Background check laws are crucial to protecting public health and safety by preventing people from acquiring firearms when they have a significant history of harming themselves or others or are otherwise at elevated risk of violence. Under federal law, meeting certain criteria, such as criminal convictions and court orders, can prohibit individuals from passing a background check. State laws may also establish additional, stronger eligibility standards.

Background

Federal law establishes a baseline national standard regarding individuals’ eligibility to acquire and possess firearms. Under federal law, a person is generally prohibited from acquiring or possessing firearms if, among other things, they have been convicted of certain crimes or become subject to certain court orders related to domestic violence or a serious mental condition. The FBI’s NICS background check system helps to ensure that people subject to these restrictions cannot pass a background check to obtain a firearm—at least in circumstances when a background check is legally required and relevant records have been properly submitted to the background check system. For more information on the NICS and how the background check system is implemented in the states, go to NICS & Reporting Procedures and Background Check Procedures.

It is also important for states to prohibit the same categories of people prohibited by federal laws to allow local prosecutors and courts to enforce those laws instead of relying on more limited federal enforcement capacity alone. Many states have enacted prohibitions that mirror federal law in the areas of felony convictions, domestic violence, mental health, and drug addiction prohibitions.

Federal law does not go far enough, however, to prohibit people who have demonstrated significant risk factors for future violence or self-harm from legally acquiring and possessing guns.

States can play an important role in enacting laws that go above and beyond federal law to prohibit firearm possession by broader categories of people who are at higher risk of committing violence with firearms, such as people who commit violence misdemeanors and hate crimes, misuse alcohol, and commit serious crimes as juveniles. As discussed in more detail below, many states have expanded categories of prohibited people in key areas where the data indicates that those individuals are at higher risk of committing violence.

Summary of Federal Law

Federal law establishes a baseline national standard regarding the criteria that make people ineligible to acquire and possess firearms. The federal Gun Control Act of 1968, codified at 18 U.S.C. § 922, generally prohibits the sale to, and possession of firearms by, a person who:

• Has been convicted of, or is under indictment for:
  • A federal crime punishable by imprisonment for more than one year (typically a felony, however, federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices are exempt.¹)
  • A state crime that is not classified as a misdemeanor and is punishable by imprisonment for more than one year
  • A state crime that is classified as a misdemeanor under state law and is punishable by more than two years imprisonment²
• Is a fugitive from justice³
• Is “an unlawful user of or addicted to any controlled substance”⁴
  • Though certain states have legalized the use of medical and recreational marijuana, it remains illegal under federal law. Therefore, ATF considers people who use marijuana legally under state law unlawful users of a controlled substance.⁵
• Is underage (For additional information about federal age restrictions for the purchase and possession of firearms, see our page on the Minimum Age to Purchase and Possess Firearms.)
• Has been found by a court, board, commission, or other lawful authority to be a danger to self or others, or to “lack[] the mental capacity to contract or manage [their] own affairs,” as a result of their mental condition or illness (This prohibition also expressly applies when a person has been found incompetent to stand trial or not guilty of a crime due to mental incapacity)⁶
• Has been involuntarily hospitalized or committed to a mental health or substance abuse treatment facility by a court, board, commission, or other lawful authority. (This prohibition does not apply when a person is admitted for treatment voluntarily or when a person is only hospitalized for short-term observation without longer-term commitment or court-ordered treatment.)⁷
• Is unlawfully in the United States or has been admitted to the US under a nonimmigrant visa
• Has been dishonorably discharged from the US Armed Forces
• Has renounced their US citizenship
• Is subject to an active court order restraining them from harassing, stalking or threatening an intimate partner, their child, or a child of a partner, or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child
• Has been convicted of a misdemeanor offense of domestic violence⁸ (For more detailed information on firearm restrictions—and gaps—related to domestic violence, see our summary on Domestic Violence and Firearms).

