Firearm Background Checks Under H.R. 8 and H.R. 1446
Updated October 3, 2022
Firearm Background Checks Under H.R. 8 and H.R. 1446
On March 11, 2021, the House has passed two bills (H.R. 8
Federal Firearms Ineligibility
and 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. §§921-934). The House also passed nearly identical
juvenile, and juveniles are prohibited from possessing a
bills in the 116th Congress (H.R. 8 and H.R. 1112).
handgun or ammunition suitable for a handgun, although
there are exceptions enumerated in this provision (18
The Bipartisan Background Checks Act of 2021 (H.R. 8)
U.S.C. §922(x)). The GCA prohibits FFLs from
would make nearly all intrastate, private-party firearms
transferring a long gun (rifle or shotgun) or ammunition to
transactions subject to the GCA recordkeeping and
anyone under 18 years of age; and a handgun or
background check, arguably closing what some gun control
ammunition suitable for a handgun to anyone under 21
advocates refer to intrastate, private firearm transfers as the
years of age (18 U.S.C. §922(b)(1)).
“gun show loophole” For a similar proposal, see S. 529.
The GCA sets forth nine categories of persons prohibited
The Enhanced Background Checks Act of 2021 (H.R.
from shipping, transporting, receiving, or possessing
1446) would lengthen the amount of time firearms
firearms or ammunition (18 U.S.C. §922(g)). For example,
transactions could be delayed pending the completion of a
persons convicted of felony or domestic violence
background check from three business days under current
misdemeanor offenses are prohibited persons. Persons
law to several weeks. The timeliness and accuracy of FBI-
under felony indictment are prohibited from receiving, but
administered firearms background checks became a matter
not possessing firearms (18 U.S.C. §922(n)). Under current
of controversy following the June 17, 2015, Charleston, SC,
law, it is a felony for any person knowingly to transfer a
mass shooting at the Emanuel African Methodist Episcopal
firearm or ammunition to any prohibited persons, or if the
Church. The House-passed bill in the 116th Congress was
transferor has reasonable cause to believe that the transferee
H.R. 1112.
is prohibited under any of the GCA’s prohibiting categories
(18 U.S.C §922(d)). Whenever an unlicensed person seeks
Gun Control Act of 1968
to acquire a firearm from an FFL, both the FFL and
The GCA’s stated purpose is to assist federal, state, and
prospective purchaser must complete and sign a Bureau of
local law enforcement in the ongoing effort to reduce crime
Alcohol, Tobacco, Firearms and Explosives Form 4473. On
and violence. Congress stated, however, that the GCA’s
this form, the purchaser attests under penalty of law that he
intent is not to place any undue or unnecessary federal
or she is not a prohibited person and that he or she is the
restrictions or burdens on law-abiding citizens in regard to
“actual buyer.” The FFL must also verify the purchaser’s
the lawful acquisition, possession, or use of firearms for
name, date of birth, and other information by examining
hunting, trapshooting, target shooting, personal protection,
government-issued identification (e.g., a driver’s license).
or any other lawful activity.
Background Checks
Firearm Dealer 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. FFLs are required to initiate a background
“for profit and the principal source of their livelihood” are
check through NICS on any prospective unlicensed
not covered by the recordkeeping or the background check
customer who seeks to acquire a firearm from them through
provisions of the GCA. Under current law, unlicensed
a sale, trade, or redemption of firearms exchanged for
persons (non-FFLs) may transfer firearms among
collateral (18 U.S.C. §922(t)). Under the Brady Act, states
themselves intrastate, as long as they do not transfer a
may opt to handle firearms eligibility determinations or
firearm knowingly to a prohibited person (e.g., a convicted
allow the FBI to handle such determinations. States that
felon or fugitive from justice), or a handgun to a juvenile
have opted to handle those determinations themselves are
(under 18 years of age).
known as Point of Contact (POC) states. In response to a
background check, the NICS is to respond to an FFL or
POC state official with a NICS Transaction Number (NTN)
and one of three outcomes:
https://crsreports.congress.gov
Firearm Background Checks Under H.R. 8 and H.R. 1446
1. “proceed” with transfer or permit/license
information, see CRS Report R45970, Gun Control:
issuance, because a prohibiting record
National Instant Criminal Background Check System
was not found;
(NICS) Operations and Related Legislation.
