Effective February 28, 1994, the Brady Handgun Violence Prevention Act (Brady) requires firearms licensees, such as licensed firearms dealers, to, among other things, request a presale background check on handgun purchasers. Brady calls for implementation in two phases. Under phase I, or the interim provisions, the checks are to be conducted by the chief law enforcement officer (CLEO) in the purchaser’s residence community to determine, on the basis of available records, if the individual is legally prohibited from buying the firearm under the provisions of federal, state, or local law. The sale may not be completed for 5 business days unless the dealer receives an approval from the CLEO before that time. If the CLEO does not contact the dealer within the 5-day period, the dealer may make the sale unless the dealer has reason to believe the transaction would be unlawful. Under the phase II permanent provisions effective November 30, 1998, the 5-day waiting period requirement terminates and presale inquiries for all firearms sales will be made only to a national background check system that will be operated by the Federal Bureau of Investigation (FBI). Since early 1987, Congress has considered various versions of legislation restricting access to handguns. These legislative efforts were labeled “Brady” bills—referring to James Brady, the Reagan administration press secretary who was disabled by a gunshot wound sustained during an attempted assassination of the President. Many of the early legislative efforts called for a waiting period for handgun purchases. The waiting period was designed, in most instances, to allow for the “opportunity” to conduct background checks, not the imposition of a mandatory background check requirement. Often, this opportunity meant that a copy of the application form was to be sent to the appropriate local law enforcement agency. In addition, the waiting period was described as providing a cooling-off period to deter impulse purchases. Brady opponents objected to the waiting period and offered amendments or substitute legislation typically calling for systems that would allow point-of-sale background checks to screen out criminals and not delay or otherwise interfere with the rights of law-abiding citizens to buy and own handguns. The current two-phased approach, first introduced in 1991 and described by its original sponsors as a compromise, (1) includes a waiting period that allows CLEOs time to conduct the background check required of themand (2) provides for the eventual point-of-sale background check system. To do this, Brady amends the Gun Control Act of 1968, which contains the principal federal restrictions on commerce in firearms and ammunition. Since passage of the 1968 act, the Bureau of Alcohol, Tobacco and Firearms (ATF) has licensed and regulated manufacturers, importers, dealers, and pawnbrokers in firearms. Under the 1968 act, as amended, those licensees (hereinafter referred to as gun dealers) are prohibited from selling firearms or ammunition to anyone they know or have reasonable cause to believe (1) has been convicted of (or is under indictment for), in any court, a crime punishable by more than 1 year in prison; (2) is a fugitive; (3) is an unlawful user of a controlled substance; (4) has been adjudicated as a mental defective or has been committed to a mental institution; (5) is an illegal alien; (6) is a dishonorably discharged veteran of the Armed Forces; or (7) is a person who has renounced U.S. citizenship. Under the 1968 act, persons purchasing a firearm from a licensed dealer are required to certify their eligibility, but no background checks or other verification of the information supplied is required. In contrast, while including the 1968 prohibitions and also requiring buyers to certify their eligibility, Brady is the first federal legislation providing for presale background checks to verify such eligibility. “restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.” Under Brady’s interim provisions, a prospective handgun purchaser must complete a form—generally referred to as the Brady form (see app. I)—giving his or her name, date of birth, and residence address and certifying that he or she is not a member of various categories prohibited from buying a firearm. Then, within 1 business day, the gun dealer must provide notice of the form’s contents to the CLEO of the area in which the buyer’s residence is located. The CLEO must then “make a reasonable effort” to ascertain within 5 business days whether the sale would violate federal, state, or local law, including research in whatever state and local record-keeping systems are available and the FBI-operated National Crime Information Center files (see fig. 1.1). The CLEO may allow the sale to proceed at any time during the waiting period by advising the gun dealer that the applicant has not been determined to be a prohibited person. Alternatively, if not notified to the contrary, the gun dealer may assume that the purchaser