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Brady Handgun Violence Protection Act

Brady Handgun Violence Protection Act

On November 30, 1993, the Brady Handgun Violence Prevention Act was enacted, amending the Gun Control Act of 1968. The Brady Law imposed as an interim measure a waiting period of 5 days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual. The waiting period applies only in states without an acceptable alternate system of conducting background checks on handgun purchasers. The interim provisions of the Brady Law became effective on February 28, 1994, and ceased to apply on November 30, 1998.

While the interim provisions of the Brady Law apply only to handguns, the permanent provisions of the Brady Law apply to all firearms. Brady Law, in full Brady Handgun Violence Prevention Act, U.S. legislation, adopted in 1993, that imposed an interim five-day waiting period for the purchase of a handgun until 1998, when federally licensed dealers would be required to use a federal National Instant Criminal Background Check System (NICS) to conduct background checks on individuals purchasing any firearm. Before the measure became law, it was popularly known as the Brady bill, named for James Brady, the White House press secretary who was seriously injured in an attempted assassination of Pres. Ronald Reagan in 1981. Brady confined to a wheelchair and unable to resume his duties, campaigned vigorously for the bill, despite fierce opposition from the National Rifle Association (NRA), one of Washington’s most-formidable interest groups. The waiting period went into effect on February 28, 1994. As originally written, the Brady Law required state and local law-enforcement officials to perform background checks during the five-day waiting period. That provision, however, was struck down by the Supreme Court in Printz v. United States (1997). The NCIS was created by by the Federal Bureau of Investigation (FBI) and became operational on November 30, 1998.

Brady Handgun Violence Prevention Act

The Brady Handgun Violence Prevention Act enacted November 30, 1993), often referred to as the Brady Act or the Brady Bill, is an Act of the United States Congress that mandated federal background checks on firearm purchasers in the United States, and imposed a five-day waiting period on purchases, until the NICS system was implemented in 1998. The original legislation was introduced into the House of Representatives by Representative Charles E. Schumer in March 1991, but was never brought to a vote. The bill was reintroduced by Rep. Schumer on February 22, 1993 and the final version was passed on November 11, 1993. It was signed into law by President Bill Clinton on November 30, 1993 and the law went into effect on February 28, 1994. The Act was named after James Brady, who was shot by John Hinckley Jr. during an attempted assassination of President Ronald Reagan on March 30, 1981.

Brady Bill signed into law

During a White House ceremony attended by James S. Brady, President Bill Clinton signs the Brady handgun-control bill into law. The law requires a prospective handgun buyer to wait five business days while the authorities check on his or her background, during which time the sale is approved or prohibited based on an established set of criteria. In 1981, James Brady, who served as press secretary for President Ronald Reagan, was shot in the head by John Hinckley, Jr., during an attempt on President Reagan’s life outside a hotel in Washington, D.C. Reagan himself was shot in his left lung but recovered and returned to the White House within two weeks. Brady, the most seriously injured in the attack, was momentarily pronounced dead at the hospital but survived and began an impressive recovery from his debilitating brain injury. During the 1980s, Brady became a leading proponent of gun-control legislation and in 1987 succeeded in getting a bill introduced into Congress.

The Brady Bill, as it became known, was staunchly opposed by many congressmen, who, in reference to the Second Amendment to the U.S. Constitution, questioned the constitutionality of regulating the ownership of arms. In 1993, with the support of President Bill Clinton, an advocate of gun control, the Brady Bill became law.

The Brady Bill requires that background checks be conducted on individuals before a firearm may be purchased from a federally licensed dealer, manufacturer or importer unless an exception applies. If there are no additional state restrictions, a firearm may be transferred to an individual upon approval by the National Instant Criminal Background Check System (NICS) maintained by the FBI. In some states, proof of a previous background check can be used to bypass the NICS check. For example, a state-issued concealed carry permit usually includes a background check equivalent to the one required by the Act. Other alternatives to the NICS check include state-issued handgun purchase permits or mandatory state or local background checks.

In Section 922(g) of title 18, United States Code the Brady Bill prohibits certain persons from shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who:

• Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
• Is a fugitive from justice;
• Is an unlawful user of or addicted to any controlled substance;
• Has been adjudicated as a mental defective or committed to a mental institution;
• Is an alien illegally or unlawfully in the United States;
• Has been discharged from the Armed Forces under dishonourable conditions;
• Having been a citizen of the United States, has renounced U.S. citizenship;
• Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, or;
• Has been convicted in any court of a misdemeanour crime of domestic violence.

