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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 257 million background checks.

But not every gun background check is the same, and their mechanics can be confusing at first glance. Here is 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, and 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 has an open warrant, and drug use.

The most common reason for a gun purchase denial is a criminal conviction. More than 175,000 fugitives, 130,000 domestic offenders, and 123,000 unlawful drug users have been denied in the 18 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: 27,992 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 three databases:The NICS Index, which includes records contributed by federal and state agencies identifying individuals prohibited from buying a gun, for reasons ranging from criminal history to severe mental illness; the Interstate Identification Index, a database of criminal histories; and the National Crime Information Center, or NCIC, an “electronic clearinghouse” of criminal records.

Records reporting to NICS by state and local agencies is notoriously spotty. According to a Bureau of Justice Statistics report published in February, at the end of 2014 there were 7.8 million active-warrant records in state warrant databases, but only about 2.1 million such records in the NCIC database.

NICS also consults mental health 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. As of March 2017, several states have submitted only a handful of disqualifying mental health records to NICS.

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 three business 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.” The dealer is also not required to notify the FBI when a sale has been made after a three-day delay.

Default proceed sales can have public safety implications. In April 2015, Dylann Roof legally purchased a Glock handgun in such a transaction after a cascade of clerical errors delayed his background check. Roof was disqualified from gun ownership due to a drug charge. Two months later, he used the weapon to murder nine parishioners at a Charleston, South Carolina, church.

 

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

When a background check runs past the three-business-day deadline, the NICS examiner tasked with the case will still attempt to make the final determination on the purchaser and has up to 90 days to reach a conclusion.

If the FBI determines 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]

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