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How do gun background checks work? A look at the current system

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In the wake of the mass shooting at a Florida high school earlier this month, President Trump is seemingly open to strengthening federal background checks.

“While discussions are ongoing and revisions are being considered, the president is supportive of efforts to improve the federal background check system,” White House Press Secretary Sarah Sanders said Sunday, adding that the president has spoken to Senate Majority Whip John Cornyn about a bill to “improve federal compliance with criminal background check legislation.”

Here’s a look at how the federal background check works, and what activists and experts have to say about it.

What happens when you want to purchase a gun?

In order to purchase a gun from a federal firearms licensed dealer (FFL), a consumer must provide identification and pass a federal background check using the Bureau of Alcohol, Tobacco, Firearms and Explosives’ 4473 form.

The first page of the document requires basic information, including the buyer’s full name, address, sex, birthday and ethnicity. A Social Security number is encouraged, but not required.

The form also asks the buyer about criminal background, immigration status and mental health — information that could result in a consumer being denied. Those questions include:

  • Have you ever been convicted in any court of a felony, or any other crime for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?
  • Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance?
  • Have you been discharged from the Armed Forces under dishonorable conditions?
  • Have you ever been convicted in any court of a misdemeanor crime of domestic violence?

Lying on the federal form is a felony, punishable by up to 10 years in prison and a $250,000 fine, an ATF spokesperson confirmed to Fox News. That penalty is also listed at the top of the form.

Once the form is completed, the dealer will submit it to the National Instant Criminal Background Check System (NICS) online or by phone. Then, almost immediately, the licensed seller will know how to continue with the sale:

  • Proceed: If NICS indicates the seller can proceed, then the sale can continue.
  • Canceled or Denied: Should NICS mark the form as “canceled” or “denied,” the seller cannot legally sell the firearm to the buyer. Michael Smith, the vice president of marketing and media for Upstate Armory Group, a firearm dealer in Simpsonville, S.C., told Fox News he generally provides the customer with contact information for a local lawyer who handles restoration of firearm rights in case the failed background check is erroneous. There have been times police have arrived at the gun shop to arrest the customer who legally cannot purchase a gun, Smith said.
  • Delayed: If the background check elicits a “delayed” response from NICS, the seller cannot complete the transaction for at least three business days. Unless a specific “denied” designation is issued, the seller will be able to complete the transaction with the customer after that period elapses, under federal law.

Even before a 4473 form is filled out, Robbie Wheaton, vice president of the Wheaton Arms Inc. gun shop in Piedmont, S.C., said he takes note of the customer. If a customer seems to be intoxicated or “shady” – talking, for instance, about a cheating spouse – dealers don’t have to sell that person a gun.

“A shop has a final right to say ‘no’ based on a person’s behavior whether they will sell a firearm to them or not.”

– Robbie Wheaton, vice president of Wheaton Arms Inc. in South Carolina

“As a federal firearms licensee, we have the right to be able to refuse the transfer of firearms to someone,” Wheaton told Fox News. “A shop has a final right to say ‘no’ based on a person’s behavior whether they will sell a firearm to them or not.”

Smith praised the background check system, as it can flag other discrepancies for sellers, such as an age issue.

South Carolina law, for example, prohibits anyone under the age of 18 from purchasing a long gun (such as an AR-15) and anyone under 21 from buying a pistol, handgun or other firearm, he said. The background check can prevent sellers, particularly at hectic gun shows, from accidentally selling a firearm to someone who isn’t of age, Smith said.

Why do I have to complete the background check?

Thanks to the Brady Handgun Violence Prevention Act, the FBI created the NICS in 1998. The system is supposed to instantaneously let a firearms dealer know whether a buyer is legally allowed to purchase the gun.

According to the FBI, more than 230 million checks have been made by cashiers prior to a purchase and more than 1.3 million denials have been issued since the system was put in place.

Is this process the same in every state?

No.

In South Carolina, for example, consumers who already have a concealed weapons permit do not need to go through a background check in order to purchase a firearm in the state, multiple dealers in the Palmetto State told Fox News.

