Gun Background Check Law explained

In the United States, federal law requires licensed gun sellers to run background checks on all purchasers of guns, but that doesn’t mean that every gun sale in America requires a background check.  To shed light on the topic, Professor Jake Charles of Pepperdine Law School gives a state of the union in terms of background check law and explains the "gun show loophole."

The Brady Law (passed in 1993) establishes the framework for federal background checks. The background check system, NICS (managed by the FBI), checks prospective buyers for disqualifying factors, such as felony convictions, past involuntary mental health commitments, and dishonorable discharge from the military. If the check comes back clear, the buyer can proceed with the purchase. The Brady Law, however, doesn’t apply to all transactions. 

A notable exception to the background check requirement in the U.S. involves the so-called "gun show loophole." The Brady Law's requirements only apply to licensed firearms importers, manufacturers, or dealers. These rules, however, don't extend to private individuals not engaged in the business of selling guns, hence they are not required to conduct any checks when selling firearms. These sales can take place at gun shows, privately, or through online platforms.  

Additional Resources

This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law. 

Law and Sources Discussed

  • Brady Handgun Violence Prevention Act (1993) -  requires any federally licensed gun dealer to conduct universal background checks on firearm purchasers in the United States.

  • 18 U.S.C. § 922(g) - federal law listing certain classes of individuals that cannot legally ship, transport, possess or receive any firearm or ammunition (e.g., felons, the mentally ill,  undocumented persons, etc.). 

  • National Instant Criminal Background Check System (NICS) - FBI-run central database that queries for any status that would disqualify a gun purchaser from having a firearm.

  • Armed Prohibited Persons System (APPS) - California Department of Justice operates the only system in the U.S. for tracking firearm owners who fall into a prohibited status.

Related Laws and Videos:

  • NYSRPA v. Bruen – Supreme Court case which expanded Second Amendment rights outside of the home and established a new Second Amendment test. 
  • Text, History and Tradition Test – Established by the 2022 landmark decision, NYSRPA v. Bruen, the text, history, and tradition test now governs laws restricting the right to keep and bear arms – invalidating any gun laws that fail to meet its standard.
  • District of Columbia v. Heller – landmark Supreme Court decision that held that the Second Amendment to the U.S. Constitution protects an individual's right to keep and bear arms—unconnected with service in a militia—for traditionally lawful purposes such as self-defense within the home.

Gun Background Check Law explained Brief Transcript

An Interview with Constitutional Law Scholar, Jacob D. Charles 

Joel Cohen, Host: What is the law when it comes to Universal background checks, and what is the Gun Show loophole? Today we'll discuss. Hello and welcome to Talks on Law, I'm Joel Cohen. Today we're joined remotely by Professor Jake Charles of Pepperdine Law School, a constitutional law scholar, a Second Amendment expert. Jake, it's a pleasure to talk to you today.

Prof. Charles:  Happy to be here.

Federal Background Check Law – The Brady Act of 1993

Joel Cohen, Host: So, Professor, what is the law in America today when it comes to background checks and the purchase of guns?

Prof. Charles: Background checks are one of the few things that happen at the national level. There's a federal law that says that anybody who is a federally licensed gun dealer, which is anybody who's in the business of selling guns with the predominant purpose of earning a profit, those people have to perform background checks for any gun transfers they make.

Disqualifying Statuses to Purchase a Weapon

Prof. Charles: What that means is that if you want to buy a gun, and you go to a store like say Walmarts or Dick's Sporting Goods and buy a firearm, those places are going to have to run a background check. That goes through a centralized database that the FBI runs. It queries several different places and checks to see if you have any disqualifying statuses. Those are mainly things like a felony conviction, past involuntary mental health commitment, dishonorable discharge from the military, or several other statuses. If you don't, then the background check comes back clear, and you're allowed to buy the weapon. The general framework of the background check system is designed to make sure that those who are not legally entitled to possess guns can't go and get them from a federally licensed dealer.

Joel Cohen, Host: So specifically, when does the background check get run? Is it each time I try and buy a gun or just the first time that I go into the store? 

Prof. Charles: In general, you go through a background check anytime that you're going to buy a weapon from a federally licensed dealer. But in general, every time you buy a gun from a gun store, you're going to have to go through a background check. But what you suggest is that sometimes you can buy a gun from a gun store, and you have the gun, but then later you become disqualified from owning the weapon. And because there's no centralized registration scheme that records every gun buyer and keeps it in a database, there's no way to know who has a weapon today and has come into a disqualifying status and can no longer possess guns. There are some places like California have a comprehensive registration scheme, in which in this case, anybody who becomes disqualified from possessing a gun can be tracked down, and the gun can be confiscated from that person.

Understanding the Gun Shows Loophole

Joel Cohen, Host: I mentioned in the intro that there's a quite famous exception to the background check law. So what is the Gun Show loophole?

Prof. Charles: Yea, so that's the popular name of it. It's sort of a misnomer. The Gun Show loophole refers to the fact that only federally licensed dealers, gun dealers, and gun stores are required to run a background check. So, if you want to sell me a gun, you don't have to run a background check on me unless a state has closed the so-called Gun Show loophole. It's called The Gun Show loophole because a lot of these unlicensed sales happen at gun shows, but that doesn't mean that every sale there doesn't require a background check. If you are a gun dealer and you have a license, and you go to a gun store, you still have to run a background check before you sell a weapon. The loophole refers to unlicensed private sales between individuals that don't have a license. Those are perfectly legal in most of the United States, and under federal law, there's no requirement for someone who's not a dealer to run a background check before they transfer a weapon.

Joel Cohen, Host: If I'm on one of these lists that prohibits me from buying a gun at a place like Walmart, I can go to a gun show, and no one's going to run a background check on me.

Prof. Charles: That's right, unless there is a licensed dealer who has a stand at the gun show. Lots of the guns that are sold at gun shows don't go through the background check system because the person selling the weapon isn't “in the business of selling weapons.” They can sell occasionally at gun shows without having to get a license and without having to run a background check. 

States with Broader Background Check Requirement

Prof. Charles: There are about 20 states and the District of Columbia where there is a broader requirement to run background checks, but most of the states do not have this requirement if you are just individuals selling guns between each other.

Background Checks and Online Gun Forums

Prof. Charles: You bring up gun shows, but there's also an online marketplace where gun sales can be facilitated. There's a website called Armslist, which has been called the Craigslist for guns. Here, buyers and sellers can connect and sell guns without having to run a background check. We don't know how many guns are sold this way because there's no registration system. Estimates based on surveys suggest about 25% of guns are sold outside the federal system, in which a background check is required. So, 25% of gun sales are happening in this private market that is currently unregulated by the background check system, except for those states that have a fuller system.

Joel Cohen, Host: Wow, that's millions of guns each year.

Prof. Charles: That’s probably right. 

Joel Cohen, Host: Jake Charles is a Professor of Constitutional Law and a Second Amendment scholar. Jake, thanks for the time today.

Prof. Charles: It was great talking with you, Joel.