February 19Updated March 1, 2019
Firearm Background Checks: Current Federal Framework and
the House-Passed Proposals in the 116th Congress
Federal law requires a background check for many, but not
all, firearms transfers. The Brady Handgun Violence
Prevention Act (Brady Act), Pub. L. No. 103-159, 107 Stat.
1536, established the federal framework for firearms
background checks. Under the Act, the Federal Bureau of
Investigation (FBI) established the National Instant
Criminal Background Check System (NICS), which queries
various government records that could reveal a prospective
transferee is ineligible to receive a firearm. Since the Brady
Act became law in 1993 and NICS went live in 1998, the
framework governing the background check system has
remained largely unchanged. Amendments to the Brady Act
generally have addressed getting more records entered into
the system by state and federal entities. The House passed
two measures in February 2019, however, that would
amend the background check process, itself: H.R. 8 would
expand background checks to more transfers, and H.R.
1112 would impose new restrictions on when a transfer
would be permitted if a NICS check does not provide a
definitive instruction to deny or proceed with the sale.
Background Checks underUnder the Brady Act
Under 18 U.S.C. §§ 922(g) and (n), it generally is unlawful
for certain categories of persons to receive a firearm, such
as persons convicted of certain felony offenses; persons
“adjudicated as . . . mental[ly] defective” or who have been
committed to a mental institution; unlawfully present
aliens; and persons subject to certain court orders relating to
domestic violence or who have committed domestic
violence misdemeanors. The Brady Act mandates that
federally licensed firearms dealers (Federal Firearms
Licensees, or FFLs) initiate background checks for most
firearms transfers to ensure that prospective purchasers are
not prohibited from acquiring a firearm under state or
federal law. The Act requires only those “engaged in the
business” of dealing firearms (including FFLs) to conduct
background checks. Private persons who make only
“occasional sales” from personal collections or as a hobby
need not perform background checks under the Brady Act.
The Brady Act gave the FBI broad parameters to establish
within 5 years a background system “that any licensee may
contact, by telephone or by other electronic means . . . for
information, to be supplied immediately, on whether receipt
of a firearm by a prospective transferee” would violate
federal or state law. In turn, the FBI launched NICS, which
searches three FBI-maintained databases for relevant
records that may reveal that a prospective firearms
purchaser is disqualified from obtaining a firearm under 18
U.S.C. § 922(g) or (n):
National Crime Information Center Database
(NCIC): contains crime data related to persons and
property, including persons subject to protective orders,
fugitive records, and aliens removed or who are
removable due to certain criminal activity;
Interstate Identification Index System (III): contains
criminal history information for persons arrested or
indicted for any federal or state felony or serious
misdemeanor; and
NICS Index: created solely for NICS checks, a catchall
index housing records that do not fit under NCIC or III,
including mental health records.
The databases rely on record submissions from multiple
federal agencies and voluntary submissions from the states.
The NICS background check process is outlined in 28
C.F.R. §§ 25.1-25.11. An FFL must contact a state “point of
contact” (POC) or the FBI NICS Operations Center, so that
entity conducts the background check. POC states access
the NICS databases and can also access state databases that
may contain other prohibiting records. A state must consent
to serving as a POC, and it might also opt to be a POC for
only certain FFL firearms transfers (e.g., handguns, but not
rifles). The FBI conducts background checks when there is
not a state POC for a particular type of firearms transfer.
The Supreme Court held in Printz v. United States, 521
U.S. 898 (1997), that Congress cannot, consistent with
constitutional principles of federalism, conscript or directly
compel states to perform background checks on behalf of
the federal government. Instead, Congress encourages state
participation in the NICS system through grant incentives.
After the NICS check is performed (typically in a matter of
minutes), the FFL is directed to (1) proceed with the sale;
(2) deny the sale, if the check shows the transferor is
prohibited from acquiring the firearm; or (3) delay the sale
if a NICS investigation reveals that the name of the
prospective purchaser matches a record in the system, but
does not definitely show that the person is prohibited from
being transferred a firearm. If a delay instruction is given,
the FFL is permitted (but not required) to complete the
transfer if the FFL does not receive a “proceed” or “deny”
instruction after 3 business days. (These transfers are often
called “default proceed” sales.) If NICS gives a deny
instruction and the prospective transferee believes it was
caused by incorrect information in the NICS system, he or
she may seek administrative or judicial review to correct
the record. 18 U.S.C. §§ 922 note, 925A.
A NICS check for a transaction is valid for 30 calendar
days in accordance with 27 C.F.R. § 478.102. If a firearms
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Firearm Background Checks: Current Federal Framework and the House-Passed Proposals in the 116th Congress
transfer is not completed within that period, a new NICS
check would be required for the transfer to occur.
Under 18 U.S.C. §§ 922(t)(5) and 924(a)(5), an FFL who
knowingly violates the Brady Act’s statutory requirements
may be subject to civil and criminal penalties, including
fines, imprisonment up to 1 year, and license suspension or
revocation. Violations may occur if an FFL transfers a
firearm to an unlicensed person without having undergone
the background check process or disregards an instruction
to deny or delay a sale. By regulation, 28 C.F.R. § 25.11,
fines up to $10,000 may be imposed on state or local
agencies, FFLs, or individuals for misusing the NICS
system by, for example, accessing the system for an
unauthorized purpose or purposefully providing incorrect
information to the system to obtain a proceed response.