Section 922(n) of title 18, Utah Code makes it unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport any firearm in interstate or foreign commerce, or receive any firearm which has been shipped or transported in interstate or foreign commerce. After a prospective buyer completes the appropriate form, the holder of a Federal Firearms License (FFL) initiates the background check by phone or computer. Most checks are determined within minutes. If a determination is not obtained within three business days then the transfer may legally be completed. Firearm transfers by unlicensed private sellers that are “not engaged in the business” of dealing firearms are not subject to the Brady Act, but may be covered under other federal, state, and local restrictions. The Brady Bill also does not apply to licensed Curios & Relics (C&R) collectors, but only in respect to C&R firearms. The FFL Category 03 Curio & Relic license costs $30 and is valid for three years. Licensed C&R collectors may also purchase C&R firearms from private individuals or from federal firearms dealers, whether in their home state or in another state, and ship C&R firearms in interstate commerce by common carrier. The regulation further states:

To be recognized as curios or relics, firearms must fall within one of the following categories:
• Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;
• Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; or
• Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector’s items, or that the value of like firearms available in ordinary commercial channels is substantially less.

The Brady Act

The Brady Handgun Violence Prevention Act of 1993 (“Brady Act”) effected amendments to the GCA, originally imposing a five-day waiting period for law enforcement to review the background of a prospective handgun purchaser before a licensed dealer was entitled to complete the sale of a handgun to that person. The purpose of the check is to allow law enforcement to confirm that the prospective buyer is not a prohibited purchaser (see discussion of “prohibited purchaser” in connection with the FFA, above, and the posts on Background Checks and Prohibited Purchasers Generally) before the sale is consummated. The five-day waiting period has now been replaced with an instant check system, which can be extended to three days when the results of the check are not clear. Persons who have a federal firearms license or a state-issued permit to possess or acquire a firearm (such as a state-issued concealed carry permit that is valid for not more than five years) are not subject to the waiting period requirement. As more states enact “shall issue” concealed carry permit laws, this category of persons exempt from the Brady Act increases. In 1998, the Act became applicable to shotguns and rifles.

The Brady Act is codified at 18 U.S.C. § 921 et seq. Additional details about the Brady Act may be found in the posts discussing federal law on Background Checks, Prohibited Purchasers Generally and Dealer Regulations.
Notice that firearms are prohibited may be given by:
• Personal communication to the actor by the church or organization or a person with authority to act for the person or entity;
• Posting of signs reasonably likely to come to the attention of persons entering the house of worship or private residence;
• Announcement by a person with authority to act for the church or organization operating the house of worship in a regular congregational meeting in the house of worship;
• Publication in a bulletin, newsletter, worship program or similar document generally circulated or available to the members of the congregation regularly meeting in the house of worship; or
• Publication in a newspaper of general circulation in the county in which the house of worship is located or if the church or organization operating the house of worship has its principal office in this state.

Minimum Age to Purchase & Possess in Utah

Utah law provides that no person under age 18 may possess a handgun, sawed-off rifle, sawed–off shotgun, or fully automatic weapon. The state further prohibits any person under 18 years of age from possessing any other firearm (i.e., a rifle or shotgun) unless he or she:
• Has the permission of one’s parent or guardian to have the weapon; or
• Is accompanied by a parent or guardian while in possession of the gun.
Exceptions regarding possession of handguns by minors include any person:
• Firing at lawfully operated target concessions at amusement parks, piers, and similar locations provided the firearms to be used are firmly chained or affixed to the counters;
• In attendance at a hunter’s safety course or a firearms safety course;
• Engaging in practice or any other lawful use of a firearm at an established range or any other area where the discharge of a firearm is not prohibited by state or local law;
• Engaging in an organized competition involving the use of a firearm, or participating in or practicing for such competition;
• Under age 18 who is on real property with the permission of the owner, licensee, or lessee of the property and who has the permission of a parent or legal guardian or the owner, licensee, or lessee to possess a firearm not otherwise in violation of law;

Any person under 14 years of age in possession of a dangerous weapon shall be accompanied by a responsible adult. A “dangerous weapon” is “any item that in the manner of its use or intended use is capable of causing death or serious bodily injury.” An applicant for a concealed firearms permit must be 21 years of age or older. Applicants between the ages of 18 and 20 may apply for a provisional permit that allows the permittee to carry in the state without restriction except for elementary and secondary school campuses.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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