These data are archived with the rest of the arrest-related and custody deaths collected from federal agencies at the National Archives of Criminal Justice Data.
The NICS Improvement Amendments Act of 2007 (NIAA), Pub. L. 110-180, was signed into law by the President on January 8, 2008. The NIAA amends the Brady Handgun Violence Prevention Act of 1993 ("the Brady Act") (Pub. L. 103-159), under which the Attorney General established the National Instant Criminal Background Check System (NICS). The Brady Act requires Federal Firearms Licensees (FFLs) to contact the NICS before transferring a firearm to an unlicensed person for information on whether the proposed transferee is prohibited from receiving or possessing a firearm under state or federal law. The NIAA was a bipartisan effort to strengthen the NICS by increasing the quantity and quality of relevant records accessible to the system.
The NIAA was enacted in the wake of the April 2007 shooting tragedy at Virginia Tech. The Virginia Tech shooter was able to purchase firearms from an FFL because information about his prohibiting mental health history was not available to the NICS and the system was therefore unable to deny the transfer of the firearms used in the shootings. The NICS is a critical tool in keeping firearms out of the hands of prohibited persons, but it is only as effective as the information entered into the databases upon which it relies. The NIAA seeks to address the gap in information available to NICS about such prohibiting mental health adjudications and commitments and other prohibiting backgrounds. Filling these information gaps will better enable the system to operate as intended to keep guns out of the hands of persons prohibited by federal or state law from receiving or possessing firearms.
The NICS is a national system that checks available records in three databases to determine if prospective transferees are disqualified from receiving firearms. It is administered by the Federal Bureau of Investigation (FBI). A NICS check includes a check of the following three databases that are maintained by the FBI:
- Interstate Identification Index (III), a database of criminal history record information,
- National Crime Information Center (NCIC), which includes information on persons subject to civil protection orders and arrest warrants
- NICS Indices, which includes the information contributed by federal and state agencies identifying persons prohibited from possessing firearms who are not included in the III or NCIC, such as persons with a prohibiting mental health history or who are illegal or unlawful aliens.
When the transferee is not a U.S. citizen, a separate query is run to confirm the transferee's immigration status. If a NICS check identifies a person as falling within a prohibited category, the FBI advises the FFL that the transfer is "denied." Individuals can appeal denials and seek correction of information in the FBI databases by either applying to the FBI or the federal or state agency that contributed the information to the FBI.
The Gun Control Act of 1968, as amended, 18 U.S.C. 921, et seq., establishes the following categories of persons who are prohibited from receiving or possessing a firearm: Any person pursuant to 18 U.S.C. 922(g) or (n) who—
- has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year
- is a fugitive from justice
- is an unlawful user of or addicted to any controlled substance
- has been adjudicated as a mental defective or who has been committed to a mental institution
- is an illegal or unlawful alien or a non-immigrant alien (with certain exceptions)
- has been discharged from the Armed Forces under dishonorable conditions
- having been a citizen of the United States, has renounced his citizenship
- is subject to a domestic violence protection order that meets certain requirements
- has been convicted in any court of a misdemeanor crime of domestic violence
- is under indictment for or has been charged with a crime punishable by imprisonment for a term exceeding one year.
Section 922(g)(4), Title 18, United States Code, prohibits the receipt or possession of firearms by an individual who has been "adjudicated as a mental defective" or "committed to a mental institution." Regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), 27 C.F.R. § 478.11, define these terms as follows:
Adjudicated as a mental defective.
(1) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease—
- is a danger to himself or to others
- lacks the mental capacity to contract or manage his own affairs.
(2) The term shall include —
- a finding of insanity by a court in a criminal case
- those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily and a commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
No. The NICS does not maintain a database of medical records or information on mental health diagnoses or treatment plans. When a record of a person prohibited from possessing a firearm as a result of mental health issues (i.e., a person who has been involuntarily committed to a mental institution or adjudicated a "mental defective" by a court, board, or other lawful authority) is entered in the NICS Indices, the entry contains only a name, other biographic identifiers (e.g., date of birth), and codes for the submitting entity and prohibited category. The NICS Indices does not contain medical records or medical information.
When information about such adjudications and commitments is provided to the NICS, the FBI can deny firearm transfers to persons with disqualifying mental health histories, both in the state where the record was created and in other states to which the individual may have subsequently moved.
The information in the NICS is subject to the Privacy Act and the privacy of the information is protected in a number of ways. The only responses provided by the NICS to a request for a NICS check is "Proceed," "Denied," or "Delayed." In cases of a "Denied" response, neither the general prohibiting category nor information about the specific event that places an individual in that prohibited category is provided to the FFL. The individual, however, is able to request information about the reason for the denial from the FBI and can appeal the denial and seek to correct incomplete or inaccurate information in the system upon which the denial is based.
In addition, as noted above, the information identifying mental health adjudications or commitments contributed by federal and state agencies is maintained in the NICS Indices. The regulations governing the NICS limits the use of the NICS Indices to (1) checks under the Brady Act by FFLs of proposed firearms transferees; (2) checks by federal, state, or local criminal justice agencies in connection with the issuance of a firearms-related or explosives-related license or permit; and (3) requests by ATF in connection with civil or criminal law enforcement relating to the federal Gun Control Act (18 U.S.C. Chapter 44) or National Firearms Act (26 U.S.C. Chapter 53). Checks of the NICS Indices for general law enforcement purposes are not permitted under the regulations. See 28 CFR. 25.6(j).
The NIAA seeks to improve the information available to the NICS, so that the system can more accurately identify prohibited persons, by—
- enhancing the Brady Act requirement that federal departments and agencies provide relevant information to the NICS
- providing incentives to states to submit complete information to the Attorney General on persons prohibited from receiving or possessing firearms through—
- authorizing new grant programs for state executive and judicial branch agencies to improve information available to the NICS
- providing for Byrne Justice Assistance Grant (JAG) program penalties for states that do not comply with the Act's record completeness goals.