Brady Campaign to Prevent Gun Violence
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Brady Background Checks The Brady Law
History
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In the 1960s, our nation suffered from the assassinations of a number of prominent people by gunfire, including President John F. Kennedy, Dr. Martin Luther King, Jr., and Senator Robert F. Kennedy.

The Congress responded to public outrage by enacting the Gun Control Act of 1968, which identified categories of individuals considered too high-risk to own a gun. These potentially dangerous or high-risk people included felons, youth, and the dangerously mentally ill, among others.

But, under the 1968 Gun Control Act, people considered high-risk could still purchase guns because gun sales operated on an “honor system.”  Felons, youth, and the dangerously mentally ill could buy guns by providing false information on their gun purchase applications because, in most states, no one verified the information.

In 1986, Jim and Sarah Brady began what turned out to be a seven-year battle to address this problem. Jim Brady was press secretary to President Ronald Reagan when both he and the President, along with Secret Service agent Tim McCarthy and District of Columbia police officer Thomas Delahanty, were shot in March 1981 in an assassination attempt on the President. Jim suffered a serious head wound that left him partially paralyzed for life.

The gun used to shoot President Reagan, Jim Brady, Agent McCarthy, and Officer Delahanty was purchased at a pawnshop in Dallas, Texas. The gun was a Roehm Model RG14, a six-shot, double-action revolver designed to fire .22-caliber, rimfire ammunition. The shooter, John Hinckley, lied about his address when he purchased the gun and used an old Texas driver's license as "proof" that he lived there. A background check would have caught that lie.

On November 30, 1993, President Bill Clinton signed the “Brady Handgun Violence Protection Act”, also known as the “Brady Bill,” into law. 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.

The Brady law requires that individuals seeking to buy a gun at a licensed dealer pass a background check. Because guns are especially lethal weapons, it makes sense that before someone can own one, he or she meet the legal requirements for ownership. This simple step protects everyone — gun owners and non-gun owners alike — from the danger of high-risk people gaining access to lethal weapons.

The Brady Law was implemented in two stages. The purpose of the two-stage implementation was to provide time to organize and computerize criminal history and other relevant records and for the Federal Bureau of Investigation to develop the National Instant Criminal Background Check System (NICS).

During the first stage, which lasted five years, purchasers were subject to a waiting period of five days to give law enforcement time to search records. On November 30, 1998, the “permanent” provisions took effect with implementation of NICS.

This law has successfully blocked over 1.9 million purchase attempts by dangerous people from a gun dealer. However, more needs to be done to protect our families and communities from gun violence. The Brady Law needs to be strengthened.

While the Brady law requires criminal background checks of purchases from federally licensed dealers, it does not require background checks for sales from unlicensed sellers. Convicted felons, domestic violence abusers, and those who are dangerously mentally ill can walk into gun shows or flea markets and buy firearms from unlicensed sellers. In addition to gun shows and flea markets, criminals use classified ads and even the Internet to buy and sell guns without a background check.

There should be Brady background checks on all gun sales, including those at gun shows. Our national policy should be: no background check, no gun, no excuses.
Frequently Asked Questions
Q. What is the Brady law?

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 three-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 a 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 an estimated 2 million attempts by high-risk people to buy a gun from a licensed gun dealer, based on denials recorded through the end of 2009 (Department of Justice, Table 1). 

The Brady law was signed in 1993 and became effective in February 1994.  After the passage of the law, murders declined 30 percent through 2006 (from 24,526 to 17,034).  Most of the drop in murders - 73 percent - was accounted for by the sharp decline in gun murders. This historic drop in murders has been sustained, with murders in the most recent year available (2009), at their lowest level (15,241) since 1970. For details, see the Brady Center report, Brady Background Checks, Fifteen Years of Saving Lives.

Remarkably, felony convictions account for over 800,000 blocked gun purchase applications (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. 

Academic research indicates that the Brady law is associated with reductions in homicide.  A study released in 2010 tested three interventions to reduce homicide and gun homicide: the Brady law, lax laws on carrying guns concealed in public, and sentence enhancements for gun crimes (La Valle, 2010). The researcher developed his methodology to address methodological concerns with past gun policy research identified in a review by the National Academy of Sciences in 2005. 

Using data from 20 major cities over a 36-year period (1970 to 2005), the study found that the Brady law was associated with reductions in homicide and gun homicide.  Lax laws on carrying guns in public were not associated with declines in homicide or gun homicide.

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

A. Gun traffickers are 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. 

Brady background checks appear to disrupt gun trafficking between states.  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.

Background checks are also associated with reductions in gun trafficking by criminals within a state. A study released in 2009 found that state laws requiring a background check for private sales of guns reduced gun trafficking within a state by 48 percent (Webster, 2009).

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 Criminal Instant Background 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 and by extending Brady background checks to all gun sellers. 

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 August 31, 2010, 28 states had submitted fewer than 100 records to the Brady background check system's federal NICS Index database (MAIG, 2011).  

Following the VA Tech shooting, the Brady Campaign worked to pass the NICS Improvement Amendments Act.  Signed into law on January 8, 2008, this new law provides incentives to states to provide records of prohibited persons to NICS, and requires federal agencies to do so.

Research generated by the NICS Improvement Act requirements indicates that millions of relevant records are still missing from the system.  The National Center for State Courts and SEARCH, the National Consortium for Justice Information and Statistics, estimate that as many as 2 million disqualifying mental illness records should be in the NICS Index based on responses from only 42 of 56 U.S. states and territories.

Congress can help states get records into the system by fully funding the NICS Improvement Amendments Act.

Q. Why did the National Rifle Association (NRA) 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 zealotry, 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 and Virginia Tech shootings. 

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 all gun sales at gun shows.

Congress can help states get records into the system by fully funding the NICS Improvement Amendments 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, 2009: Statistical Tables (October 2010)

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

Kessler, Jim, Missing Records: Holes in Background Check System Allow Illegal Buyers to Get Guns, Washington, DC: The Third Way Culture Project, May 2007

La Valle, James M, “Re-Estimating Gun-Policy Effects According to a National Science Academy Report: Were Previous Reports of Failure Pre-Mature?” Journal of Crime and Justice, Volume 33(1), 2010, pp. 71-95

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)

Mayors Against Illegal Guns, Arizona Shooting: Fewer Than 28 States Have Submitted Fewer Than 100 Mental Health Records to Background Check Database for Gun Sales, January 16, 2011

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

Webster, Daniel W., Jon S. Vernick, and Maria T Bulzacchelli. “Effects of State-Level Firearm Seller Accountability Policies on Firearm Trafficking.” Journal of Urban Health: Bulletin of the New York Academy of Medicine 86 (2009): 525-37
Studies and Reports