Firearms Background Checks Under H.R. 8 and H.R. 1112

Firearms Background Checks Under H.R. 8 and H.R. 1112

Updated February 22, 2019
Firearms Background Checks Under H.R. 8 and H.R. 1112
On February 13, 2019, the House Committee on the
licensees are known collectively as “federal firearms
Judiciary ordered reported two bills (H.R. 8 and H.R. 1112)
licensees,” or FFLs. In general, only FFLs are authorized to
that would amend the federal firearms background check
engage in interstate firearms commerce. The act requires
provisions in the Gun Control Act of 1968 (GCA; 18
FFLs to maintain records on all commercial firearms
U.S.C. §922 et seq.).
transactions. Intrastate, private transfers between unlicensed
persons “not engaged in the business” of dealing in firearms
Bipartisan Background Checks Act of
“for profit and the principal source of their livelihood” are
2019 (H.R. 8)
not covered by the recordkeeping or the background check
H.R. 8 would make intrastate, private firearms transactions
provisions of the GCA. Under current law, unlicensed
subject to the GCA recordkeeping and background check
persons (non-FFLs) may transfer firearms among
requirements by prohibiting unlicensed persons from
themselves intrastate, as long as they do not transfer a
transferring a firearm to any other unlicensed person, unless
firearm knowingly to a prohibited person (e.g., a convicted
a federally licensed firearms dealer takes possession of such
felon or fugitive from justice), or a handgun to a juvenile
firearm and facilitates such a transaction by running a
(under 18 years of age).
background check on the unlicensed prospective transferee
(buyer). Under current law, unlicensed persons are
Federal Firearms Eligibility
generally prohibited from making interstate firearms
The GCA generally prohibits any person from transferring a
transfers between one another. H.R. 8 would essentially
handgun or ammunition suitable for a handgun to a
extend this interstate prohibition to intrastate (same state)
juvenile, and juveniles are prohibited from possessing a
firearms transactions. For a similar proposal, see the
handgun or ammunition suitable for a handgun, although
Background Check Expansion Act (S. 42).
there are exceptions enumerated in this provision (18
U.S.C. §922(x)). The GCA prohibits FFLs from
Enhanced Background Checks Act (H.R.
transferring a long gun (rifle or shotgun) or ammunition to
1112)
anyone under 18 years of age; and a handgun or
H.R. 1112 would extend the delayed transfer period from 3
ammunition suitable for a handgun to anyone under 21
business days to 10 business days when a background
years of age (18 U.S.C. §922(b)(1)).
check yields information that suggests that an unlicensed
prospective transferee might be prohibited from receiving
The GCA sets forth nine categories of persons prohibited
or possessing firearms. After 10 business days, the
from shipping, transporting, receiving, or possessing
transferee could petition the Attorney General to complete
firearms or ammunition (18 U.S.C. §922(g)). For example,
the eligibility determination. Under H.R. 1112, the federally
persons convicted of felony or domestic violence
licensed gun dealer could proceed with the transfer at his or
misdemeanor offenses are prohibited persons. Persons
her discretion if he or she had not received a final eligibility
under felony indictment are prohibited from receiving, but
determination within 10 business days of the petition.
not possessing firearms (18 U.S.C. §922(n)). It is a felony
for any person to transfer a firearm or ammunition to any
Gun Control Act of 1968
prohibited persons, or if the transferor has reasonable cause
The GCA’s stated purpose is to assist federal, state, and
to believe that the transferee is prohibited under any of the
local law enforcement in the ongoing effort to reduce crime
GCA’s prohibiting categories (18 U.S.C §922(d)).
and violence. Observers have long noted that the
assassinations of President John F. Kennedy and his
Whenever an unlicensed person seeks to acquire a firearm
brother, Senator Robert F. Kennedy, and civil rights leader
from an FFL, both the FFL and prospective purchaser must
Martin Luther King provided the impetus to pass the GCA.
complete and sign an ATF Form 4473. On this form, the
Congress stated, however, that the GCA’s intent is not to
purchaser attests under penalty of law that he or she is not a
place any undue or unnecessary federal restrictions or
prohibited person and that he or she is the “actual buyer.”
burdens on law-abiding citizens in regard to the lawful
The FFL must also verify the purchaser’s name, date of
acquisition, possession, or use of firearms for hunting,
birth, and other information by examining government-
trapshooting, target shooting, personal protection, or any
issued identification (e.g., a driver’s license).
other lawful activity.
Background Checks
Federal Firearms Licensing
Pursuant to the Brady Handgun Violence Prevention Act,
1993 (P.L. 103-159), the Federal Bureau of Investigation
(FBI) activated the National Instant Criminal Background
The GCA requires all persons manufacturing, importing, or
Checks System (NICS) in November 1998. NICS is a
selling firearms as a business to be federally licensed. These
computer “system of systems” that queries other federal,
https://crsreports.congress.gov

