Every federally licensed firearm dealer is required to check the eligibility of a recipient through the FBI’s National Instant Criminal Background Check System (NICS) prior to the transfer of a firearm to a non-licensee. This system allows law-abiding firearm owners to quickly complete a purchase or transfer while helping prevent those who are barred from possessing firearms from acquiring them through licensed dealers. While this system includes both federal and state records, full compliance with this system of reporting has yet to be achieved. In 2014, five states submitted less than ten records and eight states submitted fewer than 100 records of people prohibited from purchasing firearms due to active adjudicated mental health records.
Federal law requires every licensed firearms dealer to run a background check through the FBI’s National Instant Criminal Background Check System (NICS) prior to the transfer of a firearm to a non-licensee. This process is used to determine if the prospective transferee has been disqualified from receiving a firearm. The databases used for these checks contain a combination of federal and state records on prohibited persons. While checking one’s status is required, the 10th Amendment of the United States Constitution (pertaining to rights reserved by the states) allows each state to decide how they implement and participate in this system. For example, 13 states have established or designated state agencies responsible for NICS checks, 31 states (plus the District of Columbia and 6 U.S territories) have decided to defer to the FBI’s Criminal Justice Information Service to process NICS checks, and the remaining six states and districts/territories use a combination of the two models. By the end of 2012, 12 states submitted less than ten records and 19 states have submitted fewer than 100 records of people prohibited from purchasing firearms due to active adjudicated mental health records. In 2021, only two states (Montana and Wyoming) had fewer than 100 records of people prohibited from purchasing firearms due to active adjudicated mental health records, a drastic improvement in efficiency thanks to the recent increase in focus placed on mental health.
- The holes in NICS drew national attention following the Virginia Tech shooting in 2007. NICS would have prevented the perpetrator from legally obtaining the firearms used if the files had been kept up-to-date. At that time, about half the states provided no records for people adjudicated as mentally defective for NICS; many states also lagged in providing records of other classes of prohibited persons.
- Following this tragedy, several states, including Virginia, moved (either by legislation or executive action) to make more records available to NICS.
- In 2007, Congress passed the “NICS Improvement Amendments Act” (H.R. 2640 – Public Law 110-180), which created grant programs to update state court records on prohibited persons. The bill also allowed for withholding a small portion of funds under other grant programs from states that, after several years, fall significantly behind federal benchmarks in making those records available to NICS.
- In 2018, President Trump signed the Fiscal Year 2018 Omnibus Appropriations bill, which included the Fix NICS Act. The Fix NICS Act provides for improved systems performance and sets the stage for NICS to better meet background check demands.
- On November 14, 2019, Attorney General Barr submitted the first semiannual Fix NICS report to Congress, outlining the departmental efficiencies of the Act and the successes that have since resulted.
Points of Interest
- 456,860,716 NICS background checks were conducted from November 1998 to May 2023.
- In 2022, 31,596,646 NICS background checks were conducted.
- During the first seven months of 2020 – which included the initial months of the COVID-19 pandemic – the National Shooting Sports Foundation reported that there had been an estimated 12.1 million NICS check, which included an estimate 5 million first time gun owners.
- Since 1998, over 2.2 million people have been denied the purchase of a firearm.
- In the more than 20 years that NICS has been in place, over 222,513 fugitives, 265,998 domestic abusers, and 214,628 unlawful drug users have been denied the purchase of a firearm. Likewise, approximately 74,615 people have been denied because a judge decreed them to be mentally unfit to own a firearm.
- Increasing the number of records available in background checks is the most efficient way to keep prohibited persons from purchasing or possessing firearms.
- Since 2013, 16 states have incorporated some form of Fix NICS implementation (require records transfers) into law through legislation.
- In March 2018, CSF and partners worked closely with Congressional leadership to ensure that a fix to NICS for the purchase of firearms was included in the FY2018 Omnibus bill (H.R. 2640).
- R. 2640 also requires participating states to have programs for “relief from disabilities,” which would allow formerly restrained individuals to have their firearms rights restored when appropriate.
- R. 2640 has not created any new class of prohibited persons or interfered with privacy laws.
- In 2018, New Jersey enacted NJ A 2757, which requires a background check for private gun sales. Currently, 13 states and the District of Colombia require a background check for all transfer/purchase of firearms, both private and public.
- Three months into 2020, NICS background checks were at record highs with 9,245,857 checks conducted.
Elected officials should educate their constituents on the shortcomings of NICS and support an act of Congress that would condition federal grants to states on submission of prohibitive records to NICS, in addition to advocating for additional state budget allocations. Similar to the way in which federal highway funds are conditional on states meeting a minimum threshold for drunk-driving penalties, this approach may be one such method for encouraging full participation in NICS.