted to NICS is correct and confidential, and must remove incorrect or obsolete names in a timely manner.42
Health Insurance Portability and Accountability Act
In February 2016, the Health and Human Services Department issued a rule modifying the Health Insurance Portability and Accountability Act, or HIPAA, the federal law that protects the confidentiality of medical information. By expressly allowing certain state agencies to submit mental health records to NICS, the new rule clarifies that such submission does not violate federal privacy law. The rule protects the privacy of NICS mental health records by prohibiting the disclosure of any mental health data beyond the information that the individual is prohibited by law from purchasing a firearm.43
Summary of State Law
State Points of Contact
Background checks conducted by state or local authorities are more thorough than those performed by the FBI because states can access their own independent databases in addition to databases maintained by NICS. As noted above, states where state or local authorities conduct the background check are known as “point of contact” or “POC” states. Thirteen states use a state or local POC for all firearm transfers.44 Eight states use a state or local POC for handgun background checks only, using the FBI for background checks on long gun transfers.45 The remaining 29 states and the District of Columbia process all background checks through the FBI.46
Point of Contact States for All Firearms
- Delaware (effective no later than June 30, 2023)50
- Hawaii (via a Brady exemption)*
- New Jersey†
* Hawaii acts as a POC state for all firearm purchases because state law requires a gun dealer to ensure that the purchaser has the permit that state law requires for the purchase of any firearm, and which qualifies the purchaser for an exemption from the background check at the point of sale under federal law (a “Brady exemption”). County police chiefs in Hawaii must conduct a background check, including a search of NICS, prior to issuing a permit. In the other states that act as POCs for all firearm purchases, the dealer must contact a state or local agency to conduct the background check when the sale occurs.
† Although no state statute explicitly requires New Jersey to act as a POC, New Jersey authorities have chosen to do so.59 In addition, New Jersey requires the purchaser of a firearm to obtain a permit prior to the purchase; a background check is conducted prior to issuance of a permit.60 However, unlike Hawaii’s permit, New Jersey’s permit does not exempt the holder from the federally required background check at the point of sale. As a result, a dealer in New Jersey must contact the Division of State Police, which conducts the federally-required NICS check when the sale is conducted, and must also ensure that the purchaser has the permit that is required under state law.
** A law enacted in 2020 directs the Washington state patrol to establish a firearms background check unit to serve as a centralized single point of contact for dealers to conduct background checks for firearms sales or transfers.
Point of Contact States for Handguns
The following five states act as POC states for handguns only, because dealers must contact a state or local agency at the time of sale of a handgun. The state or local agency conducts the background check, including a search of NICS. In these states, dealers who are transferring long guns must contact the FBI directly for a NICS check.
* In Nebraska, a background check is not required at the point of sale of a firearm if the purchaser has already obtained a transferee permit, after a background check. The transferee permit qualifies the holder for an exemption from the federal background check requirement.
Point of Contact States for Handguns via a Brady Exemption
The following states act as POC states for all handgun sales because state law requires every handgun purchaser to obtain a permit from a state or local agency prior to purchasing a handgun. Under federal law, the permit qualifies the holder for an exemption from the federal background check at the point of sale, in part because the state or local agency conducts a background check, including a search of NICS, before issuing the permit. Permit holders in these partial POC states, like all holders of a permit that exempts the person from the federal background check requirement, may buy both handguns and long guns without a background check at the point of sale.
- North Carolina66
* If the seller of a handgun is not a federally licensed dealer, Michigan requires that the purchaser have either a valid handgun purchase license or a license to carry a concealed handgun. Background checks for both types of licenses are conducted through the Michigan Department of State Police. If the seller of the handgun is a federally licensed firearms dealer, the dealer contacts the FBI directly to conduct the background check.
