What a federal background check covers, and what it never did

Almost nobody is actually arguing about the background check. They are arguing about who has to run one, which sales it covers, and what happens to the paper afterward. The check itself, a few minutes at a counter while a clerk looks you up in a federal database, is one of the least controversial things in the whole gun debate. Every lawful buyer at a dealer's counter goes through one, and most shrug and move on. It is the government's rare experience of efficiency, which may be why it makes people nervous.

So if you want to talk about background checks without making a fool of yourself at the next barbecue, you need to know three things: what the system does, what it was never built to do, and where the actual fights are. That is what we will cover here, using the statutes and the dates, not the slogans.

How we got a federal check at all

For most of American history there was no federal check on a gun buyer. The Gun Control Act of 1968 listed categories of people who could not lawfully buy or possess firearms, and it required buyers to fill out a form at the counter, but it had no system to verify the answers. A buyer who lied on the form could get a gun, and the dealer had no way to know. (The 1968 law is covered in Inside the Gun Control Act of 1968 and the rules you still follow today.)

The change came with the Brady Handgun Violence Prevention Act, signed on November 30, 1993. It is named for James Brady, President Reagan's press secretary, who was shot and gravely wounded in the attempt on Reagan's life on March 30, 1981. And here is a fact that surprises people: Reagan himself, a longtime supporter of gun rights, wrote an op-ed in the New York Times in March 1991 endorsing the waiting period that became the Brady bill. The law took years to pass, and it did so in the Clinton administration.

The Brady Act did two things in two stages.

1. An interim rule. For handgun purchases from licensed dealers, there was a five-business-day waiting period, during which the dealer had to notify the buyer's local chief law enforcement officer, who was supposed to make a reasonable effort to check whether the sale was lawful.
2. A permanent system. Congress told the Attorney General to build a national instant criminal background check system, which would replace the waiting period once it was running.

Printz: the Court strikes down half of Brady

The interim rule did not last. Two county sheriffs, Jay Printz of Montana and Richard Mack of Arizona, sued, arguing that the federal government could not order local officials to carry out a federal program. In Printz v. United States, decided June 27, 1997, the Supreme Court agreed, 5 to 4, in an opinion by Justice Scalia. The Court held that the federal government may not command state or local officers to administer a federal regulatory program, a principle known as anti-commandeering. The relevant part of the Brady Act fell.

Take a moment on this, because it is a conservative victory that gets forgotten. The Tenth Amendment reserves to the states the powers not given to the federal government, and Printz is one of the cases that gave that amendment teeth. (The same principle is at work in The Tenth Amendment Rule That Protects Red States Also Protects Sanctuary Cities.) The ruling did not kill background checks. It forced the federal government to do the checking with its own people and its own money.

NICS: how the system works

The instant check system, NICS, went live on November 30, 1998. It is run by the FBI. In most states, the licensed dealer contacts the FBI, or a state agency that serves as a point of contact, and submits the buyer's identifying information. The system searches several databases of records that disqualify a buyer. The dealer receives one of three answers: proceed, denied, or delayed.

The sequence at the counter goes like this.

1. The buyer fills out Form 4473, the ATF's firearms transaction record. It asks for identifying information and asks a list of yes-or-no questions about the disqualifying categories. A false answer is a federal felony, and the dealer keeps the form in the shop's files.
2. The dealer checks the buyer's photo ID and submits the information to NICS.
3. NICS returns an answer. Most checks come back in minutes. A "delay" means the examiner needs more time to research a possible match, such as an arrest record without a disposition.
4. The dealer completes the sale or refuses it.

An important detail: the check is on the person, not the gun. NICS does not record a serial number. The dealer's own paperwork records the gun.

Who is barred: the list in 18 U.S.C. 922(g)

The categories of people prohibited from possessing firearms are in a federal statute, 18 U.S.C. 922(g). The list includes a person who:

• has been convicted of a crime punishable by more than one year in prison (a felony, with a few exceptions for certain business and regulatory offenses);
• is a fugitive from justice;
• is an unlawful user of, or addicted to, a controlled substance;
• has been adjudicated as a "mental defective" or committed to a mental institution (the statute's own language, which the regulations define);
• is in the country illegally, or here on certain nonimmigrant visas, with some exceptions;
• has been dishonorably discharged from the armed forces;
• has renounced U.S. citizenship;
• is subject to certain qualifying domestic-violence restraining orders;
• has been convicted of a misdemeanor crime of domestic violence.

A separate provision bars the receipt of a firearm by a person under felony indictment. And a separate subsection, 922(d), makes it a crime to sell a firearm to someone you know or have reasonable cause to believe is in one of the prohibited categories. That last rule applies to everyone, including a private seller.

Two quick points that matter. One: the list is not a list of people whose rights the government may curtail at will. It is a statute passed by Congress, and each category has been litigated. Two: the Supreme Court said in Heller in 2008 that longstanding prohibitions on possession by felons and the mentally ill remain presumptively lawful, so the core of the list is not in constitutional doubt.

Three buyers, one counter

Here are three hypothetical buyers at the same gun shop on the same Saturday, to show what the system does with each. All three are invented for illustration.

