The Role of Background Checks in Firearm Ownership

TASA ID: 321

As attorneys, you may one day have a case that involves the use of a firearm and understanding why background checks are important in deciding who can and cannot own a firearm, the history of background checks, how they are performed and why they are relevant today may be useful knowledge if you ever have a case where a crime is committed and a firearm is involved. 

Some History

Since as early as 1837, federal gun control laws have been in effect in order to regulate the sale, ownership and manufacture of firearms, various firearm accessories, and ammunition. However, prior to 1968, most adults in the United States could purchase a firearm in a retail store or even from a catalog without state interference. The only caveat was that you were not a convicted felon. 

Background checks actually date back to the Civil War era when “Black Codes” existed in some states that prohibited African Americans from owning guns. 

The Federal Firearms Act of 1938 required dealers and others selling firearms to purchase a Federal Firearms License (FFL) and maintain a list of who purchased firearms, including their names and addresses. It also listed prohibited persons, who are not legally allowed to own, purchase, or possess firearms, including convicted felons.

The situation got even tighter in 1963 after President John F. Kennedy was assassinated by a gun that had been purchased from a mail order catalog. Following his assassination, there were several other public assassinations including Malcom X, Martin Luther King, and Robert F. Kennedy which impelled the creation of the Gun Control Act of 1968, designed to keep “firearms out of the hands of those not legally entitled to possess them because of age, criminal background or incompetence.” These new guidelines restricted the sale of firearms across state lines and expanded the list of people who were not allowed to purchase or possess firearms to include anyone convicted of a non-business-related felony; found to be mentally incompetent; or who is a user of illegal substances. The problem in this was that the process of determining who could legally purchase a firearm as determination was made by simply filling out a questionnaire and there was no other verification required.  

Needing tighter controls, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) was formed in 1972 as a way to further help monitor and prevent the illegal sales and use of firearms. In 1981, following the assassination attempt of President Ronald Reagan, the Brady Handgun Violence Prevention Act of 1993 amended the Gun Control Act of 1968 to require background checks for the purchase of firearms from a retailer. And In 1998, The National Instant Criminal Background Check System (NICS), a division of the FBI, was established. 

Today, the NICS is responsible for identifying who is lawfully allowed to own a firearm. They utilize their own databases, as well as other databases. If a person is found in any of these databases, they may not own or purchase a firearm, including anyone who is a fugitive; a substance abuser of a controlled substance; anyone who has been committed to a mental health institution or has been determined to be mentally defective by a court;  illegal aliens or aliens admitted to the U.S. under a nonimmigrant visa; anyone who has been dishonorably discharged from the U.S. Armed Forces; anyone who has renounced their U.S. citizenship;  anyone with a restraining order against them for a partner or child; anyone convicted of domestic violence; and most minors under the age of 18.

Current Ownership Laws

Many states have their own laws on firearm ownership and background checks; however, no matter the state, there are some types of firearms that are mostly restricted from personal ownership, including machine guns (fully automatic rifles or pistols), short-barreled (sawed-off) shotguns, and silencers. Ownership of any of these requires the person to a much more detailed FBI background check and registering the weapon with the Bureau of Alcohol, Tobacco, Firearms, and Explosives' NFA registry. In December of 2018, a ban on ownership of bump stocks was signed into effect as well.

In cases of domestic violence, the U.S. Supreme Court ruled  in 2009 that the Gun Control Act applies to anyone convicted of any crime involving “physical force or the threatened use of a deadly weapon” against any person with whom the accused had a domestic relation, even if the crime would be prosecuted as simple “assault and battery” in the absence of a deadly weapon.

As I previously mentioned, many states have adopted their own laws regulating how legally-owned guns may be carried in public. Federal laws regarding the basic ownership of guns apply nationwide; however, some of these state laws may be more or less restrictive than the federal laws. Some states allow open carry of handguns, some states license open carry only with a permit, some states allow open carry only in limited circumstances. And to complicate matters even more, some states grant visitors to their states “reciprocity,” allowing them to follow the “right to carry” in effect in their home states, some states allow felons to possess only rifles and/or shotguns, but not handguns, while some states allow ownership of all the above except while on probation. Some states even go so far as to restrict felons from being in the presence of firearms, even if another person owns or is using it. And in almost all states exceptions exist such as restrictions on allowing firearms into certain locations such as schools, businesses, public and state buildings, etc. 

To confuse it even more, Federal Law states that ownership is prohibited if a person has ever been convicted of a felony, meaning that someone can be arrested and convicted even after being pardoned of an offense, whether they passed the background check or not. 

How Do Background Checks Work Today and When are They Needed to Purchase a Gun?

A background check is necessary any time one wishes to purchase a gun from a retail firearms seller who has a Federal Firearms License (FFL). These dealers are legally mandated to complete a background check for every firearm sold to a non-licensed individual. It doesn’t matter if the firearm is purchased in a retail store, at a gun show, online, or through a magazine, the dealer must run a background check. 

Purchasers must complete a Firearm Transaction Record, or ATF Form 4473, listing their name, address and birthdate. They must also provide a government-issued photo ID and their personal characteristics. The dealer calls or inputs this information online to NICS and must wait for approval before they can legally sell them the firearm.  If there is an issue, the NICS and FBI investigate further which usually takes about three days. If it takes longer, it is up to the retailer if they wish to process with the sale. 

If the purchaser does not pass the background check, they can submit a request to find out why they were denied and submit an appeal.

It works differently if a person who is not a licensed dealer is the seller. It is a much simpler transaction as private sellers aren’t required to ask for identification, don’t have to complete any forms, or even keep any records of the transaction. Federal law does not require a background check to purchase a firearm from a private seller, including a relative, a neighbor, or a friend, and adults can sell a personally owned firearm to another adult in the same state as long as they know that the buyer is allowed to own a firearm. If you inherit or are given a firearm, you don’t need a background check. However, some states do require a background check that requires looking at state and local records to determine if the buyer should or should not be allowed to own a firearm. Private sellers at gun shows are also exempt from performing background checks.

Have Background Checks Stopped Gun Violence and Crimes?

There is conflicting evidence for each side.  One study in October 2018 by U.S. Davis and Johns Hopkins Bloomberg School of Public Health stated that in the 10 years following California’s implementation of comprehensive background checks, did not impact the number of gun homicides and suicides. However, a similar study published in July of the same year, stated that the repeal of background checks did not increase gun violence.

A 2015 study found that requiring Connecticut handgun owners to go through a background check led to a 40-percent decline in gun homicides and suicides over a 10-year period. 

Criminals find a way to get firearms and most crimes are committed with firearms that are illegally obtained. According to the Department of Justice Special Report on Firearm Violence, 77 percent of state prisoners associated with firearm crimes received their firearm through theft, drug dealer, the black market, on the street, or from family or friends. 

There is much controversy and most probably it will continue for years to come but background checks are still the best system we have to try and keep firearms out of the hands of criminals.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

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