Background checks are designed to identify persons who are ineligible to purchase firearms under federal, state or local law, and prevent those persons from obtaining firearms.1 As described below, federal law requires federally licensed firearms dealers to conduct background checks on potential firearm purchasers.2 Since the federal background check requirement was adopted in 1994, over two million prohibited persons have been denied a firearm transfer or permit through the FBI’s background check system.3 Federal law has several flaws, however, that allow ineligible individuals to obtain firearms.
1. Private Sales: The single largest gap in the federal background check requirement is that unlicensed, private sellers are not required to conduct background checks. As a result, convicted felons and other ineligible people are able to easily buy guns in most states nationwide. This issue is addressed in detail in our summary on Universal Background Checks & the Private Sale Loophole.
2. Default Proceeds: Though 91% of background checks conducted through NICS provide an answer within minutes about whether an individual is legally allowed to buy a gun, about 9% of cases require further investigation and review by FBI and ATF agents.4 However, due to federal law’s “default proceed” rule, those agents only have 3 business days to conduct and finish their investigation. Under federal law, if a firearms dealer who has initiated a background check has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default.5 This “default proceed” provision allowed 3,722 prohibited purchasers to buy guns in 20126 and over 2,500 in 2014.7 In each of these instances, ATF received a referral from the FBI requesting further review and possible retrieval of firearms that had been sold to an ineligible person by default.8 Many default proceed cases require extra time and attention precisely because the firearm purchaser has a long record of dangerous red flags; according to data compiled by Mayors Against Illegal Guns, default proceed sales are 8 times more likely to involve a prohibited purchaser than other background checks.9 As a result, the FBI has recommended extending the three-day period to allow more agents more time to complete background check investigations and to reduce the number of prohibited purchasers who are able to purchase firearms by default.10 A January 2013 poll found that 76.3% of Americans – including 67% of gun owners – support giving law enforcement up to 5 business days, if needed, to complete a background check for gun buyers.11 Recognizing the irresponsibility of the default proceed rule, some gun dealers, including Walmart, refuse to engage in default proceed transactions, making it a matter of policy to only sell firearms when the individual affirmatively passes a background check.12
3. State “Points of Contact”: States have the option of requiring dealers to conduct background checks through state or local agencies, called “Points Of Contact,” or directly through the FBI. States that conduct their own background checks can search records and databases in addition to those that the federal law requires to be searched. State databases typically include information that is unavailable to the FBI, including outstanding felony warrants, mental health records, domestic violence restraining orders and final disposition records (those showing 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.13
4. Exemptions for Permit Holders: Federal law allows individuals who hold certain firearms-related permits issued by state or local governments (such as concealed weapons permits) to bypass the federally-required background check. This exemption — the so-called “Brady exemption” — allows some prohibited persons to acquire firearms when a state permit holder falls into a prohibited category after issuance of the state permit and the state fails to immediately revoke the permit.
5. Reporting of Records: 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,14 and many states fail to voluntarily report the necessary records to the proper databases. As a result, the information that is searched by law enforcement 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 of the states conducted in December 2010 found that only twelve states reported that 80% or more of their felony charges had a final disposition recorded in their criminal history databases.15 Without a disposition record, law enforcement cannot immediately determine 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.16 There are now hundreds of drug court programs across the country that require periodic drug testing as part of their programs, yet this positive test data is rarely available for firearm purchaser background checks.17 According to a November 2011 report by Mayors Against Illegal Guns, 44 states have submitted fewer than ten records to the controlled substance file of a centralized nationwide database, and 33 states have not submitted any records at all.18
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.19 Yet, states have had difficulty identifying and reporting individuals who fall within these categories.20 For more information about this issue, see our summary on Domestic Violence and Firearms.
