The National Instant Check System

By Cindy Hill
The National Instant Check System

Cindy Hill

The National Instant Check System is the program administered by the U.S. Federal Bureau of Investigation to run background checks on people seeking to purchase firearms. The purpose of the NICS checks is to ensure that the firearms purchaser is not prohibited by federal or state law from possessing a firearm.

History

The Brady Handgun Violence Prevention Act of 1993 required background checks to be performed on consumers before all handgun purchases. These checks were conducted by the Chief Law Enforcement Officer of the jurisdiction in which the purchaser resided, and often took several days or longer. In 1998, Congress amended the Brady Act to include long guns--most shotguns and rifles--and the FBI instituted the National Instant Check System (NICS) to make the background checks faster and more efficient.

Function

Federally licensed firearms dealers (FFLs) require each prospective firearm purchaser to complete Form 4473, issued by the Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives. This form requests identification and criminal history information from the FFL customer. The FFL then telephones NICS and provides the information from Form 4473. A NICS operator conducts the background check then advises the FFL whether they may proceed with the sale or deny the sale. Occasionally NICS may delay response a few business days to conduct further investigation.

Prohibitions

NICS personnel check a wide variety of federal and state databases to determine whether the person seeking to buy a firearm falls into one of nine categories of persons prohibited by federal law from possessing firearms. These nine categories are persons who: 1. have been convicted of a crime with a potential imprisonment of one year or more (with many exceptions); 2. have been adjudicated mentally defective; 3. have renounced U.S. Citizenship; 4. are not citizens or permanent resident aliens; 5. are addicted to illegal substances; 6. have been convicted of misdemeanor crimes of domestic violence,; 7. have a domestic restraining order in place; 8. have been dishonorably discharged from the militar; 9. are fugitives from justice.

Scope

According to the FBI, more than 100 million NICS checks have been performed in the last ten years, resulting in more than 700,000 denials. NICS requirements do not apply to firearm transfers by anyone other than an FFL, so private sales and inheritances do not usually go through a background check. NICS only applies to guns that meet the federal definition of a "firearm," so the purchase of most air rifles and black-powder muzzle-loading guns does not require a background check.

Appeals

If NICS personnel indicate a denial or delay, the FFL gives the customer a NICS transaction number and instructions on how to request a Statement of Reasons for the denial. Confidentiality rules preclude NICS from telling the FFL the reason for the denial. Once the customer has received the statement of reasons, he may appeal to the NICS appeals office. NICS data indicates that approximately 5 percent of NICS denials are appealed, and close to half of appealed denials are overturned. If an appeal does not resolve the issue, the person may appeal further to federal court.

Errors

Common errors in NICS checks include confusing criminal records with someone with a similar name and birthdate, and misreading a misdemeanor conviction record to be a felony conviction. Often domestic restraining orders or fugitive witness warrants have been legally terminated, but the databases containing that prohibition information have not been updated to remove the record. The most common reason for overturning a NICS denial is that the criminal conviction forming the basis of denial has been pardoned, expunged or overturned on appeal but the database does not reflect this information.

Voluntary Appeals File

Some people have a confusing point in their state or federal records, which results in them wrongly receiving NICS denials or delays every time they go to purchase a firearm. These individuals may choose to enroll in NICS Voluntary Appeals File, which allows NICS to circumvent privacy restrictions and keep a special file on the person, indicating that they should be approved during a NICS check absent subsequent prohibiting acts. If a person is approved for the NICS VAF, they will receive a unique Personal Identification Number to include on their Form 4473 to indicate to the NICS operator that they are registered with VAF.

About the Author

A freelance writer since 1978 and attorney since 1981, Cindy Hill has won awards for articles on organic agriculture and wild foods, and has published widely in the areas of law, public policy, local foods and gardening. She holds a B.A. in political science from State University of New York and a Master of Environmental Law and a J.D. from Vermont Law School.

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