Firearm background checks: Explained

The federal government sets gun control laws at the national level, but states and localities retain control over certain aspects of the purchase and ownership of firearms.

Federal gun laws

The Second Amendment guarantees Americans the right to bear arms while the Gun Control Act of 1968 provides federal regulation over firearm possession.

Under the act, citizens and US residents must be 18 years or older to purchase shotguns, rifles, or ammunition. All other firearms — such as handguns — can only be sold to individuals 21 or older. Buying semi-automatic weapons is legal in most states.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), a division of the Justice Department, is responsible for administering the Gun Control Act. The ATF also regulates standards for issuing licenses to gun sellers.

State and local gun laws

State and local officials can implement higher age restrictions on gun ownership but cannot implement lower age restrictions on gun ownership. “Right to carry” laws that determine whether a person can carry guns in public are decided by state and local governments.

Background checks for gun purchases

Gun buyers are required to submit to a background check through the National Instant Criminal Background Check System (NICS).

A prospective buyer fills out ATF Form 4473 and the federally licensed firearms dealers relays this information to the NICS. NICS staff perform a background check to verify the prospective buyer does not have a criminal record and is not otherwise ineligible to purchase a firearm.

The NICS has conducted more than 300 million checks since launching in 1998, leading to over 3 million denials.

The following groups are currently prohibited from owning guns:

• Convicted felons
• People under federal domestic restraining orders
• People convicted of misdemeanor domestic violence crimes against victims they have been married to, lived with, or had a child with
• People committed to a mental-health facility, or a court ruled were mentally unfit
• Fugitives
• People convicted of drug crimes or determined to by a court to be addicted to an illegal controlled substance

Thirty states, five US territories, and the Washington, DC rely on the FBI for background checks via the NICS. Seven states handle some background checks with the FBI in charge of specific types of transactions. The remaining 13 states, known as “point of contact” states, rely on state law enforcement agencies for background checks.

Gaps in current gun control laws

In 1993, President Bill Clinton signed the Brady Bill into law, requiring federally licensed firearm dealers to conduct background checks on potential buyers. But one in five gun sales are conducted without a background check. Three of the most cited gaps in the federal gun laws are the “default proceed,” the “boyfriend” gap, and the misdemeanor stalking gap.

Default proceed

The federal default proceed gap means that the government has three business days to conduct and finish their background check. If a firearm dealer has not been notified within three business days that a sale would violate federal or state laws, they may, by default, proceed with the sale.

In 2015, Dylann Roof murdered nine African American churchgoers in Charleston, South Carolina with a handgun. An internal review by the FBI revealed complications with Roof’s background check which caused delays and allowed him to purchase his weapon despite a criminal record that should have blocked the sale.

The boyfriend gap

Federal law prohibits domestic abusers from owning guns, but this only applies if the abuser has been married to, lived with, or had a child with their victims. Federal law does not prohibit abusive dating partners from purchasing firearms. This gap in the law has been implicated in the death of numerous women by current or former partners.

Twenty states allow law enforcement officers to remove firearms when they arrive at the scene of a domestic violence incident. Several states have passed laws to partially or completely close this gap.

The misdemeanor stalking gap

Federal law only prohibits people convicted of felony stalking offenses from accessing guns. Anyone convicted of misdemeanor stalking offenses (e.g., stalking outside the context of a domestic relationship) is not prohibited from buying firearms. Several states have also passed laws to address this gap.

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