Firearm Background Checks

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 What is Federal Law on Background Checks?

Firearm background checks are authorized by the federal Brady Handgun Violence Protection Act of 1993. It became effective in 1994. It amended the Gun Control Act of 1968. The Brady Bill requires background checks on people who want to buy firearms from a federally licensed dealer, manufacturer, or importer. A background check is required unless an exception applies.

If there are no additional state restrictions, a firearm may be transferred to a person if the transaction is approved by the National Instant Criminal Background Check System (NICS), which is maintained by the Federal Bureau of Investigation (FBI). In some states, proof of a previous background check can be used to bypass the federal NICS check.

For example, obtaining a state concealed carry permit usually includes a background check equivalent to the one required by the Brady Act. Other alternatives to the NICS check include state handgun purchase permits or mandatory state or local background checks.

The Brady Act also imposes a five-day waiting period before a federally licensed importer, manufacturer, or dealer can transfer a firearm to an unlicensed person. If a state has an acceptable alternate system for doing background checks on the buyers of firearms, then the federal waiting period does not apply. The federal waiting period only applies in states that do not have an acceptable alternative.

If there are no additional restrictions imposed by state law, as noted above, a firearm may be transferred to a person when the National Instant Criminal Background Check System (NICS) maintained by the FBI approves the buyer. Some states allow proof of a previous background check to bypass the NICS check.

For example, a concealed carry permit issued by a state usually includes a background check equivalent to the background check required by the Brady Act. Other alternatives to the NICS check include applications for state permits to purchase handguns and mandatory state or local criminal background checks.

How Does the NCIS Work?

When a person tries to buy a firearm, the seller, known technically as a “Federal Firearms Licensee” (FFL), contacts the NICS electronically or by telephone. The prospective buyer fills out the ATF form 4473. The FFL sends that information to the NICS. A member of the NICS staff then performs a background check on the buyer.

The background check investigates to ensure that the buyer has no criminal record or is not eligible for another reason specified in the law to purchase a firearm. Since the NCIS was begun in 1998, more than 300 million checks have been completed. More than 1.5 people have been denied approval for a firearm purchase.

The process can take as little as several minutes. After the process, if a person checks out, they can get a permit to purchase. The FBI may not approve an applicant for up to three days.

A private person can transfer firearms to another person without background checks as long as they are the primary owners of the guns, and the gun would not have to cross state lines for the transfer to occur. That is, both parties must reside in the same state. In addition, the person selling the firearm must not have any reason to believe that the person buying the weapon is forbidden from owning a firearm because, for example, the person has been convicted of a felony.

Many people would like to see increased federal oversight of gun sales and increased background checks required at the federal level, but Congress has not yet passed laws requiring these steps.

What About Background Checks for Dealers?

There are different laws for dealers. Licensed dealers are required by federal law to perform background checks and keep records of all gun sales. They are further required to release records if required for inspection, report cases of multiple sales, and document when a gun is stolen or lost. These requirements do not apply to unlicensed sellers.

What Are State Laws for Background Checks?

Some states have passed laws that impose additional requirements for a person to buy a firearm. In addition to requiring submission of the NICS background check form, some states require people to obtain a license from the state before they can legally purchase a gun.

Eight states require state background checks before guns can be purchased, i.e., California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, Washington State, and Washington, D.C.

Hawaii, Illinois, Massachusetts, and New Jersey require unlicensed sellers to do background checks before selling firearms. There are similar laws for handgun purchases in Iowa, Michigan, Nebraska, and North Carolina.

In Florida, the Florida Department of Law Enforcement has a Firearm Purchase Program that implements the Brady Act at the state level. The federal NICS background check system is used. Also, to buy a firearm, a person must meet the following requirements:

  • The person must be at least 21 years old. A person who is at least 18 may buy rifles and shotguns if the person is a law enforcement officer or a correctional officer;
  • The person must be a resident of Florida to buy a handgun. Residents of other states may buy long guns if the sale complies with applicable laws in the state in which the buyer lives;
  • Legal permanent resident aliens who reside in Florida may buy a firearm. They must provide a valid alien registration number;
  • A permit is not required to purchase a firearm in Florida;
  • No Florida state permit exempts any person from the federal background check requirement;
  • There is a waiting period of three days between the purchase and delivery of all firearms. Individual counties and cities have the authority to enact local ordinances that prolong the waiting period to as many as five days. A person would consult local ordinances for local information about local waiting periods;
  • There is no limit to the number of firearms that may be transferred in a single transaction. A transaction is considered complete when the dealer has filled out and signed the ATF Form 4473. An additional transfer requires an additional background check, whether done within minutes, a day, or a month.

Can I Buy Firearms in a Different State?

Firearm sales are governed by the law of the state where they are sold unless federal law applies. It is legal for a person to ship some firearms to themselves or another person in a different state, provided the person receiving the shipment is legally permitted to own a gun.

However, it is important to remember that the Brady Bill prohibits certain people from transporting firearms across state lines or national borders. It also prohibits certain people from receiving firearms transported in interstate or foreign commerce. These prohibitions apply to the following:

  • A person who has been convicted of a crime that a term of imprisonment can punish for more than 1 year;
  • A person who is a fugitive;
  • A person who is a user or an addict of a controlled substance;
  • A person who has been judged in a court of law to have a mental defect;
  • A person who has been committed to a mental hospital;
  • A person who is an illegal alien or is otherwise unlawfully present in the U.S.;
  • A person who has been dishonorably discharged from the Armed Forces of the U.S.;
  • A person who has renounced their U.S. citizenship;
  • A person who Is subject to a court order restraining them from harassing, stalking, or threatening an intimate partner or the child of an intimate partner;
  • A person who has been convicted of a misdemeanor crime of domestic violence or charged with a crime punishable by imprisonment for more than 1 year.

Transfer of firearms by unlicensed private sellers, “not engaged in the business” of dealing firearms, are not subject to the Brady Act, but they may be covered under other federal, state, and local laws or regulations.

The Brady Act has been amended to provide that private transfers of firearms to a buyer who is out of state must be conducted through a Federal Firearms Licensee, who is legally allowed to charge a fee for the service of processing the transaction through the NICS system. The person must use an FFL in the state where the buyer resides. The FFL transfers the weapon to the unlicensed person who lives in the same state in which the FFL is located.

Do I Need a Lawyer for Help with My Background Check Issue?

A criminal defense lawyer can advise you of your rights and responsibilities regarding background checks, gun ownership, laws regarding carrying guns, and interstate gun transfers to ensure you are complying with all state and federal laws.

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