January 1999

Vol. 7, No. 6

The Brady Act And Its Aftermath

By Kelly Anders

The five-day waiting period for handgun purchasers required by the Brady Handgun Violence Prevention Act expired Nov. 30, 1998. It was replaced by a mandatory, computerized national instant check system that provides criminal background checks on all firearm purchasers, not just those buying handguns. Most background checks are completed within minutes, but the impact of this change in the federal law varies from state to state. As a result, legislators may face questions from constituents regarding their rights to purchase firearms, especially if the instant check system is not functioning efficiently.

Enacted on Nov. 30, 1993, the Brady act amended the Gun Control Act of 1968 and imposed as an interim measure a five-day waiting period before a licensed dealer could sell a handgun to an unlicensed individual. The waiting period applied only in states without an acceptable alternate system for background checks. The Brady act was designed to enforce federal laws, prohibiting those indicted or convicted of a felony, fugitives from justice, drug addicts and unlawful users, illegal aliens, those dishonorably discharged from the military, those who have renounced U.S. citizenship, those who are adjudicated "mental defectives" or have been committed to mental institutions, those under court orders restraining them from stalking or harassing intimate partners or their children, and those who have been convicted of mis-demeanor crimes of domestic violence from purchasing firearms. The law also prohibits selling any guns to juveniles under 18 and handguns to those under 21.

All firearms dealers and pawnshop brokers are now required to conduct background checks on purchasers of handguns as well as "long guns" such as rifles and shotguns. A dealer who transfers a firearm and knowingly fails to comply with the law may be subject to license suspension or revocation and fined up to $5,000.

The FBI projects that 11.4 million background checks will be conducted annually. The bureau will perform an estimated 4.9 million checks directly, and states will complete the rest. Overall, the check system may cost as much as $78 million annually. The Justice Department has proposed charging gun dealers a fee of between $13 and $16 for each check. In many states, some or all queries will be directed to a state's designated "point of contact," which will then conduct a background check directly through the national instant check system. These states determine whether to charge a fee and how much to charge. In states without a designated POC, gun dealers contact the Federal Bureau of Investigation directly, and the FBI runs the check through the system.

The five-day waiting period for handgun purchasers was replaced by a mandatory, computerized national instant check system.

The FBI projects that 11.4 million background checks will be conducted annually.

State Actions

Twenty-three states complied with the Brady act: Alabama, Alaska, Arizona, Arkansas, Colorado, Kansas, Kentucky, Louisiana, Maine, Mississippi, Montana, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Vermont, West Virginia and Wyoming. Each has switched to the national instant check system.

Background checks on all firearms purchasers are required by state laws that exempted nine states from the federal law. As a result, California, Connecticut, Florida, Hawaii, Illinois, Massachusetts, New Jersey, Tennessee and Virginia will continue to use their current systems, but will also run applicants through the national system. Background checks on handgun purchasers are required by state laws in Delaware, Georgia, Idaho, Indiana, Iowa, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Carolina, Oregon, Pennsylvania, Utah, Washington and Wisconsin. After the Brady act expired, names of both handgun and long gun purchasers must be run through the national check system, and handgun purchasers must also be run through state-required background checks.

Federal Action

In an effort to ban fees, U.S. Senator Robert Smith of New Hampshire has introduced legislation that would prohibit the FBI from charging a user fee for background checks on firearms purchases and would also require the FBI to immediately destroy any records relating to an approved firearm transfer. Referred to as the Smith amendment, the bill has raised concerns among gun control advocates that its enactment would render the system virtually ineffective. Legislation has also been introduced to maintain a waiting period for handgun purchases. Illinois Senator Dick Durbin and Representative Charles Schumer of New York have introduced the Waiting Period Extension Act, which would establish a permanent 72-hour waiting period on all handgun purchases. Under a pending proposal, the Bureau of Alcohol, Tobacco and Firearms would exempt a gun buyer from an instant check if he or she holds a state permit to carry concealed weapons. The regulations have not yet been finalized. States where concealed weapons permits substitute for the background check include Florida, Georgia, Pennsylvania, Texas and Virginia.

Selected References

Center to Prevent Handgun Violence. What Will Happen in my State When the Brady Law Waiting Period Expires? Washington, D.C., 1998.

National Rifle Association. The Brady Handgun Violence Prevention Act: Does it Live up to its Name? Fairfax, Va., 1997.

Violence Policy Center. Paper Tiger? Will the Brady Law Work After Instant Check? Washington, D.C., 1997.

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Contacts for More Information

Bill Waren
NCSL—Washington, D.C.
(202) 624-8665
bill.waren@ncsl.org

Center to Prevent Handgun Violence
(202) 898-0792
www.handguncontrol.org

National Rifle Association
(800) 392-8683
www.nra.org

Twenty-three states complied with the Brady act.