Universal background checks: What are they, what do they do, does your state have them?

Gun laws and the universal background check – What you need to know

As it has after every incident of a mass shooting in the United States since the assassination of President John F. Kennedy, the conversation in and out of Washington has turned to gun control following a mass shooting incident.

While the attacks are uppermost in many people's minds, the wheels of change in the U.S. Congress are painfully slow.

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It was five years after Lee Harvey Oswald used a rifle he ordered through the mail to assassinate JFK  before Congress was spurred to pass the Gun Control Act, legislation that restricted interstate commerce of firearms.

It was the same year Dr. Martin Luther King Jr. and Sen. Robert Kennedy were shot and killed.

Another shooting, the 1981 attempted assassination of President Ronald Reagan, was the spark for another landmark gun regulation law, the Brady Handgun Violence Prevention Act, named after Reagan’s press secretary who was severely wounded in the attack.

The legislation, which was not passed until 12 years after the attempt on Reagan's life, set up the system for federal background checks and instituted a five-day waiting period before a person could take possession of a handgun.

The legislation was amended five years later in 1998 when the FBI’s National Instant Criminal Background Check (NICS) system mandated by the Brady Bill was implemented. The waiting time was cut, and the law was changed to allow those who do not immediately pass a background check to buy a gun after three days if the dealer has not been notified by the government as to why the check was held up.

That system is the one being used now for background checks on gun sales in the United States.

On Monday, President Donald Trump posted a tweet calling for "Republicans and Democrats must come together and get strong background checks" following mass shootings in Texas and Ohio last weekend that took the lives of 31 people.

While Trump did not go into detail in his call for strengthening background checks for gun purchases, others in Washington have renewed demands to toughen those checks and institute a system that would require almost all firearms transactions in the United States be recorded and those purchasing guns have their information sent through the NICS.

That procedure is referred to as “universal background checks.”

Here is a look at what universal background checks would do, what the law is now and what states require in the way of background checks for the sale of a gun.

What would universal background check mean?

A system for universal background checks would mean that almost all types of firearms transactions would be recorded and the information about the buyer be checked out through the NICS.

How is that different from what is being done now?

In general, federal firearms licensed (FFL) dealers – like gun stores, retail stores and pawn shops – are required to conduct a background check on anyone to whom they sell a firearm. The check is conducted prior to the sale.

Those dealers must also:

  • Maintain records of all gun sales
  • Make those records available to law enforcement for inspection
  • Report certain multiple sales
  • Report the theft or loss of a firearm from the licensee's inventory

Federal law does not require private sellers – such as those at gun shows, pawnshops or online sights where guns are bought and sold – to initiate a background check.

What is the difference between a private seller and a licensed dealer?

A private seller is someone who is not licensed by the federal government to sell guns and who does not rely on gun sales as their principal livelihood.

An FFL dealer is someone who sells guns for profit under the regulations of federal law.

What does 'gun show loophole' mean?

The “gun show loophole” is a term used to refer to firearms sold or traded at gun shows by private individuals. These sellers are not required to run background checks on people buying their guns.

Can states require background checks on weapons sold at gun shows?

Yes, they can.

Which states do that?

According to the Giffords Law Center, 21 states and the District of Columbia currently have extended the background check requirement beyond federal law to include at least some private sales.

California, Colorado, Connecticut, Delaware, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and the District of Columbia require universal background checks for all sales and transfers of all classes of firearms. It does not matter if the gun is sold by a licensed dealer or a private seller.

Maryland and Pennsylvania require background checks for handguns, but not for long guns, like rifles and shotguns.

Hawaii, Illinois and Massachusetts require all firearm purchasers to obtain a permit, issued after a background check, in order to buy any firearm.

New Jersey requires firearm purchasers to obtain both a permit to purchase a firearm and, if the purchase is from an unlicensed seller, conduct the transaction through a federally-licensed firearms dealer.

Iowa, Michigan, Nebraska and North Carolina have this permit and background check requirements for the purchase of handguns, but not long guns.

Illinois requires background checks whenever a firearm is sold at a gun show.

How long does background check take?

It can take only minutes or it can take longer if something on the initial check needs to be investigated.

If the seller does not hear back from the FBI within three business days, he may legally make the sale without the FBI background check results.

Is anyone prohibited from purchasing a weapon from either a licensed or private seller?

Background checks for gun purchases are designed under federal law to prevent access to guns by:

  • Convicted felons
  • Minors
  • Fugitives from justice
  • Those in the United States illegally
  • Those who use controlled substances
  • Those with certain histories of mental illness
  • Those who have been dishonorably discharged from the military
  • Those who have renounced their U.S. citizenship
  • Those subject to a restraining order
  • Those convicted of domestic violence offenses

Some states have other restrictions on who is allowed to purchase a gun.

How many firearm sales does the NICS block?

In 2018, of the more than 26 million background checks performed, nearly 100,000 firearm sales were blocked.

Why are semi-automatic rifles legal?

From 1994 to 2004, federal law prohibited the manufacture, transfer or possession of 19 types of semi-automatic weapons. The law also banned copies of the prohibited weapons or weapons which have detachable magazines and other features similar to the banned semi-automatic weapons.

The Violent Crime Control and Law Enforcement Act of 1994 that banned the sale of the weapons was passed with a provision called a sunset clause. The sunset clause allowed the act to expire in 10 years if it was not re-enacted at that time.  The law did expire, meaning it was again legal to sell and possess the weapon unless it was restricted by state or local laws.

Seven states have banned semi-automatic weapons – California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York. Those weapons are also banned in the District of Columbia.

Minnesota and Virginia have regulations for such weapons.