Last month Republicans — and a few Democrats — passed SB 41, a bill removing the state’s pistol purchase permit process, among other modifications to gun laws. The bill made it through after a failed attempt to pass similar legislation in 2022. Governor Roy Cooper vetoed it but Republicans were able to override, thanks to the absence of several Democratic House members.
Republican State Senator Danny Britt, who sponsored SB 41, had called the existing law an unnecessary impediment to lawful gun owners, pointing to the existing federal background check, the National Instant Criminal Background Check System (NICS).
Republicans in the legislature also suggested the law, born in and of the Jim Crow era, had been used to deny Black residents their Second Amendment rights — although that argument didn’t land well with the Raleigh-area NAACP.
Democratic legislators decried the move, as did Governor Roy Cooper. Democratic Attorney General Josh Stein said it would make communities less safe from violent criminals and domestic abusers.
So, how — and how well — did the state’s pistol permit system work? How different was it from NICS? And, a century after it was put on the books, was it racist?
Rejections under the state permit
The pistol permit law required Sheriffs’ Offices to keep a record of applications; about a decade ago, that was limited to just denied applications, excluding any name or identifying information, and listing the denial date and the statutory reason for the date.
In New Hanover County, between the beginning of 2021 and the repeal of the law this year, there were roughly 10,700 applicants who submitted over 18,000 applications (people sometimes apply for more than one permit). Of those, just over 500 applications were rejected, according to data provided by the New Hanover County Sheriff's Office (NHCSO).
Many of those rejections were for criteria similar to that used by NICS. But the federal background check isn’t perfect. Critics note that while every state participates in the program, it’s voluntary, and it relies on the completeness and timeliness of data submitted by a whole host of organizations.
“It’s up to local police, sheriff’s offices, the military, federal and state courts, Indian tribes and in some places, hospitals and treatment providers, to send criminal or mental health records to the National Instant Criminal Background Check System, or NICS, but some don’t always do so, or they may not send them in a timely fashion,” PBS Newshour reported in 2018.
The New York Times reported on similar issues last summer. Delayed reporting can be an issue if someone commits a disqualifying crime, but the records don’t make it into the tracking system before they apply for a permit (or, worse, if the records are never submitted at all).
NHCSO spokesperson Lt. Jerry Brewer noted that a lot of permits were rejected because the applicant had a felony. That should be a redundant concern, since NICS checks for felonies.
“A lot of them had felonies in their background. You know, so they were trying to purchase a pistol and have felonies, which is against the law. I've been told that the federal government is supposed to catch that. But for we all know there's issues that can come up when you start to broaden a search,” Brewer said.
'Moral character'
In addition to catching red flags that might fall through the cracks of the federal system, the Sheriff’s permit check caught things that aren’t included in a NICS check.
A lot of those fell under a provision of the law that allowed Sheriffs to reject permits on the basis of moral character, based on the “conduct and criminal history for the five-year period immediately preceding the date of the application.”
Over the last several years, roughly 12% of the permit applications were rejected on moral grounds by NHCSO: 25 permits in 2021, 30 in 2022, and 6 in 2023 up until the repeal of the law. According to data from the Brunswick County Sheriff’s Office, moral character was the reason for about a third of rejections: 15 of 45 in 2021, 12 of 34 in 2022, and 2 of 6 in 2023.
Brewer said the moral character category was a “real broad brushstroke,” but “allow[ed] your local sheriff to look into your background, look into your character in the community.”
One example Brewer gave was people attempting to make straw purchases, a notorious loophole in NICS background checks where someone ineligible for a gun purchase by federal standards simply finds someone with a clean record to buy the gun (or guns) for them.
“I know recently we denied a woman who had applied to get a pistol purchase permit. And she had no issues in her background. But her live-in boyfriend was a validated gang member with a felony — so she was denied,” Brewer said. "And that’s what you get with a local sheriff looking into it that a national check is not necessarily going to give you.”
Brewer also noted violence towards animals or domestic violence charges. These are crimes that don’t always involve felony charges, let alone convictions, but may indicate to the Sheriff’s Office a propensity towards violence that would make an applicant unsuitable.
For people who had their application rejected, there was a recourse to appeal through the court system — although Brewer said he was not aware of any appeals in recent history.
Race and background checks
In February, when the North Carolina Senate passed SB 41, Senate leader Phil Berger’s press shop cited a critical 2021 review of the state’s pistol permit process from the North Carolina Law Review.
Berger’s release quoted the review’s executive study, which found, “the permitting system is ripe for abuse by allowing denials for subjective ‘good cause.’ This subjective criteria for denial is suspect since Black applicants are rejected at a rate near three times as high as White applicants.”
However, there was a more nuanced passage from the body of the review, not cited by Berger, which noted, “while this data is certainly striking, the conclusions from it are limited. Without further research into the reasons for permit denials broken down by race, as well as data from all counties in North Carolina, definitive conclusions regarding racial biases present in the modern permit system are speculative.”
But, while some dismissed Berger’s claims of righting a racist wrong as disingenuous, there are parts of the permit law that may have given those on the left some pause. In particular, there has been criticism of gang validation, an NICS criteria — and, as in Brewer’s example, a possible reason for rejection under the now-repealed North Carolina pistol permit application.
Gang validation allows law enforcement agencies to designate individuals based on a host of factors. Gang membership is not actually illegal in and of itself — but it’s difficult to contest being ‘validated,’ and the status can lead to more severe sentencing if convicted of a crime. It’s also been used as the basis of civil actions, known as ‘gang injunctions,’ including one issued by District Attorney Ben David in Wilmington that prohibited a list of 23 gang members from congregating in public.
All of this has been protested by local and national organizations, including the ACLU, which challenged David’s injunction in court as racially biased and unconstitutional. In 2019, David allowed the injunction to expire, claiming he’d accomplished his mission; the ACLU declared victory over the “deeply problematic measure.”
After the repeal of North Carolina’s pistol permit law, the ‘moral character’ argument linking the woman from Lt. Brewer’s example to the person in all likelihood seeking the gun is no longer valid. The woman would now be able to purchase a handgun, effectively defeating NICS and putting a deadly weapon in the hands of a potentially violent offender. For both gun-control advocates and law enforcement, that’s clearly a bad outcome.
But, while straw purchases are a clear weakness of NICS, it's less clear if the racial bias cited by Berger at the state level would still be a concern with a federal firearms check. Because NICS is largely black-boxed, it’s hard to say what role gang validation, and by extension race, has in federal background check rejections — or whether racial disparities exist. With the exception of one blog post from U.C. Berkley in 2018, there doesn’t seem to be much public discussion of the issue.
