Q. What is the Brady law? 

A. The Brady Handgun Violence Prevention Act requires all federally licensed firearm dealers to conduct background checks on gun buyers to screen out felons and other dangerous people.  The law is named for President Reagan’s Press Secretary James Brady, who was shot and severely wounded in a 1981 assassination attempt on President Reagan.  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.

The Brady law was signed by President Clinton on November 30, 1993 and began screening out dangerous people on February 28, 1994.

Q. Why was the Brady law needed? 

A. Before the Brady law was enacted, felons and other dangerous people were able to obtain guns at federally licensed dealers by “lying and buying.”  The 1968 Gun Control Act had identified categories of individuals considered too high-risk to own a gun (like felons, youth, and the dangerously mentally ill), but it did not implement a system of verifying that people were telling the truth when they purchased guns at gun dealers.

The enactment of the Brady law (effective February 28, 1994) changed this “lie-and-buy” system to a “background check-then-buy” system by requiring that every sale of a gun by a licensed dealer be referred to law enforcement for a background check.

Q. Who is screened out by Brady background checks?

A. Federal law prohibits the following categories of persons from buying or possessing firearms:  

• felons
• fugitives from justice
• people addicted to/unlawfully using controlled substances
• court-ordered dangerously mentally ill people
• people in the country illegally
• dishonorably discharged soldiers
• people who have renounced United States citizenship
• domestic violence abusers subject to a protective order
• domestic violence abusers convicted of a misdemeanor crime of domestic violence

In addition,

• Persons under age 21 cannot buy a handgun from a federally licensed dealer (FFL) (but, persons aged 18-21 can possess a handgun)
• Persons under age 18 cannot buy a long gun from an FFL
• A person under indictment for a felony cannot receive a gun from another state

To see the code citation and ATF’s ready reference list of prohibitors, go to: ATF Quick Reference to Federal Firearms Laws.

Q. Has the Brady law been successful?

A. Yes, the Brady law has been a huge success. Brady background checks have contributed to an historic decline in lethal assaults by blocking 1.8 million attempts by high-risk people to buy a gun from a licensed gun dealer through the end of 2008 (Department of Justice, Table 1). 

Remarkably, felony convictions account for over half of the total number of blocked attempts to purchase by high-risk people, or an estimated 842,000 blocked gun purchase applications submitted by convicted felons (Regional Justice Information Service, 2008).  That works out to be, on average, 169 thwarted attempts to purchase a gun by a felon every day through the end of 2007. 

Murders declined 30 percent from 1993 to 2006 (from 24,526 to 17,034).  Most of the drop in murders - 73 percent - is accounted for by the sharp decline in gun murders.

For details, see the Brady Center report, Brady Background Checks, Fifteen Years of Saving Lives.

Q. What is the impact of the Brady law on gun trafficking?

A. Gun traffickers have been thwarted by Brady background checks.  Before Brady background checks, gun traffickers with disqualifying criminal histories could still get their new handguns – the bread-and-butter of gun trafficking – by “lying and buying.” 

After Brady background checks, gun traffickers with a felony, domestic violence offense, or other disqualifying record must find someone with a clean record — a “straw purchaser” — to buy new guns for them.  The use of straw purchasers complicates gun trafficking and expands the number of people involved with a trafficking operation, thus increasing the risks of apprehension. 

Also, Brady background checks appear to have disrupted patterns of gun trafficking.  Before the Brady law, some states required background checks, but most did not.  This discrepancy created a profit incentive to traffic guns from “no-check states” to “check states.” 

For example, before Brady background checks, Ohio (a “no-check state”) supplied guns to Michigan (a “check state”).  After Brady checks were implemented in Ohio (and were continued in Michigan), gun trafficking from Ohio to Michigan decreased 66 percent (Brady Center, p. 7).  This is evidence of the powerful effect of Brady background checks to reduce incentives for gun trafficking from one state to another.

Q. How does a Brady background check work?

A. From the perspective of the potential gun buyer, the process is very simple.  A gun buyer goes to a federally licensed gun dealer and fills out Form 4473.  The federally licensed dealer contacts the designated authority for that state to conduct the background check.  

The behind-the-scenes process of the background check depends on the state.  States have three choices: 1) conduct the checks themselves for handguns and long guns; 2) rely on the Federal Bureau of Investigation to conduct the checks for handguns and long guns, or 3) share the responsibility for checks.   

