Regulations Firearm Laws and Ordinances - The "permanent" Brady Law

On November 30, 1998, the five-day waiting period for handgun purchasers was replaced by a national computerized criminal identification system designed to instantly screen purchasers of both handguns and long guns (rifles and shotguns). All firearms dealers and pawnshop owners are now required to run background checks on prospective buyers. In many states, some or all inquiries will be directed to the state's designated "point of contact" (POC), which will then conduct a background check directly through the National Instant Criminal Background Check System (NICS). In states without a designated POC, gun dealers contact the FBI directly, and the FBI runs the check through NICS (See Figure 3.2 and Figure 3.3.)

Under the new system, Federal Firearms Licensees dial a toll-free telephone number and provide information on prospective firearms buyers. The FBI checks the NICS—three databases containing more than forty million criminal history records and other prohibiting records (history of drug addiction, for example). NICS conducts an average of eight million background checks each year. Table 3.3 breaks down 2003 state-by-state information checking points.

One or more of the following things can happen when NICS is initiated:

TABLE 3.1

Number of applications and estimates of rejections for firearm transfer, 1994–2002
	Number of applications
	Recieved	Rejected	Rejection rate
Note: Counts are rounded. Statistics for national totals from 1999 to 2002 combine Firearm Inquiry Statistics (FIST) estimates of the number of checks and rejections done by state and local agencies and the FBI number of actual transactions and rejections reported by the NICS operations reports. Data through November 29, 1998, are primarily for handguns.
1March 1–December 31, 1994.
2January 1–November 29, 1998.
3November 30–December 31, 1998.
Counts are from the National Instant Criminal Background Check System (NICS) Operations Report (November 30, 1998–December 31, 1999) and may include multiple transactions for the same application.
SOURCE: "Table 1. Number of Applications and Estimates of Rejections for Firearm Transfer, 1994–2002," in Background Checks for Firearm Transfers, 2002, U.S. Department of Justice, 2003, http://www.ojp.usdoj.gov/bjs/pub/pdf/bcft02.pdf (accessed October 7, 2004)
Total	45,717,000	976,000	2.1%
Interim period	12,740,000	312,000	2.5%
19941	2,483,000	62,000	2.5
1995	2,706,000	41,000	1.5
1996	2,593,000	70,000	2.7
1997	2,574,000	69,000	2.7
19982	2,384,000	70,000	2.9
Permanent
Brady	32,977,000	664,000	2.0%
19983	893,000	20,000	2.2
1999	8,621,000	204,000	2.4
2000	7,699,000	153,000	2.0
2001	7,958,000	151,000	1.9
2002	7,806,000	136,000	1.7

• No disqualifying information is found (this takes thirty seconds or less) and the transaction can proceed immediately.
• The transaction is briefly delayed because it is necessary for the FBI to look outside of NICS for data.
• The FBI contacts state or local law enforcement for information because it is not possible to conduct a NICS check electronically. The FBI has three business days to complete the background check. If the check cannot be completed in three business days, the transaction may be completed even though potentially disqualifying information might exist in NICS. The dealer does not have to complete the sale and the FBI will continue to review the case for two more weeks. If the FBI discovers disqualifying information after three business days, the FBI contacts the dealer to find out whether the gun was transferred under the "default proceed" rule.
• The dealer may transfer a gun to a prohibited person under a "default proceed" situation. The FBI may notify local law enforcement agencies and ATF in an attempt to retrieve the gun and take appropriate action, if any, against the buyer.
• The NICS check returns disqualifying information on the buyer and the transfer is denied.

TABLE 3.2

Reasons for rejection of firearm transfer applications, 1998–2002
	FBI	State and local agencies
Reason for rejection	2002	2002	2001	2000	1999	1998
— Not available or not applicable.
*Includes illegal aliens, juveniles, persons dishonorably discharged from the armed services, persons who have renounced their U.S. citizenship, and other unspecified persons.
SOURCE: "Table 4. Reasons for Rejection of Firearm Transfer Applications, 1998–2002," in Background Checks for Firearm Transfers, 2002, U.S. Department of Justice, 2003, http://www.ojp.usdoj.gov/bjs/pub/pdf/bcft02.pdf (accessed October 7, 2004)
Total	100%	100%	100%	100%	100%	100%
Felony indictment/conviction	42.5	51.8	57.7	57.6	72.5	63.3
Domestic violence
Misdemeanor conviction	12.5	10.4	10.6	8.9	9.0	9.9
Restraining order	5.3	3.5	3.7	3.3	2.1	3.4
State law prohibition	—	9.9	7.0	4.7	3.5	6.6
Fugitive	3.9	8.0	5.8	4.3	5.0	6.1
Mental illness or disability	0.4	1.4	1.2	1.0	0.5	0.7
Drug addiction	6.6	1.3	1.0	0.7	1.0	0.9
Local law prohibition	—	0.9	0.5	0.2	0.2	0.3
Other*	28.7	12.8	12.5	19.4	6.2	8.8

