National Instant Criminal Background Check System

Emblem of the NICS

The National Instant Criminal Background Check System (NICS) is a U.S. system for determining if prospective firearms or explosives buyers' name and birth year match those of a person who is not eligible to buy. It was mandated by the Brady Handgun Violence Prevention Act (Brady Law) of 1993 and launched by the Federal Bureau of Investigation (FBI) in 1998.

After a prospective buyer completes the appropriate form, the holder of a Federal Firearms License (FFL) initiates the background check by phone or computer. Most checks are determined within minutes, but the FBI has up to three business days to make a determination. After that, the transfer may legally proceed anyway.

Background checks are not required under federal law for intrastate firearm transfers between private parties. There have been movements to require more background checks for firearm purchases, but no such laws have been passed at the federal level. Some states, however, do require background checks for firearm transfers. These states either require gun sales to be processed through an FFL holder, or they require that the buyer obtain a license or permit from the state.

Background

Running background checks was discussed as early as the 1930s.^[1] The Gun Control Act of 1968 (GCA) mandated that individual and corporate firearms dealers have a Federal Firearms License (FFL). It also created a system for keeping prohibited persons from buying guns that relied upon buyers answering a series of "yes/no" questions such as, "Are you a fugitive from justice?". However, sellers, including FFL dealers, were not required to verify the answers.^[2]

Coordinated efforts to create a national background check system did not materialize until after the March 1981 assassination attempt on President Ronald Reagan. White House press secretary, James Brady, was seriously wounded in the attack, and afterward his wife, Sarah Brady, spearheaded the push to pass the Brady Handgun Violence Prevention Act (Brady Act) of 1993. When signed into law in November of that year, the Brady Act included a GCA amendment that created the National Instant Criminal Background Check System (NICS).^[1][3]

The Brady Act mandated that FFL dealers run background checks on their buyers. At first, the law applied only to handgun sales, and there was a waiting period (maximum of five days) to accommodate dealers in states that did not already have background check systems in place. Those dealers were to use state law enforcement to run checks until 1998, when the NICS would become operational and come into effect. In 1997, the Supreme Court ruled against the five-day waiting period, but by 1998 the NICS was up and running, administered by the FBI, and applied to all firearms purchases from FFL dealers, including long guns.^[1][2]

How it works

After the prospective buyer completes and signs a Firearms Transaction Record (ATF Form 4473),^[4] the FFL contacts the NICS by telephone or Internet.^[5] When the background check is initiated three databases are accessed: the National Crime Information Center (NCIC), the Interstate Identification Index (III), and the NICS Index.^[6] According to the FBI, checks are usually determined within minutes of initiation. If there is no match in any of the checked databases, the dealer is cleared to proceed with the transfer. Otherwise, the FBI's NCIS Section must contact the appropriate judicial and/or law enforcement agencies for more information. Per the Brady Act, the FBI has three business days to make its decision to approve or deny the transfer. If the FFL has not received the decision within that time it may legally proceed anyway.^[6]

States may implement their own NICS programs. Such states become the point of contact (POC) between their FFL dealers and the NICS. A few partial-POC states run FFL handgun checks, while the FBI runs long gun checks. FFLs in other, non-POC states access the NICS directly through the FBI.^[6]

Authorized local, state, tribal, and federal agencies can update NCIS Index data via the NCIC front end, or by electronic batch files. In addition, the NICS Section receives calls, often in emergency situations, from mental health care providers, police departments, and family members requesting placement of individuals into the NICS Index. Documentation justifying entry into the NICS Index must be available to originating agencies.^[7]

Notable failures

After the Charleston Church shooting, FBI Director James B. Comey apologized for "lapses in the FBI’s background-check system", saying that "An error on our part is connected to this guy’s purchase of a gun".^[8]

The murderer on the Lafayette shooting had undergone an "involuntary mental commitment" in 2008 but he went to "buy the gun on Feb. 26, 2014, the system only briefly delayed his purchase", reported the Associated Press.^[9] According to the Associated Press, "Federal law does generally prohibit the purchase or possession of a firearm by anyone who has ever been involuntarily committed for mental health treatment."^[9]

Firearm denial appeals

A buyer who believes that a NICS denial is erroneous may appeal the decision by either challenging the accuracy of the record used in the evaluation of the denial or claiming that the record used as basis for the denial is invalid or does not pertain to the buyer.^[10] The provisions for appeals are outlined in the NICS Regulations at Title 28, Code of Federal Regulations, Part 25.10, and Subsection 103 (f) and (g) and Section 104 of the Brady Handgun Violence Prevention Act of 1993.

According to the National Rifle Association, false positives in the NICS system deny citizens' Second Amendment rights.^[11] The NRA says that "there is significant reason to believe that the number of erroneous denials is far greater than those overturned on appeal" because some people may not appeal erroneous denials.^[11]

In an operations report in 2014 by the FBI, of a total of 90,895 "deny transactions", 4,411 (about 5%) were overturned after further research by the NICS section. According to the report, "The primary reason for the overturned deny decisions in 2014 was the appellant's fingerprints not matching the fingerprints of the subject of the firearms-disqualifying record. Another chief reason deny decisions are overturned on appeal pertain to criminal history records that do not contain current and accurate information ... In cases where the matches are refuted by fingerprints, the NICS Section may overturn the subject's deny decision and allow the transaction to proceed. However, because the NICS is required to purge all identifying information regarding proceed transactions within 24 hours of notification to the FFL, in many instances, the process must be repeated when the same transferee attempts subsequent firearm purchases and is again matched to the same prohibiting record."^[12]

Between November 30, 1998 and May 31, 2016, the NICS denied 1,323,172 transactions. The top reasons for denials include: "Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years", "Fugitive from Justice", "Misdemeanor Crime of Domestic Violence Conviction" and "Unlawful User/Addicted to a Controlled Substance".^[13]

In January 2016, USA Today reported that the FBI had stopped processing NICS denial appeals in October 2015, leaving a backlog of approximately 7,100 appeals as of January 20.^[14] The National Rifle Association said that the failure to review the appeals was a "gross disregard for those illegitimately denied their Second Amendment rights".^[11]

Prohibited persons

Under sections 922(g)^[15] and (n)^[16] of the GCA certain persons are prohibited from:

• Shipping or transporting any firearm or ammunition in interstate or foreign commerce;
• Receiving any firearm or ammunition that has been shipped or transported in interstate or foreign commerce.^[7]

A prohibited person is one who:

• Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
• Is under indictment for a crime punishable by imprisonment for a term exceeding one year;
• Is a fugitive from justice;
• Is an unlawful user of or addicted to any controlled substance;
• Has been adjudicated as a mental defective or committed to a mental institution;
• Is illegally or unlawfully in the United States;
• Has been discharged from the Armed Forces under dishonorable conditions;
• Having been a citizen of the United States, has renounced U.S. citizenship;
• Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner;
• Has been convicted in any court of a "misdemeanor crime of domestic violence", a defined term in 18 U.S.C. 921(a)(33)^[7]

See also

• Bureau of Alcohol, Tobacco, Firearms, and Explosives
• Criminal records in the United States
• Form 4473
• Licensure
• Printz v. United States
• Universal background check

References

Further reading

• Caplan Bricker, Nora (February 18, 2014). "The Strongest Evidence We Have that Background Checks Really Matter". New Republic. Retrieved June 30, 2014. 
• "FBI: NICS Celebrates 10 Years of Operation". fbi.gov. U.S. Department of Justice. November 30, 2008. Retrieved June 20, 2014. 

External links

• FBI: Gun Checks/NICS program home