Gun Control: Opportunities to Close Loopholes in the National Instant Criminal Background Check System

GAO-02-720 Published: Jul 12, 2002. Publicly Released: Jul 12, 2002.
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The National Instant Criminal Background Check System (NICS) searches state criminal history records to prevent gun sales to ineligible persons. GAO found that state firearm laws and procedures may affect how these records are used by NICS. Each of the six states GAO surveyed had some mechanism by which persons with criminal convictions could have their rights to own a firearm restored. The six states typically require a waiting period before someone can apply for relief, and some criminal convictions make a person ineligible for restoration. In 26 states, the Bureau of Alcohol, Tobacco and Firearms has determined that a concealed carry permit may exempt permit holders from an NICS background check when they are buying a firearm. This situation underscores the need to carefully screen applications and monitor permit holders to ensure their eligibility to own firearms. The six states used various approaches to make it easier to identify individuals convicted of domestic violence. Despite these efforts, NICS failed to detect more than 2,800 persons convicted of domestic violence who bought firearms during the first three years the system was in operation.

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Matter for Congressional Consideration

Matter Status Comments
To reduce the number of NICS firearm-retrieval actions and improve the ability of NICS to prevent domestic violence offenders from purchasing firearms, Congress may wish to consider amending the Brady Act to allow more than three business days to complete unresolved NICS background checks before firearms sales are allowed to proceed.
Closed – Not Implemented
During the 107th and 108th Congresses, various NICS-related gun control bills, including background checks at gun shows, retention of firearms background check records, and access to immigration and mental health records, were debated in the House and Senate. However, no legislation was enacted to address this recommendation and none is expected. In contrast, a provision of the 2004 Justice Appropriations Act requires the destruction of NICS records of approved firearms purchases within 24 hours, which actually makes it more difficult to identify prohibited purchasers or corrupt firearms dealers and reduce the number of firearm-retrieval actions.

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of Justice To minimize the possibility of ineligible person using revoked concealed carry permits to purchase firearms without a NICS background check, the Attorney General should consider developing regulations requiring states to implement point-of-purchase verification procedures, whereby the current validity of concealed carry permits must be verified by licensed gun dealers before transferring firearms to permit holders.
Closed – Not Implemented
After preliminary fact finding by ATF, Treasury/OE determined that additional internal analysis was needed to determine the extent to which state concealed carry permits have been used by ineligible persons to purchase firearms without a NICS background check. As of January 2003, ATF had circulated a questionnaire to the states in order to obtain additional data on the extent to which this may be a problem. However, ATF needed more time to study the data and decide on the appropriate response. The delay was attributed to the preparation for transfer to DOJ that had been going on the last few months, as well as the focus on the D.C. sniper during this same time. As a result, ATF deferred completion of the response so that it could be coordinated through DOJ, due to the sensitive nature of the issue and ATF's new organizational status within DOJ. As of September 2003, ATF reported that they had completed their analysis of the data and prepared a response; however, it must be vetted through DOJ before releasing it to GAO, and this is not likely to occur until after fiscal year 2003. Final ATF response submitted on February 2, 2004, indicates that ATF has determined it does not have statutory authority to issue a regulation requiring states to implement point-of-purchase verification procedures in order for permits to qualify as a NICS check alternative. As a result, Congress must first amend the Gun Control Act to authorize ATF to impose such regulations.

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