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Laws Requiring or Authorizing the State to Act as a Point of Contact
Connecticut, Illinois, California and Washington67 have laws requiring the states to act as POCs. Colorado, and New Hampshire have laws explicitly authorizing the state to act as a POC, although the New Hampshire state agency has chosen to act as a POC for handgun sales only. Indiana’s law requires the state to act as a POC if federal funds are available to assist the state in participating in NICS. However, Indiana is not currently acting as a POC.
Laws Detailing the Procedure for a Background Check in POC States
Seventeen of the 21 POC states have laws explaining the procedure for the background check. These laws typically require the purchaser to fill out a firearm transfer application form (or an application for a Brady-exempt permit to purchase), present photo identification, and pay a fee. The dealer must then transmit the application to a state agency that conducts the background check. If the transfer is approved, the agency transmits an approval number to the dealer, who is prohibited from transferring the firearm until an approval number is received or the statutory time period has expired. Michigan, Nevada, New Hampshire, and New Jersey are the only POC states without laws that describe the procedure in this manner.
In California, dealers must obtain the purchaser’s name, date of birth, and driver’s license or identification number electronically from the magnetic strip on the license or ID card. When a purchaser or transferee seeks to obtain a handgun, he or she must present additional documentation indicating California residency.68 Virginia also requires all firearm purchasers to present additional documentation establishing residency.
Background Check Laws in Non-POC states
States That Incorporate the Federal Requirement
Four states (Alabama, Delaware, Georgia, Indiana) that do not act as POCs nevertheless facilitate enforcement of the federal background check requirement through a state law that reiterates that requirement. Indiana law also spells out that the dealer and purchaser must use Form 4473, the purchaser must present documentation of Indiana residency, and the dealer must contact NICS directly. Indiana’s law appears to apply only to handguns, although federal law requires that a similar procedure be used for long guns as well.
Independent State Background Check Requirements at the Point of Sale
Jennifer Karberg, et al., “Background Checks for Firearm Transfers, 2015—Statistical Tables,” US Department of Justice: Bureau of Justice Statistics (2017), https://www.bjs.gov/content/pub/pdf/bcft15st.pdf.
Minnesota and Rhode Island do not function as POCs, but they have their own independent background check requirements. 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.69
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.70 Since Minnesota is not a POC state and no Minnesota-issued permit qualifies the holder for a Brady exemption, the federal law requiring the dealer to contact the FBI directly for a NICS check also applies.
The Scope of the 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. 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.
Mental Health Records
Although persons who have been adjudicated as “mental defectives” or involuntarily committed to mental institutions are prohibited by federal law from possessing firearms, not all mental health records have been reported to NICS. (Detailed discussion of state laws governing mental health reporting is contained in our summary on Mental Health Reporting.) As a result of the inadequacy of the states’ reporting of mental health records to NICS, seven states explicitly require a search of in-state mental health files as part of the background check process (California, Connecticut,71 Illinois, Massachusetts, Minnesota, New York,72 Oregon, Pennsylvania, Washington).
Three states (Hawaii, Minnesota, New Jersey)73 require the purchaser to authorize a search of mental health files as part of the background check process.74
In Minnesota, the authorization also applies to certain alcohol and drug abuse records.
In Washington, a signed application to purchase a handgun constitutes “a waiver of confidentiality and written request that the department of social and health services, mental health institutions, and other health care facilities release, to an inquiring court or law enforcement agency, information relevant to the applicant’s eligibility to purchase a pistol.” This disclosure is mandatory.
Juvenile Court Records
As described in our summary on Categories of Prohibited People, a number of states prohibit firearm purchase or possession by individuals with certain juvenile convictions. In order to enforce these laws, Pennsylvania, Utah, and Wisconsin explicitly require a search of juvenile court records as part of a firearm purchaser background check. Colorado authorizes, but does not require, the disclosure of juvenile delinquency records for this purpose. Other states may include juvenile records in their definition of “criminal history records” or a similar term.75
Protective Order and Warrant Information
Federal law and the laws in certain states prohibit firearm purchase or possession by individuals subject to domestic violence protective orders or for whom warrants have been issued. Wisconsin’s law regarding the background check at the point of sale of a firearm and Massachusetts’ law regarding the background check it conducts before issuing a firearms license both explicitly require a search for protective order records. The laws in Minnesota and Massachusetts also mention a search for outstanding warrants. Other states may conduct similar searches, although the laws are not explicit.