Also, state laws may be superseded by federal law. The 4473 form asks consumers about marijuana use. Those who use the drug, in states where recreational or medicinal use is legal, will be denied a firearm, Wheaton said.

In Hawaii, after the first legal medicinal marijuana dispensary opened in the state in 2017, local law enforcement agencies asked users who are also gun owners to turn in their firearms within 30 days, the Honolulu Star-Advertiser reported.

Is this system strong enough?

It depends on who you ask.

Jonas Oransky, the deputy legal director of Everytown for Gun Safety, a nonprofit that advocates for stronger gun control, praised the background check system but said it has “significant gaps.”

Specifically, Oransky’s organization points to a “private sale loophole.” Federal law requires licensed dealers to complete background checks, but people can also purchase guns from a private seller – such as a friend or through online classifieds websites like ArmsList.com. (ArmsList.com prompts users to “accept” a terms of use document, which acknowledges the website doesn’t certify or investigate transactions and instructs users not to use the site for “illegal purposes.”)

“It doesn’t matter necessarily if people are selling at scale,” Oransky told Fox News. “It’s not that all sellers are dangerous or devious, but buyers who know that they can skip the background check can look for an unlicensed seller.”

Wheaton, who has been in the firearms business full time since 2007, said he and other licensed sellers try to persuade customers to transfer guns through a licensed dealer so a background check can be conducted.

Oransky also pointed to the so-called “Charleston loophole,” which allows dealers to sell guns to a customer before a background check is completed – when NICS marks a document “delayed” but does not approve or deny it within three business days. He said a disproportionate number of buyers who obtain a gun before a background check is completed are domestic abusers, citing complex records and restraining orders that investigators need additional time to read through or discuss with the appropriate local law enforcement agency.

“The FBI should have the time they need to complete a background check. It’s more important than expediting sales to people who shouldn’t have a gun,” he said.

On the other hand, Second Amendment advocates argue that the background check system already does too much.

“We don’t think it’s proper for people to have to prove their innocence to the government in order to exercise their God-given right,” Erich Pratt, executive director of Gun Owners of America, a Virginia-based gun rights nonprofit, told Fox News.

“Our rights are listed in the Bill of Rights for a reason,” he continued. “People’s rights are being infringed upon and it’s resulting – in some cases – in death and in other cases extreme inconvenience in being able to purchase firearms.”

Pratt also said the background check system doesn’t do its job, as several of the more recent mass shooters in the U.S., including the suspect in the fatal shooting of 17 people in Parkland, Fla., were able to pass background checks.

Kaitlyn Schallhorn is a Reporter for Fox News. Follow her on Twitter @K_Schallhorn.



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Sturgeon’s SNP dream suffers blow as new poll shows lead for ‘no’ in IndyRef2 vote

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NICOLA STURGEON’S SNP are still on track to win next month’s elections – but a new poll shows an independence referendum would swing to the ‘No’s.

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'Deluded!' Britons brutally mock Alex Salmond's 'fantasy' bid to scrap pound in Scotland

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ALEX SALMOND has been branded “deluded” and “clueless” after he claimed Scotland should create its own currency if it leaves the UK – despite a warning it could be worth “half or less” what people expect.

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After Chauvin verdict, Senate optimism grows around police reform named for George Floyd

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WASHINGTON – The day after Derek Chauvin was found guilty for the murder of George Floyd, Republican Sen. Tim Scott expressed renewed optimism about the prospects of Congress passing a police reform bill.

“I’m confident that the issues that I’ve been discussing, as it relates to making progress on police reform are today — they have more traction than they had last year,” Scott, of South Carolina, said Wednesday speaking to reporters in the Capitol.

Sweeping police reform has been viewed as a policy area ripe for bipartisan cooperation since Scott joined the effort in 2015. Democrats have been clamoring for a federal overhaul since the 2014 killing of Michael Brown in Ferguson, Missouri. The Republican party’s libertarian wing has fueled it’s willingness to support limits on police.

But like most things in Congress, partisan division has stalled prior efforts and Republicans were chaffed that Senate Democrats blocked their last attempt to consider a reform bill.