In light of these significant reporting deficiencies, the FBI has encouraged states to provide more complete records.21
6. Verifying Identification: While each gun purchaser must present proof of identity when applying to purchase a firearm, federal law does not provide a mechanism for dealers to ensure that these identification documents are valid.22 This gap in the federal background check system allows prohibited individuals to purchase firearms without effective background checks using fake or forged identification documents.23 As a result, researchers have suggested that all dealers should be linked to state motor vehicle databases so that they can verify the validity of driver’s licenses offered by potential gun purchasers.24 A national poll conducted for Mayors Against Illegal Guns in April 2008 found that 83% of Americans would support a law requiring gun sellers to install machines that can verify the validity of a gun buyer’s driver’s license.25
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.26 Since 1998, the Brady Act has been implemented through the National Instant Criminal Background Check System (NICS), which was used to conduct 174,623,643 background checks between November 30, 1998 and August 31, 2013.27 Since the federal background check requirement was adopted in 1994, over two million prohibited persons have been denied a firearm transfer or permit through the FBI’s background check system.28
States have the option of designating a state or local agency as a Point of Contact (POC) and having that agency conduct NICS checks, or having those checks performed by the FBI.29 Gun dealers initiate a NICS check by contacting the FBI or state POC (typically by telephone or computer) after the prospective purchaser has provided a government-issued photo I.D. and completed a federal Firearms Transaction Record (also known as Form 4473).30 The FBI or POC must then conduct a name-based search of federal and state databases. FBI searches include four federal databases:
The National Crime Information Center (NCIC), which includes records regarding wanted persons (fugitives) and persons subject to protective/restraining orders;
The Interstate Identification Index, which contains state criminal history records;
The Department of Homeland Security’s U.S. Immigration and Customs Enforcement databases, which contain records regarding non-U.S. citizens; and
The NICS Index, which contains records of other persons determined to be prohibited under federal or state law from receiving or possessing firearms.31 Notably, 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.32
As noted above, a state POC search includes the four federal databases, and may include the state’s independent criminal history database, mental health and other records.33
Once the initial search is complete, the FBI or POC notifies the dealer that the sale: (1) may proceed; (2) may not proceed; or (3) is delayed pending further investigation. If the transaction may proceed, NICS provides the dealer with a unique identification number which the dealer must record on Form 4473.34 The NICS check is valid for a single transaction for up to 30 calendar days from the date NICS was initially contacted.35
If the dealer has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default.36 As noted above, many ineligible people obtain access to firearms because the FBI is not able to complete the background check within this time frame.
Brady Exemption: A person holding a state-issued permit allowing the person to acquire or possess firearms (e.g., a concealed weapons permit) is not required to undergo a background check if the permit was issued: (1) within the previous five years in the state in which the transfer is to take place; and (2) after an authorized government official has conducted a background investigation to verify that possession of a firearm would not be unlawful.37 Permits issued after November 30, 1998 qualify as exempt only if the approval process included a NICS check.38 If the state-issued permit qualifies for the exemption, the permit-holder is not required by federal law to undergo a background check before purchasing a gun. As noted above, this exemption allows a prohibited person to acquire a firearm when the person falls into a prohibited category after issuance of the state permit and the state has not immediately revoked the permit.
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.39 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.40
According to the Government Accountability Office, 15 states received NICS Act grants during at least one fiscal year from 2009-2011.41
The strongest state laws regarding background checks are those that apply to both licensed and unlicensed dealers. For information about such background check laws, see our summary on Universal Background Checks & the Private Sale Loophole. The summary that follows below describes how states have implemented the federal requirement that only applies when a licensed dealer sells or transfers a firearm.
As listed below, about half the states have a law governing the scope and procedure for a background check when a firearm is purchased from a licensed dealer, with 17 states applying these laws to sales of all types of firearms.42 An additional nine states address the background check for purchase of handgun, but not a long gun (rifle or shotgun), from a licensed dealer. Minnesota addresses the background check for purchase of a handgun or assault weapon from a licensed dealer. All but five of these laws (Alabama, Delaware, Georgia, Indiana, and New Hampshire) impose requirements beyond the requirements of federal law, as described below.43
Alabama44
California45
Colorado46
Connecticut47
Delaware48
District of Columbia49
Florida50
Georgia51
Hawaii52
Illinois53
Indiana (handguns only)54
Iowa (handguns only)55
Maryland (handguns only) 56
Massachusetts57
Michigan (handguns only)58
Minnesota (handguns and certain assault weapons only)59
Nebraska (handguns only)60
New Hampshire (handguns only)61
North Carolina (handguns only)62
Oregon63
Pennsylvania64
Rhode Island65
Tennessee66
Utah67
Virginia68
Washington (handguns only)69
Wisconsin (handguns only)70
Description of State Laws Governing Background Checks
1. 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 independent own 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.71 Eight states use a state or local POC for handgun background checks only, using the FBI for background checks on long gun transfers.72 The remaining 29 states and the District of Columbia process all background checks through the FBI.73
POC States for All Firearms
California
Colorado
Connecticut
Florida
Hawaii (via a Brady exemption)*
Illinois
Nevada
New Jersey†
Oregon
Pennsylvania
Tennessee
Utah
Virginia
* 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. 74 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. 75 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.
POC 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.
Maryland
Nebraska
New Hampshire
Washington
Wisconsin
POC States for Handguns via a Brady Exemption: The following three 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 three 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.