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.
- State acts as a Point of Contact for all firearm transfers (13 states); if the state does not act as a Point of Contact for all firearm transfers, the state requires an independent background check, utilizing state’s independent records (Minnesota (handguns and assault weapons), Rhode Island).
- Background check process includes search of all relevant in-state criminal records, mental health records (seven states), juvenile delinquency records (Pennsylvania, Utah, Wisconsin), warrants (Massachusetts, Minnesota) and protective order information (Massachusetts, Wisconsin).
- An applicant seeking to purchase a firearm must authorize disclosure of relevant mental files (Hawaii, New Jersey), including files related to drug and alcohol abuse (Minnesota).
- Mental health information and information about drug and alcohol abuse is reported to federal and state databases of prohibited purchasers.76
- Criminal history information, including relevant juvenile delinquencies, warrants, and orders of protection, are reported to federal and state databases of prohibited purchasers.
Universal Background Checks
Universal background checks are essential to close deadly loopholes in our laws that allow millions of guns to end up in the hands of individuals at an elevated risk of committing violence each year.
Mental Health Reporting
To be effective, background checks rely on a search of complete and accurate records to identify people who are legally prohibited from accessing guns. State laws requiring stakeholders to report records to the federal background check system are critical to ensuring the effectiveness of these background checks.
Extreme Risk Protection Orders
Extreme risk protection orders provide a proactive way to stop mass shootings and other tragedies by temporarily intervening to suspend a person’s access to firearms if they show clear warning signs of violence.
- “U.S. Support For Gun Control Tops 2-1, Highest Ever, Quinnipiac University National Poll Finds; Let Dreamers Stay, 80 Percent Of Voters Say,” Quinnipiac University Poll, February 20, 2018, https://poll.qu.edu/national/release-detail?ReleaseID=2521.[↩]
- “Few Individuals Denied Firearms Purchases Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions,” US Government Accountability Office, September 5, 2018, https://www.gao.gov/assets/700/694290.pdf.[↩]
- Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Department of Justice, “National Instant Criminal Background Check System (NICS) Operations 2013,” at http://www.fbi.gov/about-us/cjis/nics/reports/2013-operations-report.[↩]
- Steven Sumner et al., Firearm Death Rates and Association with Level of Firearm Purchase Background Check, 35 Am. J. Prev. Med. 1 (July 2008), at http://www.ajpmonline.org/article/S0749-3797(08)00310-3/fulltext.[↩]
- See 28 C.F.R. § 25.4. Case law suggests that a federal statute requiring states to disclose records to the FBI would violate the Tenth Amendment. In Printz v. U.S., 521 U.S. 898 (1997), a 5-4 decision, the Supreme Court struck down the interim provisions of the Brady Act obligating local law enforcement officers to conduct background checks on prospective handgun purchasers. The Court held that Congress cannot compel state officials to enact or enforce a federal regulatory program.[↩]
- Nat’l Consortium of Justice Information and Statistics, Improving the National Instant Background Screening System for Firearm Purchases: Recommendations by SEARCH 13, 19 (Feb. 2013), at http://www.search.org/files/pdf/ImprovingNICSforFirearmsPurchases.pdf.[↩]
- 18 U.S.C. § 922(g)(3); 27 C.F.R. § 478.11.[↩]
