Overview of Federal and State Gun Laws

Brady Background Checks – Preventing Crime and Saving Lives

President Clinton signed the Brady Handgun Violence Prevention Act (Brady Law) into law in 1993, after years of intense opposition from the NRA.  The Brady Law went into effect on February 28, 1994, and for the first time required all federally-licensed firearm dealers to initiate background checks on gun buyers before selling firearms.¹ It is named for President Reagan’s Press Secretary James Brady, who was shot and severely wounded in a 1981 assassination attempt on President Reagan.

For more on the NRA’s opposition to the Brady Law and the Brady Campaign’s successful effort to enact it into law, click here.

The Brady Law initially required background checks only on handguns and gave law enforcement up to five days to complete a background check.  As of November 1998, it requires background checks on all guns sold by federally-licensed firearm dealers, and gives law enforcement up to three days to complete background checks.  After three days, a gun dealer may complete the sale even if a background check is not completed. 

The Brady Law has been a remarkable success, stopping over 1.6 million criminals and other prohibited people from purchasing firearms from gun dealers since 1994.  Click here to read the Bureau of Justice Statistics report on Brady denials.  After the Brady law took effect in 1994, gun crimes and gun homicides dropped dramatically.  Click here to learn more about the drop in crime.

An analysis of crime gun trace data also indicates that the Brady Law has significantly disrupted interstate gun trafficking.  It has reduced the trafficking of firearms from states that did not conduct background checks prior to implementation of the Act to states that were conducting background checks.²  For example, Ohio gun dealers were two-thirds less likely to be the source of crime guns recovered in Michigan purchased after the Brady Law took effect compared to crime guns purchased before its implementation.  Similarly, Ohio guns were less likely to end up in crime in states as diverse as Missouri, New York and Maryland, and other traditional source states (e.g., Georgia, Kentucky and Mississippi) also were shown to be supplying fewer crime guns following enactment of the Brady Law.  However, because the law only applies to federally-licensed firearm dealers, there are still many gun sales by unlicensed, private sellers that are not subject to a background check.
   
When conducting Brady background checks, law enforcement determines whether a buyer is prohibited from buying or possessing a firearm under the federal Gun Control Act or state law.  Federal law prohibits the following categories of persons from buying or possessing firearms:

• A person convicted a crime punishable by imprisonment for a term exceeding one year or any state misdemeanor punishable by imprisonment for more than two years;
• Fugitives from justice, for example, the subject of a felony or misdemeanor warrant;
• An unlawful user or an addict of any controlled substance, such as a drug abuser;
• A person adjudicated mentally defective or involuntarily committed to a mental institution;
• An illegal alien;
• A person dishonorably discharged from the United States Armed Forces;
• A person who has renounced his/her United States citizenship;
• Domestic violence abusers and stalkers – those who are the subject of a protective order that restrains them from harassing, stalking, or threatening an intimate partner or child or who have been convicted of a misdemeanor crime of domestic violence;
• Also, a person under indictment for a crime punishable by imprisonment for a term exceeding one year may not receive any firearm shipped in interstate commerce;
• Additionally, it is unlawful for a federally-licensed firearm dealer to sell a handgun to anyone under the age of 21, or a long gun to anyone under 18. While it is against the law for a federally-licensed firearm dealer to sell a handgun to anyone under 21 years of age, the law allows individuals over the age of 18, but not yet 21, to possess handguns.

Implementation of the Brady Law

The Brady Law was implemented in two stages. The initial (or "interim") provisions took effect in February 1994. On November 30, 1998, the "permanent" provisions of Brady took effect with implementation of the National Instant Criminal Background Check System (NICS).

Interim Provisions

The interim provisions of the Brady Law applied only to handguns. States that had enacted legislation requiring background checks for handgun purchases prior to implementation of the Brady Law were exempt. At the time the interim provisions took effect, 18 states and the District of Columbia were exempt. Eventually, 27 states became exempt.³

In non-exempt states, the Brady Law gave law enforcement up to five days to conduct background checks for handgun purchases from licensed gun dealers to determine if a prospective purchaser was legally entitled take possession of a handgun.  The Brady Law also raised the cost of obtaining and renewing a gun dealer license – from $10 per year to $200 for a 3-year license and $90 for each three-year renewal.

Permanent Provisions & the National Instant Criminal Background Check System (NICS)

On November 30, 1998, the permanent provisions of the Brady Law went into effect. While the interim provisions only applied to handguns, the permanent provisions required background checks for all gun sales by federally-licensed firearm dealers.  Under the permanent provisions, the background check process varies depending on whether a state has agreed to be a point of contact for the checks.

The FBI set up the National Instant Criminal Background Check System (NICS) for federally-licensed firearm dealers to contact by telephone or computer to determine whether a gun sale would be legal.  The NICS is a computerized background check system designed to respond within 30 seconds on most background check inquiries so the federally-licensed firearm dealers receive an almost immediate response.⁴   In states that agree to conduct Brady background checks, the federally-licensed firearm dealers contact the state point of contact (a state law enforcement agency) for a NICS check rather than contacting the FBI.  Otherwise, the dealers contact the FBI.
   
