Firearm Background Checks

Before purchasing a firearm from a licensed gun dealer (Federal Firearm License or “FFL”) federal background check requirements must be met. This means that the customer must complete a federal form and, in most cases, undergo a criminal background check.

Firearm Purchases from Gun Dealers

In order to purchase a “standard” firearm from a licensed gun dealer (FFL), the customer must first fill out the ATF Form 4473. This is, of course, unless the person has their own FFL in which case they can buy guns at a discount and have them shipped directly to them.

The Form 4473 requires information about the identity of the purchaser and their current residential information. This not only provides a method for law enforcement to contact/find the purchaser if needed but it also confirms the purchaser’s state of residency.

For handgun purchases, the purchaser must be a resident of the state where the FFL is located. For long gun (rifle and shotgun) purchases, however, an out-of-state resident may purchase a rifle or a shotgun in any state as long as it is legal in both the state of purchase and the purchaser’s home-state.

The 4473 then asks a series of yes/no questions to determine whether the purchaser is a prohibited person and requires that the purchaser signs the form to confirm the accuracy of the information.

The gun dealer/FFL checks a valid government issued ID from the purchaser, fills out information about the firearm(s), and then conducts a background check (if applicable). Depending on the state, the background check is either run through the federal National Instant Criminal Check System (NICS) or it is run through a state agency (these are called Point of Contact, or POC, States). More on this below.

Also, in some states, a customer who has a valid concealed carry permit (CCW) may be exempt from needing a background check for each purchase. A table of qualifying NICS-exempt permits is included below.

After the background check requirements have been met and payment for the firearm, the purchaser may take possession of the firearm.

In the case of a special class of firearms, called National Firearms Act (NFA) firearms, more restrictions apply. This special class of firearms includes machine guns, silencers, short barreled rifles, short barreled shotguns, and “any other weapons.”

In order to purchase an NFA firearm, the customer must fill out an application and send it directly to the ATF along with a special tax (usually $200), their fingerprints, and a passport photo. Then, they get to wait many months (currently around a 10 month wait) for approval before they are lawfully allowed to possess the firearm that they already paid for. In this case, the ATF conducts the background check.

Firearm Purchases from Individuals (non dealers)

When someone purchases a firearm from another individual within their same state there is no background check required under federal law.

Some states do require that background checks are conducted, even when the transaction happens between two private individuals (often called private party transactions).

However, if the firearm is being moved from one state into another for sale, then the firearm must be shipped to a licensed gun dealer (FFL) in the purchaser’s home state and the transaction may only continue as detailed above.

This is just one reason why it is so popular for people to get their own FFL – they can receive and sell guns directly (even from their own home).

Firearm Background Check Requirement

The Brady Handgun Violence Protection Act of 1993 (Brady) required, among other things, federal background checks for firearm purchases from Federal Firearms Licenses (FFLs).

Later, in 1998, the FBI created the National Instant Criminal Background Check System (NICS). Most states require that the federal NICS system be used, however, some states use their own background check system. These states that use their own system (and not NICS) are called Point of Contact (POC) states.

NICS vs POC

After a customer fills out the Firearm Transfer Record (Form 4473), the FFL must satisfy the background check requirements, In most states, an FFL conducts a background check through NICS by phone or computer.

Some states have decided to do these background checks themselves instead of rely on the federal NICS system. These states are called Point of Contact (POC) states. Some other states use their own system for some purchases (e.g. handguns) and NICS for others (e.g. rifles and shotguns). These hybrid states are called partial-POC states. FFLs in POC and partial-POC states must use their respective local system for background checks for certain/all firearms. Our Get Your FFL course covers the requirements of each state for more information.

As an exemption to the NICS requirement for non-POC states, some state-issued CCW/handgun-carry permits can be used. This is because the background check process for some of these states is at least as good as the check performed by NICS. This saves time for both the FFL and eases the burden on NICS. When a customer presents a qualifying permit, the FFL can simply check question #21 on the Form 4473 which reads, “No NICS check was required because the transferee/buyer has a valid permit from the State where the transfer is to take place, which qualifies as an exemption to NICS” and fill out the information about the qualifying permit.

Because NICS checks are a good indicator of relative increases or decreases in firearm purchases, they are often used to report firearm sales statistics.

A breakdown of which firearms and transactions use NICS vs the relevant State agency is available in our Get Your FFL Course.

Qualifying NICS-Exempt Permits

The ATF maintains a list of qualifying permits that can be used for exemptions to the NICS requirement. Each qualifying permit has its own requirements (see below) but all of them qualify as alternatives to the background check requirements of the Brady law for no more than 5 years from the date of issuance. This is why states with permits that last longer than 5 years aren’t on this list.

This chart is only valid as of the date of this article. You must check to see current information on ATF’s website.

If you signed up for either our Get Your FFL or ATF Compliance course, you would receive an automatic update of this change, and all other firearm rules and regulations changes, straight to your email inbox.

AUTHOR

Ryan Cleckner

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Ryan Cleckner is a former special operations sniper and current attorney specializing in firearms law/ATF compliance and is a firearms industry executive (former govt. relations manager for NSSF, Vice President of Remington Outdoor Company, and a SAAMI voting board member).