Every year, the FBI’s National Instant Criminal Background Check System (NICS) conducts millions of background checks to determine whether a prospective transferee can legally receive a firearm from a federal firearms licensee (FFL). The system, administered by the FBI’s NICS Section, can only function at its peak with the support and contributions of each state attorney general. This is where each attorney general can assist the FBI and NICS.
In 1993, Congress passed the Brady Handgun Violence Prevention Act, Public Law (Pub. L.) 103-159 (Brady Act), which laid the foundation for the future rollout of NICS in 1998. Since then, federal law has required a NICS background check on potential transfers of a firearm from an FFL to a non-licensee prospective transferee. Prior to 1998, FFL firearm transfers were largely conducted on an honor system; gun dealers had no means to initiate a federal background check at the point of sale. A review of federal firearms legislation and associated court rulings, beginning with the Gun Control Act of 1968 (GCA), establishes how and why each state attorney general can help the FBI ensure the accuracy of NICS background checks.
Following several shooting events, including the assassinations of President John F. Kennedy, civil rights leader Martin Luther King Jr., and U.S. Attorney General Robert Kennedy, Congress passed the GCA, Pub. L. 90-618 (amending Pub. L. 90-351). The GCA included sweeping firearms legislation, including the creation of new categories of persons who were federally prohibited from the purchase or possession of firearms involved in interstate commerce. The most frequently applied prohibition was barring the purchase of a firearm by a person “who has been convicted . . . of . . . a crime punishable by imprisonment for a term exceeding one year,” a prohibition currently listed under Title 18, United States Code (U.S.C.), section 922(g)(1). This prohibition applied when a person was convicted of a qualified offense. As defined under 18 U.S.C. § 921(a)(20), qualifying offenses can generally include crimes punishable by more than one year of imprisonment, including misdemeanors punishable by more than 2 years of imprisonment. Excluded from consideration under federal law are “any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices[.]” Id.
In the years after passage of the GCA, a question arose regarding what it meant to be “convicted” for the purpose of 18 U.S.C. § 922(g)(1). Several cases tested this conviction standard on choice-of-law grounds. In Dickerson v. New Banner Inst., Inc., 460 U.S. 103 (1983), the Supreme Court of the United States (SCOTUS) held that the term “conviction” as used in 18 U.S.C. § 922(g)(1), and as further defined by 18 U.S.C. § 921(a)(20), was to be determined in accordance with federal law.
Following Dickerson, however, Congress eventually passed the Firearm Owner’s Protection Act of 1986, Pub. L. 99–308 (FOPA). FOPA made several amendments to provisions of the GCA. Notably, FOPA amended 18 U.S.C. § 921(a)(20) to rely upon “the law of the jurisdiction in which the proceedings were held” in order to determine whether a person had, in fact, been “convicted–known as the ‘choice-of-law clause.’” The Supreme Court of the United States examined this new choice-of-law clause under 18 U.S.C. § 921(a)(20), in Beecham v. United States, 511 U.S. 368 (1994). SCOTUS opined that, “[b]y the terms of the choice-of-law clause, this determination (of whether something should be considered a conviction) is governed by the law of the convicting jurisdiction.”
The collective result of these acts, amendments, and associated holdings is that users of NICS are reliant on a state’s standard of whether a “conviction” for a “crime punishable by imprisonment for a term exceeding one year” has, in fact, occurred. This standard is referenced and employed each time the NICS user reviews a check and encounters the common situation of a person charged in state court with a crime that invokes 18 U.S.C. § 922(g)(1). Accordingly, the FBI maintains state reference guides to aid NICS users with this and other commonly encountered situations to ensure accurate and timely decisions. These guides cover topics such as terminology, state prohibitions, pardons, and restorations, and assist NICS users in determining whether a subject is considered “convicted” under state law. This determination can be key to determining whether a person is prohibited under state law and/or the GCA from shipping, transporting, possessing, or receiving a firearm.
In order to stay up to date on applicable state laws, the FBI depends on each state’s legal authority to validate these reference guides. The FBI sends out letters to the attorney general of every state, territory, and district on a regular basis to ensure the NICS Section and its state partners are accurately applying the proper standard of “conviction” in “ . . . the jurisdiction in which the proceedings were held . . ..” Thanks to this ongoing cooperation and communication with our state partners (including state attorneys general), the NICS Section can effectively carry out its mission.
So how can you help? When your office receives a validation request from the FBI’s NICS Section, please take time to review the information for accuracy and completeness and submit any needed updates in response. If you believe review by a different authority in your state is more appropriate, please let us know to whom we should be sending the validation request. By serving in this vital role, your office will assist the FBI and our state partners, in processing NICS checks by accurately applying an array of state laws considered when determining an individual’s firearms eligibility.