Although federal law does not prohibit gun access by people who were adjudicated as juveniles for crimes that would have been felonies if the juvenile were an adult when they committed the crime, in 2022, President Biden signed the Bipartisan Safer Communities Act, which amends the Gun Control Act of 1968 taking into account juvenile records in the prohibition of sales of firearms to persons pursuant to 18 U.S.C. § 922(d).⁹ The law also clarifies that the prohibition on the sale of a firearm to a person who has been adjudicated as a “mental defective” or committed to a mental institution applies to an adjudication or commitment at age 16 or older.¹⁰

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Summary of State Law

Some states have enacted stronger eligibility standards than federal law by placing additional limitations on firearm access based on criteria that have been associated with elevated risk of violence or self-harm.

Misdemeanor Convictions

All states except Vermont generally restrict firearm access after a person has been convicted of a felony, mirroring federal law in this area, which generally prohibits firearm access after an individual has been convicted of a crime punishable by more than one year in prison. (Vermont prohibits firearm possession after a person has been convicted of “a violent crime,” which includes crimes like murder, stalking, and domestic assault, but not other felonies).¹¹ Most state laws mirror federal law in this area by generally prohibiting firearm access after a person has been convicted of a crime punishable by more than one year in prison.

Several states also prohibit firearm access after a person has been convicted of certain misdemeanor offenses, often including broader categories of violent or firearm-related crimes. For example, New York prohibits firearm access after a person has been convicted of misdemeanor crimes defined as “serious offenses” under state law, including child endangerment, certain disorderly conduct crimes, and certain stalking offenses. California, Colorado, and Connecticut prohibit firearm access for a minimum period after a person has been convicted of specified misdemeanors involving violence or misuse of firearms.

Hate crime laws were designed to protect groups most likely to be targeted in bias attacks, but they generally apply after the fact, increasing penalties when a serious violent crime is carried out with hateful intent. However, in practice guns are often used only to intimidate victims but are not always fired, resulting in shorter sentences that do not trigger federal firearm prohibitions. Research shows that hate crime convictions are excellent predictors for future violence and that those convicted of violent hate crimes tend to continue or escalate their behavior.

Despite this evidence, only a handful of states expressly prohibit people from accessing firearms based on a misdemeanor hate crime conviction.¹² For more information about this topic, see our page on Hate Crime Gun Laws.

Alcohol Addiction and Offenses

Federal law prohibits firearm access by individuals who are “unlawful users of or addicted to a controlled substance” but does not prohibit people who misuse alcohol from accessing firearms. However, people who misuse alcohol are at greater risk of committing violence with firearms.

A number of states and the District of Columbia restrict firearm access by individuals grappling with alcohol addiction and misuse disorders.

Juvenile Offenses

In all states, when juveniles commit crimes, they are brought to justice in a tribunal granted special authority to impose punishments and rehabilitative services. Juveniles who have passed through this system are often referred to in the law as “adjudicated delinquent.”

Because the juvenile justice system does not issue convictions, an adjudicated delinquent juvenile who commits a serious crime that would be considered a felony if the juvenile had been an adult when the crime was committed will not have a felony conviction. When the juvenile becomes an adult and otherwise legally able to purchase firearms, their adjudication will not prohibit them from purchasing or possessing a firearm. Nevertheless, juveniles who have committed such serious crimes pose a higher risk of committing violence in the future, at least for a period of time.

Accordingly, a number of states have passed laws prohibiting firearm access for individuals who were adjudicated delinquent for a crime that would have been a felony had they been an adult for at least some period of time once they reach adulthood.

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Disarming People who Become Prohibited from Accessing Firearms

Federal law does not provide a standard process to ensure that individuals who have become prohibited from possessing firearms actually relinquish them. Most states expressly authorize law enforcement to remove firearms when they are discovered in the possession of a person who is prohibited from possessing them. However, only a few states have a more proactive process in place to ensure that individuals lawfully relinquish their firearms after becoming prohibited from possessing them. For more information about this topic, see our page on Firearm Relinquishment.

Risk-Based Removal Laws

In addition, several states have enacted laws, generally referred to as extreme risk protection orders, which allow law enforcement officers or family or household members to petition a court for an order to have firearms temporarily removed from an individual who poses a significant risk of harm to self or others. For more information on this type of law, see our summary on Extreme Risk Protection Orders.