Default proceed transactions, in which the FBI is not able to respond with a background check within three days and a firearm is sold, are a matter of particular concern as potentially disqualifying information might exist. This can occur, for example, when information about what happened after a person was arrested is not entered into the database. An arrest does not disqualify a buyer—but a conviction does. The FBI reported that more than 180,000 default proceed transactions took place in the first eighteen months of NICS operation. A little more than 6,000 of those buyers were later determined to be prohibited persons (National Instant Criminal Background Check System (NICS): 2000 Operations Report, U.S. Department of Justice, Washington, D.C., April 2001).

The NICS Operations Center services Federal Firearms Licensees (FFLs) in thirty-seven states and territories, while sixteen states act as POC states and conduct their own background transactions. (See Figure 3.4.) From November 1998 through December 2000, a total of 18.5 million checks were processed—9.2 million through POC states and 9.3 million through NICS, with a 71% "immediate proceed" rate. The total number of denials in the first twenty-five months of NICS operation was a little over 300,000, divided nearly equally between POC state denials and NICS denials (a rejection rate of about 2% of the total transactions).

A more recent survey of NICS activity can be found in Figure 3.5, which is an annual comparison of NICS activity from the years 2000–2002. It shows that the NICS system has been used on a predictable and consistent basis. Peak season for background checks is September through December, the hunting and holiday seasons. During

FIGURE 3.3

the 2001 peak season, NICS transactions increased 14% over the previous year.

Figure 3.6 shows that the top reason for denying a handgun purchase was the potential buyer's criminal felony history. This information is published in an FBI report (National Instant Criminal Background Check System (NICS) Operations Report, April 2002) that emphasized the importance of keeping up-to-date records, a task that requires the cooperation of state and local law enforcement agencies. This can be problematical when lack of funds or expertise prevents full cooperation.

NICS checks do not override state laws. If a state has a waiting period or other requirements, the state regulations must be followed. In most states, individuals with right-to-carry permits or permits to purchase that comply with the Brady Law will not have to undergo a NICS check at the time of firearm transfer.

Permit Denials under the Permanent Brady Law

A 2002 Bureau of Justice Statistics study reported that of nearly eight million applications to purchase or transfer firearms in 2002, 1.7% were rejected, a rejection rate lower than the 1.9% in 2001 (Background Checks for Firearm Transfers, U.S. Department of Justice, Washington, D.C., 2003). In 2002 the majority of the rejections for state and local agencies (52%) were due to the felony background of the applicant. (See Table 3.2.) About 14% were rejected because of domestic violence misdemeanor convictions or a restraining order. 34% were rejected for other reasons, such as drug addiction, evidence of mental illness or disability, dishonorable military discharges, immigration problems, or state and local law prohibitions.

Impact of the Brady Law on Gun Violence

In "The Effects of the Brady Act on Gun Violence," published in Guns, Crime, and Punishment in America (edited by Bernard E. Harcourt, New York: New York University Press, 2003), Philip J. Cook and Jens Ludwig examined the effect of the Brady Law on gun violence. They asserted:

We do not find evidence that the background-check requirement of the Brady Act has reduced lethal violence or affected the choice of weapons by killers. The Brady Act may have reduced firearm suicides among older Americans, the population at highest risk for suicide, although this decline is at least partially offset by some increase in non-gun suicides. Our analysis of the Brady Act highlights the difficulty of reducing gun violence in America through regulation of the primary market without some change in policy toward secondary-market transfers.

Controversies over the New Brady Provisions

Major ongoing Brady Law controversies involve four issues: (1) the elimination of the five-day waiting period on November 30, 1998; (2) the length of time the FBI can retain records of gun transactions; (3) the provision of the law that exempts certain persons from background checks; and (4) regulation of sales at gun shows (the "gun-show loophole").

