Waiting Periods

September 2019

Waiting Periods

• Waiting periods are arbitrary impositions with no effect on crime or suicide, introduce no additional investigative avenues, and only burden law-abiding gun owners without changing how or when criminals obtain firearms.

• Waiting periods do not change the background check process; no additional investigative measures are taken no matter how long of a waiting period is imposed. Most background checks are resolved instantly, but investigations can currently last up to 90 days.  
   
• There is no evidence that waiting periods reduce suicides, homicides, or mass shootings. No studies that identify causal effects have been identified by any of the independent literature reviews conducted since 2004.

• Recent research that purports to find that waiting periods reduce firearms-related deaths is fundamentally flawed, as it also finds that background checks increase gun homicides and that poverty is associated with a decrease in homicides.[1]

• The average time-to-crime for firearms traced by the BATFE in 2018 was nearly nine years, so the idea that guns are often used in crimes of passion or impulsive actions right after purchase is not supported by anything other than anecdotal evidence.[2]
   
• Criminals will not be affected by waiting periods. Most state inmates who were in possession of a firearm at the time of their arrest obtained the firearm through an illegal source or from a friend or family member.[3]
   
• There are few prosecutions of prohibited persons who attempt to buy a firearm from a dealer. Out of 112,090 total federal denials in 2017, there were 12 prosecutions.[4]
   
• The waiting period mandated by the Brady Act of 1993 was only in effect until the National Instant Check System came online in 1998.
   
• Most gun-owners own more than one firearm[5] and a waiting period could not possibly have an effect on those purchasing an additional firearm. First-time buyers seeking a firearm for self-defense would be affected by a waiting period that limits their ability to safeguard themselves and their loved ones.
     

Waiting periods were once part of federal law, mandated by the Brady Handgun Violence Prevention Act of 1993 – but only until the National Instant Criminal Check (NICS) came online in 1998. The five-day waiting period mandated under the Brady Bill was replaced with the instant check system.

While most checks are instant, the FBI actually has three days to complete the background check before the transfer can be proceed. The investigation can continue well past three days and, in cases in which the firearm was transferred after the three-day window, the case is referred to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) for retrieval of the firearm.  

Arguments for waiting periods focus on two easily disproven claims: waiting periods allow more time for the background investigation and allow for a “cooling off” period. There is no evidence to support either claim.

No Additional Tools for Investigations and Few Prosecutions

First, the mechanism of the background check is not altered in the presence of a waiting period. The FBI would still run the prospective buyer’s information against the same databases containing the same information they do now. Most buyers will continue to be approved instantly, and those who are flagged for additional investigation will still be flagged for additional investigation. The investigation itself remains the same and can continue for 90 days, when the data is required to be destroyed. No additional information will be uncovered with the addition of a waiting period on top of the existing three-day delay. In increasingly rare cases in which the initial check is delayed and the firearm is transferred after three days and then the buyer is determined to be prohibited, the FBI refers the case to the BATFE for retrieval of the firearm. In 2018, the FBI forwarded 4,240 background check denials to the BATFE that potentially involved firearm retrieval.[6]

In 2017, approximately 25.6 million firearm-related background checks were processed through NICS and about 181,000 – or 1% - were denied because the person was prohibited under federal or state law.[7] More than 89% of federal NICS checks were resolved immediately in 2018, though this is down from 2014.[8] There was no need for investigation in these 89% of federal NICS checks. The FBI estimates that out of 100 potential gun buyers, 70 checks are resolved immediately and 30 are transferred to the NICS section for follow-up. Of those 30, 20 are completed after the initial delay and 10 are delayed for additional research. On average, there will be 1.21 denials for every 100 background checks conducted.[9] 

Prohibited persons who attempt to buy a firearm from a dealer are rarely prosecuted. Federal denials accounted for 112,090 of the total 181,000 denials in 2017 (the others were occurred in point of contact states). The BATFE Field Divisions investigated 12,710 of these cases and United States Attorney’s Offices prosecuted 12 cases. Between 10% and 21% of people investigated by the BATFE were later arrested for a crime involving guns.[10] Ten of the thirteen point of contact states do not investigate or prosecute NICS denials, though some may refer the cases to local law enforcement for investigation. Oregon, Pennsylvania, and Virginia are the only point of the contact states that investigate a high proportion of firearms purchase denials.[11] 

Not a “Cooling Off Period”

Proponents of the waiting period claim it is a “cooling off period” that supposedly gives the prospective buyer time to reconsider their intentions and protect against impulsive actions. 

This argument has no logical basis.