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.

• At a minimum, firearm eligibility standards are at least as extensive as federal law, to allow state and local resources to assist in implementation and enforcement.
• Access to firearms is restricted for at least a temporary period after a person has been convicted of violent, firearm-related, and other serious felonies and misdemeanors, including domestic violence offenses and hate crimes.
• States should prohibit gun access for people convicted of misdemeanor hate crimes and also expand hate crime definitions to include all protected groups on the basis of race, ethnicity, religion, nationality, disability, gender identity, and sexual orientation.
• Access to firearms is restricted after a person has been found to pose a significant risk of harm to themselves or others, including when individuals have been found to be severely cognitively impaired as a result of their mental condition or ordered to receive mental health treatment.
• A procedure exists to allow law enforcement officials and a person’s family or household members to petition courts for an extreme risk protection order, which temporarily suspends a person’s access to firearms if a court has determined they pose a significant risk of harming themselves or others.
• Access to firearms is restricted for people subject to domestic violence restraining orders and other civil and criminal court orders issued for the protection of named parties or the public from acts of violence, including orders protecting witnesses against threats and intimidation.⁷⁵
• Access to at least some firearms is restricted for people under the age of 21.⁷⁶
• Selling or transferring a firearm to a person who is ineligible to possess firearms is unlawful.⁷⁷
• A state agency identifies individuals who have become ineligible to possess firearms and state law provides standard procedures to verify that such individuals have relinquished any firearms in their possession.