ELIMINATION OF WAITING PERIOD. The elimination of the waiting period is probably the thorniest issue connected to Brady. Gun rights advocates claim that twenty-four hours is adequate. Gun control advocates support legislation to establish a minimum three-day waiting period. They claim that waiting periods allow local police to search records that might not be in NICS and that waiting requirements allow "cooling-off" periods, thereby preventing many crimes of passion. They worry that the speed of the background checks may help some of the targets of the Brady Law to evade the law. This could happen if state and local records have not made it into the national database. For example, NICS may miss individuals who have only recently been convicted of crimes.

RETENTION OF RECORDS. Soon after NICS started operations in 1998, the NRA filed a lawsuit, arguing (among other things) that records relating to a background check should be immediately destroyed lest they lead to a central registry of gun buyers—an invasion of privacy. The Department of Justice said the records would be kept for no more than six months or the time needed to conduct

FIGURE 3.3

audits to make sure gun dealers are following the law and to check for identity fraud and other abuses of the system. The federal court of appeals in the District of Columbia upheld the legality of the regulation allowing the FBI to conduct periodic security audits of NICS records (NRA v. Reno, No. 99-5270). On June 25, 2001, the U.S. Supreme Court declined to hear the NRA's appeal of that decision, thereby allowing the lower court's decision to stand. Only days later, Attorney General John Ashcroft, a gun rights advocate and head of the Department of Justice, proposed destroying the critical NICS audit records within one business day. Congress asked the General Accounting Office (GAO) to investigate the implications of such a quick destruction of records.

In July 2002 the GAO presented its report to Congress (Gun Control: Potential Effects of Next-Day Destruction of NICS Background Check Records, GAO-02-653). The GAO reported that 97% of the guns retrieved from illegal purchasers who had been incorrectly approved to buy guns from July 2001 to January 2002 would not have been detected under the attorney general's one-day destruction

FIGURE 3.3

plan. (See Table 3.4.) The GAO report noted that Ashcroft's own legal staff issued an opinion in October 2001 stating: "We see nothing in the NICS regulations that prohibits the FBI from deriving additional benefits from checking audit log records as long as one of the genuine purposes is auditing the use of the system." That opinion followed the terrorist attacks of September 11, 2001, and addressed FBI plans to use background check records to investigate terrorism suspects.

EXEMPTION FROM BACKGROUND CHECKS. The Brady Law exempts gun buyers from background checks if they have a permit "to possess or acquire" a firearm. ATF interprets the exemption to apply to people who have state permits to carry concealed weapons. The Violence Policy Center, a research foundation that grew out of the National Coalition to Ban Handguns, strongly opposes this exemption. Research conducted by the center showed errors in background checks for concealed-carry permits, including applicants with criminal records who were granted permits anyway. The center found permit holders who committed crimes but kept their permits for months or even years. All fifty states issue permits to carry concealed weapons, and some of these

