What Exactly is a "Universal Background Check"?

No matter which side of the political fence you fall on, by now you are familiar with the phrase "Universal Background Check". It's the hot topic in the gun control debate and may soon become law. What you likely haven't heard is an explanation of what a background check for gun ownership does and does not consists of.  A question we've received a lot lately, and one that everyone should know the answer to.

First off, let's clarify on the terminology.  A "Universal Background Check" is called "Universal" in relation to the circumstances it takes place under, as opposed to what the background check includes.  In this case "Universal" would mean any sale/transfer of a firearm in the United States to a private citizen.

Background screening serves many different purposes and can be made up of completely different data depending on it's purpose and determined by who's performing the background check. The purpose of the "Universal Background Checks" in relation to gun ownership is to fill in the "gaps" or "loopholes" that are argued to exist when people purchase guns through private parties instead of licensed firearm dealers. Licensed dealers, known as "Federal Firearm Licensees" must conduct a background check when selling a firearm, even at a gun show.  Private sellers can sell guns to other private parties in the same state without any type of background check. This results in somewhere between 10% and 40% percent of guns sales requiring no background check, depending on who you ask. 

Where Does the Background Check Data Come From?
The information contained in these federal background checks overlaps but is not the same source data that you'll find in a pre-employment background check or "Nationwide Criminal Background Databases". There are multiple federal sources that make up the background check database collectively known as the National Instant Criminal Background Check System or "NICS" for short.  NICS is technically one of the databases used in the background check but also serves as an access point for all four databases to the end user such as a firearms dealer.  The four databases that collectively serve as a background check for licensed gun sales 

1. Interstate Identification Index (III): Criminal Histories
2. National Crime Information Center (NCIC): Warrants, Protection Orders and Criminal Records.
3. National Instant Criminal Background Check System (NICS): Known individuals who are prohibited from owning firearms due to: criminal records, mental disability, dishonorable military discharge, etc. (see list below)  
4. Department of Homeland Security, Immigration and Customs Enforcement (ICE): Used only if the customer is NOT a United States Citizen.

What Kind of Background History Would Prevent Someone From Purchasing a Firearm?
One or more of the following items found during a NICS background check would normally prevent someone from purchasing a firearm.

• A person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year or any state offense classified by the state as a misdemeanor and is punishable by a term of imprisonment of more than two years.

• Persons who are fugitives of justice—for example, the subject of an active felony or misdemeanor warrant.

• An unlawful user and/or an addict of any controlled substance; for example, a person convicted for the use or possession of a controlled substance within the past year; or a person with multiple arrests for the use or possession of a controlled substance within the past five years with the most recent arrest occurring within the past year; or a person found through a drug test to use a controlled substance unlawfully, provided the test was administered within the past year

• A person who, being an alien, is illegally or unlawfully in the United States.

• A person who, being an alien except as provided in subsection (y) (2), has been admitted to the United States under a non-immigrant visa.

• A person dishonorably discharged from the United States Armed Forces.

• A person who has renounced his/her United States citizenship.The subject of a protective order issued after a hearing in which the respondent had notice that restrains them from harassing, stalking, or threatening an intimate partner or child of such partner. This does not include ex parte orders.

• A person convicted in any court of a misdemeanor crime which includes the use or attempted use of physical force or threatened use of a deadly weapon and the defendant was the spouse, former spouse, parent, guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited in the past with the victim as a spouse, parent, guardian or similar situation to a spouse, parent or guardian of the victim.

• A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding one year.

• A person adjudicated mental defective (term used by FBI, not us) or involuntarily committed to a mental institution or incompetent to handle own affairs, including dispositions to criminal charges of found not guilty by reason of insanity or found incompetent to stand trial.

The Achilles' Heel.... Inconsistent Mental Health Records 

For example, at the time of the Virginia Tech Massacre of 32 people, Virginia did not submit mental health records to NICS so there was no record in NICS of the shooter receiving mental health treatment. Such a record may have prevented Seung-Hui Cho from purchasing firearms. That has since changed in Virginia and many other states.  Now 28 States have adopted laws requiring some mental health records be reported to NICS.  However, the degree to which each of these 28 states supply mental health records varies tremendously.  Some states have submitted less than 50 total records to NICS in total while others have submitted tens of thousands.  Eight states only require mental health records to be reported to an in-state database that can be accessed by firearms dealers within their home state along with NICS. If the person purchases a firearm in a different state, their mental health records would not come into play.

To make matters more confusing, there is no standard time frame for states (the one's that do report) to report this information.  On one side you have Virginia now reporting in 24 hours, while Tennessee reports only four times a year and Wisconsin only requires reporting "In a timely manner". 

The Bottom Line

Overall, the NICS background check for purchasing firearms is an incredibly in-depth system but certainly not perfect. Individual states are coming around when it comes to making mental health records available but it's a slow and tedious process.  The reason for so much hesitation is understandable.  Mental and physical health records are protected by a slew of state privacy laws as well as HIPAA and the Americans with Disabilities Act.  Chances are, the battle between privacy and safety won't end anytime soon.

*Statistics provided from the FBI, NRA, and Law Center to Prevent Gun Violence.

About the author:

Brad Jones is President of Background Screening Consultants LLC (DBA SafeScreener.com), an applicant background screening agency in Chicago. Brad has worked with hundreds of corporations, nonprofit organizations, and government agencies to establish FCRA compliant applicant screening protocols since 1996. Prior to being fully engaged with the background screening industry, Brad specialized in fraud investigations and complex due diligence related to corporate acquisitions. Brad is an active member of the National Association of Professional Background Screeners as well as a Chicagoland Chamber of Commerce member, serving on the Health and Wellness Coalition as well as the Workplace Well-Being Committee.  Brad can be reached at bjones@safescreener.com or 312.985.5010 x113

Please note: Any person or entity utilizing a third party to conduct applicant background checks for employment or leasing purposes must follow applicable federal and state laws including but not limited to EEOC Title VII, the Fair Credit Reporting Act and all applicable state laws.  Articles, blogs, newsletter and other materials issued by Brad Jones or any employee of Background Screening Consultants LLC (DBA SafeScreener.com) should not be regarded as, or substituted for, legal advice.