March 4, 2021
Firearm Background Checks Under H.R. 8 and H.R. 1446
The 117th Congress is considering two bills (H.R. 8 and
Federal Firearms Ineligibility
H.R. 1446) that would amend the background check
The GCA generally prohibits any person from transferring a
provisions of the Gun Control Act of 1968 (GCA; 18
handgun or ammunition suitable for a handgun to a
U.S.C. §§922-930). The House passed nearly identical bills
juvenile, and juveniles are prohibited from possessing a
in the 116th Congress.
handgun or ammunition suitable for a handgun, although
there are exceptions enumerated in this provision (18
Bipartisan Background Checks Act of
U.S.C. §922(x)). The GCA prohibits FFLs from
2021 (H.R. 8)
transferring a long gun (rifle or shotgun) or ammunition to
H.R. 8 would make nearly all intrastate, private-party
anyone under 18 years of age; and a handgun or
firearms transactions subject to the recordkeeping and
ammunition suitable for a handgun to anyone under 21
background check requirements of the Gun Control Act of
years of age (18 U.S.C. §922(b)(1)).
1968 (GCA). For a similar proposal, see S. 529. The House-
passed bill in the 116th Congress was also H.R. 8.
The GCA sets forth nine categories of persons prohibited
from shipping, transporting, receiving, or possessing
Enhanced Background Checks Act of
firearms or ammunition (18 U.S.C. §922(g)). For example,
2021 (H.R. 1446)
persons convicted of felony or domestic violence
H.R. 1446 would lengthen the amount of time firearms
misdemeanor offenses are prohibited persons. Persons
transactions could be delayed pending the completion of a
under felony indictment are prohibited from receiving, but
background check from three business days under current
not possessing firearms (18 U.S.C. §922(n)). Under current
law to several weeks. The timeliness and accuracy of FBI-
law, it is a felony for any person knowingly to transfer a
administered firearms background checks became a matter
firearm or ammunition to any prohibited persons, or if the
of controversy following the June 17, 2015, Charleston, SC,
transferor has reasonable cause to believe that the transferee
mass shooting at the Emanuel African Methodist Episcopal
is prohibited under any of the GCA’s prohibiting categories
Church. The House-passed bill in the 116th Congress was
(18 U.S.C §922(d)).
H.R. 1112.
Whenever an unlicensed person seeks to acquire a firearm
Gun Control Act of 1968
from an FFL, both the FFL and prospective purchaser must
The GCA’s stated purpose is to assist federal, state, and
complete and sign a Bureau of Alcohol, Tobacco, Firearms
local law enforcement in the ongoing effort to reduce crime
and Explosives Form 4473. On this form, the purchaser
and violence. Congress stated, however, that the GCA’s
attests under penalty of law that he or she is not a prohibited
intent is not to place any undue or unnecessary federal
person and that he or she is the “actual buyer.” The FFL
restrictions or burdens on law-abiding citizens in regard to
must also verify the purchaser’s name, date of birth, and
the lawful acquisition, possession, or use of firearms for
other information by examining government-issued
hunting, trapshooting, target shooting, personal protection,
identification (e.g., a driver’s license).
or any other lawful activity.
Background Checks
Firearms Licensing
Pursuant to the Brady Handgun Violence Prevention Act,
The GCA requires all persons manufacturing, importing, or
1993 (P.L. 103-159), the Federal Bureau of Investigation
selling firearms as a business to be federally licensed. These
(FBI) activated the National Instant Criminal Background
licensees are known collectively as “federal firearms
Checks System (NICS) in November 1998. NICS is a
licensees,” or FFLs. In general, only FFLs are authorized to
computer “system of systems” that queries other federal,
engage in interstate firearms commerce. The act requires
state, local, tribal, and territorial criminal history and other
FFLs to maintain records on all commercial firearms
public records that could indicate that an unlicensed,
transactions. Intrastate, private transfers between unlicensed
prospective customer is prohibited from acquiring a firearm
persons “not engaged in the business” of dealing in firearms
under the GCA.
“for profit and the principal source of their livelihood” are
not covered by the recordkeeping or the background check
FFLs are required to initiate a background check through
provisions of the GCA.
NICS on any prospective unlicensed customer who seeks to
acquire a firearm from them through a sale, trade, or
Under current law, unlicensed persons (non-FFLs) may
redemption of firearms exchanged for collateral (18 U.S.C.
transfer firearms among themselves intrastate, as long as
§922(t)). Under the Brady Act, states may opt to handle
they do not transfer a firearm knowingly to a prohibited
firearms eligibility determinations or allow the FBI to
person (e.g., a convicted felon or fugitive from justice), or a
handle such determinations. States that have opted to
handgun to a juvenile (under 18 years of age).
handle those determinations themselves are known as Point
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Firearm Background Checks Under H.R. 8 and H.R. 1446
of Contact (POC) states. In response to a background
misidentified as a prohibited person. Much less is known
check, the NICS is to respond to an FFL or POC state
about POC determination times and appeals.
official with a NICS Transaction Number (NTN) and one of
three outcomes:
Expanding Checks Under H.R. 8
Proposals to expand background checks have coalesced
1. “proceed” with transfer or permit/license
around two basic models. The “comprehensive”
issuance, because a prohibiting record
background check model would cover intrastate firearms
was not found;
transfers between unlicensed persons arranged at a “gun
