The cornerstone of American gun regulation is the FBI’s National Instant Criminal Background Check System, or NICS. The system screens people attempting to obtain firearms at licensed dealers in the majority of states, and is the government’s first line of defense against gun crime.
Since its inception, NICS has put a stop to more than 2.4 million transactions. Of those denials, more than 1.3 million occurred in states where the FBI runs NICS checks for dealers, with the other million-plus checks occurring in so-called point of contact states like Virginia or California that run their own background check systems.
The system is accurate. An audit of the system released in September 2016 by the Department of Justice’s Office of the Inspector General found that, in a sample of denied transactions, NICS had made the correct decision 99.8 percent of the time.
The list below uses information provided by the FBI on the background checks it has performed for licensed gun sellers, offering a category-by-category breakdown of the 12 individual criteria that resulted in the 1.3 million denials between NICS’ launch in November 1998 and August 2016.
1. Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years: 731,723
All purchasers are required to fill out a Firearms Transaction Record, or Form 4473, before a background check is initiated. If they lie about their criminal history on the form, they will have committed a new felony punishable by up to five years in prison, though it isn’t clear how often these perjurers are punished.
NICS has blocked more than 600,000 people convicted of a crime from acquiring a weapon since 1998. When the background check system flags a purchaser for a felony or another qualifying conviction, the transaction is stopped.
2. Fugitive from Justice: 161,821
A surprising number of people with open arrest warrants attempt to buy a gun. When a purchaser is flagged as a fugitive, the FBI contacts the agency that issued the warrant to see if it’s still open, alerting them to the address of the Federal Firearms License holder that processed the check. This sometimes results in an arrest in the gun store. The FBI does not keep data on the types of warrants flagged by NICS, so it’s impossible to tell whether the system is more often snaring bank robbers on the lam or parents skipping out on child support.
3. Misdemeanor Crime of Domestic Violence Conviction: 126,169
This red flag is strictly limited to misdemeanor convictions for abusing a live-in significant other or child. A misdemeanor for violence against a sibling, parent, or an intimate partner who does not live with the person charged would not disqualify a purchaser — an aspect of the law sometimes referred to as “the boyfriend loophole.” Domestic violence only became a prohibiting category after the 1996 passage of an amendment to the Gun Control Act of 1968 sponsored by Senator Frank Lautenberg of New Jersey.
4. Unlawful User/Addicted to a Controlled Substance: 117,339
The fourth most common reason for being rejected by a federal background check is also the category that should have stopped Dylann Roof, the Charleston church shooter, from getting his Glock, since he had confessed to illegal possession of a controlled substance. Despite the fact that the National Institutes of Health estimates almost 25 million Americans used an illicit drug in the past month, NICS only has about 24,000 active drug-related records.
5. State Prohibitor: 69,341
Many states have their own additional categories of prohibited purchasers that they report to NICS. South Carolina, for example, denies the right to own a gun to anyone known to abuse alcohol. The federal government has no such disqualifier, despite alcohol being the substance known to be most associated with gun violence.
6. Protection/Restraining Order for Domestic Violence: 52,895
Though restraining orders only remain in NICS temporarily, as opposed to convictions for crimes which are permanently prohibiting, gun restrictions on those who have received such orders are believed to be among the most effective reducers of domestic homicide. Sixty percent of intimate partner homicides are committed with guns, and the risk of death grows five-fold if a woman is in an abusive relationship with a man who has access to a gun.
7. Under Indictment/Information: 38,765
Anyone who is under indictment but not yet convicted of a crime carrying a potential year-long jail sentence is barred from owning a gun. However, these are among the most difficult categories of prohibitions to confirm, since the disposition of charges may not be automatically submitted to NICS, forcing inspectors to contact local court clerks to determine whether the purchaser is prohibited.
8. Adjudicated Mental Health: 24,728
Disqualifying mental health records form the second largest body of records held by NICS. Simply receiving a diagnosis of a severe mental illness like schizophrenia is not enough to put an individual in this category — a judge must legally declare a person mentally unfit to own a gun or involuntarily commit him or her to a mental institution.
Though NICS does have access to a large number of disqualifying mental health records, an unknown number still aren’t reported. In the case of John Houser, the gunman who opened fire in a Lafayette, Louisiana, movie theater, a judge considered his severe mental health problems in 2008, but doctors did not recommend that Houser be involuntarily committed, and even if they had, Georgia law would have required the purging of any records of that commitment by 2013, before he purchased his gun.
9. Illegal/Unlawful Alien: 18,023
NICS holds more records on illegal/unlawful aliens than any other type of prohibited purchaser — more than 6.3 million — even though these denials are rare compared to those for purchasers convicted of crimes. A purchaser does not, however, need to be a American citizen to pass a background check: The FBI allows sales to foreigners who are legally in the country, so long as they are a permanent resident, have come legally without a visa and meet residency requirements, or have a visa and a hunting or sporting license.
10. Federally Denied Persons File: 5,939
This is a catch-all category that includes various people whom the FBI deems ineligible to possess a firearm even though the relevant state records may not be entered into NICS or the National Crime Information Center. Also included in the Federally Denied Persons File are people who may not possess guns as a result of a deferred judgement.
11. Dishonorable Discharge: 1,036
Because violations of military conduct are handled by a separate judicial system, those found guilty are not marked as felons but rather receive a dishonorable discharge from their branch of the service. This does not carry the prison time that a criminal conviction would need to mandate inclusion in NICS, but because of the severity of a dishonorable discharge, it is reported to the system.
12. Renounced U.S. Citizenship: 73
According to the State Department, anyone who formally renounces American citizenship also “must renounce all the rights and privileges associated with such citizenships.” That includes Second Amendment rights, even though legal aliens may buy and possess firearms. This category is exceedingly rare.
[Photo: Neon Tommy]