Americans buy millions of guns per year. In 2021 alone, there were 20 million gun sales – about six guns per 100 Americans. And of those applicants, about 300,000 failed their background checks and were denied access to firearms.
You’d be surprised to know how many people try to buy a gun when they’ll obviously fail the necessary background check. For example, many high-risk criminals and fugitives from justice walk into gun stores to try and buy them, and they get apprehended on the spot many times.
Conversely, other people are so anxious about the background check that they might put off applying for a gun in the first place. And in many cases, they don’t know they’ll pass the background check.
In general, it’s good to know the restrictions on buying a gun if you’re considering that prospect. So read on as we talk about why you might fail a background check for a gun.
The Short Answer
Federal restrictions on who can possess (and, by extension, buy) a gun are defined in 18 U.S. Code § 922 (g) and (n). People who aren’t allowed to buy guns are:
- Those with a previous conviction that meets any of these criteria:
- Punishable by more than one year in prison
- Misdemeanors punishable by more than two years in prison
- Misdemeanor domestic violence convictions
- Fugitives from justice
- People with a restraining order for domestic violence
- Under indictment for a crime punishable by more than one year but not yet convicted
- Declared dangerous and thus prohibited from possessing a gun by a court
- Illegal or unlawful immigrants in the U.S.
- Residents with a nonimmigrant visa
- Those who have renounced their American citizenship
- Addicts to a controlled substance
- Those with adjudicated mental health
- Dishonorably discharged military officers
- Juveniles under 18 (for long guns) and 21 (for others)
There are additional state prohibitors that can fail you a background check. For example, you can fail a background check for a gun if you have a history of alcohol abuse in Ohio or West Virginia, even though there are no federal prohibitions on alcohol users.
The Federal Law
The federal government has several prohibitors that prevent people from possessing, transporting, or shipping guns. By extension, these prohibitors apply to prospective gun buyers and can fail them a background check.
Most of these prohibitors are defined by the Gun Control Act of 1968, which emerged after gun violence incidents in the U.S. in the 60s – most notably, the assassination of President John F. Kennedy. The laws are specifically in 18 U.S Code § 922 (g) and (n).
The most common prohibitors that people fail background checks for are criminal history. Specifically, previous convictions that meet certain criteria, as we’ll discuss here.
Convictions Punishable by More Than One Year
As defined in section (n), everyone is prohibited from buying guns if they have a previous conviction in any court of any crime punishable by more than one year. This automatically eliminates almost all felonies and several misdemeanors. Regardless, misdemeanors are
Misdemeanor Convictions Punishable by More Than Two Years
Most misdemeanors come with a relatively mild prison sentence compared to felonies. And even misdemeanors that most people would consider more “serious” will typically come with a prison sentence shorter than one year.
However, in some states and under certain conditions, such as if you have an extensive history of misdemeanor convictions, you could land yourself in prison for two years or more for serious misdemeanor crimes, such as misdemeanor domestic violence.
Misdemeanor Domestic Violence Convictions
The federal government views misdemeanor domestic violence convictions as red flags because those with these convictions are likely dangerous to be around and, therefore, shouldn’t be trusted with firearms.
Misdemeanor domestic violence charges are for those who have abused their spouse, a partner that lives with them, or their child. But they don’t apply if the abuse victim is another family member or a partner who doesn’t live with the convict.
People in an ongoing criminal or civil suit may also fail a background check. But this depends on the specifics of the suit and the orders issued by the court.
Other court orders can fail you if you’re implicated in a court case, are indicted, or have a warrant for your arrest.
Fugitive From Justice
We’ve labeled fugitives from justice under court orders because this status refers to people with an active arrest warrant. In many cases, people try to apply for guns when they don’t know they have an arrest warrant against them. In others, people apply despite knowing they’re fugitives from justice.
In either of those situations, you can get apprehended in the gun store you’re in if your state has proactive policies.
Restraining Orders for Domestic Violence
You should be seeing a pattern by now. Domestic violence is a red flag to the federal government because abusing your live-in partner or child is often a good sign that things could escalate in the future.
Therefore, if you have a restraining order preventing you from stalking, harassing, or threatening an intimate partner or their child, you’ll fail a background check for a firearm.
However, unlike domestic violence convictions, this prohibition only applies as long as the restraining order is active.
This is a complicated one for the government to confirm because of possible delays in database updates. But you’ll be denied access to firearms if you’re indicted for a crime that could land you in prison for more than a year.
Of course, if the court finds you innocent, this prohibitor will no longer apply to you.
If a court or the FBI deems you dangerous outside domestic violence convictions or restraining orders, you will fail background checks for guns. You’ll appear in a special database section called the federally denied persons file, thus earning you an automatic disqualification.
