Terrorist Screening and Brady Background Checks for Firearms

Publication Date: July 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Social conditions

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Abstract:

Historically, terrorist watch list checks were not part of the firearms background check process implemented pursuant to the Brady Handgun Violence Prevention Act. Such watch lists were not checked, because being a known or suspected terrorist is not a disqualifying factor for firearm transfer/possession eligibility under current federal or state law. Nevertheless, if a person is a known or suspected terrorist, it suggests that there may be an underlying factor (e.g., illegal immigration or fugitive status) that could bar him from legal firearms possession. For a time, moreover, all Brady background check records for approved firearm transfers were destroyed almost immediately, precluding the opportunity to used the background check system to screen for known and suspected terrorists.

Consequently, three issues emerged regarding Brady background checks following the 9/11 attacks. First, should approved firearm transfer records be maintained on a temporary basis to determine whether persons of interest in counterterrorism investigations had previously obtained firearms improperly? Second, should terrorist watch list checks be incorporated statutorily into the Brady background check process? Third, should persons watch-listed as known or suspected terrorists be prohibited statutorily from possessing firearms?

In February 2004, the FBI reportedly modified its National Instant Criminal Background Check System (NICS) operating procedures to retain NICS records temporarily for approved transfers that result in terrorist watch list hits, and to pass that information on to FBI investigators on the Joint Terrorism Task Forces. In addition, Attorney General Alberto Gonzales has directed the DOJ Office of Legal Policy to form a working group to review federal gun laws -- particularly in regard to Brady background checks -- to determine whether additional authority should be sought to prevent firearms transfers to known and suspected terrorists.

In the 109th Congress, several related pieces of legislation have been introduced that are related to NICS procedures and terrorist watch lists. The Terrorist Apprehension and Record Retention Act of 2005 (S. 578/H.R. 1225), introduced by Senator Frank Lautenberg and Representative John Conyers, would authorize the retention of all related records for at least 10 years, among other things. In addition, Representative Peter King introduced H.R. 1168, a bill that would require the Attorney General to promulgate regulations to preserve records of terrorist- and gangrelated record hits during such background checks until they were provided to the FBI. Representative Carolyn McCarthy introduced H.R. 1195, a bill that would make it unlawful for anyone to transfer a firearm to a person who was on the "No Fly" lists maintained by the Transportation Security Administration.

Amendments addressing the issue of terrorist watch lists and firearms background checks may be offered during Senate consideration of the Protection of Lawful Commerce in Arms Act (S. 397). This report will be updated as needed.