The Brady Background Check System: The Backbone of Gun Violence Prevention Laws
The Brady Background Check System is a crucial component of gun violence prevention laws in the US. Without this foundational measure, no other gun laws can properly function. The system requires all federally licensed firearms (FFL) dealers to run checks through the National Instant Criminal Background Check System (NICS), which prevents certain categories of prohibited purchasers from obtaining a gun.
The Power of Advocacy
It took years of advocacy and concerted efforts to establish the Brady Bill, which laid the groundwork for the background check system. Jim and Sarah Brady, along with the organization that now bears their name, worked closely with Congress for seven years to generate enough votes to pass the law. To this day, the Bill is a testament to the power of effective advocacy.
The Purpose of the Brady Background Check System
The Gun Control Act (1968) prohibits certain categories of people from possessing firearms, including individuals who:
- Have been convicted of a felony
- Are fugitives from justice
- Have been dishonorably discharged from the military
- Are illegal drug users
- Are subject to domestic violence restraining orders
- Have been involuntarily committed to a mental institution
The background check system also prevents sales to individuals who are prohibited under state law. The National Instant Criminal Background Check System (NICS) checks available records to determine if a prospective firearm transferee is legally permitted to possess and receive a firearm.
Functioning of NICS
NICS, which was created by the Brady Bill, is operated by the Federal Bureau of Investigations (FBI) and tracks data related to each Brady Background Check initiated. When an FFL initiates a background check for a gun sale, NICS returns one of three possible replies: “proceed,” “denied,” or “delayed.”
About 90% of determinations are returned within mere minutes of initiating a background check. If the Brady Background Check does not show that the purchaser has a prohibiting background information and receives a “proceed,” the transfer can move forward as long as there are no other red flags that the sale would be unlawful, and the dealer wishes to proceed (the dealer can decline to sell a firearm for any reason).
However, in some cases, records in the system are unclear, and the FBI needs more time to research the buyer’s eligibility to purchase a firearm. Federal law allows the FFL to move forward with the sale after three business days have elapsed without the NICS returning a “proceed” or “denied” response. This is known as a “default proceed” and often referred to as the “Charleston Loophole.”
The Charleston Loophole
In 2015, a transfer was completed via the Charleston Loophole, where a prohibited individual purchased a firearm and then used it to massacre nine Black parishioners at the Emanuel AME Church in Charleston, South Carolina. More than 54,000 prohibited purchasers have obtained firearms from FFLs through this process since 2008.
Private Sale Loophole
A significant proportion of gun sales occur through private sales that do not require a background check, known as the “private sale loophole.” Approximately 1 in 5 guns are sold through this loophole, which is a major concern for gun control advocates.
Furthermore, it is worth noting that the overwhelming majority of guns recovered in crime in states that have expanded background check requirements come from states that do not have background check requirements. This highlights the need for federal action to address the issue.
The Importance of Federal Action
There are several bills before Congress aimed at blocking unlawful gun transfers to those legally barred from firearm possession. In 2023, Rep. Brian Fitzpatrick (R-PA), Rep. Mike Thompson (D-CA), and Sen. Chris Murphy (D-CT) introduced the Bipartisan Background Checks Act of 2023 and the Background Check Expansion Act, which would expand Brady Background Checks to cover nearly all sales and transfers of firearms, including at gun shows, private sales facilitated over the Internet, classified ads, or other private transfers.
Enhanced Background Checks Act of 2023
To address the deadly Charleston Loophole, Rep. James Clyburn (D-SC) introduced the Enhanced Background Checks Act of 2023, which would provide the FBI with additional time to complete the background checks before guns may be sold. This legislation changes the background check requirement such that the FBI would have a minimum of 20 days to complete a background check before an FFL can transfer a firearm to a prospective purchaser. It establishes due process protections for firearm purchasers and prevents indefinite bureaucratic delays by simply giving the FBI additional time to fully investigate incomplete background checks.
The Role of States
In the absence of federal action to expand background checks, states must take the initiative to expand and strengthen their background check systems. Unless a state explicitly expands its background check system, only firearms purchases made through an FFL are required to undergo a background check, meaning that any transaction made through a private seller may be legally completed without a background check.
It is vital that states are empowered to ensure that prohibited individuals don’t gain access to deadly weapons through the private sale loophole. Today,21 states and the District of Columbia have enacted legislation to expand the federal Brady Background System, which means over 166 million Americans are now subject to more extensive background checks.
The Evidence
Expanded background checks save lives. A 2019 study found that US states with universal background checks for all gun sales had homicide rates 15% lower than states without these laws over a 26-year period. Similarly, states without universal background check laws export crime guns across state lines at a 30% higher rate than states that require background checks on all gun sales. This evidence shows that expanding background checks is essential for decreasing gun violence and saving lives.
Originally Post From https://bradyunited.org/resources/issues/brady-background-checks
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