To see the choice your state has made, review your see the National Instant Check System map by clicking here.  You can see all your state's gun laws by clicking here.

After a NICS background check, one of three responses will be returned from NICS – proceed, deny, or delay – along with a NICS Transaction Number (NTN) for that particular transaction.  Since 2002, an average of 92 percent of the checks processed through the NICS Section provided a gun dealer with a final status of proceed or deny during the initial call (Brand, p. 4).

The NICS system 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 and communicate that either to the POC or to the federally licensed dealer, depending on the state.

If a federally licensed firearm dealer does not receive a NICS denial from either the POC or directly from the FBI 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” (Loesch, 2000).

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” (General Accounting Office, p.16).

Q. How could the Brady law be made even more successful?

A. The Brady law could be made more successful by making sure that all relevant records are electronically accessible to the NICS system.  In particular, it is crucial that the outcome of felony arrests be electronically accessible to law enforcement for the background check.   Based on government estimates, fully one-fourth of felony convictions are not available in the automated NICS database, forcing law enforcement to search records manually.  This leads to guns being turned over to people with felony convictions because the record could not be located in the three days and the licensed dealer decides to turn over the gun (Kessler, p. 3).

As important, all court judgments of dangerous mental illness that trigger the Brady law prohibitor should be available to the NICS system, but they are not.  Through 2007 (the last full year reported), 38 out of 50 states had provided fewer than 100 records of court judgments of dangerous mental illness, and 21 had provided zero records, to the NICS system (Bush, p. 2).  

To make the Brady law even more successful, states should provide all relevant records to the system. Congress can help states get records into the system by fully funding the NICS Improvement Act and increasing funding to the National Criminal History Improvement Program (NCHIP).  NCHIP provides grants to the states to ensure that accurate records are available for use in law enforcement and to protect public safety and national security.

Q. Why did the National Rifle Association oppose the Brady law?

A. The NRA has opposed nearly all legislation to reduce gun violence, even the most modest proposals such as the Brady Law.  In its pro-gun zeal, the NRA has opposed restrictions on machine guns, "cop-killer" bullets and plastic guns.  The NRA has opposed extending background checks to sales by unlicensed sellers at gun shows after such horrific national tragedies as the Columbine shooting and the Virginia Tech shooting. 

For more on the NRA’s opposition to common sense gun laws, including the Brady Law, see the Brady Center's report, NRA: A Criminal’s Best Friend.

Q. What else needs to be done?

A. Congress should pass legislation to require Brady criminal background checks on all gun sales, not just the 60 percent of sales estimated to be from licensed gun dealers. (Police Foundation, p. 27).  This includes requiring background checks for gun sales at gun shows. More states must pass legislation to require universal background checks to put pressure on Congress to act. 

Allowing dangerous people such as convicted felons and domestic abusers to buy guns from unlicensed sellers without a Brady criminal background check threatens the safety of our families and communities.  We must act now to keep guns out of the hands of dangerous people.

Our national gun policy should be: no background check, no gun, no excuses. 

Sources

Brady Center to Prevent Gun Violence, Traffic Stop: How the Brady Act Interrupts Interstate Gun Trafficking, Washington, DC: July 1997

Brand, Rachel, Statement of Rachel Brand, Assistant Attorney General for Legal Policy, Department of Justice, before the Committee on Oversight and Government Reform, Subcommittee on Domestic Policy, United States House of Representatives, Concerning Lethal Loopholes: Deficiencies in State and Federal Gun Purchase Laws, May 10, 2007, available at http://www.usdoj.gov/olp/pdf/guns07a.pdf

Bush, Thomas E., III, Personal written communication to Paul Helmke, President of the Brady Campaign to Prevent Gun Violence, by Thomas E. Bush, III, Assistant Director, Criminal Justice Information Services Division, January 22, 2009, on file with the Brady Campaign

Department of Justice. Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2008: Statistical Tables (August 2009)

General Accounting Office, “Gun Control: Options for Improving the National Instant Criminal Background Check System,” Report to Congressional Requesters (April 2000) GAO/GGD-00-56

Loesch, David, 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)

Police Foundation, Guns in America: Results of a Comprehensive National Survey on Firearms Ownership and Use (1996)

Regional Justice Information Service, St. Louis, MO, based on data from the Bureau of Justice Statistics series, Background Checks for Transfers, personal communication, on file with Brady Center, 2008