America’s gun background check system, designed to keep weapons out of the hands of people who might use them in crimes, has struggled to keep up with record firearms sales over the past year — even as violent crime has risen dramatically in many U.S. cities.
In recent years, the FBI — which manages the system that vets gun buyers — processed an average of 8.6 million gun background checks annually, according to historical data analyzed by FiveThirtyEight.1 But last year, the bureau processed 12,761,328 background checks, according to FBI data obtained by FiveThirtyEight through a public records request.
Perhaps most alarming, the FBI never finished over 316,000 background checks in the first nine months of 2020 alone — far more than in any other year on record. And that number doesn’t include October, November and December — usually the busiest months for gun sales, when 3.4 million background checks were opened last year.
In other words, it’s impossible to know how many guns were sold to people in 2020 who couldn’t legally own them because those background checks were never completed.
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Asked why it didn’t finish so many background checks in 2020, the FBI said in a statement that it “depends on the availability of relevant information and records provided by federal, state, local, and tribal agencies.” The bureau also said that it has “reallocated resources to help ensure that it can continue processing background checks efficiently.”
Gun sales have surged since April 2020, thanks, at least in part, to the pandemic, protests last summer for racial justice and the election of President Biden in November. The FBI data shows how the background check system has struggled to keep up. And, at this point, it’s unclear when the problem is going to get better.
A growing problem
The share of background checks the FBI never completes has ticked up slowly since 2014, the first year on record, when it processed 8,256,688 checks and didn’t complete 172,879, or just under 2.1 percent.
But by 2019, the bureau was failing to complete about 2.5 percent of the background checks it processed, and it didn’t finish almost 3.4 percent in the first nine months of 2020.
Those numbers only include gun background checks run by the FBI, so they don’t count the 20 states that process some or all background checks themselves. It’s also important to remember that the number of background checks isn’t the same as the number of guns sold — many are also run when people apply for gun permits, for example, or when states check on the status of gun permit holders. A single background check can also represent multiple gun sales.
Still, the background check numbers for 2020 are staggering.
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The consulting firm Small Arms Analytics & Forecasting uses the total number of federal and state background checks to estimate how many represent actual gun sales, rather than concealed-carry permits or other processes that go through the background check system.
There were a total of more than 39.3 million federal and state background checks in 2020, according to the FBI. From that, the firm estimates that almost 23 million guns were sold last year, compared to just 13.9 million in 2019.
The firm’s chief economist, Jurgen Brauer, said he hasn’t seen anything like it in his 15 years working with the background check data.
“Nobody has,” Brauer said. “Everyone you talk with in the industry is perplexed.”
In fact, before the pandemic, gun sales were so low observers called it the “Trump slump.” But they then spiked dramatically in March 2020, and have remained high over the last year, overwhelming the background check system.
From bad to worse
Three numbers highlight the size of the problem we’re dealing with: (1) how many background checks take longer than three business days; (2) how many checks the FBI never completes; and (3) how many people who can’t legally own a gun are able to buy one anyway because of those delays.
The FBI responds to most gun background checks with an immediate “yes” or “no.” But sometimes, it has to delay the check to do more research because its records are incomplete. After three business days, the dealer can sell the gun anyway. Many, including large chains like Walmart, choose not to. But ones that do don’t have to tell the FBI about it.
In an average year, almost 275,000 background checks take longer than three business days. In 2020, there were 535,786 such checks, according to FBI data. That number doesn’t include background checks for things like concealed-carry permits or explosives licenses, which aren’t subject to the three-business-day rule.
Meanwhile, the FBI keeps researching. But after 90 days, the bureau’s regulations require it to stop work and delete the background check from its computers. To make sure it doesn’t violate that policy, the bureau actually deletes unfinished background checks on day 88 just to be safe.
In the first nine months of 2020, the FBI deleted 316,912 unfinished background checks — 3.4 percent of all the checks it processed. In an average year, it deletes about 202,000. Again, this only includes background checks that are subject to the three-business-day rule.
If the FBI discovers that the potential buyer can’t own a gun in between day three and day 88, it contacts the dealer to see if the sale went through anyway. If it did, the FBI asks the Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) to retrieve the weapon.