TABLE 3.3

National Instant Criminal Background Check System (NICS) checking agencies, 2003
	FBI or state point of contact for firearm transfers
	Hand guns		Long guns		Pawn redemptions
State	FBI	POC	FBI	POC	FBI	POC	State permits exempt1	POC reports denial to NICS2
— Not applicable
1State or local agency issues ATF-qualified (Alcohol, Tobacco & Firearms) permit that, as of June 30, 2003, exempts holder from NICS point-of-sale check.
2Only statewide POC's were surveyed: Y=at least some denials reported; N=none reported.
3State forbids pawning a hand gun (all firearms in New Jersey); any redemption checks are for long guns.
4If less than 90 days after pawn, broker can call FBI or state; more than 90 days, broker must call state.
5FBI checks long gun redemptions; POC checks handgun redemptions.
SOURCE: "Table 4. National Instant Criminal Background Check System (NICS): Checking Agencies, June 30, 2003," in Survey of State Procedures Related to Firearms Sales, Midyear 2003, U.S. Department of Justice, 2004, http://www.ojp.usdoj.gov/bjs/pub/pdf/ssprfsm03.pdf (accessed October 7, 2004)
Alabama	X	—	X	—	X3	—	—	—
Alaska	X	—	X	—	X	—	X	—
Arizona	X	—	X	—	X	—	X	—
Arkansas	X	—	X	—	X	—	X	—
California	—	X	—	X	—	X	—	Y
Colorado	—	X	—	X	—	X	—	Y
Connecticut	—	X	—	X	—	X	—	Y
Delaware	X	—	X	—	X	—	—	—
Florida	—	X	—	X	X4	X4	—	N
Georgia	—	X	—	X	—	X	X	Y
Hawaii	—	X	—	X	—	X	X	—
Idaho	X	—	X	—	X	—	X	—
Illinois	—	X	—	X	—	X	—	Y
Indiana	—	X	X	—	X3	—	X	Y
Iowa	—	X	X	—	X	—	X	—
Kansas	X	—	X	—	X	—	—	—
Kentucky	X	—	X	—	X	—	—	—
Louisiana	X	—	X	—	X	—	—	—
Maine	X	—	X	—	X	—	—	—
Maryland	—	X	X	—	X	—	—	Y
Massachusetts	X	—	X	—	X3	—	—	—
Michigan	—	X	X	—	X3	—	X	—
Minnesota	X	—	X	—	X	—	—	—
Mississippi	X	—	X	—	X	—	X	—
Missouri	X	—	X	—	X	—	—	—
Montana	X	—	X	—	X	—	X	—
Nebraska	—	X	X	—	X	—	X	—
Nevada	—	X	—	X	—	X	X	Y
New Hampshire	—	X	X		X5	X5	—	Y
New Jersey	—	X	—	X	—	—3	—	Y
New Mexico	X	—	X	—	X	—	—	—
New York	—	X	X	—	X	—	X	—
North Carolina	—	X	X	—	X	—	X	—
North Dakota	X	—	X	—	X	—	X	—
Ohio	X	—	X	—	X	—	—	—
Oklahoma	X	—	X	—	X	—	—	—
Oregon	—	X	—	X	—	X	—	N
Pennsylvania	—	X	—	X	—	X3	—	N
Rhode Island	X	—	X	—	X	—	—	—
South Carolina	X	—	X	—	X	—	X	—
South Dakota	X	—	X	—	X	—	—	—
Tennessee	—	X	—	X	—	X	—	Y
Texas	X	—	X	—	X	—	X	—
Utah	—	X	—	X	—	X	X	Y
Vermont	X	—	X	—	X	—	—	—
Virginia	—	X	—	X	—	X	—	Y
Washington	—	X	X	—	X	—	—	—
West Virginia	X	—	X	—	X	—	—	—
Wisconsin	—	X	X	—	X	—	—	N
Wyoming	X	—	X	—	X	—	X	—
Total	26	24	36	14	37	14	20	—

permits exempt their holders from the Brady background checks. (See Table 3.5.)

GUN SHOW REGULATION. The background-check requirement applies only to federally licensed gun dealers, manufacturers and importers, and pawnshop brokers. Sellers who are not licensed by the federal government and cannot be described as "engaged in the business" of selling firearms do not have to perform background checks. This means that someone who offers guns for sale at gun shows or flea markets, through classified ads, and through personal sale is not subject to the Brady Law.

FIGURE 3.4

Legislation was introduced in Congress in 2001 and in 2002 seeking to license gun shows and apply the Brady Law and other gun laws to them, but the legislation did not advance.

At the state level, only eighteen states have closed this so-called gunshow loophole. Thirty-two states do not require any type of background check or permit to buy from unlicensed dealers at gun shows. Voters in Colorado and Oregon overwhelmingly voted to close the loophole in 2000, largely in response to the failure of their state legislatures to do so after school shootings at Columbine High School (Colorado) and Thurston High School (Oregon). Some of the weapons used at Columbine were obtained at gun shows.

A February 2004 study published by Americans for Gun Safety, The Gun-Show Loophole and Crime ("Crime Gun Exports by State, Population, and Exports by Capita," http://w3.agsfoundation.com/GunShowReport.pdf [accessed January 25, 2005]), reported three main findings. First, states that had failed to close gun-show loopholes had become a major source of interstate gun crimes. The report contended that "of the 36,828 crime gun traces in which the crime was committed in a state other than where the gun was bought, 27,205 of the guns originated in loophole-open states and 9,623 from loophole-closed states." For 2001, of the thirteen states with the lowest crime gun exports per one hundred thousand residents, only one state (New Hampshire) had not closed the gun-show loophole. Of the twenty-one states highest for crime gun exports, only one (North Carolina) had closed the loophole. Second, the study showed that states that had passed laws to close the gun-show loophole were being flooded with guns from states that had failed to close the gun-show loophole. Third, closing the gun-show loophole had not had a negative impact on the gunshow business.

FIGURE 3.5