Nationality and Citizenship
Although far fewer people fail background checks due to their nationality or citizenship, you should still know about it if you don’t have American nationality.
It’s also good to know about these restrictions because there are many misconceptions about who can or can’t carry a gun, depending on their nationality, citizenship, and residency.
The U.S. is home to millions of illegal immigrants. And since illegal immigrants are automatically denied the rights that legal immigrants enjoy, it’s no surprise the federal government prohibits them from owning guns until they sort out their immigration paperwork and gain legal permanent residency.
Nonimmigrant Visa Citizens
Even if you’re legally in the U.S. now, you’ll still fail a background check for a gun if your visa is nonimmigrant, as defined in 8 U.S. Code § 1101 (a) (26).
In layman’s terms, this means people who are temporarily staying in the U.S. can’t legally possess guns. This typically applies to tourists or those on a temporary trip for business or medical purposes.
Renunciation of American Citizenship
By renouncing your American citizenship, you also give up all the rights the government owes you, including your right to own firearms that the Second Amendment allows American citizens.
Only a few thousand people renounce their American citizenship every year. And of those, very few try to purchase guns, so this is among the least common reasons for disqualification.
Addiction to a Controlled Substance
If you have a history of using controlled substances illegally, as in, without a medical prescription, then you’ll fail background checks for firearms since guns and drugs are a notoriously dangerous combination.
In this prohibition, a controlled substance is anything that falls under the Controlled Substances Act.
This act prohibits using many substances in different severity categories, known as schedules. Some popular prohibited substances are marijuana, LSD, heroin, cocaine, MDMA, ketamine, and even anabolic steroids.
Rejections for addicts of controlled substances are among the most common reasons for the failure of a background check for firearms. And although tens of millions of illegal users of controlled substances exist, around a few tens of thousands fail their checks for this reason.
Mental health records form a huge part of the federal database prohibiting people from buying guns. But it’s not so simple because getting diagnosed with a mental disease like schizophrenia isn’t enough to fail you a background check.
Instead, you’ll fail the check if you’ve been declared mentally unsound or defective by a judge or if you’ve been admitted to a mental health institute against your will.
Dishonorable Discharge From the Military
The U.S. Armed Forces has its own judicial system. And although this system doesn’t distinguish between misdemeanors and felonies, it counts all violations of military conduct as a red flag and sends this information to the federal database.
And since receiving a dishonorable discharge usually indicates a serious offense, possibly of a dangerous nature, the federal database has a special section for dishonorably discharged military officers, and it automatically fails them the background check.
Prohibitions based on the applicant’s age are also defined in the Gun Control Act in paragraph (b) (1). It only allows people to buy shotguns and rifles if they’re 18 or older. As for other firearms, such as pistols, the minimum age is 21.
As with most laws, many states like to add their touch with local laws. With firearm background checks, states can have their custom prohibitors in addition to the federal prohibitors defined by the Gun Control Act.
For example, many states enforce a licensing system where applicants must register for a firearms license or permit because they’re allowed to buy guns. And if they don’t have a license or permit, they’ll fail the check.
Other states may also require you to register your name with your local police department, sheriff’s office, or other law enforcement agency.
And in some cases, states have restrictions on people with a history of alcohol abuse despite not being prohibited by the federal Gun Control Act. And that’s because alcohol is the most abused substance when it comes to gun violence.
Some states that prohibit alcoholics from buying guns are California, Ohio, and Texas. However, you’ll only be prohibited from buying handguns in many other states, such as South Carolina, Indiana, and Alabama.
Are There False Positives?
False positives are extremely rare in federal background checks, but they happen from time to time.
You could fail a background check for a gun if, for example, you make an error when entering your information, such as misspelling your name or address.
In other instances, you could fail if your name matches with someone who would fail the check. But even then, this kind of mismatch is extremely uncommon.
And if you fail this background check and suspect that there’s a mistake, you can always appeal your denial online at the NICS appeal form.
The Bottom Line
Most people who fail a background check for a gun have a previous conviction carrying a sentence of more than a year, such as felons. But a surprisingly large number of fugitives from justice also try to buy firearms every year and get rejected or even apprehended in the gun store.
Either way, federal prohibitors on possessing guns are easily understandable. For example, people with a history of violent demeanor or those with adjudicated mental health are prohibited because they could be dangerous to themselves or others around them with or without firearms.
And in some rare instances, you could fail a background check as a false positive. For example, if your name matches with a convict or fugitive from justice or even if there’s a spelling mistake. And if you suspect a mistake, you can appeal your denial online on the NICS appeal form.