Between 2014 and 2019, there were on average at least 3,800 of these so-called “delayed denial” sales annually, according to ATF data obtained by the gun-control advocacy group Everytown for Gun Safety. But there were at least 5,807 in all of 2020, according to the ATF data — the most since 2006, the first complete year on record.
There’s no evidence that delayed denial sales are a major driver of crime, and some point to the relatively small number that ATF records each year as proof that the law doesn’t need to change.
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But the ATF data is just the part of the iceberg that’s above the water. The FBI does not finish most gun background checks that take longer than three business days. Because it deletes those unfinished background checks, it’s impossible to know how many would have been denied — and how many of those people were able to buy a gun anyway.
And even if the numbers are relatively small, they can have tragic consequences. In April 2015, Dylann Roof bought a .45-caliber Glock handgun a few days after the FBI delayed his background check because of incomplete records about his prior drug arrest. Two months later, Roof used the gun to kill nine people during a Bible study at a historically Black church in Charleston, South Carolina.
The three-business-day deadline is written into federal law. But deleting unfinished background checks after 88 days is a matter of FBI regulations and policy, according to Rob Wilcox, federal legal director for Everytown.
“There’s no law that requires the FBI to delete delayed background checks,” Wilcox said. “The regulation sets the deletion date at 90 days, and that regulation could be changed through the administrative process.”
Few answers and fewer solutions
The question of why so many background checks go unfinished, and why the numbers haven’t improved over time, doesn’t have a clear answer.
The FBI poured millions into upgrading and automating parts of the gun background check system from 2012 to 2016, and Congress passed new legislation aimed at fixing the system in 2018. But every year, the delays keep piling up.
The 2015 FBI report on Roof’s background check found that slow responses and incomplete records were the biggest cause of delays. It also singled out FBI policies that limited how inspectors from the National Instant Criminal Background Check System (NICS) could do research on a background check and how the system prioritized keeping the immediate response rate at 90 percent rather than clearing the relatively small number of open cases.
The report also found that NICS had trouble handling the normal volume of background checks without resorting to an “escalation plan” that involved surging all available staff to handle background check requests.
FiveThirtyEight asked the FBI whether it has enough staff to process the current volume of background checks. In response, the bureau pointed to two-year supplemental funding it received in the fiscal year 2021 budget that it said will help pay for additional staff, IT resources and other productivity enhancements.
“The ongoing system improvements being performed with the supplemental funding enhance the efficiency of processing gun background checks,” the bureau said in a statement.
The National Shooting Sports Foundation, which represents the firearms industry, has worked to get more state and local records — especially ones related to mental health — into the background check system in order to cut down on delays. It’s also working with appropriations committees on the Hill to get more resources for NICS and the ATF, according to Lawrence Keane, the organization’s senior vice president for government and public affairs.
“They have told us they need more resources,” Keane said. “They need more bodies as well as technology, to meet the growing demands.”
“The industry wants NICS to function properly,” he added.
But others, like Connecticut Sen. Richard Blumenthal, think Congress needs to change the law so dealers can’t sell a gun without a completed background check.
The Democratic congressman has sponsored a bill, S. 591, that would require a completed background check for a gun sale. The bill, which the National Shooting Sports Foundation opposes, is currently pending in the Senate Judiciary Committee.
Another bill, H.R. 1446, which passed the House earlier this year, would replace the three-business-day window with a 10-day window after which the potential buyer would have to certify that they’re not prohibited from owning a gun. It’s also pending in the Senate.
But as long as the filibuster stands, the hope for any new gun legislation is thin. A similar bill that passed the House during the last Congress died in the Senate. And a third bill that would have kept the FBI from deleting unfinished background checks died in the House.
Ultimately, it’s not clear what the solution is. Gun-control advocates would like to see the law changed so dealers can’t sell guns until a background check is complete. Opponents say that even with all the time in the world, the FBI can’t complete background checks if it doesn’t get the right records from state and local officials.
What is clear is that even if the current surge in gun sales wanes, as some in the industry predict, the long-term trajectory is pointing up. The question is how to build a system that can handle an ever-growing number of guns.
“One uncompleted check is a problem,” Blumenthal said in a statement, “but 316,000 uncompleted checks is a systemic failure of an already overburdened system.”