The Brady Bill and Background Checks for Gun Buyers

James Brady and Bill Clinton
James Brady (L), the Reagan Administration press secretary who was wounded during the 1981 attempted assassination of then President Ronald Reagan, watches as U.S. President Bill Clinton signs the Brady Bill at the White House 30 November 1993.

 PAUL RICHARDS / Getty Images

The Brady Handgun Violence Prevention Act is perhaps the most controversial federal gun control law enacted since the Gun Control Act of 1968, and several events in the U.S. led to its creation and enactment. In an effort to deny guns to those who would misuse them, it requires firearms dealers to perform an automated background check on prospective buyers of all rifles, shotguns or handguns.

Brady Bill History

On March 30, 1981, 25-year old John W. Hinckley, Jr. tried to impress actress Jodi Foster by assassinating President Ronald Reagan with a .22 caliber pistol.

While he accomplished neither, Hinckley did manage to wound President Reagan, a District of Columbia police officer, a Secret Service agent, and White House Press Secretary James S. Brady. While he survived the attack, Brady remains partially disabled.

Driven largely by the reaction to the assassination attempt and Mr. Brady's injuries, the Brady Act was passed, requiring background checks on all persons attempting to purchase a firearm. These background checks must be performed or applied by federally licensed firearms dealers (FFLs).

The original Brady Act legislation was introduced into the House of Representatives by Rep Charles E. Schumer in March 1991 but never came to a vote. Rep. Schumer reintroduced the bill on February 22, 1993. The final version was passed on November 11, 1993, and was signed into law by President Bill Clinton on November 30, 1993. The law took effect on February 28, 1994.

NRA Opposition

When the Brady Act was first proposed in 1987, the National Rifle Association (NRA) fought to defeat it in Congress, spending millions of dollars in what was ultimately a largely unsuccessful lobbying campaign. While the bill passed, the NRA was able to win one important concession in Congress, as the original five-day waiting period for approval of handgun sales was replaced by the instant computerized background checks used today.

After the law’s enactment, the NRA filed lawsuits in Arizona, Louisiana, Mississippi, Montana, New Mexico, North Carolina, Texas, Vermont, and Wyoming seeking to have the Brady Act struck down as unconstitutional. These cases eventually led to the U.S. Supreme Court’s review of the Brady Act in the case of Printz v. United States.

In its 1997 decision in the case, the Supreme Court ruled that the law’s provision requiring state and local law enforcement officials to perform gun buyer background checks violated the 10th amendment. In its 5-4 split decision, the Court found that the law violated both the concepts of federalism and the unitary executive embodied in the 10th Amendment. However, the Court upheld the overall Brady law, leaving state and local law enforcement officials free to conduct background checks if they so choose, which most do today.

Under the Firearm Owners Protection Act of 1986, while firearms dealers are allowed to obtain electronic information showing that an individual is excluded from firearms purchases, the FBI and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) are not allowed to receive electronic information in return to indicate what firearms are being purchased.

NICS: Automating the Background Checks

Part of the Brady Act required the Department of Justice to establish the National Instant Criminal Background Check System (NICS) which can be accessed by any licensed firearms dealer by "telephone or any other electronic means" for immediate access to any criminal information on prospective gun purchasers. Data is fed into the NICS by the FBI, the Bureau of Alcohol, Tobacco, and Firearms, and state, local, and other federal law enforcement agencies.

Who Cannot Buy a Gun?

Between 2001 and 2011, the FBI reports that over 100 million Brady Act background checks were performed, resulting in more than 700,000 gun purchases being denied. People who may be prohibited from purchasing a firearm as a result of data obtained from the NICS background check include:

  • Convicted felons and people under indictment for a felony
  • Fugitives from justice
  • Unlawful drug users or drug addicts
  • Individuals who have been determined to be mentally incompetent
  • Illegal aliens and legal aliens admitted under a non-immigrant visa
  • Individuals who have been dishonorably discharged from the military
  • People who have renounced their American citizenship
  • People under domestic violence restraining orders
  • People convicted of misdemeanor domestic violence crimes

Note: Under current federal law, being listed on the FBI Terrorist Watchlist as a suspected or confirmed terrorist is not grounds for denial of a firearm purchase.

Possible Outcomes of a Brady Act Background Check

A Brady Act gun buyer background check can have five possible outcomes.

  1. Immediate Proceed: The check found no disqualifying information in the NICS and the sale or transfer can proceed subject to state-imposed waiting periods or other laws. Of the 2,295,013 NICS checks done during the first seven months the Brady Act was enforced, 73% resulted in an "Immediate Proceed." The average processing time was 30 seconds.
  2. Delay: The FBI determined that data not immediately available in the NICS needs to be found. Delayed background checks are typically completed in about two hours.
  3. Default Proceed: When a National Instant Criminal Background Check System check cannot be completed electronically (5% of all checks), the FBI must identify and contact state and local law enforcement officials. The Brady act allows the FBI three business days to complete a background check. If the check cannot be completed within three business days, the sale or transfer may be completed although potentially disqualifying information might exist in the NICS. The dealer is not required to complete the sale and the FBI will continue to review the case for two more weeks. If the FBI discovers disqualifying information after three business days, they will contact the dealer to determine whether or not the gun was transferred under the "default proceed" rule.
  4. Firearm Retrieval: When the FBI finds that a dealer has transferred a gun to a prohibited person due to a "default proceed" situation, local law enforcement agencies, and ATF are notified and an attempt is made to retrieve the gun and take appropriate action, if any, against the buyer. During the first seven months, the NICS was in operation, 1,786 such firearms retrievals were initiated.
  5. Denial of Purchase: When the NICS check returns disqualifying information on the buyer, the gun sale is denied. During the first seven months of NICS operation, the FBI blocked 49,160 gun sales to disqualified people, a denial rate of 2.13 percent. The FBI estimates that a comparable number of sales were blocked by participating state and local law enforcement agencies.

Typical Reasons for Denial of Gun Purchases

During the first seven months in which Brady Act gun buyer background checks were performed, the reasons for denial of gun purchases broke down as follows:

  • 76 percent - Criminal history of a felony
  • 8 percent - Criminal history of domestic violence
  • 6 percent - Criminal history of other offenses (multiple DUIs, non-NCIC warrants, etc.)
  • 3 percent - Criminal history of drug abuse
  • 3 percent - Domestic violence restraining orders

What About the Gun Show Loophole?

While the Brady Act has blocked more than three million gun sales to prohibited purchasers since taking effect in 1994, gun control advocates contend that up to 40 percent of gun sales occur in “no questions asked” transactions that often take place over the Internet or at gun shows where, in most states, background checks are not required.

As a result of this so-called “gun show loophole,” the Brady Campaign to Prevent Gun Violence estimates that about 22% of all gun sales nationwide are not subjected to Brady background checks.

In an effort to close the loophole, the Fix Gun Checks Act of 2015 (H.R. 3411) was introduced in the House of Representatives on July 29, 2015. The bill, sponsored by Rep. Jackie Speier (D-Calif.), would require Brady Act background checks for all gun sales including sales made over the Internet and at gun shows. Since 2013, six states have enacted similar laws.

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Your Citation
Longley, Robert. "The Brady Bill and Background Checks for Gun Buyers." ThoughtCo, Feb. 2, 2022, Longley, Robert. (2022, February 2). The Brady Bill and Background Checks for Gun Buyers. Retrieved from Longley, Robert. "The Brady Bill and Background Checks for Gun Buyers." ThoughtCo. (accessed March 25, 2023).