• Buyer one has a clean record that is in the database. He fills out Form 4473, the dealer submits the information, and the answer is "proceed" in a few minutes. He pays and leaves. The whole thing takes less time than the paperwork on a used car.
• Buyer two has a name that matches someone else's record. The system returns a "delay" while an examiner sorts out whether it is the same person. If the examiner clears him in the next three business days, he goes home with his gun. If the examiner does not finish by the end of the third business day, the dealer may legally go ahead, or may wait.
• Buyer three has a felony conviction from years ago that was reported to the system. The check returns "denied." The dealer cannot complete the sale. And the buyer, who answered "no" to the felony question on Form 4473, has just made a false statement on a federal form, which is its own crime.

Notice what each buyer teaches. Buyer two shows why the three-day rule exists: a name-match mix-up should not cost an innocent man his right for weeks. Buyer three shows the system doing precisely what it was built to do. And a fourth buyer, who never appears in this story, is the man who skips the dealer and buys from a stranger in a parking lot. The system never sees him, which is the gap the whole argument is about.

The three-business-day rule

This is the single most misunderstood part of the system, and it was at the center of a national argument after one terrible crime in 2015.

If the FBI has not given the dealer a "proceed" or "denied" answer within three business days, federal law allows the dealer to go ahead with the sale. This is called the "default proceed" rule. Critics call it the "Charleston loophole," because a man who should have been blocked from buying a gun obtained one in South Carolina in 2015 after the three days ran out. The FBI later said the examiner had been unable to obtain a complete record of his earlier arrest in time.

Be careful with this fact, because there is something here for each side.

• The critics are right that the rule lets a sale proceed when the government has not finished its homework. That is a design choice, and it means that a missing record becomes a gun.
• Defenders of the rule say it exists for a reason: it protects the buyer from being stuck indefinitely in a bureaucratic limbo because of a database error. In a country with a constitutional right to own a gun, the default should favor the citizen, they argue, and the government should be forced to finish the check on time.
• The dealer is allowed to proceed, not required to. A dealer who has a bad feeling can wait.

The sensible conservative answer, I'd say, is not to change the rule but to put resources behind the check. A system that cannot finish its work in three business days has a staffing and records problem. Fix that.

What the check does not cover

Here is the "never did" in the title.

It never covered every sale. The federal requirement applies to licensed dealers. A person who is not "engaged in the business" of selling firearms may sell a gun from his personal collection to another resident of his own state without a federal check, as long as he does not know or have reason to believe the buyer is prohibited. State law may add rules. Some states require a check on all sales or on handgun sales, and others follow the federal rule. Rules differ widely and change, so look up your own state. If you are selling a gun, the safest practice is to have the buyer complete the transfer through a licensed dealer, who will run the check and keep the records. (How this plays out for a first-time buyer is in how to buy your first firearm lawfully from the counter to the car.)

It never tracked ownership. There is no federal registry of who owns which gun, and the 1986 Firearm Owners Protection Act forbids creating one from dealer records. (See How the 1986 Firearm Owners Protection Act passed with a machine gun ban.) The FBI's own rules, as I understand them, call for destroying the records of approved transactions within a short period, and the figure I have seen is 90 days. Check the current regulation if that detail matters to you.

It never checks anyone who already owns a gun. A check happens at a purchase. If someone becomes prohibited after buying, a conviction or a court finding later, the check is not re-run. Enforcement then depends on courts and police.

It can only find what is in the database. This is the biggest limit. NICS is a search engine over records that states and agencies choose to submit. If a mental-health adjudication or a conviction never gets reported, the check cannot find it.

That last point brings in a law you should know. After the Virginia Tech shooting on April 16, 2007, Congress passed the NICS Improvement Amendments Act of 2007, signed in January 2008. It offered grants and incentives for states to send in their records, especially records of mental-health adjudications, and it created a process for people to seek relief from certain prohibitions. The gun-rights community supported that law. It is the clearest example of an approach that conservatives find attractive: don't invent new rules, make the existing ones work.

The steelman, and the answer

The best argument for expanding the check to all sales goes like this. Criminals and prohibited persons buy guns, and some of them buy from private sellers precisely because no check is run. A check that covers only some sales leaves a gap that a person determined to evade it can walk through.

The answer has three parts.

1. Enforceability. A requirement to run a check on private sales has to be enforced somehow, and enforcement of a private sale runs headlong into the record question. Without a record of the transfer, you cannot prove a check was skipped. With one, you are beginning to build the registry that federal law forbids. This is the knot, and the registry question hiding inside every universal background check bill works through it.
2. The determined evader. A person who is prohibited and wants a gun will not be stopped by a new form. The people who will follow a new rule are the ones who were already law-abiding.
3. Fix what exists first. The current system misses records and sometimes cannot finish on time. Closing those gaps does not require a new regime.

Fair-minded people can weigh that against the steelman and land in different places. What I will insist on is that they weigh it with the facts above in hand.

The bottom line

• A federal background check applies to sales by licensed dealers, runs through the FBI's NICS, and checks the buyer, not the gun. It has existed since November 30, 1998.
• The Brady Act of 1993 started it, Printz in 1997 struck down the part that drafted local sheriffs, and the 2007 NICS Improvement Amendments Act pushed states to send in their records.
• The prohibited-person list in 18 U.S.C. 922(g) is the law's real content. Know it, and never sell a gun to someone you have reason to think is on it.
• The fights are about private sales, the three-business-day default, and records. Support the fixes that make the existing system work: complete records, enough examiners, and prompt answers.
• Selling a gun yourself? Look up your state's rule, and consider running the transfer through a licensed dealer. It protects you and the buyer.