How do federal background checks work?

Would proposals to strengthen background checks force family members to run checks on each other?

Are sellers at gun shows required to perform a background check on buyers?

Is supporting background checks politically risky?

Could expanding the background check system lead to a national gun registry?

Do background checks violate the Second Amendment?

Do background checks actually stop criminals and the mentally ill from buying guns?

MYTH: The Federal Government Doesn't Currently Perform Background Checks On Gun Purchasers

Mamet In Newsweek On Background Checks: “How Are They Checked? Are They Checked? By What Agency, With What Monies?” In his January Newsweek cover story, playwright David Mamet was seemingly ignorant of the fact that federal law requires individuals who purchase firearms from licensed dealers to undergo a criminal background check:

Yes, but we should check all applicants for firearms for a criminal record?

Anyone applying to purchase a handgun has, since 1968, filled out a form certifying he is not a fugitive from justice, a convicted criminal, or mentally deficient. These forms, tens and tens of millions of them, rest, conceivably, somewhere in the vast repository. How are they checked? Are they checked? By what agency, with what monies? The country is broke. Do we actually want another agency staffed by bureaucrats for whom there is no funding? [Newsweek, 1/28/13]

FACT: While There Is No Federal Background Check Requirement For Private Transactions, Sales Through A Licensed Dealer Are Checked

FBI Has Run Instant Background Checks On Purchases From Licensed Dealers For More Than A Decade. From the FBI's website:

The National Instant Criminal Background Check System, or NICS, is all about saving lives and protecting people from harm -- by not letting guns and explosives fall into the wrong hands. It also ensures the timely transfer of firearms to eligible gun buyers.

Mandated by the Brady Handgun Violence Prevention Act of 1993 and launched by the FBI on November 30, 1998, NICS is used by Federal Firearms Licensees (FFLs) to instantly determine whether a prospective buyer is eligible to buy firearms or explosives. Before ringing up the sale, cashiers call in a check to the FBI or to other designated agencies to ensure that each customer does not have a criminal record or isn't otherwise ineligible to make a purchase. More than 100 million such checks have been made in the last decade, leading to more than 700,000 denials. [FBI, accessed 4/11/13]

MYTH: Proposals To Expand Background Checks Would Place Onerous Burdens On The Transfer Of Firearms Between Family Members

NRA Past President Marion Hammer: Expanded Background Checks Would Mean “Having To Do A Background Check On Your Own Mom Before You Could Give Her One Of Your Guns For Protection.” In a January 23 op-ed published at gun news website AmmoLand, Hammer claimed that expanding background checks would interfere with transfers of firearms between family members and hunting partners:

Imagine a grandfather who wants to give a family shotgun to his 12-year-old grandson having to do a background check on his grandson before giving him the shotgun.

Or a friend having to do a background check on his lifetime best buddy before lending him a hunting rifle.

Or, if your mother had a prowler at her home, having to do a background check on your own Mom before you could give her one of your guns for protection.

That's what “universal background checks” do. They turn traditional innocent conduct into a criminal offense. They target you, law-abiding gun owners. [AmmoLand.com, 1/23/13]

FACT: Every Major Legislative Proposal To Strengthen Background Checks Has Exempted These Transfers

Manchin-Toomey Proposal Exempts Firearms Transfers to Family, Friends, Neighbors. According to the press release detailing their amendment to expand the background check system, under the legislation developed by Sens. Joe Manchin (D-WV) and Pat Toomey (R-PA), “Family transfers and some private sales (friends, neighbors, other individuals) are exempt from background checks.” [Manchin/Toomey press release, 4/10/13]

Obama Administration Proposal Included “Common-Sense” Exemptions For Family Members, Temporary Transfers. The White House fact sheet on Obama's proposals to strengthen gun laws states:

Congress should pass legislation that goes beyond just closing the “gun show loophole” to require background checks for all firearm sales, with limited, common-sense exceptions for cases like certain transfers between family members and temporary transfers for hunting and sporting purposes. [The White House, accessed 4/11/13]

The Fix Gun Checks Act Of 2013 (HR 137) Contains Exemptions For Family Gifts And Other Circumstances. The proposed legislation, which was largely included in the latest effort to strengthen the background check system but will likely be replaced by Manchin-Toomey's proposal, would also exempt temporary transfers of weapons for hunters and transfers of weapons to individuals in imminent danger:

''(f) EXCEPTIONS.--Unless prohibited by any other provision of law, subsections (b) and (c) shall not apply to any transfer of a firearm between an unlicensed transferor and unlicensed transferee, if--