2. “denied,” indicating a prohibiting record
Expanding Checks Under H.R. 8
was found; or
Proposals to expand background checks have coalesced
3. “delayed,” indicating that the system
around two basic models. The “comprehensive”
produced information that suggested there
background check model would cover intrastate firearms
could be a prohibiting record, such as
transfers between unlicensed persons arranged at a “gun
criminal charges without a final
show” or “pursuant to advertisement, posting, display, or
disposition.
other listing on the Internet or other publication by the
In the case of a “proceed,” the background check record is
transferor of his intent to transfer, or the transferee of his
purged from NICS within 24 hours; “denied” requests are
intent to acquire, a firearm.” The “universal” background
kept in perpetuity. In the case of a “delayed” transaction,
check model would capture private intrastate firearms
after three business days have passed, FFLs may proceed
transfers under a wider set of circumstances, arguably
with the transaction at their discretion if they have not
“requiring a background check for every firearm sale,”
received a final eligibility determination from the NICS.
although it too includes exceptions. H.R. 8 falls under the
During this time, NICS examiners, or state designees
“universal” model. It would expand federal firearms
(POCs), may attempt to ascertain whether the person is
recordkeeping and background check requirements to cover
prohibited. If they learn that a transferee is prohibited, a
intrastate transactions made between unlicensed persons by
firearms retrieval referral will be issued to the ATF and
routing such transactions through FFLs.
state or local chief law enforcement officer. The NICS
Section destroys unresolved checks at the 88-day mark.
H.R. 8 includes exceptions for (a) transfers among U.S.
military, law enforcement members, or armed private
NICS Transactions and Background Checks
security professionals in the course of official duties; (b)
From December 1998 to 2021, the FBI has facilitated 411.6
transfers between immediate family members; (c) transfers
million firearms-related transactions through NICS. Of this
as part of the administration of a deceased person’s estate or
total, the FBI NICS Section processed 160.7 million,
trust; (d) temporary transfers under circumstances involving
denying 2.0 million (1.3%) firearm transfers. POC states
an imminent threat of bodily harm or death; (e) transfers
and other state and local authorities accounted for the
under the 1934 National Firearms Act, which already
remaining 250.9 million NICS transactions, of which 149.7
regulates certain firearms transfers more stringently; and (f)
million were for checks and re-checks for state-issued
temporary transfers exclusively for legitimate activities
firearm permits or licenses. For POC states and other state
involving target shooting, hunting, trapping, or fishing.
and local authorities, there is a three-year time lag in data
on denials. For the 1998-2018 time period, the FBI
Violations of these provisions would be punishable by a
facilitated 176 million NICS transactions for those
fine and up to one year’s imprisonment. H.R. 8 would
authorities that corresponded with 108.9 million individual
prohibit FFLs from transferring possession of, or title to,
checks and 1.9 million denials (1.7%) (some state and local
any firearm to any unlicensed person, unless the FFL
background checks involve more than one transaction).
provides notice of the proposed private firearm transfer
From 2019 to 2020, total NICS transactions increased from
prohibition under this bill. H.R. 8 would prohibit the
28.4 to 39.7 million (40%), compared to the average annual
establishment of a national registry and would not interfere
growth of 5.8% from 1999 to 2019. The previous two
with any state’s authority to enact laws regulating firearms
largest annual increases were for 2012 and 2016, when total
transfers.
transactions increased from the previous year by 19%, to
19.6 million and 27.5 million, respectively. From 2020 to
Lengthening the Delayed Sale Period
2021, NICS transactions decreased to 38.9 million (-2%). In
Under H.R. 1446
2019, 2020, and 2021, private interstate transfers accounted
H.R. 1446 would revise the GCA background check
for 55,000, 206,000, and 141,000 transactions, respectively.
provision to lengthen the delayed sale period, which is three
business days under current law. Under H.R. 1446, for
NICS Determination Times, Appeals, and
background checks that do not result in a “proceed with
Unresolved/Purged Background Checks
transfer” or “transfer denied,” the FBI NICS Section and
Over the past 8 years (2014-2021), on average, more than
POC state officials would have 10 business days to place a
two-thirds (68.4%) of FBI-administered background checks
hold on a firearms-related transaction. At the end of 10
were decided within hours, if not minutes. More than one-
business days, the prospective transferee could petition the
fifth (23%) were delayed, but were completed within the
Attorney General for a final firearms eligibility
three-business-day delayed transfer period. About one-
determination. If the FFL does not receive a final
twelfth (8.6%) required further consideration. Of those
determination within 10 days of the date of the petition, he
checks, 4.9% were approved, bringing the total approval
or she could proceed with the transfer. H.R. 1446 does not
rate to 96.3%. Of the remaining checks, 2.5% were never
include a provision that was included in H.R. 1112 (116th
resolved and 1.2% were denied. During the same 8 years,
Congress). Regarding one of the GCA’s nine prohibiting
the NICS Section considered nearly 443,000 appealed
categories, H.R. 1112 would have replaced the term
denials, overturning about 86,000 denials. The leading
“adjudicated as a mental defective” with “adjudicated with
reason for overturned denials was the applicant was
misidentified as a prohibited person. For further
https://crsreports.congress.gov
Firearm Background Checks Under H.R. 8 and H.R. 1446
mental illness, severe developmental disability, or severe
William J. Krouse, Specialist in Domestic Security and
emotional instability” (18 U.S.C. §§922(g)(4) and (n)(4)).
Crime Policy
IF11781
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