Placeholder Image

A man fills out a background check in a Colorado gun store.

Law

Everything You Need to Know About Federal Background Checks

A step-by-step guide to the National Instant Criminal Background Check System, which vets anyone who attempts to buy a gun through a federally licensed firearms dealer.

In the United States, anybody who wishes to purchase a gun at a federally licensed firearms dealer (FFL) is subject to a background check. Since 1998, the first year the National Instant Criminal Background Check System, or NICS, was online, the Federal Bureau of Investigation (FBI) has processed more than 225 million background checks.

But not every gun background check is the same, and their mechanics can be confusing at first glance. Here, a step-by-step guide to the background check system, which vets anyone who attempts to buy a gun through an FLL.

I walk into a licensed gun store and ask to buy a gun. What happens next?

You’ll have to complete Form 4473, which includes 16 questions relating to your background, drug use, and criminal history. The gun store will then contact NICS online or by phone and supply your answers plus your Social Security number.

What does the FBI look for in a background check?

Criminal and mental health history, dishonorable military discharges, immigration status, whether someone is under indictment, and drug use.

The most common reason for a gun purchase denial is a criminal conviction. Nearly 150,000 fugitives, 120,729 domestic offenders, and 109,875 unlawful drug users have been denied in the 17 years NICS has been online. For all the focus on mental health, the bar for denying someone on psychiatric grounds is very high, leading to relatively few rejections: Only 21,000 applicants have been denied because they were declared mentally unfit by a judge.

Where do those records come from?

To ascertain whether an applicant should be disqualified from owning a gun, the FBI draws from several databases: The Interstate Identification Index, a database of criminal history records; the National Crime Information Center, which includes information on people subject to orders of protection, or a restraining order; and the NICS Index, which includes illegal immigrants and those who’ve been involuntarily committed to a mental institution.

State and local police are not required to submit criminal-record data to the FBI, David Chipman, a former agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), noted in an interview with the Charlotte Observer. Reporting “varies widely based on the practices of the individual departments. The smaller the town, the worse the records.”

NICS also consults medical records submitted by each state. According to a 2013 congressional report, these records can show whether someone has been “adjudicated as a mental defective” by a “court, board, commission, or other lawful authority,” or has been involuntarily committed to a mental institution — both circumstances would bar someone from purchasing a firearm. However, federal law does not require states to forward mental health records to NICS, and some states are resistant, citing privacy laws.

Is NICS the only background check available to law enforcement?

No. In addition to NICS, states can also run their own background checks, which query local databases, but only 21 choose to do so. “When a state relies on NICS, they’re not getting the full picture,” Mike McLively, a staff attorney at Law Center to Prevent Gun Violence, told the Charlotte Observer last year. “State databases include arrest records, mental health records. You’re checking a wider range of sources.”

Back to my check: How long does it take?

NICS has “instant” in its name for a reason. Department of Justice guidelines require NICS reviewers to make an immediate decision in 90 percent of cases, according to the FBI.

If the check comes back clean, the FBI gives the sale a green light. If it doesn’t, the purchase is denied. Sometimes the FBI seeks more information to make a final determination on the sale, and in those cases, the check is transferred to the FBI’s Criminal Justice Information Services Division, where an examiner reaches out to local law enforcement and other state agencies.

What happens when a background check does not clear right away?

When a check requires more information, the FBI has only three days to make a final determination on the buyer. If a decision can’t be made in that time frame, the FFL is allowed by law to go ahead and sell the firearm, in a sale commonly referred to as a “default proceed.” (Leading Democratic presidential candidate Hillary Clinton has begun referring to this mechanism as the “Charleston loophole” because it allowed Dylann Roof to legally obtain a Glock handgun.) The dealer is also not required to notify the FBI when a sale has been made after a three-day delay.

Default-proceed sales are eight times more likely to involve a prohibited purchaser than sales with background checks that are resolved within 72 hours, according to a 2009 study by Mayors Against Illegal Guns. (Mayors Against Illegal Guns is an earlier iteration of Everytown for Gun Safety, a seed donor of The Trace.)

Say my background check is denied after that three-day period. Then what happens to the gun I just bought?

If the FBI determines after the three-day period that the buyer was prohibited, the agency sends out a retrieval order to the ATF. The ATF is then responsible for getting the gun back. Retrieval orders are relatively rare: A NICS operations report from 2000 noted that of more than 45,000 default proceeds issued that year, approximately 5,000 resulted in a retrieval order.

[Photo:AAron Ontiveroz/The Denver Post via Getty Images]