Two-thirds of gun owners own more than one gun.[12] A cooling-off period for these gun owners could not possibly have an effect as they already own other firearms. Anecdotal evidence about a person who purchases a firearm and then immediately uses it to harm themselves or somebody else are just that: anecdotal. There is no scientific evidence that waiting periods have an effect on suicide, homicide, or mass shootings.

During September 30, 1993, hearings on the Brady Bill before the House Judiciary Committee Subcommittee on Crime and Criminal Justice, Assistant Attorney General Eleanor Acheson testified for the Department of Justice that there were no statistics suggesting that a large percentage of guns used in crime were used in those crimes within a few days or week of their purchase, much less in a moment of passion.

A study of California handgun buyers published in 1999 found that the risk of suicide by means of firearm among gun buyers in the first week was 57 times as high as the adjusted rate in the general population – and this is the first week after the 15-day period between the purchase application and receipt of the handgun. The authors concluded that “The increase in the risk of suicide by firearm is apparent within a week after the purchase of a handgun and persists for at least six years.”[13]

No Effect on Crime

In 2017, the national average time-to-crime of traced firearms was 8.8 years.[14] Only about 6.5% of successfully traced firearms were used in a crime within the first three months of the retail purchase.[15]

Few state prison inmates who possessed a firearm at the time of their arrest legally purchases the firearm from a retail store (7.5%), pawnshop (1.6%), flea market (0.4%), or gun show (0.8%). Most acquired the gun off the street or from a drug dealer (43.2%) or through theft (6.4%). An additional 25.3% acquired the gun from a friend or family member.[16]

The Lack of Scientific Evidence

Independent reviews of the scientific literature have repeatedly deemed the evidence on the effect of waiting periods to be inconclusive.

In 2003, the Centers for Disease Control published the findings of the Task Force on Community Preventive Services Regarding Firearms Laws and Prevention of Violence.[17] They found “insufficient evidence to determine effectiveness” of waiting periods for firearm acquisition. They evidence is insufficient because of “small numbers of studies, inconsistent evidence of effectiveness, and limitations in design and execution of available studies. Apparent reduction in rates of firearms suicides among persons aged >55 years, associated with the interim Brady Law, is attributable to waiting periods in the interim law.” It should be noted that this review did not exclude any studies for having a weak methodology.

The National Research Council conducted a similar review in 2004.[18] This included a review of a Ludwig and Cook study from 2000 that found “no significant differences in homicide and suicide rates between the treatment and control groups, though they did find a reduction in gun suicides among persons age 55 and older in the treatment states. The treatment was the implementation of the Brady Bill; the control group were those states that already had equivalent legislation pertaining to background checks and waiting periods.[19] A later version of the Ludwig and Cook study did not meet the eligibility requirements for a synthesis of research conducted by Rand, discussed below.

Robert A. Hahn was the lead author on a review of firearms laws and their effects in 2005. Hahn, et al., found the evidence of the effect of waiting periods on suicides was inconclusive and found insufficient evidence for determining the effectiveness on violent crime.[20] 

Earlier this year, the Rand Corporation published “The Science of Gun Policy,” a systemic review of firearm-related studies published since 2003. Rand’s methodology only allowed for studies that were designed to identify causal effects among observed associations between policies and outcomes.[21]

Rand identified no qualifying studies that estimated the effects of waiting periods on suicides.[22]

A single study on the effect of waiting periods on violent crime and intimate partner homicide was identified, but the evidence was determined to be inconclusive. Based “on this one study and an assessment of its strengths,” Rand found “nonconclusive evidence for the effect of waiting periods on violent crime generally or intimate partner homicide in particular.”[23]

Rand identified two studies that estimated the effects of waiting periods on mass shootings but deemed the evidence inconclusive. One study “found the length of waiting periods to have uncertain effects on the likelihood that at least one mass shooting occurred in a state.” The other “found a suggestive effect consistent with the passage of any waiting-period law increasing the incidence of mass shootings.” There were methodological concerns with both studies and so the evidence is inconclusive.[24] 

A more recent study by a trio of authors from Harvard Business School claims to have found that waiting periods reduce gun deaths by 17%.[25] Their model fails to incorporate controls for educational attainment, crime rates, police resources, and incarceration rates – controls used by virtually every other researcher studying firearms-related policy effects. This study did find that waiting periods reduce all homicides and suicides, as well as specifically firearms-related suicides but found that background checks increase homicides. The authors also found that poverty decreased firearm-related homicides, and that poverty, urban areas, and younger aged cohorts were not associated with total homicides. The model is obviously misspecified, but the “finding” was run across popular media with no mention of the effect of background checks.  

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