How the NICS Gun Background Check System Works - And Doesn't

Mass shooting events leave us with many questions, one often being: How did this individual, who exhibited warning signs for gun violence, get access to firearms? Richard M. Frankel, T&M's Vice President of Investigations and former Special Agent-in-Charge of the FBI, co-wrote an article for ABC News that explains how the National Instant Criminal Background Check System (NICS) works to determine whether a prospective buyer is eligible to buy firearms. However, as Frankel and his co-author - retired U.S. Secret Service agent and T&M investigator Donald J. Mihalek - point out, the weaknesses of the NICS database are alarming.

NICS Participation Map

In many recent mass casualty events, including those in El Paso, Texas and Dayton, Ohio last weekend, the weapons used were purchased legally. While NICS, a federal database mandated by the Brady Handgun Violence Prevention Act (the "Brady Law") of 1993 and created by the FBI in 1998, serves to determine if a potential gun or explosives buyer's name and birth year match those of someone ineligible by law to make the purchase, the database has missing or incomplete information and other critical flaws that should concern us all.

For instance, Frankel and Mihalek point out:

  • State participation in contributing to the NICS database is not mandatory because it would be an unconstitutional exercise of federal authority under the Tenth Amendment of the U.S. Constitution. Currently, only 30 states actively participate.
  • The NICS is a data-driven input system. In many instances, it is believed that states and others fail to input legally allowable information that would prevent an individual from passing the NICS check.
  • The Health Insurance Portability and Accountability Act (HIPAA) of 1996 has instituted legal barriers to reporting health information to NICS, such as mental illness.

These shortcomings should alarm us all. Unless changes are made, many in law enforcement - including Frankel - believe that it is only a matter of time before the next potential active shooter legally obtains a firearm.

To read this article in its entirety, click here.1.jpg

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