1. U.S.C. 921(a)(20)(A).[↩]
2. Federal law prohibits firearm access by people who have been convicted of, or who are under indictment for, a “crime punishable by imprisonment for a term exceeding one year.” Somewhat confusingly, however, federal law’s definition of this term expressly does not include: 1) any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or 2) any State offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less. 18 U.S.C. § 921(a)(20). The term also does not apply in certain situations where a person has had their eligibility to possess firearms restored by a court or other authority. Id.[↩]
3. This term is defined in federal law as “any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” Under federal regulations, the term also includes “any person who knows that misdemeanor or felony charges are pending against [them] and who leaves the State of prosecution.” 18 USC § 922(y)(1); 27 CFR § 478.11.[↩]
4. Federal regulation defines this term, in part, to mean:
   “A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. . . An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.” 27 C.F.R. § 478.11.[↩]
5. See Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016); Arthur Herbert, “Open Letter to all Federal Firearms Licensees,” Bureau of Alcohol, Tobacco, Firearms and Explosives, September 21, 2011, https://www.atf.gov/firearms/docs/open-letter/all-ffls-sept2011-open-letter-marijuana-medicinal-purposes/download.[↩]
6. Federal law, enacted in 1968, still uses archaic and offensive terminology to prohibit firearm access by people who have been “adjudicated as a mental defective.”
   Federal regulations define that term to mean:
   (a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease
   (1) Is a danger to himself or to others; or
   (2) Lacks the mental capacity to contract or manage his own affairs.Federal regulation also expressly clarifies that this firearm prohibition applies to:
   (1) A finding of insanity by a court in a criminal case; and
   (2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to [specified articles] of the Uniform Code of Military Justice. 27 CFR § 478.11.[↩]
7. Federal law generally prohibits firearm access by people who have previously been “committed to a mental institution.” Federal regulations define this term as:
   “A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.” 27 C.F.R. § 478.11.[↩]
8. 18 U.S.C. § 922(b)(1), (d), (x)(1).[↩]
9. Pub. L. No. 117-159, 136 Stat. 1313, 1322.[↩]
10. 18 U.S.C. § 922(d)(4).[↩]
11. 13 V.S.A. §§ 4017, 5301.[↩]
12. See e.g., Minn. Stat. § 624.713, subd. 1(11); Or. Rev. Stat. §166.470; N.J. Stat. Ann. § 2C:39-7; Cal. Penal Code § 29805.[↩]
13. A “Yes” is given below for any state that prohibits gun purchase or possession by a person convicted of a violent or gun-related misdemeanor that would not prohibit them under federal law.[↩]
14. This table does not include state laws that only prohibit sales to intoxicated persons.[↩]
15. Misdemeanor “violent offenses,” including third-degree assault, criminally negligent homicide, and elder abuse. Ala. Code § 13A-11-72(a)(referencing Ala. Code § 12-25-32(15).[↩]
16. Ala. Code § 13A-11-72[↩]
17. Alaska § 11.61.200.[↩]
18. Ariz. Rev. Stat. § 8-341(R).[↩]
19. Assault and battery, negligent discharge of a firearm, brandishing a weapon, hate crimes, misuse of and threats involving firearms, safe storage violations, and firearm possession in certain sensitive areas. Cal. Penal Code § 29805.[↩]
20. Cal. Welf. & Inst. Code § 8103(e)(1).[↩]
21. Cal. Penal Code § 29820.[↩]
22. Assault, sexual assault, unlawful sexual contact, child abuse, protective order violation, crime against an at-risk person, harassment, bias-motivated crime, cruelty to animals, possession of an illegal weapon, and juvenile possession. Colo. Rev. Stat § 24-33.5-424(3)(b.3).[↩]
23. Colo. Rev. Stat. §§ 18-12-108(1),(3); 24-4.1-302(1).[↩]
24. Specified misdemeanors involving violence or misuse of firearms, including: criminally negligent homicide, assault, threatening, reckless endangerment, unlawful restraint, and rioting. Conn. Gen. Stat. § 53a-217(a).[↩]
25. Conn. Gen. Stat. § 53a-217.[↩]
26. Assault in the 3rd degree. Del. Code § 1448(a)(1). See Kipp v. State, 704 A.2d 839, 1998 Del. LEXIS 29 (Del. 1998)(holding “Assault in the third degree is a misdemeanor crime of violence involving physical injury to another.”).[↩]
27. Del. Code Ann. tit. 11, § 1448.[↩]
28. Assault, threat of violence, and safe storage violations. D.C. Code § 7–2502.03(a)(4)(B),(E)(referencing §§ 7-2507.02, 22-404, 22-407).[↩]