Amendments to the Brady Act
Congress has enacted two measures to increase the number
of records that federal and state agencies submit to the FBI
for inclusion in the NICS databases: (1) the NICS
Improvements Amendment Act of 2007 (NIAA), Pub. L.
No. 110-180, 121 Stat. 2559, and (2) the Fix NICS Act of
2018, Pub. L. No. 115-141, 132 Stat. 348.
NIAA aims to increase the submission of records related to
mental illness, misdemeanors of domestic violence, and
protection orders that would render a person ineligible to
purchase or possess a firearm. To increase state
submissions, NIAA authorizes monetary incentives and
penalties tied to submitting records to NICS. For example,
NIAA established the NICS Act Record Improvement
Program (NARIP), which, in part, provides states money to
automate their record systems and transmit to NICS the
targeted prohibiting records. NIAA also directs the
Attorney General to withhold, subject to waiver, up to 5%
of funds available from the Edward Byrne Memorial Justice
Assistance Grant Program (which provides federal funds
for local law enforcement initiatives) if a state provides less
than 90% of its available prohibiting records.
The Fix NICS Act aims to increase prohibiting record
submissions through incentive and accountability measures.
For states, monetary incentives are tied to creating and
substantially complying with an “implementation plan”
designed to ensure maximum record submission. Names of
states that do not substantially comply with NIAA’s
implementation are to be published by the Attorney
General. At the federal level, agencies must semi-annually
certify whether they are submitting all prohibiting records
on at least a quarterly basis. Federal agencies also must
create an implementation plan. The Attorney General is to
publish and semi-annually submit to Congress the names of
agencies that fail to either create or obtain substantial
compliance with an implementation plan. Political
appointees within a federal department or agency that fail to
either certify compliance or substantially comply with an
implementation plan will be ineligible for bonus pay.
House-Passed Proposals in the 116th Congress
Two bills purporting to amend the background check
process were marked up and passed out of the House
Judiciary Committee on February 13, 2019: (1) H.R. 8, the
Bipartisan Background Checks Act of 2019, and (2) H.R.
1112, the Enhanced Background Checks Act of 2019.
H.R. 8, as passed in the House, would expand background
checks to capture many private transfers—that is, transfers
between persons who are not FFLs. (A similar proposal was
introduced in the Senate, S. 42.) H.R. 8 generally would
make it unlawful for non-FFLs to sell or transfer a firearm
without an FFL serving as an intermediary and initiating a
NICS check on the transfer. Though often referred to as a
“universal” background check measure,” the bill contains
numerous exceptions: A background check would not be
required for (1) certain transfers to law enforcement, private
security professionals, and members of the armed services;
(2) gifts between spouses, domestic partners, parents and
children (including step relationships), aunts or uncles and
nieces or nephews, or grandparents and grandchildren; (3)
certain transfers to execute a trust or estate upon a person’s
death; (4) temporary transfers to prevent imminent death or
great bodily harm; (5) temporary transfers while in the
presence of the transferor at a shooting range or while
hunting; and (6) transfers approved under the National
Firearms Act, 26 U.S.C. § 5812, which separately regulates
certain categories of firearms, like machine guns. H.R. 8
also would preclude any implementing regulations from
requiring FFLs to facilitate private transfers or from
capping the fee that an FFL may choose to charge for
conducting the NICS check. Additionally, regulations
required by the bill would direct that Immigration and
Customs Enforcement be notified when a NICS check
reveals that the prospective purchaser cannot possess a
firearm under 18 U.S.C. § 922(g)(5) (related to alien
firearm possession).
As passed in the House, H.R. 1112 would modify the
“default proceed” process that allows an FFL to transfer a
firearm when the NICS transaction process has not been
completed within three business days. The bill provides a
mechanism for a transfer to occur if the FFL does not
receive instructions from the NICS system on whether to
proceed with or deny a proposed transaction within 10
business days. If the transferee wishes to proceed with the
sale in such cases, he or she must file a petition
(electronically or via first-class mail) to the Attorney
General certifying that the transferee does not believe he or
she is prohibited from acquiring the firearm. If a response is
not provided within 10 business days, the FFL would be
allowed to proceed with the transfer. The Committee report
accompanying the bill, H. Rept. 116-2, appears to construe
these 10-day periods as occurring in succession rather than
concurrently (i.e., the delay period might last up to 20
business days). Finally, if, after three business days since
first contacting the system, NICS informs the FFL that the
transfer may proceed, the FFL may complete the transfer
without initiating a new NICS check so long as the transfer
takes place within the longer of (1) 25 calendar days after
the FFL receives the proceed instruction, or (2) 30 calendar
days after initially contacting NICS.
Sarah Herman Peck, Legislative Attorney
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IF11121
Firearm Background Checks: Current Federal Framework and the House-Passed Proposals in the 116th Congress
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