(1) the transfer is a bona fide gift between immediate family members, including spouses, parents, children, siblings, grandparents, and grandchildren;

(2) the transfer occurs by operation of law, or because of the death of another person for whom the unlicensed transferor is an executor or administrator of an estate or a trustee of a trust created in a will;

(3) the transfer is temporary and occurs while in the home of the unlicensed transferee, if--

(A) the unlicensed transferee is not otherwise prohibited from possessing firearms; and

(B) the unlicensed transferee believes that possession of the firearm is necessary to prevent imminent death or great bodily harm to the unlicensed transferee; [H.R. 137, accessed 4/11/13]

MYTH: There Is No Such Thing As The Private Sales Loophole

NRA News Host Cam Edwards: People Prohibited From Owning Firearms Cannot Exploit The Private Sales Loophole. During the January 3 edition of Cam & Company on NRA News, host Cam Edwards first told guest Jim Geraghty, who writes for the National Review Online, that Geragthy was “incorrect” in his assumption that background checks are not required at gun shows. Edwards would later acknowledge that private sellers at gun shows conduct sales without running a background check on customers, but he also claimed that it was impossible for individuals prohibited from owning firearms under federal law from obtaining weapons through this process. [Cam & Company, 1/3/13] 

FACT: Private Sales Without A Background Check Are Extremely Common, Including At Gun Shows And Online

Law Center To Prevent Gun Violence: Private Sales Loophole Has Been Exploited By Gun Traffickers And Used To Supply Firearms To Criminals. The Law Center to Prevent Gun Violence explained how a deficiency in federal law concerning how firearms sellers are licensed allows dangerous individuals to obtain firearms without a background check:

The Gun Control Act of 1968 provides that persons “engaged in the business” of dealing in firearms must be licensed. Although Congress did not originally define the term “engaged in the business,” it did so in 1986 as part of the McClure-Volkmer Act (also known as the “Firearms Owners' Protection Act”). That Act defined the term “engaged in the business,” as applied to a firearms dealer, as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

Significantly, however, the term was defined to exclude a person who “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

Consequently, unlicensed sellers may sell firearms without conducting background checks or documenting the transaction in any way. In addition, because federal law does not require private sellers to inspect a buyer's driver's license or any other identification, there is no obligation for such sellers to confirm that a buyer is of legal age to purchase a firearm. As a result, convicted felons, minors and other prohibited purchasers can easily buy guns from unlicensed sellers.

According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the current definition of “engaged in the business” often frustrates the prosecution of “unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons.” A June 2000 ATF report found that unlicensed sellers were involved in about a fifth of the trafficking investigations and associated with nearly 23,000 diverted guns.  A national survey of firearm ownership conducted in 1994 determined that 60 percent of all firearm sales in the U.S. involved federally licensed dealers, while the remaining 40 percent of firearms were acquired from unlicensed sellers. [Law Center to Prevent Gun Violence, accessed 4/11/13]

New York City Undercover Investigation: Most Private Sellers Agreed To Sell Firearm To Someone Who Said They Couldn't Pass A Background Check. In an investigation of 10 websites in 14 states that allow unlicensed sellers to list firearms for sale, undercover investigators working for the City of New York found that 77 out of 125 sellers agreed to go forward with a firearm sale after the purchaser said that he could not pass a background check. [City of New York, December 2011]

MYTH: Supporting Background Check Expansion Is A “Risky” Move For Senators

Fox News: Amendment Is A “Risky Balancing Act” For Manchin, Toomey. Reporting on their compromise amendment to expand the background check system, Fox News correspondent Doug McKelway said that Manchin and Toomey are engaged in a “risky balancing act” because they represent states where “the Second Amendment is considered sacrosanct,” suggesting that their legislation is controversial. [Fox News, Special Report, 4/10/13, via Nexis]

FACT: Americans Overwhelmingly Support Expanding The Background Check System

National Polls Show Massive Public Support For Expanding Background Checks. According to an April 10 Huffington Post article:

Eighty-six percent of Americans support strengthening background checks for guns in some way, according to an ORC/CNN poll released Wednesday.

Requiring background checks at gun shows was the most popular proposal, with 83 percent of those polled favoring the idea. Seventy percent want checks when gun owners who aren't dealers sell their weapons, and 54 percent support checks when guns are sold or gifted between family members.

The current laws, which require gun stores and businesses to run background checks, were favored by 89 percent of Americans.

