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What Does A Gun Background Check Consist Of?

Posted on by Ben Hartwig in LawApril 06, 2020
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When someone purchases a gun through a licensed firearms dealer, a background check is required to maintain public safety. Only qualified individuals can buy firearms. Gun laws vary from state to state. Some states prohibit the sale of guns through private sellers or gun shows without a background check. There are also federal laws that govern the sale, possession, and firearm transfers and ammunition, including legitimate gun dealers.

The History of Firearm Background Checks

After the assassination of President John F. Kennedy, Congress passed 

The Gun Control Act of 1968. This law prohibits specific individuals from purchasing guns. Anyone with a federal criminal history, mental health issues, substance abuse problems, or people convicted of domestic abuse are ineligible to purchase firearms.

In 1993, Press Secretary Jim Brady was shot during an assassination attempt on Ronald Reagan. As a result, Congress passed the Brady Handgun Violence Prevention Act. The Brady Law requires all Federal Firearms Licensees (FFL) to run a full federal background check on anyone purchasing a firearm. The federal government set up a centralized database system called the National Instant Criminal Background Check System ( NICS ) to handle all background checks. NICS contains information on everyone's criminal history, medical background, mental health issues, and other information like restraining orders for domestic violence.

From 1994 until 2015, more than three million people were denied the right to purchase firearms due to background checks. Sixty-one percent of the denials were based on the fact that the person was a convicted felon.

How Does It Work?

When someone visits an FFL to purchase a gun, they must fill out form 4473, called a Firearms Transaction Record. The salesperson will enter your information into NICS from the form and await the results. The process is typically swift and takes less than a few minutes to be approved or denied. Firearm sales are regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). However, the Federal Bureau of Investigations (FBI) oversees all background checks and establishes the background check requirements and gun safety laws. Laws pertaining to long guns often differ from those that apply to handguns. Sometimes these laws only pertain to private sales.

If anything in your file causes concern, the FBI can make you wait for three business days while they investigate further. During that time, you will not be able to purchase any firearms. If the FBI fails to approve or deny you after three days, you can buy a gun.

What Is Checked During Gun Purchase?

During a federally mandated universal gun background check, the following items will be checked and may cause delays in approval:

  • If someone is convicted of a crime, even a misdemeanor, and was sentenced to more than one year in prison.
  • If someone is currently a fugitive from the law.
  • If they are known to use illegal drugs or controlled substances illegally.
  • If they have been indicted for a crime that carries a sentence of more than one year in prison.
  • Whether or not the person is an illegal alien or a U.S. citizen.
  • If they are here in the U.S. with an expired Visa.
  • A court has determined that the person is mentally incompetent.
  • Has renounced their U.S. citizenship.
  • Has ever been charged with or convicted of domestic violence.
  • Someone who currently has a protective order against them due to domestic violence.
  • If they have been dishonorably discharged from any of the U.S. Armed Forces.

Any one of those items flags the FBI that further investigation is necessary. The FBI then has three days to approve or deny the application.

United States Gun Background Check Laws

American universal background check laws were enacted as a response to the rampant gun violence and an uptick in mass shootings. However, many of the shooting incidents in the country occurred due to someone obtaining a gun through an unlawful sale or by a legal loophole. 

Strict Gun Law States

In private gun sales with unlicensed sellers, typically, gun owners do not have to undergo a background check. However, some state laws require them even for private firearm sales. Those states are:

Strict Gun Law States
  • California.

  •  Colorado.

  • Connecticut.

  • Delaware.

  • Nevada.

  • New Jersey.

  • New Mexico.

  •  New York.

  • Oregon.

  • Rhode Island.

  • Vermont.

  • Washington.

  • District of Columbia.

Some states' gun law allows gun permit holders to buy guns without having to undergo a background check through NICS. The federal government decides which permits qualify as an exemption. Those states and permits include:

  • Alaska (concealed weapons permits marked NICS-Exempt).
  • Arizona(concealed weapons permits).
  • Arkansas (concealed weapons permits issued on or after 4/1/99).
  • California ("entertainment firearms permits" only).
  • Georgia(concealed weapons permits).
  • Hawaii(permits to acquire and licenses to carry).
  • Idaho (concealed weapons permits).
  • Iowa (permits to acquire a handgun and concealed weapons permits).
  • Kansas (concealed weapons permits issued on or after 7/1/10).
  • Kentucky (concealed weapons permits issued on or after 7/12/06).
  • Louisiana (concealed handgun permits issued on or after 3/9/15).
  • Michigan (licenses to purchase a pistol).
  • Mississippi (concealed weapons permits, but not security guard permits).
  • Montana (concealed weapons permits).
  • Nebraska(handgun purchase certificates and concealed handgun permits).
  • Nevada (concealed weapons permits issued on or after 7/1/11).
  • North Carolina (permits to purchase a handgun and concealed handgun permits).
  • North Dakota(concealed weapons permits issued on or after 12/1/99).
  • Ohio(concealed weapons permits issued on or after 3/23/15).
  • South Carolina (concealed weapons permits).
  • South Dakota(gold card and enhanced permits issued on or after 1/1/17).
  • Texas(concealed weapons permits).
  • Utah (concealed weapons permits).
  • West Virginia (concealed handgun license issued on or after 6/4/14).
  • Wyoming (concealed weapons permits).

What are Red Flag Laws?

Red Flag laws, also called Extreme Risk Protection Orders are laws in certain states that allow law enforcement, loved ones, medical personnel, lawyers, teachers, and mental health practitioners to remove firearms from people who are deemed dangerous to themselves or others. Seventeen U.S. states have Red Flag laws.

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