The bill now being considered, named the George Floyd Justice in Policing Act, passed the House in March, but stalled in the Senate because it lacks the support of at least 10 Republicans to clear the needed 60-vote threshold.

Negotiations have been ongoing between Scott, Sen. Cory Booker, D-N.J. and Rep. Karen Bass, D-Calif., who sponsored the House bill, but the group has not reached a compromise or made significant progress.

But Scott says he sees a way to break the impasse.

“I think we are on the verge of wrapping this up in the next week or two depending on how quickly they respond to our suggestions,” Scott told reporters.

Democrats are warning that the verdict can’t be a substitute for legislative action

“We should not mistake the guilty verdict in this case as evidence that the persistent problem of police misconduct has been solved, or that the divide between law enforcement and so many of the communities they serve has been bridged, it has not,” Senate Majority Leader Chuck Schumer said on the Senate floor Wednesday morning.

Scott agrees.

“I don’t know that anyone will see the George Floyd verdict, as a transformative moment in our justice system. I think we should see it as a serious step in the right direction,” he said.

The House-passed bill bans chokeholds, carotid holds and no-knock warrants. It also creates a database of police officers who have acted inappropriately in the line of duty. No Republicans in the House supported the bill.

“We must do our job in this chamber, and make sure that we reform policing, which will make life better, not only for citizens, but for the police,” Sen. Raphael Warnock, D-Ga., said.

Democrats have their own internal politics to navigate, including the risk that any compromise will be seen as too watered down by their base.

“I don’t think there is a path forward,” said Kat Calvin, a lawyer and progressive activist who founded the group Spread The Vote. She fretted that the Democratic Party, “within itself can’t agree on what it wants,” and said Republicans oppose policies “significant enough that it will make police stop killing people.”

She said Scott’s opposition to ending a legal protection known as “qualified immunity” for police officers means any compromise he reaches will be insufficient.

“Having Tim Scott lead these negotiations is not helpful,” she said. “Those of us who are dying — I’m Black in America. Everyone in my family is concerned about this issue.”

Scott, the only Black member of the Senate GOP, became the Republican leader on a police reform bill after the 2015 shooting in North Charleston, S.C., of Walter Scott, a Black man, by former police officer Michael Slager, who pleaded guilty to federal civil rights charges. A police reform bill authored by Scott in 2020 was blocked by Democrats.

Sen. Shelley Moore Capito, R-W.V., thinks that Scott will be able to rally broad support among Republican senators for the deal he negotiates.

“He’s heavy into negotiations,” she said on Wednesday. “He would get broad-based support from the conference.”

Sen. Mitt Romney, R-Utah, called police reform legislation “a huge priority.” He is a potential Republican to join Democrats on a compromise.

“The judicial system worked. But a man is dead. So that’s a very high price to pay,” Romney said. “I think the need to, to pass Tim Scott’s proposal with regards to police reform is as great as ever.”

Big policy disagreements remain between the two parties.

One major sticking point is qualified immunity, which protects officers from most civil lawsuits. Democrats want to allow on-duty officers to be sued as a form of accountability. Republicans, who generally support tort reform that makes civil litigation harder, say eliminating qualified immunity would make it impossible for police departments to recruit officers willing to take the financial risk.

Scott says he proposed to Democrats allowing police departments, not individual officers, to be sued.

Another sticking point is the prohibition of chokeholds. Scott’s previous legislation would just study the tactic instead of banning it.

Democrats also want to prohibit police from receiving decommissioned military gear, which Republicans oppose, arguing the items are not all lethal and sometimes necessary for disaster response.

Scott’s legislation received a vote last year when the Senate was controlled by Republicans, but was blocked by Democrats, who voted on party lines to prevent the bill from receiving the needed 60 votes. Now, Democrats control the Congress and the White House but lack the 60 votes needed to pass legislation without Republicans.

Schumer said passage is a priority.

“The Senate will continue that work as we strive to ensure that George Floyd’s tragic death will not be in vain,” he said on the Senate floor Wednesday. “We will not rest until the Senate passes strong legislation to end the systemic bias in law enforcement.”

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