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National Instant Criminal Background Check Improvement Act

On December 19, 2007, the House passed the final version of the National Instant Criminal Background Check System (NICS) Improvement Act. H.R. 2640. The bill was signed into law on January 8, 2008.  

This bill:

Enforces the provisions of the 1968 Gun Control Act, which has been law for nearly 40 years.  The 1968 Gun Control Act prohibits individuals from possessing a firearm for several reasons, including if the individual: 1) is under indictment or has been convicted of a crime punishable by more than a year; 2) is an unlawful user or an addict of a controlled substance; 3) has been adjudicated to be mentally ill or has been committed involuntarily to a mental institution; 4) is subject to a court order restraining him or her from domestic violence; or 5) has been convicted of a domestic violence misdemeanor.  This bill is designed to help ensure that this law is enforced.

Can help to prevent tragedies such as Virginia Tech from occurring.  Every day, people who are disqualified under the 1968 Gun Control Act from possessing a firearm are able to walk into a gun shop and purchase one - because the federal NICS database is not complete.  Seung Hui Cho, the shooter in the Virginia Tech rampage, had been adjudicated mentally ill; however, the NICS did not have the appropriate records and he was able to purchase firearms.  There have been similar stories across the country.  In 2002, a shooter walked into Our Lady of Peace Church in Lynbrook, New York, and killed a priest and a parishioner.  Once again, the NICS database was incomplete; he had been earlier involuntarily committed to a mental institution but this record was not in the NICS system.  The way to help to prevent such tragedies from occurring is to develop a federal background check system that is complete and up-to-date, which is what this bill attempts to do.

Is designed to make the NICS work better, by ensuring it has the appropriate records.  In 1994, Congress created the National Instant Criminal Background Check System (NICS).  Gun shop owners are required to use the system before selling a firearm to ensure that an individual is not prohibited from purchasing a firearm under the 1968 Gun Control Act.  Since 1994, the key problem has been that the NICS database is far from complete.

Requires the transmittal of federal records to NICS.  Under the bill, all federal agencies shall transmit all relevant records relating to persons disqualified from acquiring a firearm under federal law to the Attorney General for inclusion in NICS.

Requires the transmittal of state records to NICS.  Under the bill, as a precondition for receiving federal aid, each state shall also provide information on disqualified persons to the U.S. Attorney General for inclusion in NICS.

Authorizes $250 million for each of the next three years in grants to the states.   Under the bill, these grants are to be used to comply with the bill's requirements on automating and sharing with NICS records relating to persons disqualified from acquiring a firearm.  Before becoming eligible for the funds, a state must file with the U.S. Attorney General an initial estimate of the records of disqualified persons that have not been filed with NICS.  The federal government would then pick up 90 percent of the cost for the states to clear this backlog.

Provides a “carrot” to the states.  Once the Attorney General determines that a state has automated and shared at least 90 percent of all disqualifying records, the federal government would begin waiving the 10 percent state matching requirement and financing all of the state's costs for keeping the system current.  The waiver period can last five years.

Also provides a “stick” to the states.  After three years, the FBI will report on the progress of states automating their databases and supplying that information to the federal NICS database.  The Justice Department will be authorized, but not required, to deny up to 3 percent of federal law enforcement grants to any state that has failed to automate 60 percent of its disqualifying records and supplying that information to the federal NICS database.  Later, the penalties would be steeper.

Authorizes $125 million for each of next three years in grants to the state courts.  The bill also authorizes $125 for each of the next three years in grants to the state courts to assess and improve the handling of proceedings related to criminal history dispositions and temporary restraining orders, as they relate to disqualification from firearms ownership under state and federal laws.

Contains strong privacy protections.  The bill protects the privacy of all records, including mental health records, by prohibiting their use for any purpose outside of NICS.  In addition, under the bill, the Attorney General will work with federal, state, and local law enforcement and the mental health community to establish clear protocols for protecting the privacy of information sharing.

Establishes process for individuals treated for mental illness to regain their gun rights.  The 1968 Gun Control Act prohibits individuals who have been adjudicated as mentally ill or committed involuntarily to a mental institution from possessing firearms.  Under the bill, to receive federal NICS aid, a state must establish a procedure for individuals who have been successfully treated for mental illness to regain their right to own firearms and have their name removed from NICS. 

Stipulates that NICS records provided by the VA and other federal agencies must accurately reflect a person's status.  The bill clarifies that only veterans who meet the law's threshold for losing gun rights (e.g., adjudicated as mentally ill or involuntarily committed to a mental institution) should be in the VA records given to NICS.  Veterans have been concerned that many of the names sent to NICS by the VA in the past have included veterans who did not meet that threshold.  This bill will ensure that the names incorrectly sent in the past will be expunged from the NICS system.