Iowa
Michigan
North Carolina
2. States that Issue Permits that Qualify the Holder for an Exemption from a NICS Check: Pursuant to 18 U.S.C. § 922(t)(3), twenty-two states issue permits or licenses that exempt the holder from the federal background check requirement at the point of sale.76
States that Issue Permits or Licenses that Qualify the Holder for an Exemption from a NICS Check77
Alaska (concealed weapons permits)
Arizona (concealed weapons permits)
Arkansas (concealed weapons permits)
California (“entertainment firearms permits” only)
Georgia (concealed weapons permits)
Hawaii (permits to acquire and licenses to carry)
Idaho (concealed weapons permits)
Iowa (permits to acquire a handgun and concealed weapons permits)
Kansas (concealed weapons permits issued on or after 7/1/10)
Kentucky (concealed weapons permits)
Michigan (licenses to purchase a pistol and concealed pistol licenses)
Mississippi (concealed weapons permits, but not security guard permits)
Montana (concealed weapons permits)
Nebraska (handgun purchase certificates and concealed handgun permits)
Nevada (concealed weapons permits issued on or after 7/1/11)
North Carolina (permits to purchase a handgun and concealed handgun permits)
North Dakota (concealed weapons permits)
South Carolina (concealed weapons permits)
Texas (concealed weapons permits)
Utah (concealed weapons permits)
Washington (concealed weapons permits issued on or after 7/22/11)
Wyoming (concealed weapons permits)
3. Laws Requiring or Authorizing the State to Act as a Point of Contact: Connecticut and Illinois have laws requiring the states to act as POCs. California, Colorado, 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. California law requires the state to act as a POC if funding is available, which it is. 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.
4. 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.78 Virginia also requires all firearm purchasers to present additional documentation establishing residency.
5. Background Check Laws in Non-POC states:
A. States That Incorporate the Federal Requirement: Four states (Alabama, Delaware, Georgia, and 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.
B. Independent State Background Check Requirements at the Point of Sale: Minnesota and Rhode Island do not function as POCs, but have their own independent background check requirements.79 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. 80
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. 81 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.
C. State Background Checks Prior to Issuance of a Permit to Purchase: Massachusetts is not a POC state, and an administrative regulation confirms that dealers must contact NICS directly prior to sale of a firearm.82 However, Massachusetts requires a license for the purchase of any firearm, and requires dealers to verify the validity of a potential transferee’s license prior to transferring a firearm through electronic contact with a state database. Similarly, the District of Columbia does not function as a POC, but firearm purchasers must first obtain a registration certificate, after an extensive background check. See our summary on Licensing Gun Owners & Purchasers for more information about licensing requirements.
6. State Laws Addressing the Problem of “Default Proceeds”:83 As noted above, if an FFL has not been notified within three business days after initiating a background check that a sale would violate federal or state laws, the sale may proceed by default. These sales by default, known as “default proceeds,” allow many prohibited purchasers to buy guns. Several states have taken measures to extend the time allowed for completion of a background check, so that firearms cannot be transferred by default when a background check cannot be completed within three days.
A. Time for Background Check under State Background Check Laws: The background check laws in several POC states extend the time allowed for a background check. In California, all firearm transfers are subject to a 10-day waiting period.84 If the California Department of Justice (“DOJ”) cannot determine within the 10-day period whether the prospective purchaser is prohibited from possessing a firearm, DOJ may notify the dealer and prospective purchaser of this fact and obtain up to a total of 30 days to complete the background check.
Maryland gives the Secretary of State Police seven days in which to approve or disapprove the transfer of a handgun. Maryland also prohibits the transfer of a handgun if the application is placed on hold because of an open disposition of criminal proceedings.
Washington allows five days to complete a background check on prospective handgun purchasers. However, if records indicate that a prospective purchaser has an arrest for a potentially disqualifying offense, a hold may be placed on the transaction for up to 30 days, pending receipt of the disposition, or longer upon a judicial order for good cause.85
In Tennessee, the Bureau of Investigation must deny a transfer if the background check reveals that the purchaser has been charged with a crime for which the purchaser, if convicted, would be prohibited from possessing a firearm, and either there has been no final disposition of the case, or the final disposition is not noted. However, the transfer may go forward if the Bureau receives written notice from the court indicating that no final disposition information is available.86
Pennsylvania law allows the State Police to temporarily delay a firearm transfer to determine whether a misdemeanor conviction involved domestic violence that would disqualify the purchaser under federal law.
B. Time for a Background Check under Licensing Laws: State laws that require a person to obtain a license or certificate before purchasing a firearm can provide law enforcement with longer periods of time to conduct a background check on the applicant. In the District of Columbia, a dealer cannot deliver a firearm unless the buyer has obtained a registration certificate from the Chief of Police. The Chief has 60 days from the date the application is received to determine “through inquiry, investigation, or otherwise,” whether the applicant is entitled and qualified to receive a certificate. See our summary on Licensing Gun Owners & Purchasers for more information about licensing procedures.
7. The Scope of the 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.
A. 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, Connecticut87 Illinois, Massachusetts, Minnesota, New York,88 Oregon, Pennsylvania, and Washington). Three states (Hawaii, Minnesota, and New Jersey)89 require the purchaser to authorize a search of mental health files as part of the background check process.90 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.
B. 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.91
C. Protective or