Brady Handgun Violence Prevention Act

The Brady Handgun Violence Prevention Act of 1993 (Pub. L. 103–159, 107 Stat. 1536, enacted November 30, 1993) codified at 18 U.S.C. § 921-922, also known as the Brady Bill, passed as H.R. 1025 by the United States Congress, signed into law by President Bill Clinton on November 30, 1993, and went into effect on February 28, 1994. The act was named after James Brady, who was shot by John Hinckley, Jr. during an attempted assassination of President Ronald Reagan on March 30, 1981.

Provisions

The Brady Law, as an interim measure, imposed "a waiting period of 5 days before a licensed importer, licensed manufacturer, or licensed dealer may transfer a handgun to a nonlicensed individual (interim provision). Brady requires that the licensee wait for up to 5 days before making the transfer while the chief law enforcement officer makes a reasonable effort to determine whether the nonlicensed individual (transferee) is prohibited by law from receiving or possessing the handgun sought to be purchased. The interim provisions of the law became effective on February 28, 1994, and will cease to apply on November 30, 1998.

"Brady also provides for the establishment of a national instant criminal background check system NICS) that a firearms licensee must contact before transferring any firearm to nonlicensed individuals. Brady requires that NICS be established not later than November 30, 1998.

"Section 922(g) of the GCA prohibits certain persons from shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who --

   (1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
   (2) Is a fugitive from justice;
   (3) Is an unlawful user of or addicted to any controlled substance;
   (4) Has been adjudicated as a mental defective or committed to a mental institution;
   (5) Is an alien illegally or unlawfully in the United States;
   (6) Has been discharged from the Armed Forces under dishonorable conditions;
   (7) Having been a citizen of the United States, has renounced U.S.citizenship;
   (8) Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or
   (9) Has been convicted in any court of a misdemeanor crime of domestic violence.

   "Section 922(n) of the GCA makes it unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport any firearm in interstate or foreign commerce, or receive any firearm which has been shipped or transported in interstate or foreign commerce" .

In some states, proof of a previous background check could be used to bypass the wait. For example, a state-issued concealed carry permit usually included a background check equivalent to the one required by the Act and could be used in place of the Act's check.

The provision in the Act that mandated local law enforcement officials to carry out background checks was struck down by the Supreme Court in 1997 because, the court ruled, it violated the Federalism provisions of the Constitution (see below). A few law enforcement agencies stopped processing checks for a time, but the vast majority continued to process the checks voluntarily until the issue became moot in 1998 .

The waiting period provision of the Act expired in 1998 when the National Instant Criminal Background Check System (NICS) came online. NICS is managed by the Federal Bureau of Investigation (FBI). The system runs database checks on criminal records. Ninety-two percent of Brady background checks are completed while the FFL is still on the phone with the gun dealer . In rare cases, a gun purchaser may still have to wait for up to three business days if the NICS system fails to positively approve or deny his or her application to purchase a firearm; if the denial is not issued within those three days, the transfer may be completed at that time. State alternatives to the background check, such as state-issued handgun permits or mandatory state or local checks, may still bypass the NICS check.

Sarah Brady and the Brady Law

James Brady

The Bill was championed for over a decade by Brady's wife, Sarah Brady, who became a gun control advocate after her husband, James Brady was shot during an assassination attempt on President Ronald Reagan. In 1989 she became chairman of the legislative lobby, Handgun Control, Inc. (HCI). In 1991 she became chairman of HCI's "education, research, and legal advocacy" arm, The Center to Prevent Handgun Violence. After the controversial shooting of exchange student Yoshihiro Hattori, she was a guest of honor at the signing ceremony for the bill in 1993, a milestone for her organizations. James Brady, who is paralyzed, appeared in a wheelchair.

In 2000 Sarah Brady purchased a .30-06 Springfield rifle in Delaware for her son. Second amendment rights groups claimed that this action was a straw purchase, intended to avoid the NICS, and may have also violated Delaware firearms purchase laws. A purchase as a gift is not considered a straw purchase under US federal law if the recipient may legally possess it; this is the same as any other private transfer. The controversy arose because actions like Sarah Brady's are a common target of gun control advocates, who usually call this the gun show loophole in the attempt to ban private transfers.

Court challenge

In 1997 one provision of interim Brady Law was ruled unconstitutional by the Supreme Court in Printz v. United States on 10th amendment grounds. The provision compelled state and local law enforcement officials to perform the background checks mandated by federal law. The Court determined that this provision violated both the concept of federalism and that of the unitary executive. However, state and local law enforcement officials were free to conduct the check if they so chose and many continued to do so. This issue became moot when NICS came online.

The Brady Law today

The five-day waiting period for handgun purchases expired on November 30, 1998 and was replaced by a computerized criminal background check prior to any firearm purchase from a dealer holding a Federal Firearms License (FFL). All dealers, manufacturers and importers must verify the identity of a non-FFL customer and receive authorization from the National Instant Check System (NICS) which often takes only minutes instead of the several-day waiting period. In April 2009, the FBI announced it had completed its 100 millionth NICS approval since its inception 10 years before.

Unless an exception applies or the purchase is being made using an approved alternative method, the Brady Law requires that background checks for individuals be conducted before a firearm may be purchased from a dealer, manufacturer or importer. Unless there are additional state restrictions, the firearm may be taken upon NICS approval. Purchases from a non-FFL seller are not subject to the Brady Law, but may be covered under other federal, state, and local restrictions. This distinction prevails without regard to the location of the sale. Thus FFL sales at gun shows are still subject to NICS approval while private sales are not. The so-called Gun Show Loophole would be more accurately called a Private Sale Loophole.

The Brady Law does not apply to licensed Curios & Relics (C&R) collectors, but only in respect to C&R firearms. The FFL Category 03 Curio & Relic license costs $30 and is valid for 3 years. Licensed C&R collectors may also purchase C&R firearms from private individuals or from federal firearms dealers, whether in their home state or in another state, and ship C&R firearms in interstate commerce by common carrier. Curios or relics are defined in 27 CFR 478.11 as "Firearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons." The regulation further states

To be recognized as curios or relics, firearms must fall within one of the following categories:

(a) Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;

(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; or

(c) Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this

category may be established by evidence of present value and evidence that like firearms are not available except as collector's items, or that the value of like firearms available in ordinary commercial channels is substantially less.

External links

• The text of the Brady Bill
• The Brady Campaign website
• The Supreme Court decision
• Senate roll call vote
• House roll call vote