29. D.C. Code § 7–2502.03.[↩]
30. Fla. Stat. § 790.23.[↩]
31. Reckless endangering in the second degree, terroristic threatening in the second degree, sexual assault in the fourth degree, Endangering the welfare of a minor in the second degree, Endangering the welfare of an incompetent person, harassment, and negligent firearm storage. Haw. Rev. Stat. Ann. §134-7(b)(referencing “crime of violence” as defined in § 134-1).[↩]
32. Haw. Rev. Stat. § 134-7(c)(1).[↩]
33. Haw. Rev. Stat. § 134-7(d).[↩]
34. Battery, assault, or aggravated assault involving a firearm. 430 Ill. Comp. Stat. 65/4(a)(2)(viii). See also 730 Ill. Comp. Stat. 5/5-6-3 (Persons subject to probation and/or conditional discharge for a misdemeanor involving the intentional or knowing infliction of bodily harm or threat of such must refrain from possessing a firearm).[↩]
35. 430 Ill. Comp. Stat. 65/8.[↩]
36. Ind. Code § 35-47-4-1.[↩]
37. Ind. Code Ann. § 35-47-4-9.[↩]
38. Iowa Code § 724.26(1).[↩]
39. Kan. Stat. § 21-6301(9),(13).[↩]
40. Kan. Stat. Ann. § 21-6304.[↩]
41. Ky. Rev. Stat. Ann. § 527.040 (Prohibition includes those convicted of a felony offense as a “youthful offender.”).[↩]
42. Me. Stat., 15 § 393.[↩]
43. Assault in the second degree. Md. Code Ann., Pub. Safety §§ 5-133(c)(1)(i), 5-206(a)(1).[↩]
44. Md. Code Ann., Pub. Safety §§ 5-133(b)(5), 5-134(b)(6).[↩]
45. Md. Code Ann., Pub. Safety § 5-133(b)(13).[↩]
46. Mass. Gen. Laws ch. 140, § 129B(1)(iii). See also Mass. Gen. Laws ch. 131(d)(iii).[↩]
47. Mass. General Laws c.140 § 129B.[↩]
48. Crimes committed for the benefit of a gang (§ 609.229), assaults motivated by bias (§ 609.2231, subdivision 4), false imprisonment (§ 609.255), neglect or endangerment of a child (§ 609.378), burglary in the fourth degree (§ 609.582, subdivision 4), setting a spring gun (§ 609.665), riot (§ 609.71), and harassment or stalking (§ 609.749). Minn. Stat. § 624.713, subd. 1(11).[↩]
49. Minn. Stat. §§ 624.713, subd. 1(2); 242.31, subd. 2a; 260B.245, subd. 1(b); See Minn. Stat. § 609.165, subd. 1b.[↩]
50. Mo. Rev. Stat. § 571.070.[↩]
51. Neb. Rev. § Stat. 28-1204.05.[↩]
52. Restricts firearm permits from all persons convicted of “any crime.” N.J. Stat. Ann. § 2C:58-3. See also N.J. Stat. § 2C:39-7 (prohibits persons convicted of misdemeanor extortion).Yes((N.J. Stat. § 2C:58-3.[↩]
53. N.J. Stat. Ann. § 2C:58-3(7).[↩]
54. Possession of a firearm requires license. N.Y. Penal Law § 400.00(1). Person ineligible for license if convicted of any “serious offenses,” including misdemeanor criminal possession of a weapon, criminal trespass, child endangerment, sexual misconduct and abuse, and possession of certain controlled substances. N.Y. Penal Law § 265.00.[↩]
55. All class A violent misdemeanors involving a firearm. N.D. Cent. Code § 62.1-02-01.[↩]
56. N.D. Cent. Code §§ 12.1-32-02(9), 12.1-32-07.1.[↩]
57. Ohio Rev. Code § 2923.13(A)(4).[↩]
58. Ohio Rev. Code § 2923.13(A)(2-3).[↩]
59. Okla. Stat. Ann. tit. 21, § 1289.12.[↩]
60. Assault, strangulation, menacing, reckless endangerment, stalking, or bias crime in the second degree. Or. Rev. Stat. §§ 166.255(1)(c), 166.470(1)(g).[↩]
61. Prohibits those “discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence.” Or. Rev. Stat. § 166.291.[↩]
62. Unlawful possession, unlawful manufacture, possession on school property, involuntary manslaughter, harassment, unlawful restraint, luring a child, arson, false reports, impersonation, intimidation, retaliation, escape, corruption of minors. 18 Pa. Cons. Stat. § 6105.[↩]
63. 18 Pa. Cons. Stat. Ann. § 6105.[↩]
64. 18 Pa. Cons. Stat. Ann. § 6105(c)(7),(8).[↩]
65. S.C. Code § 16-23-30.[↩]
66. Tenn. Code Ann. §§ 39-17-1307, 39-17-1316.[↩]
67. Tex. Gov’t Code § 411.172.[↩]
68. Utah Code Ann. § 76-10-503(b)(iii),(c).[↩]
69. Sexual assault and aggravated assault. Vt. Stat. Ann., tit. 13, § 4017 (as defined in § 5301.[↩]
70. Va. Code Ann. § 18.2-308.2(A),(C).[↩]
71. Wash. Rev. Code § 9.41.040.[↩]
72. W. Va. Code § 61-7-7(a)(2).[↩]
73. Wis. Stat. §§ 51.20.[↩]
74. Wis. Stat. § 941.29(1m).[↩]
75. Additional information about laws governing domestic violence-related prohibitions is contained in our summary on Domestic Violence and Firearms.[↩]
76. Additional information about laws governing minimum age to purchase and possess firearms is contained in our summary on the Minimum Age to Purchaser and Possess Firearms.[↩]
77. Additional information about laws limiting sales to ineligible individuals is contained in our summary on Trafficking & Straw Purchasing.[↩]