How do you do a background check for firearms purchases?
January 19, 2013 9:44 PM   Subscribe

If an individual sells a gun to another individual, how would the seller do a background check? Is the NICS database available to private individuals?

I'm having trouble parsing the NICS website in terms of who can use the database. They mention FFLs (Federal Firearms Licensees) as having access and that one needs to apply to the FBI to become an FFL. This process appears to be fairly rigorous and thus not something you'd do unless you were a store/dealer. Do stores let people do background checks for free or a small fee? Can you go to an official office and have this done for you?

While I understand that I'm talking about the "gun show loophole", I really, really don't want to talk about how people feel about guns. I'm not interested in how people feel about background checks. I just want to know if a service exists for people to do background checks. I want to know about the bureaucracy!

I'd also like to note that I personally do not own firearms and have no intention of purchasing/selling them.
posted by anonymous to Law & Government (4 answers total) 2 users marked this as a favorite
Access to the NICS is restricted to the following three circumstances:
  • An FFL can initiate a background check only in connection with a proposed firearm transfer as required by the Brady Act and pursuant to 18 U.S.C., § 922(t)(1).
  • Pursuant to Title 28, Code of Federal Regulations (C.F.R.), Section 25.6 (j)(i), to provide information to local, state, or federal criminal justice agencies only in connection with the issuance of a firearm-related or an explosives-related permit or license.
  • Title 28 C.F.R. §25.6 (j)(2) permits the NICS to respond to inquiries by the Bureau of Alcohol, Tobacco, Firearms and Explosives in connection with a civil or criminal law enforcement activity relating to the Gun Control Act of 1968 or the National Firearms Act.
The situation on background checks in private party sales varies from state to state. In some states (California, I believe), all private party sales must go through a FFL.

In other states, private party sales require some kind of permit if they don't go through a FFL (this is the situation described by bullet point 2).

In some states, there's no requirement for a background check, but you can sometimes do the transfer through a FFL for a fee if you want an NICS check done.
posted by Jahaza at 10:17 PM on January 19, 2013

Not a gun expert by any means, but I believe the term for this is a "private party transfer." Searching on that term (+ firearms or guns) will give you a number of resources. In California, for instance, my understanding is that you are generally required to do this through a licensed firearms dealer, who will perform the background check, secure the weapon during the waiting period, and issue the paperwork for a fee. See this California FAQ for an example. A lot of these issues are covered by state law and sometimes local, which means that the answer is going to be different depending on where you are. See the ATF' FAQ for a starting point on the federal law that applies. A number of other states have no requirements for in-state private party transfers, or impose requirements on handgun transfers but not for other weapons, so no background check would be involved if you were both residents of the same state (you'd still be prohibited from selling a gun to someone who you knew or reasonably should have known was not allowed to have one). A licensed dealer in those states might still be willing to facilitate the transfer for a fee if you wanted.

My understanding is that if you're selling the gun interstate, subject to certain exceptions, the FFL requirement comes in and federal law requires that you make the transfer through a licensed dealer.
posted by zachlipton at 10:23 PM on January 19, 2013

At this point, it depends to some degree on the state in which the background check and sale will take place. For example, in my state, Florida, all retail gun purchase background checks by FFL dealers are made by contact with the Florida Department of Law Enforcement, except for pawn transactions, with NICS as a data back up. In other states, handgun sales go directly to NCIS and long gun sales go through state agencies, or vice versa, depending on state law. In Florida, for example, that arrangement of state law and NICS allows holders of CCW permits to avoid any waiting period at the time of sale for firearms, either hand guns or long guns, and to leave the retail gun seller with their purchased firearm on the same day as payment, whereas non-CCW holders have to wait at least 3 days after a background check is made and payment completed, to return for delivery of their weapons.

Here in Florida, some retail sellers that I have talked to, will run a private sale background check for the same fee ($5 tp $15) and under the same circumstances as they'll run a check for a gun they are selling. Basically, if you and your buyer agree to have a check run on the buyer, you go to the gun store with the firearm, and the buyer fills out the paperwork and shows their ID, and a phone call is made to Tallahassee, and you get a pass/fail background check indication in from 5 to 30 minutes, depending on how busy Tallahassee is on that day, at that hour, with background check requests. Then, the seller and buyer exchange gun/accessories and money on premises, and the seller and buyer go home.

But about 1% of any people I've ever talked to, involved in private firearm sales, do this. Sometimes, in state sellers of estate weapons require this, but a lot of people looking for a price premium on sales of their guns are pretty willing to take cash, and maybe a photocopy of a driver's license and a signature on a bill of sale, and ask questions a lot later, if ever they come up.

It's more typical for people to buy a weapon from an out of state seller via various Internet sites that require shipment to an in state FFL dealer, and then pay that in state FFL dealer a 1% to 5% "transfer fee" to do a background check, and handle the payment to the seller.
posted by paulsc at 10:35 PM on January 19, 2013

Certain kinds of background checks can be done on behalf of private concerns with your state, at least. For a fee, state patrol can do criminal background checks for employers-- I don't see why they can't do it for a private person, as in both cases the subject of the check would consent to it.

If the hypothetical buyer has a license to carry a concealed weapon (CCW, in general), well, that probably includes a satisfactory background check in its issuance, and it would be revoked if the person became ineligible to keep it due to mental health commitment, felony conviction, or whatever else disqualifies a CCW in your state. Note that some states have reciprocity with other states, so don't dismiss it automatically if the CCW is from out of state. Find out what it takes to get a CCW in your area and decide for yourself whether that amount of investigation is satisfactory. In my state, I can skip a wait period and NICS check because my CPL (as it is called here) included an FBI check. All the FFL has to do is check the currency of my CPL, and then the transaction can continue.
posted by Sunburnt at 12:25 AM on January 20, 2013

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