Federal Criminal Background Check
Enactment of the federal Brady Act in 1993 set into place the National Instant Criminal Background Check System (NICS). The act also provided states the option of developing an alternative background check using a state point of contact. The alternate system must be approved by the ATF and, once approved, can be used by dealers in those states in lieu of performing a NICS background check. Nebraska has a split system for authorizing firearms transactions, having developed an alternative permit system for the sale of handguns.
When a dealer or the state point of contact initiates a NICS background check, a name and descriptor search is conducted to identify any matching records in three national databases managed by the FBI Criminal Justice Information Services Division. Federal law prohibits the transfer of firearms to the following classes of individuals who cannot ship, transport, receive, or possess firearms:
• Persons convicted of a crime punishable by
imprisonment for a term exceeding one year,
even if the person received a shorter sentence;
• Fugitives from justice;
• Unlawful users of controlled substances and
persons addicted to controlled substances;
• Persons who are adjudicated mentally defective
or involuntarily committed to a mental
• Persons unlawfully in the United States;
• Persons dishonorably discharged from the U.S.
• Persons who have renounced their U.S.
• Persons who are the subject of domestic
• Persons convicted of a misdemeanor crime of
domestic violence; and
• Persons under indictment for a crime punishable
by imprisonment for a term exceeding one year.
Additionally, the NICS background check scrutinizes state and local records to prevent sales that violate laws in the purchaser’s state of residence or laws in the state where the sale occurs, if different from the purchaser’s home state. Finally, federal law imposes a minimum age of 18 for the purchase of long guns and long-gun ammunition and a minimum age of 21 for handguns and handgun ammunition.
Private transactions are exempt from the background check and record-keeping requirements. This is sometimes referred to as the “gun show loophole” because transactions at these events can involve private sellers who are not required to be federally licensed.
However, licensed gun dealers can and do sell at gun shows and must comply with the background check provisions in the same manner as transactions taking place at their licensed places of business.