Firearm Background Checks: Current Federal Framework and the House-Passed Proposals in the 116th Congress

Firearm Background Checks: Current Federal Framework and the House-Passed Proposals in the 116th Congress

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

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https://crsreports.congress.gov | IF11121 · VERSION 3 · UPDATED