Brady Background Checks

Since it was established in 1998, there have been more than 300 million Brady Background Checks initiated through the system. The Brady Background Check system has blocked nearly 4.9 million prohibited purchasers from obtaining a firearm.

When an FFL initiates a background check for a gun sale, NICS returns one of three possible replies: “proceed,” “denied,” or “delayed.” About 90% of determinations are returned within mere minutes of initiating a background check. If the Brady Background Check does not show that the purchaser has prohibiting background information, such as a felony conviction, and receives a “proceed,” the transfer can move forward as long as there are no other red flags that the sale would be unlawful, and the dealer wishes to proceed (the dealer can decline to sell a firearm for any reason).

However, in some cases, records in the system are unclear, and the FBI needs more time to research the buyer’s eligibility to purchase a firearm. In these situations, federal law allows the FFL to move forward with the sale after three business days have elapsed without the NICS returning a “proceed” or “denied” response. This is known as a “default proceed” and often referred to as the “Charleston Loophole,” named after such a transfer was completed in 2015 to a white supremacist and prohibited individual who subsequently used the purchased firearm to massacre nine Black parishioners at the Emanuel AME Church in Charleston, South Carolina. Since 2008, over 54,000 prohibited purchasers have obtained firearms from FFLs through this process.

Why are Expanded Background Checks Necessary?

Numerous crimes have been linked to guns purchased without background checks. For example, the gunman who killed seven individuals and injured 25 in the 2019 mass shooting in Midland/Odessa, Texas, used an AR-15 style rifle which he purchased in a private sale without a background check. He previously failed a NICS background check in 2014 because a court deemed him mentally unfit to own a firearm. The shooter in the 2022 St. Louis school shooting, used an AR-15 style rifle and 600 rounds of ammunition he purchased without a background check through a private sale facilitated using Armslist, a major online firearms marketplace. Just two weeks prior, the shooter failed a NICS background check because his family had him committed to a mental institution multiple times.

State Legislation

In the absence of federal action to expand background checks, states must take the initiative to expand and strengthen their background check systems. Unless a state explicitly expands its background check system, only firearms purchases made through an FFL are required to undergo a background check, meaning that any transaction made through a private seller may be legally completed without a background check. 

The private sale loophole enables about every 1 in 5 guns to be sold today without any background check through private transactions, gun shows, and websites that facilitate private gun sales. It is crucial that states are empowered to ensure that prohibited individuals don’t gain access to deadly weapons through the private sale loophole. If passed, state-directed expansion of background checks would have a tangible impact on the lives of those at risk.

Today, 21 states and the District of Columbia have enacted legislation to expand the federal Brady Background System, which means over 166 million Americans are now subject to more extensive background checks.

We know that expanded background checks save lives.  A 2019 study found that U.S. states with universal background checks for all gun sales had homicide rates 15% lower than states without these laws over a 26 year period, and states without universal background check laws export crime guns across state lines at a 30% higher rate than states that require background checks on all gun sales.