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The 'Terror Gap' In Brady Act Background Checks

Are Terrorists Slipping Through the Gun Control Net?

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Brady Act Protestor

A protestor demonstrates against a June 6, 2008 US Supreme Court decision overturning a District of Columbia handgun ban and ruling that Americans have a right to own guns for self defense and hunting.

Mark Wilson/Getty Images
Updated April 02, 2012
Of all the high crimes, misdemeanors and misbehaviors in a person's past that can automatically ban them from buying a gun in the United States, being listed by the FBI as a confirmed or suspected terrorist is not currently one of them.

Dubbed the "Terror Gap" by some members of Congress, this apparent omission from the gun buyer background checks required by the Brady Handgun Violence Prevention Act is no accident.

Background: The Brady Act

Under the Brady Handgun Violence Prevention Act of 1993, all licensed gun dealers are required to conduct automated background checks on all persons attempting to buy any rifle, shotgun or handgun. The Brady Act background checks draw information from the National Instant Criminal Background Check System (NICS), a computer database containing information collected by the FBI, Bureau of Alcohol, Tobacco and Firearms, state, local, and other federal law enforcement agencies.

Typically completed in less than one minute, a Brady Act background check can currently discover nine events or conditions from a person's past, any of which, can prevent them from purchasing a gun. These are:
  • Convicted of or under indictment for a felony
  • Fugitive from justice - flight to avoid arrest
  • Criminal drug use or history of addiction
  • Found to be mentally incompetent
  • Entered the U.S. illegally or under a non-immigrant visa
  • Dishonorably discharged from the U.S. military
  • Renounced U.S. citizenship
  • Placed under certain domestic violence restraining orders
  • Convicted of domestic violence crimes
In the first eight years of full enforcement of the Brady Act - from 1994 to 2002 -- 45.7 million gun buyer background checks were performed, of which about 976,000 (2.1%) resulted in rejections. In 2002 alone, 7.8 million background checks resulted in the cancellation of 136,000 gun purchases, a 1.7% rejection rate.

In the 10 years from 2001 through 2011, about 700,000 potential gun purchases were denied due to the results of a Brady Act background check. Over 75% of those denials were due to the discovery of past felony convictions.

Why Not Terrorism? The 'Terror Gap'

In these post 9-11-01 days, and considering what we have to go through just get on an airplane, it may seem that being a "known or suspected terrorist" is a glaring omission from the list of things that would prevent a person from buying a gun. What's happening here?

Since February 2004, Brady Act gun buyer background checks actually have been accessing the FBI's Terrorist Watchlist, along with the NICS crime databases. While matches or "hits" on the
Terrorist Watchlist do not immediately prevent the gun purchase, they are reported to the FBI Counterterrorism Division and FBI field agents working with the Joint Terrorism Task Forces (JTTFs).

Also See: People on Terror Watch List Buying Guns, GAO Reports

In the event of possible Terrorist Watchlist matches, gun dealers receive a "Delayed Transfer" response from the NICS system. The delay halts the gun purchase for up to three business days, during which the FBI investigates other factors under the Brady Act that might prohibit the purchase. If no other prohibiting factors are found within the three-day limit, gun dealers may proceed with the purchase at their discretion. The FBI may then continue to investigate the case for up to 90 days. Should prohibiting information be discovered during the 90-day period, the FBI can direct the NICS to send a "Firearm Retrieval" notice to local police agencies and Bureau of Alcohol Tobacco and Firearms agents, who will attempt to retrieve the firearm and take appropriate action, if any, against the buyer.

Note that absent any other prohibiting information as provided for in the Brady Act, a match on the FBI Terrorist Watchlist alone does not immediately cancel a firearm purchase.

What is the Reasoning Behind That?

Under the Brady Act, persons whose gun purchases are cancelled have the right to be told the reason or reasons for the rejection. If terrorist watchlist matches immediately cancelled gun purchases, the FBI would be required to inform rejected gun buyers that they were, indeed, on the watchlist. Doing so might alert persons actually engaged in terrorist activities, thus driving them farther underground and complicating their investigation by law enforcement.

Congressional Attempts to Close the 'Terror Gap'

Based on Government Accountability Office (GAO) reports in 2005 (GAO-05-127) and 2009 (GAO-09-125R) showing that persons listed on the FBI's terrorist watchlist had successfully purchased firearms and, in a few instances, explosives, U.S. Senator Frank Lautenberg (D-New Jersey) and Representative Peter King (R-New York) introduced the Denying Firearms and Explosives to Dangerous Terrorists Act of 2007 in the 110th Congress, a bill referred to by its supporters as the "Terror Gap" act.

According to the GAO, a total of 1,453 Brady Act gun purchase background checks run from 2004 to 2007 resulted in matches on the terrorist watchlist. In 90.9% of those cases (1,321), the gun purchase was allowed to proceed.

The Lautenberg - King bill would give the Attorney General the authority to deny the sale or transfer of firearms or explosives to persons listed on the FBI Terrorist Watchlist if, in his opinion, those persons were "dangerous terrorists." Beyond being submitted to the appropriate congressional committees, no further action was taken on bill.

The Fort Hood shooting of November 2009, spurred Senator Lautenberg and Representative King to reintroduce the Denying Firearms and Explosives to Dangerous Terrorists Act in the 111th Congress. Except for a May 2010 hearing on "terrorists and guns" held by the Senate Homeland Security and Governmental Affairs Committee, the bill died again.

Senator Lautenberg and Representative King most recently reintroduced their Denying Firearms and Explosives to Dangerous Terrorists Act in the 112th Congress as S. 34 and H.R. 1506. The last action on the bill was its referral to the Subcommittee on Crime, Terrorism, and Homeland Security on July 11, 2010.

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