Most polls since the shooting in Newtown, Conn., have shown upwards of 80 percent support for some form of enhanced background checks. A HuffPost/YouGov poll found that nearly three quarters of the public supported universal background checks. [Huffington Post, 4/10/13]

Poll: 88 Percent In Toomey's Home State Of Pennsylvania Support Background Checks On Every Gun Purchase. [MAIG release, 3/5/13]

Recent Polling Demonstrates Strong State-Level Support For Expanded Background Checks, Even In Red States. According to a series of polls for Mayors Against Illegal Guns (MAIG), which supports expanding the background check system, a proposal to expand the system to include all gun buyers is supported by:

• 83 Percent Of Utahns. [MAIG release, 3/5/13]
• 94 Percent Of Floridians. [MAIG release, 3/5/13]
• 94 Percent Of North Dakotans. [MAIG release, 3/5/13]
• 87 Percent Of Oklahomans. [MAIG release, 3/5/13]
• 90 Percent Of Arizonans. [MAIG release, 3/5/13]
• 85 Percent Of Louisianans. [MAIG release, 3/5/13]

MYTH: Background Check Expansion Could Lead To A National Gun Registry

Fox Host Bolling: Proposal Is “Knocking On The Door To A National Registry.” On Fox News' The Five, co-host Eric Bolling said of the Manchin-Toomey proposal: “We're so close to this background check in this form being a national registry. It is knocking on the door to a national registry.” [Fox News, The Five, 4/10/13, via Nexis]

FACT: Proposal Reaffirms That A Federal Registry Is Illegal

Manchin-Toomey Legislation Includes 15-Year Prison Term For Attempting To Create A Federal Registry. The Huffington Post reported:

The background check compromise set to be introduced on Thursday will explicitly bar public officials from creating a national gun registry, penalizing those who do with a felony charge carrying a prison sentence of up to 15 years.

That language of the bill is still being crafted. But multiple Senate aides briefed The Huffington Post on that specific provision, which was included to alleviate the concerns of pro-gun advocates who have warned that any expansion of background checks would pave the way for a registry.

In actuality, a federal registry of gun ownership is already prohibited under law. But the lawmakers crafting a compromise -- Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.) -- wanted to ensure a smoother passage for their bill, so they made the punishment more severe. In addition to a potential jail sentence of 15 years, officials who create a gun registry or misuse federal records on gun sales or ownership would face a monetary fine. [Huffington Post, 4/10/13]

MYTH: Expanding Background Checks Violates The Second Amendment

Fox News: Legislation Could Constitute An “Infringement Of The Second Amendment.” McKelway reported that Republicans may oppose the Manchin-Toomey proposal because they “are under tremendous pressure not to cave on any infringement of the Second Amendment.” [Fox News, Special Report, 4/10/13, via Nexis]

FACT: Supreme Court Has Stated That Background Checks Do Not Violate The Second Amendment

Highest Court Reaffirmed That Efforts To Prevent Felons And The Mentally Ill From Obtaining Firearms Is Permissible Under The Second Amendment. In the 2008 Supreme Court case, District Of Columbia v. Heller, Justice Antonin Scalia wrote for the majority that the Second Amendment is “not unlimited” as “commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Justice Scalia continued:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [District of Columbia v. Heller, 6/26/08, via Google Scholar, emphasis added]

MYTH: The Background Check System Doesn't Prevent Criminals From Obtaining Weapons

WaPo's Parker: Criminals Won't Submit To Background Checks, So System Has “No Real Practical Purpose.” In her Washington Post column, Kathleen Parker wrote that while she supports expanding the background check system, she thought the system had little impact:

Universal background checks are a perfectly good idea, except that they won't stop the burglar who recently cleaned out our house of all our legally purchased rifles and shotguns, including an antique that had belonged to my great-grandfather, who, as sheriff of Barnwell County, S.C., confiscated the gun from the triple murderer he tracked for three days and finally killed. (I want that gun back, please.)

Those guns are now in circulation among an element of society that has no intention of submitting to a background check or any other well-intentioned effort to ensure that only good guys have guns. [The Washington Post, 4/9/13]

FACT: Background Checks Prevented The Sale Almost 2 Million Firearms In System's First 15 Years, Largely To Criminals And The Mentally Ill

Between 1994 And 2009, Nearly 1.8 Million Applications For Firearms Transfers Were Denied. NBC News reported:

The numbers show that background checks do keep guns out of the hands of at least some people who are not supposed to have them. Nearly 1.8 million applications for firearm transfers or permits were denied between the passage of the law in March 1994 and December 2008, according to the Bureau of Justice Statistics. The FBI and state law enforcement denied firearm purchases to 153,000 people in 2010 alone, the most recent year for which data is available. [NBCNews.com, 4/10/13]