Broken FBI Background Check System Disproportionately Effects Minorities

Why does the FBI’s background check system falsely deny law-abiding citizens from purchasing a firearm the overwhelming majority of the time? Because the system is broken and often mismatches law-abiding citizens with the records of convicted felons who share things like names and birthdays. This disproportionately affects minorities, such as Blacks and Hispanics, who are statistically more likely to share names and therefore are more likely to get a false positive.ⁱ

According to published FBI data, NICS has denied 44,223 prospective gun purchasers between November 30, 1998 and December 31, 2022 for being “Illegal/Unlawful Alien[s]” under 18 U.S.C. 922(g)(5).ⁱⁱ While a proponent of the bill may say these are prohibited persons who were stopped from illegally purchasing a firearm, in reality these are “initial denials”—over 90% of which are false positives.ⁱⁱⁱ This means that 9 out of 10 times these denials were almost certain law-abiding Americans. Gun purchasers who are falsely denied a background check are not dangerous or able to be prosecuted, which is why only a few dozen cases are even prosecuted by the Department of Justice each year.^iv In fact, DOJ deems these cases “not appealing to judges and juries from a public safety standpoint.”^v When taken to trial, background check denial cases often result in “juries refusing to convict these individuals or jury nullification.”^vi

GOA members want to see minority access to firearms protected and the badly broken National Instant Criminal Background Check System (NICS) repealed, not hyper-enforced.

Unintended Consequences of Illegal Alien NICS Alert Act Enforcement

It is absurd to imagine that a member of MS-13, illegally present in the United States, would go to Mom and Pop’s gun store and fill out an FBI background check form to attempt to buy a gun legally when the vast majority of criminals purchase their firearms illegally^vii and a GAO study proved that using a fake ID to pass a background check worked 100% of the time.^viii

On the other hand, the brokenness of the background check system and the recent increase in minority gun ownership suggest that many minorities are falsely denied their Second Amendment rights every year. It is not so hard to imagine the FBI denying a gun purchaser their background check because they shared a name and a birthday with a criminal in a Department of Homeland Security database. Under the Illegal Alien NICS Alert Act, law-abiding American citizens would not only be denied their Second Amendment rights, but also be reported to Immigration and Customs Enforcement for deportation.

Expanding Background Checks Will Not Solve the Border Crisis

The Illegal Alien NICS Alert Act is a distraction from the major issues regarding immigration and the border and will not solve any of them. Congress will not fix the ongoing border crisis by expanding the FBI’s enforcement of firearm purchase background check denials. Instead, this legislation would legitimize a system that punishes American citizens wishing to exercise their Second Amendment rights.

The Second Amendment does not apply to illegal aliens, as they do not contribute to the “security of a free state.”^xi However, the Illegal Alien NICS Alert Act will likely have a negative impact on legal immigrants’ and U.S. citizens’ right to purchase firearms. Over time, enforcement of such a provision could have a chilling effect on the decisions by members of minority communities to commercially purchase firearms.

If Congress tweaks a bad law on the books, not only will it legitimize a bad system, but ICE officers will be encouraged to harass law-abiding citizens to prove their immigration status. This would do nothing to solve crimes, make our communities safer, or protect the lives of innocent Americans. Congress must not expand this unconstitutional and deeply broken barrier to a person’s constitutional right to keep and bear arms.

ⁱ Lott. “Do Democrats want to disarm minorities?”. Fox News. July 30th, 2016.
ⁱⁱ Federal Bureau of Investigation. NICS Denials, November 30, 1998-December 31, 2022.
ⁱⁱⁱ Johnston. “Criminal Investigations for Innocent Gun Owners?”. Gun Owners of America. February 8th, 2022.
^iv Government Accountability Office. “Few Individuals Denied Firearms Purchases Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions”. Report to the Ranking Member, Subcommittee on Commerce, Justice, Science, and Related Agencies, Committee on Appropriations, House of Representatives. September 2018.
^v Ibid. 22.
^vi Ibid.
^vii Alper and Glaze. “Source and Use of Firearms Involved in Crimes: Survey of Prison Inmates, 2016”. Bureau of Justice Statistics, Department of Justice. January 2019. 7.
^viii Government Accountability Office. “Purchased From Federal Firearm Licensees Using Bogus Identification”. March, 2001.
^ix Dinan. “Illegal immigrants test limits of Second Amendment in case now pending at Supreme Court”. Washington Times. January 3rd , 2022