2. “denied,” indicating a prohibiting record
show” or “pursuant to advertisement, posting, display, or
was found; or
other listing on the Internet or other publication by the
transferor of his intent to transfer, or the transferee of his
3. “delayed,” indicating that the system
intent to acquire, a firearm.” The “universal” background
produced information that suggested there
check model would capture private intrastate firearms
could be a prohibiting record, such as
transfers under a wider set of circumstances, arguably
criminal charges without a final
“requiring a background check for every firearm sale,”
disposition.
although it too includes exceptions.
In the case of a “proceed,” the background check record is
purged from NICS within 24 hours; “denied” requests are
H.R. 8 falls under the “universal” model. It would expand
kept in perpetuity. In the case of a “delayed” transaction,
federal firearms recordkeeping and background check
after three business days have passed, FFLs may proceed
requirements to cover intrastate transactions made between
with the transaction at their discretion if they have not
unlicensed persons by routing such transactions through
received a final eligibility determination from the NICS.
FFLs. H.R. 8 includes exceptions for transfers between
During this time, NICS examiners, or state designees
immediate family members; as part of the administration of
(POCs), may attempt to ascertain whether the person is
a deceased person’s estate or trust; among U.S. military,
prohibited. If they learn that a transferee is prohibited, a
law enforcement members, or armed private security
firearms retrieval referral will be issued to the ATF and
professionals in the course of official duties; transfers under
state or local chief law enforcement officer. The NICS
the 1934 National Firearms Act, which already regulates
Section destroys unresolved checks at the 88-day mark.
certain firearms transfers more stringently; and temporary
transfers under circumstances involving an imminent threat
NICS Transactions and Background Checks
of bodily harm or death, and legitimate activities involving
From December 1998 to 2017, the FBI facilitated over
target shooting, hunting, trapping, or fishing. Violations of
278.5 million NICS transactions. POC states and other state
these provisions would be punishable by a fine and up to
and local authorities accounted for 158 million of these
one year’s imprisonment. H.R. 8 would prohibit FFLs from
transactions, which corresponded with 100 million
transferring possession of, or title to, any firearm to any
background checks and 1.7 million denials (1.7%). (Some
unlicensed person, unless the FFL provides notice of the
state and local background checks involve more than one
proposed private firearm transfer prohibition under this bill.
transaction.) The FBI NICS Section handled 120.4 million
H.R. 8 would prohibit the establishment of a national
transactions and an equal number of background checks and
registry and would not interfere with any state’s authority to
nearly 1.5 million denials (1.2%). The overall percentage of
enact laws regulating firearms transfers.
denials for those years was 1.5%. For 2018 and 2019, the
FBI facilitated 26.2 and 28.4 million NICS transactions,
Lengthening the Delayed Sale Period
respectively, bringing total NICS transactions to 333
Under H.R. 1446
million. For 2019, the FBI reported that its NICS Section
H.R. 1446 would revise the GCA background check
processed 8.2 million checks, 103,592 of which resulted in
provision to lengthen the delayed sale period, which is three
a denial (1.27%). The FBI also reported that 207,421
business days under current law. Under H.R. 1446, for
checks were not resolved (2.5%), a percentage consistent
background checks that do not result in a “proceed with
with prior years. The FBI facilitated a record 39.7 million
transfer” or “transfer denied,” the FBI NICS Section and
transactions in 2020, a 40% increase over 2019. About 18.2
POC state officials would have 10 business days to place a
million of the 2020 transactions were for state-issued
hold on a firearms-related transaction. At the end of 10
firearms license or permit checks or rechecks. Nearly
business days, the prospective transferee could petition the
55,000 were for private, intrastate sales.
Attorney General for a final firearms eligibility
determination. If the FFL does not receive a final
NICS Determination Times and Appeals
determination within 10 days of the date of the petition, he
Over the 21-year period (1999-2019), the FBI NICS
or she could proceed with the transfer. H.R. 1446 does not
Section handled 136.8 million of 333 million NICS
include a provision that was included in H.R. 1112 (116th
transactions. On average, about two-thirds of these FBI-
Congress). Regarding one of the GCA’s nine prohibiting
administered background checks were decided within
categories, it would have replaced the term “adjudicated as
hours, if not minutes. Nearly one-fifth were delayed, but
a mental defective” with “adjudicated with mental illness,
were turned around within the three-business-day delayed
severe developmental disability, or severe emotional
transfer period. The FBI views these NICS checks as
instability” (at 18 U.S.C. §§922(g)(4) and (n)(4)).
“immediate determinations.” During this time, about one-
fifth of FBI denials were appealed, and over one-tenth of
William J. Krouse, Specialist in Domestic Security and
appealed denials were overturned. The leading reason for a
Crime Policy
denial being overturned on appeal was the applicant was
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Firearm Background Checks Under H.R. 8 and H.R. 1446

IF11781


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https://crsreports.congress.gov | IF11781 · VERSION 1 · NEW

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