- Nat’l Consortium of Justice Information and Statistics, Improving the National Instant Background Screening System for Firearm Purchases: Recommendations by SEARCH 19 (Feb. 2013), at http://www.search.org/files/pdf/ImprovingNICSforFirearmsPurchases.pdf. See also United States General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks 20-24 (July 2012), at https://www.gao.gov/products/GAO-12-684.[↩]
- Everytown For Gun Safety, Fatal Gaps: How Missing Records in the Federal Background Check System Put Guns in the Hands of Killers, Nov. 2011, at https://everytownresearch.org/reports/fatal-gaps/.[↩]
- 18 U.S.C. § 922(g).[↩]
- See U.S. Dep’t of Justice, Information Needed to Enforce the Federal Prohibition Misdemeanor Crimes of Domestic Violence (Nov. 2007), at http://www.ncdsv.org/images/MCDV_Info%20needed%20to%20enforce%20the%20firearm%20prohibition.pdf.[↩]
- U.S. General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System 12-13 (Feb. 2000), at http://www.gao.gov/new.items/g100064.pdf.[↩]
- Katie Mettler and Alex Horton, “Air Force failed 6 times to keep guns from Texas church shooter before he killed 26, report finds,” The Washington Post, December 7, 2018, https://www.washingtonpost.com/national-security/2018/12/08/air-force-failed-six-times-keep-guns-texas-church-shooter-before-he-killed-report-finds/.[↩]
- National Crime Information Center, Federal Bureau of Investigation, U.S. Department of Justice, at https://www.fbi.gov/services/cjis/nics/about-nics.[↩]
- 18 U.S.C. § 922(s).[↩]
- National Crime Information Center, Federal Bureau of Investigation, U.S. Department of Justice, at https://www.fbi.gov/services/cjis/ncic.[↩]
- Federal Bureau of Investigation, Active Records in the NICS Index as of December 31, 2015, available at https://www.fbi.gov/file-repository/active-records-in-the-nics-index-by-state.pdf/view.[↩]
- Criminal Justice Information Services Division of the Federal Bureau of Investigation, U.S. Dep’t of Justice, National Instant Criminal Background Check System (NICS) Operations 2012, at http://www.fbi.gov/about-us/cjis/nics/reports/2012-operations-report.[↩]
- 27 C.F.R. § 478.125(e); 27 C.F.R. § 478.124(b).[↩]
- Note that this section only discusses the NICS process in a state that does not serve as a Point of Contact state. Point of Contact states are discussed separately on this policy page.[↩]
- See Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, 125 Stat. 552, 609-610 (2011).[↩]
- 27 C.F.R. § 478.102(c). The 30-day period covers only a single transaction as reflected on Form 4473. The transaction may, however, involve the transfer of multiple firearms.[↩]
- See our page on the Tiahrt Amendments for more information.[↩]
- 18 U.S.C. § 922(t)(1).[↩]
- Consolidated Appropriations Act of 2022, Pub. L. No. 117-103, 136 Stat. 49, 919 (codified at 18 U.S.C. § 925B).[↩]
- 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).[↩]
- Pub. L. No. 110-180, §§ 102, 104, 121 Stat. 2559 (2008).[↩]
- Id., § 103(a), (b). In order to be eligible for these grants, a state must implement a “relief from disabilities” program meeting the act’s requirements and allowing a person who has been adjudicated as a “mental defective” or committed to a mental institution to apply to the state for relief from the federal prohibition on purchase and possession of firearms and ammunition. Id., § 105(a)(1). For more information on the Act’s application to records of persons with mental illness, see our summary on Mental Health Reporting.[↩]
- U.S. General Accounting Office, GAO-12-684, Gun Control—Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks (July 2012), at https://www.gao.gov/products/GAO-12-684.[↩]
- 34 U.S.C. § 40901(e)(1)(C).[↩]
- 34 U.S.C. § 40901(e)(1)(E), (F).[↩]
- 34 U.S.C. § 40901(e)(1)(G).[↩]
- 34 U.S.C. § 40901(e)(1)(H).[↩]
- 34 U.S.C. § 40901(e)(1)(J).[↩]
- 34 U.S.C. § 40901(e)(1)(I).[↩]
