How the NICS gun background check system works: Analysis

Last weekend, two murderers, in separate and tragic incidents, walked into public venues in El Paso, Texas, and Dayton, Ohio and shot and killed a total of 31 people while wounding dozens more. The twin tragedies, according to the Gun Violence Archive, brings the number of mass shootings in the United States this year to 253.

That alarming figure has left many across the country once again wondering, “Why?"

The Secret Service Mass Attacks in Public Spaces (MAPS) report released last month attempts to shed light on the “why” and examined 27 incidents in 2018 during which three or more persons were harmed. In total, 91 people were killed and 107 more were injured in the 27 incidents. The Secret Service report concluded that:

- Most of the attackers utilized firearms, and half either departed the site on their own or committed suicide.

- Half were motivated by a grievance related to a domestic situation, workplace or other personal issue.

- Two-thirds had histories of mental health symptoms, including depressive, suicidal, and psychotic symptoms.

- Nearly all had at least one significant stressor within the last five years, and more than half had indications of financial instability within that timeframe.

- Nearly all made threatening or concerning communications and more than three-quarters elicited concern from others prior to carrying out their attacks.

In El Paso and Dayton, the commonality of behavioral traits is consistent with the outlines of the report. What is also consistent is that the weapons used were purchased legally.

In fact, in the vast majority of mass shooting incidents, the firearms used were purchased legally, meaning the individual that obtained them passed all the state's rules and regulations and was cleared by the National Instant Background Check system (NICS), a federal database mandated by the Brady Handgun Violence Prevention Act (known as the "Brady Law") of 1993, and created by the FBI in 1998. It was set up to determine if a potential gun or explosives buyer's name and birth year match those of someone ineligible by law to make the purchase.

Yet state participation in contributing to the NICS database is not mandatory because that would be an unconstitutional exercise of federal authority under the Tenth Amendment, and currently only 30 states actively participate.

The NICS database is used by gun retailers, known as Federal Firearms Licensees (FFLs), to instantly determine whether a prospective buyer is eligible to buy firearms. Before a sale, a call or e-check is made to the FBI or to other designated agencies to ensure that each customer does not have a criminal record or isn’t otherwise ineligible to make a purchase. More than 230 million such checks have been made since the NICS database went online in 1998, resulting in more than 1.3 million denials, according to the FBI.

NICS is located at the FBI’s Criminal Justice Information Services Division in Clarksburg, West Virginia. It provides full service to FFLs in just 30 states, five U.S. territories, and the District of Columbia.

The FFLs have the following three methods of performing background checks depending upon the state in which the FFL is conducting business:

1. In states where the state government has agreed to serve as the designated point of contact (POC) for the system, the FFLs contact the NICS through the state POC for all firearm transfers. The state POC conducts the NICS check and determines whether or not the transfer would violate state or federal law.

2. In states where the state government has declined to serve as a POC, the FFLs initiate a NICS background check by contacting the state's NICS Contracted Call Center (NCCC) for all firearm transfers. The FBI conducts the NICS check and determines whether or not the transfer would violate state or federal law.

3. Finally, in states where the state government has agreed to serve as a POC for handgun purchases but not for long gun purchases, the FFLs contact the NICS through the designated state POC for handgun transfers and the NICS Section for long gun transfers.

Each state decides whether the FFLs in its state call a state POC or the FBI to initiate firearm background checks, yet only 30 states actually participate in NICS.

Many individuals are identified by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) as prohibited persons. These include individuals with a felony criminal record, who have a history of mental health issues and who are prone to violence. These so-called “prohibited persons” are supposed to be denied the ability to purchase a firearm.

Yet the NICS database is fundamentally flawed and often doesn’t catch the vital information that would prevent such people from being able to legally purchase a firearm. Even the firearms industry generally agrees that NICS needs to be fixed.

NICS is a data driven input system -- therefore it can only check what information is inputted into it. In many cases, states and others fail to input legally allowable information that would stop a "prohibited person" from passing the check.

Even the National Rifle Association (NRA) has stated that the NICS lacks about 7 million records from the system, based on a 2013 report by the nonprofit National Consortium for Justice Information and Statistics. That report determined that "at least 25% of felony convictions . . . are not available" to the NICS database maintained by the FBI. Domestic violence, for example, is currently not a prohibitive crime in terms of the NICS protocol.

While NICS attempts to be a robust system, some states fail to input the required information, according to the Washington Post.

Even HIPAA -- the law prompted by the Health Insurance Portability and Accountability Act of 1996 and created to protect privacy and security of Americans' medical records -- inadvertently erected new barriers to accessing relevant health information -- and even, at time, after someone has demonstrated a clear propensity for violence. Health care providers have traditionally been discouraged from reporting people prohibited from possessing a firearm for mental health reasons unless they are a “danger to themselves or others.” The federal law was amended in 2016 to allow for exceptions to that provision, though and in some states, only a judge currently has the authority to rule that someone's mental illness warrants their being flagged to the NICS.

More than 90% of Americans agree that a background check prior to purchasing a firearm is an acceptable step, according to Politifact.

Some members of Congress including Rep. Peter King of New York and Senators Patrick Toomey and Joe Manchin -- of Pennsylvania and West Virginia, respectively -- have proposed legislation to fix many of the flaws with the NICS system.

“The violence described in this report is not the result of a single cause or motive,” the authors of the 2019 Secret Service MAPS, but the ongoing flaws in the NICS system leave many in law enforcement believing that it's only a matter of time before the next person prohibited by NICS from possessing a firearm nevertheless gets ahold of one and becomes the latest American to turn a tool of sport or protection into a tool of terror.‎

Donald J. Mihalek is an ABC News contributor, retired senior Secret Service agent and regional field training instructor who also serves as the executive vice president of the Federal Law Enforcement Officers Association Foundation.

Richard Frankel is an ABC News contributor and retired FBI special agent who was the special agent in charge of the FBI's Newark Division and prior to that, the FBI's NY Joint Terrorism TASK force. He is currently the Vice President of Investigation for T&M Protection Resources.