is not disqualified and complete the sale upon expiration of the 5-day period. However, if the search reveals that the applicant is ineligible to receive a handgun, the CLEO is to notify the dealer (without providing the reason) that the sale is denied. The CLEO may also instruct the dealer to refer the buyer to the CLEO if the buyer has questions or otherwise challenges the denial. Generally, such questions or challenges are sometimes referred to as “administrative appeals,” even though practices are somewhat less formal than this term implies. For instance, by providing the law enforcement officer additional documentation, a buyer may be able to reverse a denial that initially resulted from inaccurate or incomplete information in the databases searched. Brady also provided a remedy for erroneous denial of a firearm. Generally, any person denied a firearm due to the provision of erroneous information or who was not prohibited from receipt of a firearm may bring action to direct the correction of the erroneous information or that the transfer be approved. In any such action, the court may allow the prevailing party a reasonable attorney’s fee as part of the costs. Finally, under Brady’s interim provisions, certain specified transactions in states that screen handgun purchasers—e.g., through a permit system or some other procedure for conducting criminal background checks—are exempt from Brady’s waiting period. States that operate an alternative system that meets certain standards have been designated as Brady-alternative states by ATF. As of February 28, 1995, 24 states had systems in place that ATF determined were acceptable alternatives to Brady. Residents, dealers, and law enforcement officials in the other 26 states—the so-called “Brady states”—are subject to Brady’s waiting period requirements (see app. II). “With 285,000 licensees and only 240 ATF inspectors to check their premises and the records that they keep to ensure compliance, it would take approximately 10 years for us to inspect all the gun dealers.” More recently, the number of licensed dealers has begun to decline—to about 220,000 by the end of March 1995—partly as a result of the increase in the license fee required by the Federal Firearms License Reform Act of 1993. Another contributing factor is the 1994 Crime Act, which required that gun dealers certify compliance with state and local law as a condition for a license. On the other hand, even if ATF had more resources to inspect gun dealers, there are legislated limits on the frequency of compliance inspections. For instance, under 18 U.S.C. 923, absent reasonable cause or a warrant, ATF can inspect or examine a licensed dealer “not more than once during any 12-month period” to ensure compliance with record-keeping requirements. Finally, while gun dealers are required to maintain a copy of completed Brady forms for at least 5 years, the dealers are not required to report information from the forms to federal authorities. Brady allows CLEOs to retain forms for individuals denied a purchase but requires that all other forms be destroyed within 20 days. CLEOs also are not required to maintain or report data. In fact, various statutory provisions restrict the use of firearms-related information and prohibit the establishment of systems to register firearms, firearms owners, or firearms transactions. Thus, no data were readily available that would allow for monitoring trends in handgun purchases and denials or otherwise judge the impact of Brady. In July 1995, the Department of Justice issued a report on guns and crime in the United States. Among other information, the report noted that: • Over 40 million handguns have been produced in the United States since 1973. Most guns are not used to commit crimes. Further, most crime is not committed with guns. However, most gun crime is committed with handguns. • During 1993, there were 4.4 million murders, rapes, robberies, and aggravated assaults in the United States, and more than one-fourth of these violent crimes involved the use of a gun. • From 1985 through 1994, the FBI received an annual average of over 274,000 reports of stolen guns. By definition, all stolen guns are available to criminals. • At the request of police agencies, ATF’s National Tracing Center will trace firearms back to their original point of sale. More than three-quarters of the 83,000 guns used in crime that ATF traced for law enforcement agencies in 1994 were handguns. Policymakers recognize that even a perfect felon identification system may not keep felons from obtaining firearms and that Brady may not directly result in measurable reductions of gun-related crimes. For example, Brady does not apply to transactions between nonlicensed individuals. Tens of millions of handguns are already in private hands. Thus, the apparently sizable numbers of handgun transactions that take place between private individuals, such as at gun shows and even “on the street,” are not subject to Brady’s requirements.