A Federal Firearms Licensee (FFL) holder does a background check on the buyer of a firearm via ATF. The process involves the FBI National Instant Criminal Background Check System (NICS) and the call center to the FBI NICS Section. The National Instant Criminal Background Check System (NICS) is a name check system that uses databases to determine if a person may legally receive or possess a firearm.
When someone attempting to purchase a firearm is told that there has been a delay on their background check will not be able to purchase and leave the FFL the same day with their firearm. A “Delayed” message means the FBI needs to do additional research to verify the person's background. The FBI claims that they communicate with federal, state, local, and tribal law enforcement agencies and courts. Typically they see someone in the initial background data, flag the delay, and then nothing more happens. A delay is not a denial.
If the FBI cannot make a determination within three business days of a background check, the FFL may transfer the firearm, unless prohibited by state law. However, the FFL dealer is not required to complete the transfer. In other words, the gun store can deny the buyer just because of the NICS delay. The buyer has no rights to request completion of the transaction after the three day wait.
THREE DAY DELAY: rather than an approval or denial, the background check results in a notification that the retailer must delay the transaction for three full business days before completing the transaction. The FFL holder, typically a firearms dealer such as a sporting goods store, refer to this delay by using the term "NICS Delay." The three day count does not include the day the check was initiated, Saturdays, Sundays, or state holidays. The entire transaction is purged within 88 days.
If the FFL lawfully transfers a firearm after the three business days expires, and the NICS system later determines the transaction should have been denied, NICS notifies the FFL and contacts ATF to handle the case as a firearm retrieval referral. Approximately a tenth of one percent of NICS checks are referred for retrieval of the firearm.
In 2019, 89.44 percent of checks resulted in an immediate determination, while the FFL was still on the phone with NICS. Just over 10 percent of all transactions were “delayed” meaning they were not immediately determined.ii And, 98 percent of the delayed transactions are resolved with the vast majority being resolved during the first three business days.
The 1993 Brady Act resulted in the creation of NICS for gun purchase background checks.