Enhanced Background Checks Act - H.R. 1112 (Preview)

Close Gun Sales 'Charleston Loophole' — H.R. 1112, Enhanced Background Checks Act . The bill increases from three days to 10 days the amount of time the FBI would have to complete a background check of an individual seeking to purchase a firearm if the instant check doesn't provide a result, and it expands the categories of individuals who are prohibited from purchasing a firearm.

Supporters, including most Democrats and gun control advocates, say more time is needed for the sometimes complicated task of compiling and searching criminal records from local, state and federal agencies to ensure that a prohibited individual isn't able to purchase a firearm.

Opponents, including most Republicans and gun rights supporters, say the current three-day period provides sufficient time to ensure that Americans' rights to acquire firearms are not arbitrarily denied because of bureaucratic delays, inefficiencies or mistakes in identity.

The measure is expected to be considered under a structured rule that makes in order only specified amendments. 

BACKGROUND: The Judiciary Committee reported the bill with dissenting views by a 21-14 vote (H Rept 116-12).

    Persons who are federally licensed to be in the business of manufacturing, importing, or selling firearms are known as "federal firearms licensees," although their conduct is regulated through both federal and state laws. Under current federal law, these licensees may ship, transport and receive firearms that have moved in interstate and foreign commerce. They are currently required to verify with the FBI or state and local authorities through a background check that unlicensed persons are eligible to possess a firearm before subsequently transferring a firearm to them. They must also verify the identity of such unlicensed transferees by inspecting a government-issued identity document (such as a driver's license or passport).

     There are currently nine classes of persons prohibited from shipping, transporting, receiving or possessing firearms or ammunition: persons convicted in any court of a crime punishable by imprisonment for a term exceeding one year; fugitives from justice; unlawful users or addicts of any controlled substance; persons adjudicated as "mental defective" or committed to mental institutions; unauthorized immigrants and nonimmigrant visitors; persons dishonorably discharged from the U.S. Armed Forces; persons who have renounced their U.S. citizenship; persons under court-order restraints related to harassing, stalking or threatening an intimate partner or child of such intimate partner; and persons convicted of a misdemeanor crime of domestic violence.

    In addition, individuals under indictment in any court of a crime punishable by imprisonment for a term exceeding one year are prohibited from shipping, transporting or receiving (but not possessing) firearms or ammunition.

    Since 1986, federal firearms licensees are permitted to do business in a "temporary manner," away from their licensed premises, on the internet, at gun shows, or at events sponsored by any national, state or local organization devoted to the "collection, competitive use, or other sporting use" of firearms in the communities that are located in their state, as long as those gun shows and events are held in the state in which their licensed premises are located.

    As part of the background check, licensees will receive one of three responses: "proceed" with transfer or issuance since a prohibiting record was not found; "denied" since a prohibited record was found; or "delayed" which indicates the background check found information that could suggest a prohibiting record exists.

    If the system returns a "delayed" response, the transfer may be held for up to three business days while federal examiners attempt to ascertain whether the person is prohibited from completing a firearm sale. At the end of the three-day period, a licensee may proceed with the transfer if he has not heard from the FBI about the matter. Even if the sale proceeds, the FBI will still work to determine if the purchaser is prohibited from purchasing the firearm for up to 90 days. If the person is subsequently found to be prohibited, the FBI informs the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) and a firearms retrieval process is initiated.

    According to the FBI, this "default proceed" provision permitted 4,864 prohibited purchasers to proceed with a sale in 2017 before a background check cleared.

Charleston Shooting and Response

    On June 17, 2015, Dylann Roof killed nine people, all African Americans, at the Emanuel African Methodist Episcopal Church in Charleston, S.C., in the hope of igniting a race war. He was subsequently convicted in federal court of all federal charges (including hate crimes) against him stemming from the shooting and sentenced to death.

     Roof purchased the gun used in the shooting from a retail gun store. Because he previously admitted to illegally possessing a controlled substance, Roof's application for a firearm purchase should have been denied. While the background check initially came back as "delayed," the FBI examiner working the case failed to complete the more detailed background check in time and Roof was able to acquire the gun since a determination was not reached within the required three day waiting period.

    In response to the lapses reported in the background check system after this and other mass shootings, Congress passed the Fix NICS Act (PL 115-141), which requires federal agencies (including federal courts) to certify twice per year that they are uploading records regarding individuals who are not eligible to purchase firearms. Federal political appointees who fail to certify or who are not in compliance would be ineligible to receive any bonus pay until they comply.

    The act also authorizes grants to states to promote the reporting of such information, and authorizes the Justice Department to establish plans with state and local governments to ensure maximum coordination and automation of their reporting. As a further incentive, the department must publicize state and local governments that fail to comply, and it must give preference in awarding certain discretionary grants to those jurisdictions that are complying. Finally, it may also provide grants to states to upgrade their technology and systems for reporting.

SUMMARY: This bill increases the amount of time federal examiners will have to ascertain whether a person is prohibited from completing a firearm sale and expands the group of individuals who are prohibited from obtaining a firearm

    Under the measure, the initial three-day period for the FBI to complete a more thorough background check when the system does not provide an instant result would be increased by seven business days — to ten business days.

    If a decision is not produced in that time, the transferee may submit a petition electronically or by first-class mail challenging his or her failure to be approved. If a further ten business days (20 business days from the initial transfer request) passes without a decision from federal authorities, the firearm sale will be allowed to proceed.

    Under the bill, the Justice Department is required to issue a response to the petitioner upon receipt of his or her request.

    The measure also expands the group of individuals who are prohibited from obtaining a firearm to include individuals "with mental illness, severe developmental disability, or severe emotional instability," instead of those "adjudicated as a mental defective," as is the case under current law.

CBO Cost Estimate

    As of press time, the Congressional Budget Office had not released a cost estimate for the bill.

AMENDMENTS: The Rules Committee is expected to recommend a structured rule that limits amendments. Members have been requested to submit amendments by 2 p.m. on Wednesday, Feb. 20.