Click here to see ATF’s listing of state points of contact.

After a NICS background check, one of two responses will be returned from NICS – proceed or delay – along with a NICS Transaction Number (NTN) for that particular transaction. The FBI gives a “delay” response if there is some information that indicates that the prospective purchaser may be prohibited from receiving firearms. In those cases, the FBI has up to three business days to review records and determine whether a prospective purchaser is prohibited from receiving a firearm.

If a federally-licensed firearm dealer does not receive a NICS denial within three business days after contacting the system, a dealer may proceed with the sale or may wait until the background check is completed.  These transactions are referred to as “default proceeds.” Typically, “a default proceed involves a record showing a felony-related arrest...with no information to indicate whether the case was prosecuted and whether it resulted in a conviction.”⁵  Default proceeds occur “primarily because many states’ automated criminal history records [do] not show the disposition (e.g., acquittals or convictions) of felony arrests, and manual efforts to find such information took longer than 3 business days.” ⁶

Weakening the Brady Law by Destroying Crucial Background Check Records

After failing to defeat enactment of the Brady Law or persuade the courts strike it down, the National Rifle Association turned to the 2000 Presidential election for new hope in its assault on the Brady Law.  It bragged that in supporting George W. Bush for the presidency, “If we win we’ll have a president … where we work out of their [sic] office.” ⁷ 

Once the NICS system became operational in 1998, the Justice Department maintained background check records on approved purchasers for six months to ensure that felons and other prohibited buyers were not mistakenly approved. ⁸  The NRA sued the Attorney General seeking the destruction of these records, even though the Justice Department explained that record retention was “vital to ensuring that the system (including its software) is working properly from a technical standpoint.”⁹  The court rejected the NRA’s challenge.¹⁰

 In 2001, the Justice Department issued regulations shortening the NICS record retention period to 90 days, the amount of time needed after several years of implementation of NICS to ensure proper audits of the system.¹¹  The Bush Administration, however, worked with the NRA to weaken the Brady Law by requiring approved purchasers’ background check records to be quickly destroyed.  In July 2001, Attorney General John Ashcroft issued new proposed regulations to require approved purchaser records to be destroyed within 24 hours.¹²

The General Accounting Office (GAO) analyzed the Bush Administration’s 24-hour Brady background check record destruction plan.  It concluded that destroying records this quickly would prevent the government from ensuring the accuracy of the NICS system and would prevent the FBI from discovering whether criminals or other prohibited persons were improperly approved to buy firearms.  Without the records, the FBI could not retrieve firearms that should not have been sold to dangerous buyers.¹³

After the GAO report determined that 24 hour record destruction would endanger
public safety, NRA Congressional allies attached a “rider” to an appropriations bill requiring the destruction of approved purchaser background check records within 24 hours.  The Justice Department then implemented a 24-hour record-destruction policy in July 2004.¹⁴

For more on the NRA’s efforts to weaken the Brady Law, click here.

Endnotes:

1. 18 U.S.C. §§ 922(s),(t).
2. Weil, Douglas, Traffic Stop: How the Brady Act Disrupts Interstate Gun Trafficking, Center to Prevent Handgun Violence, 1997
3. The 18 states that were exempt originally are: California, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New York, Oregon, Virginia, and Wisconsin. In 1994, Colorado, Idaho, Minnesota, Tennessee and Utah were granted exemptions. New Hampshire and North Carolina followed in 1995, and Georgia and Washington in 1996.
4. FBI, National Instant Criminal Background Check System Fact Sheet, available at http://www.fbi.gov/hq/cjisd/nics/nicsfact.htm#top.
5. Statement of David R. Loesch, Assistant Director in Charge, Criminal Justice Information Services Division. Federal Bureau of Investigations, before the Committee on the Judiciary, United States Senate. June 21, 2000.
6. U.S. General Accounting Office, Gun Control: Implementation of the National Instant Criminal Background Check System, GAO/GGD/AIMD-00-64, Feb. 2000.
7. See Laura Meckler, Gore Highlights NRA Tape; Bush Downplays It, Phila. Inquirer, May 5, 2000, at A30 (quoting Kayne Robinson, NRA First Vice President).
8. National Instant Criminal Background Check System Regulation, 63 Fed. Reg. 58,303 (Oct. 30, 1998).
9. NRA v. Reno, 216 F.3d 122, 133 (D.C. Cir. 2000), cert. denied, 533 U.S. 928 (2001).
10. Id.
11. National Instant Criminal Background Check System Regulation, 66 Fed. Reg. 6471 (Jan. 22, 2001).
12. National Instant Criminal Background Check System, 66 Fed. Reg. 35,567 (July 6, 2001).
13. General Accounting Office, Gun Control: Potential Effects of Next-Day Destruction of NICS Background Check Records 4 (July 2002).
14. National Instant Criminal Background Check System Regulation, 69 Fed. Reg. 43,892 (July 24, 2004).