While federal law requires licensed gun dealers to run background checks on all prospective gun buyers, due to an NRA-backed loophole in the 1993 Brady Bill, gun sales can proceed by default after three business days even though law enforcement has up to 90 days to conduct a background check.¹18 U.S.C. 922(t)(1)(B)(ii).

Most background checks are completed on the spot, but every year hundreds of thousands of checks take longer than three business days.²Everytown Research analysis of Federal Bureau of Investigation, NICS Operations Reports 2015–2019, https://bit.ly/36nWN6X. Between 2015 and 2019, 1,421,928 checks were delayed past three business days, or an average of 284,386 checks every year. Among the checks that the FBI is able to resolve before the 90-day deadline, more than 5 percent each year are found to have resulted in illegal sales.³Everytown Research analysis of Federal Bureau of Investigation, NICS Operations Reports 2015–2019, https://bit.ly/36nWN6X. Between 2015 and 2019, 20,295 checks were referred to the ATF for firearm retrieval, or an average of 4,059 checks every year. It is likely many more prohibited purchasers get their hands on a gun because of this loophole, but there is no way to know definitively how many because the records for more than 200,000 background checks that were not completed within 90 days are deleted from the system each year.⁴Everytown Research analysis of Federal Bureau of Investigation, NICS Operations Reports 2015–2019, https://bit.ly/36nWN6X. Between 2015 and 2019, 1,038,465 checks were unresolved at 90 days and therefore purged from the system, or an average of 207,693 checks every year.

This loophole presents a special danger for domestic violence victims. In its 2016 report, the Government Accountability Office found that background checks involving domestic violence flags take longer to resolve.⁵U.S. Government Accountability Office, “Gun Control: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records,” 2016, https://www.gao.gov/products/gao-16-483. Domestic violence prohibitions involve multiple criteria that often require significant investigation and coordination with local law enforcement. For example, because federal law only prohibits abusers from buying a firearm if they were married to or were a current or recent former dating partner⁶In 2022, Congress passed the Bipartisan Safer Communities Act expanding the prohibition to include those with misdemeanor domestic violence convictions who abused a current or recent former dating partner. Bipartisan Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1313, 1332-1333 (2022) (codified at 18 U.S.C. § 921(a)(33) ); see also 18 U.S.C. § 922(g)(9). of their victims (or if they shared a child or a home), a background check may require an investigation into the relationship between the parties. Between 2006 and 2015,⁷During this period, federal law prohibited abusers from buying a firearm if they were married to, shared a child or a home with their victims, current or former dating partners were not included. In 2022, Congress passed the Bipartisan Safer Communities Act expanding the prohibition to include those with misdemeanor domestic violence convictions who abused a current or recent former dating partner. Bipartisan Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1313, 1332-1333 (2022) (codified at 18 U.S.C. § 921(a)(33) ); see also 18 U.S.C. § 922(g)(9). it took the FBI more than three business days to determine 30 percent of denials based on misdemeanor crimes of domestic violence. That means licensed dealers were legally authorized under federal law to transfer guns to 18,000 people who were prohibited because of convictions for misdemeanor crimes of domestic violence simply because their background checks took longer than three days.⁸U.S. Government Accountability Office, “Gun Control: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records,” 2016, https://www.gao.gov/products/gao-16-483.

Congress can close the Charleston loophole by prohibiting firearm sales from moving forward unless a background check on the prospective purchaser has been completed. In the absence of a federal law, states can pass laws to give authorities longer than three business days to complete a check.