- 34 U.S.C. § 40911(b).[↩]
- 45 CFR 164, https://www.federalregister.gov/documents/2016/01/06/2015-33181/health-insurance-portability-and-accountability-act-hipaa-privacy-rule-and-the-national-instant.[↩]
- Federal Bureau of Investigation, National Instant Criminal Background Check System Participation Map, at http://www.fbi.gov/about-us/cjis/nics/general-information/participation-map.[↩]
- Cal. Penal Code § 28220.[↩]
- Colo. Rev. Stat. § 24-33.5-424(2).[↩]
- Conn. Gen. Stat. § 29-36l(d)(1).[↩]
- Del. Code Ann. tit. 11, § 1448A.[↩]
- Fla. Stat. § 790.065(1).[↩]
- 430 Ill. Comp. Stat. 65/3.1.[↩]
- Or. Rev. Stat. §§ 166.412(2)(d), 166.432(1), 166.434(1).[↩]
- 18 Pa. Cons. Stat. Ann. §§ 6111, 6111.1.[↩]
- See Tenn. Code Ann. §§ 38-6-109 and 39-17-1316 for greater detail on processing of criminal background checks.[↩]
- See Utah Code Ann. § 76-10-526(3)(a). Under Utah law, this requirement does not apply if the federally licensed dealer is transferring the firearm to another federally licensed dealer. Utah Code Ann. § 76-10-526(3)(b).[↩]
- Va. Code Ann. § 18.2-308.2:2.[↩]
- Wash. Rev. Code Ann. § 43.43.580.[↩]
- See N.J. Admin. Code §§ 13:54-3.12, 13:54-3.13(a)(6), 13.54-3.19.[↩]
- N.J. Stat. § 2C:58-3.[↩]
- Md. Code Ann., Pub. Safety § 5-101(r).[↩]
- Neb. Rev. Stat. §§ 69-2403, 69-2409, 69-2410, 69-2411, 69-2431.[↩]
- N.H. Rev. Stat. Ann. § 159-D:1.[↩]
- Wash. Rev. Code Ann. § 9.41.090(2)(b).[↩]
- Wis. Stat. § 175.35.[↩]
- N.C. Gen. Stat. § 14-404.[↩]
- While a law requiring the state patrol to develop a single point of contact for background checks was passed in 2020, as of September 29, 2020, the system is not yet functional.[↩]
- Sufficient documentation includes a utility bill from within the last three months, a residential lease, a property deed, military permanent duty station orders indicating assignment within California, or other evidence of residency as permitted by DOJ. Cal. Penal Code § 26845.[↩]
- 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.[↩]
- Connecticut requires a search of certain records of the Department of Mental Health and Addiction Services before issuing a firearms license. Conn. Gen. Stat. § 29-38b(a).[↩]
- New York is not a POC state, and no Brady exemptions exist for licenses issued by New York. As a result, dealers in New York must contact NICS directly prior to the sale of every firearm. However, New York state law requires a license for the purchase of a handgun, and authorizes the release of mental health information for purposes of the background check that occurs before issuance of the license. New York licenses to possess handguns must be renewed every five years. N.Y. Penal Code § 400.00.[↩]
- New Jersey’s law requiring authorization for a mental health check is part of its licensing law. N.J. Stat. Ann. § 2C:58-3e; N.J. Admin. Code § 13:54-1.4(b).[↩]
- Similarly, an administrative regulation in Maryland requires an applicant for the transfer of a handgun to authorize the disclosure of mental health records. Md. Code Regs. 29.03.01.03(A)(8). In addition, Illinois requires an applicant for a Firearm Owners Identification Card to authorize the release of mental health files prior to issuance of a Card. These Cards are valid for 10 years. Although mental health files are searched during the background check at the point of sale in Illinois, no authorization is required at that time. 430 Ill. Comp. Stat. 65/4(3).[↩]
- See, e.g., Fla. Stat. § 943.045. The Law Center has not conducted a comprehensive search to determine whether juvenile court records are included among criminal history records in all 50 states.[↩]
- Additional information on access to mental health records for firearm purchaser background checks is contained in our summary on Mental Health Reporting.[↩]