Firearms Background Checks Under H.R. 8 and H.R. 1112
state, local, tribal, and territorial criminal history and other
past, but has indicated that it will no longer attempt to
public records that could indicate that an unlicensed,
collect such data.
prospective customer is prohibited from acquiring a firearm
under the GCA. FFLs are required to initiate a background
Expanding Background Checks Under
check through NICS on any prospective unlicensed
H.R. 8
customer who seeks to acquire a firearm from them through
Proponents of gun control view the fact that unlicensed
a sale, trade, or redemption of firearms exchanged for
persons are allowed to engage in intrastate firearms
collateral (18 U.S.C. §922(t)). Through NICS the FBI has
transfers—without being subject to the GCA recordkeeping
facilitated 278 million background check transactions from
and background check requirements—as a “loophole” in
December 1998 through 2017. Under the Brady Act, states
the law, particularly within the context of gun shows.
may opt to handle firearms eligibility determinations
Expanding background checks have coalesced around two
themselves or allow the FBI to handle such determinations.
proposals. The “comprehensive” background check
States that have opted to handle those determinations
proposal would cover firearms transfers between unlicensed
themselves are known as Point of Contact (POC) states.
persons arranged at a “gun show” or “pursuant to
From 1999 to 2015, the overall NICS denial rate was 1.5%.
advertisement, posting, display, or other listing on the
The POC denial rate was 1.8%; and the FBI NICS denial
Internet or other publication by the transferor of his intent
rate was 1.2%.
to transfer, or the transferee of his intent to acquire, a
firearm.” The “universal” background check proposal
In response to a background check, the NICS is to respond
would capture private intrastate firearms transfers under a
to an FFL or POC state official with a NICS Transaction
wider set of circumstances, arguably “requiring a
Number (NTN) and one of three outcomes:
background check for every firearm sale,” although it too
includes exceptions.
1. “proceed” with transfer or permit/license
issuance, because a prohibiting record
H.R. 8 would fall under the “universal” category. It would
was not found;
expand federal firearms recordkeeping and background
2. “denied,” indicating a prohibiting record
check requirements to cover intrastate transactions made
was found; or
between unlicensed persons by routing such transactions
through FFLs. H.R. 8 includes exceptions for transfers
3. “delayed,” indicating that the system
between immediate family members; U.S. military, law
produced information that suggested there
enforcement members, or armed private security
could be a prohibiting record.
professionals in the course of official duties; and temporary
In the case of a “proceed,” the background check record is
transfers under circumstances involving an imminent threat
purged from NICS within 24 hours; “denied” requests are
of bodily harm or death, and legitimate activities involving
kept in perpetuity. In the case of a “delayed” transaction,
target shooting, hunting, trapping, or fishing.
after three business days have passed, FFLs may proceed
with the transaction at their discretion if they have not
H.R. 8 would also prohibit any implementing regulations
received a final eligibility determination from the NICS.
that would (1) require FFLs to facilitate private firearms
NICS examiners, or state designees (POCs), may attempt to
transactions; (2) require unlicensed sellers or buyers to
ascertain whether the person is prohibited. If they learn that
maintain any records with regard to FFL-facilitated
a transferee is prohibited, a firearms retrieval referral will
background checks; or (3) place a cap on the fee FFLs may
be issued to the ATF and chief law enforcement officer.
charge for facilitating a private firearms transfer. H.R. 8
would prohibit FFLs from transferring possession of, or
NICS Determination Times
title to, any firearm to any unlicensed person, unless the
Over the 19-year period (1999-2017), on average, about
FFL provides notice of the proposed private firearm transfer
two-thirds of NICS checks handled entirely by the FBI have
prohibition under this bill. H.R. 8 would extend a provision
been decided within hours, if not minutes. Nearly one-fifth
of current law that prohibits the Department of Justice from
are delayed, but are turned around within the three-
charging a fee for a firearms-related background check
business-day delayed transfer period. The FBI views these
under the GCA to FFL-facilitated background checks.
NICS checks as “immediate determinations.” Much less is
known about determination times in POC states,
Lengthening the Delayed Sale Period
particularly in those states that require firearms waiting
Under H.R. 1112
periods and/or permitting.
H.R. 1112 would revise the GCA background check
provision to lengthen the delayed sale period, which is three
NICS Appeals
business days under current law. Under H.R. 1112, for
Over the 17-year period (1999-2015), the FBI NICS
background checks that do not result in a “proceed with
Section processed 278,552 appeals of mostly FBI NICS
transfer” or “transfer denied,” the FBI NICS Section and
denials, or roughly one-fifth of denials. Of those appeals,
POC state officials would have 10 business days to place a
54,024 denials were overturned, or roughly one-fifth of
hold on a firearms-related transaction. At the end of 10
appeals handled by the FBI NICS Section. According to the
business days, the prospective transferee could petition the
FBI, the leading reason for a denial being overturned on
Attorney General for a final firearms eligibility
appeal was the prospective customer was misidentified as a
determination. If the FFL does not receive a final
prohibited person. The Bureau of Justice Statistics has
determination within 10 days of the date of the petition, he
attempted to collect data on POC-handled appeals in the
or she could proceed with the transfer.
https://crsreports.congress.gov

Firearms Background Checks Under H.R. 8 and H.R. 1112

William J. Krouse, Specialist in Domestic Security and
Crime Policy
IF11113

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