We constantly hear about gun background checks in the ongoing debate about gun safety. Yet many people are confused about the details surrounding the current system of background checks. Who can legally own a gun? Who is denied? What is the “gun loophole” everyone talks about? This information should clarify things and help you better understand the current laws regarding firearm background checks.

Who is Required to Submit a Background Check?

The 1994 Brady Bill requires anyone purchasing a gun at any federally licensed gun retailer to submit to a background check.

The Process Involved in a Background Check

The purchaser is required to fill out a form which is then run through an FBI database, which contains records pulled from a variety of state and federal sources. It includes things like criminal records, mental health files, and terrorist watch lists. The results typically come back within a few minutes, though it can sometimes take up to 3 days to complete a check.

People Who Aren’t Allowed to Buy Guns

Certain people are restricted from owning firearms, and if a background check flags someone as an unauthorized person, the retailer is prohibited from selling to them. Here are the main categories of people restricted from gun ownership:

  • Felons: Anyone with a felony conviction is prohibited from owning a firearm.
  • Those convicted of domestic violence are often prohibited from owning guns, even if it’s only a misdemeanor charge.
  • Those who are in the United States illegally cannot purchase guns.
  • Those on a terrorist watch list (which includes more than a million people, only a small number of whom have any actual ties to terrorism).
  • Those with a court-adjudicated mental illness or a history of drug abuse.
  • People who have an active protective order against them.

Problems With Gun Background Checks

Aside from the fact that the system can only flag those known to authorities, there are a couple of significant problems with background checks:

1. The gun database is incomplete
Databases are only as good as the records put into them, and the current FBI database is incomplete. It relies on states and courts to submit all pertinent records and to do so in a timely fashion. Needless to say, this doesn’t always happen. The result is that many mental health records and felony convictions are missing, allowing people to slip through the cracks. “The NICS (database) is a critical tool in keeping firearms out of the hands of prohibited persons,” says attorney general Loretta Lynch, “but it is only as effective as the information entered into the databases upon which it relies.” (Johnson, 1-20-2016)

The mass shooting that killed 26 people in a Texas church in November of 2017 (half of them children) is a perfect example of this. The gunman, 26-year-old Devin Patrick Kelley, had a history of child abuse, animal abuse, and domestic violence. While in the military, he pled guilty to hitting, choking, and kicking his wife, and also of striking his infant son on the head and body in a way “likely to produce death or grievous bodily harm.” He was convicted of animal cruelty in Colorado for holding up a Siberian Husky and repeatedly punching the dog in the face. Of these things, his domestic violence conviction should have prevented him from buying a gun. Yet because the Air Force failed to submit his case to the FBI’s NICS database, he was able to purchase weapons not just once but twice – buying two guns in 2016 and then another two in 2017. (Elinson, Gold & Ailworth, 2017)

It also should have flagged Gary Martin, the 45 year old who shot up his workplace at Henry Pratt after being fired from his job. In 1995 he had pled guilty to aggravated assault for repeatedly stabbing his girlfriend with a butcher knife and hitting her with a baseball bat. (Ailworth, 2-19-2019)

Experts say that the military and other government departments routinely forget to upload the pertinent records. “This comes as no surprise to any of us familiar with the way NICS works,” says Robert Belair, a Washington privacy lawyer and expert on the NICS database. Senator John Cornyn of Texas adds that “According to the Department of Justice, the number of these records that are actually uploaded is staggeringly low.’1 (Peterson & Gershman, 2017)

2. There’s a time limit
By law officials must process a background check within 3 days of its submission. But during high volume times or in situations where a case must be reviewed or there is a problem in the network, the system can’t always keep up. If a check hasn’t been completed within 3 days, the purchaser walks out the door with their gun, no questions asked.

Such failures in the system can have potentially deadly consequences. For example, both Dylan Roof (the young man who murdered 9 people at a South Carolina church) and Seung-Hui Cho (who murdered 32 people at Virginia tech) should have been flagged and prevented from buying their guns. In both cases the system failed. In the case of Dylan Roof, his background check wasn’t completed within this 3-day period, after which time he was allowed to walk away with the .45 caliber handgun that was used in the shooting.

* See also: The gun loophole