What Exactly Are “Expanded Background Checks”?

We often hear that “we need to enforce existing gun laws, not pass new ones.”  But, let’s discuss how existing gun laws work, and why the intersection of federal and state laws creates a confusing patchwork that opens a lot of loopholes that are easy to exploit.

Federal law creates disqualifying criteria for possession of a firearm, including conviction for a crime punishable by 1+ year(s);  being a fugitive of justice; unlawful drug use or drug addiction; adjudication as “mental defective” or committed to a mental institution; anyone who is undocumented; being a member of the military with a dishonorable discharge; anyone who has renounced their U.S. citizenship; anyone subject to a court order threatening a family member; and anyone convicted of a misdemeanor of domestic violence.

Federal law requires anyone who purchases a firearm from a federally licensed firearm dealer (also known as an FFL) to undergo a background check for these disqualifying criteria. FFLs can be a small local gun store or big box retailer, a pawn shop, or a licensed vendor at a gun show. Anyone purchasing a firearm from an FFL must complete “Form 4473,” a form promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Department of Justice and undergo a background check.  This entire process generally takes less than ten minutes.

However, not all people buy their firearms from federally licensed firearms dealers. Some people buy them in private transfers. Private transfer mean purchasing a gun from a private seller. Private sales can include online sales negotiated through website like Armslist (an online gun exchange that operates like a Craigslist for firearms), Facebook groups, or private individuals (who are not FFLs) at gun shows. The “gun show loophole” refers to the fact that anyone at a gun show who can’t pass a background check required by a licensed vendor with an FFL can easily find a private seller inside the show or in the parking lot and buy a gun from them.

It’s estimated that as many as 22 percent of firearms are acquired without a background check.

The current federal law does not apply to private transfers. This means that right now it’s up to the states to extend the same check for private sales.

Only twelve states requires background checks at the point of transfer for all firearms: California, Colorado, Connecticut, Delaware, Nevada, New Jersey, New Mexico (background checks for commercial sales only), New York, Oregon, Rhode Island, Vermont, Washington, and D.C. Two states requires background checks for all transfers for handguns only: Maryland and Pennsylvania. (Note: Massachusetts does not require background checks for private gun sales, but they do require anyone purchasing a gun from an FFL or private seller to first obtain a firearm license through their local police department after completing a firearm safety training class.)

Calls for Congress to pass “universal background checks” refer to the need for a federal law that requires all states to extend existing background checks to private transfers — which would prevent individuals with already disqualifying data from easily purchasing guns through a private sale.

Federal background checks are conducted by checking a person’s criminal history through the National Instant Criminal Background Check System (NICS). However, most of the disqualifying criteria, such as drug convictions, involuntary committals, domestic violence convictions, and orders of protection, occur at the state level. NICS is only as effective as the information that states report to it. This doesn’t always happen.

Ideally, states would be required to run people through their databases. The federal government tried to do this, but in 1997 in Printz v. United States, the Supreme Court held that for federalism reasons under the 10th Amendment, the government cannot “commandeer” state and local law enforcement to enforce federal law. States must do it voluntarily.

Only thirteen states voluntarily provide a state “point of contact” (POC) to provide an additional layer of checks against their databases: California, Colorado, Connecticut Florida, Hawaii, Illinois, Nevada, New Jersey, Oregon, Pennsylvania, Tennessee, Utah, and Virginia. Eight states are “partial POCs” (some guns only): Iowa, Maryland, Michigan, North Carolina, Nevada, New Hampshire, Washington, and Wisconsin.

Tennessee background checks are processed through TICS, the Tennessee Instant Check System. TICS is administered by the Tennessee Bureau of Investigation.  Check out Tennessee background check data, including how many are denied every year.

Stolen guns are disproportionately used in crime. But only nine states require the mandatory reporting of stolen firearms: California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, New Jersey, New York, Ohio, Rhode Island and D.C. Only two impose liability on stolen firearms: New Jersey and Washington, as of July of this year.

Universal Background Checks are literally the most basic way to make it as difficult as possible for people who shouldn’t have guns to get them

Universal background checks are supported by an overwhelming majority of Americans (93 percent). Even a significant majority of Tennesseans (83-84 percent) support expanding background checks to all gun sales. Sixty-nine percent of NRA members support for expanding background checks and 78 percent of gun owners support them, according to polling conducted last year.

The U.S. House passed a bill to expand background checks by a 240-190 vote in February of this year. It’s time for the U.S. Senate to listen to the will of the American people and pass them in the Senate.