During this time of crisis, Americans are concerned for their safety, and record numbers have turned to their Second Amendment rights to keep and bear arms. Food, water, shelter and medical care are paramount for survival, but so too is the ability for an individual to defend his or herself, their family, as well as their home, business and property. The National Shooting Sports Foundation (NSSF) is aware the COVID-19 crisis is creating increased firearms demand that is straining the National Instant Criminal Background Check System (NICS) resources.
This has some concerned. Several U.S. senators, all of whom have espoused stringent gun control demands in the past, sent a letter to the heads of the FBI and Bureau of Alcohol, Tobacco, Firearms and Explosives urging them to issue “emergency guidance” to federally-licensed firearms dealers. These senators are asking government officials to refuse transferring firearms due to delays instead of providing these agencies the resources they desperately need to manage the surge in firearm background checks. That’s right. These senators want to slow gun sales, but not provide extra funding for law enforcement agencies even after they passed a $2 trillion federal aid package.
While we recognize the challenges facing NICS, we reject arguments by these senators backed by gun control groups that NICS and ATF should exceed their lawful authority and impose policy changes that extend beyond current law.
Resources vs. Restrictions
There is also a sense of frustration among federally licensed firearm retailers that there is not enough communication and guidance being provided to them so they can operate within all applicable laws and regulations during this unprecedented situation.
Presently, it is difficult for NICS examiners to investigate the small percentage of overall NICS checks that result in a “delay,” where an immediate determination cannot be provided. In such cases, the Brady Act gives NICS three business days to research the transaction after which the retailer has the discretion whether to transfer the firearm provided state offices were not closed for a holiday during the three business days. Currently, NICS is providing retailers with transfer dates that are weeks, sometimes over a month, from the date the check began even though state offices are open, albeit working remotely or with reduced staff. This appears to violate the Brady Act and creating uncertainty and confusion among retailers and their customers exercising a constitutional right.
Recommended
NSSF has shared NICS communications with retailers regarding the strain on the background checks system. They know they may choose, as always, to decline a sale without an affirmative “proceed” NICS response. However, without an Act of Congress, it is inaccurate to state that transferring a firearm after the three-business day period is illegal, as the senators suggest. Congress wrote the law. Congress is the only one that can change it, as much as virtue-signaling senators would prefer to shirk that responsibility by signing letters.
The guidance that would most help the retailer community right now would be to fully explain how the Brady Transfer Dates are being calculated in accordance with the law and what the recommendations are for situations in which the transfer dates are farther out than the 30-day period for which the NICS check is valid.
NSSF urges ATF and NICS to reject politically motivated pressure to exceed statutory authority and promulgate regulations with no legal authority, or to pull resources away from core functions of protecting public safety in order to issue reports in one week to Congress on background checks, as the senators request. The senators also call upon NICS to violate existing law and extend the records retention beyond 90 days for NICS checks. NICS does caution on its website that “if the FFL transfers the firearm, the FFL must mark ‘No resolution was provided within three business days’ on line 21d of the ATF Form 4473.” Issuing an emergency directive that runs counter to existing regulations would be a violation of the Administrative Procedures Act.
We understand the challenges facing ATF and NICS during this crisis. NSSF is advocating for Congress to provide ATF and NICS with the enhanced resources each needs to comply with the law, including the three-business day transfer date stated in the existing law and regulation. NSSF was the leading voice urging support for the bipartisan Fix NICS Act signed into law by President Donald Trump. The law was named after NSSF’s successful FixNICS® campaign that has changed the law in 16 states to submit to NICS disqualifying records establishing that someone is a prohibited person under current law. NSSF’s efforts have resulted in an over 240 percent increase in disqualifying mental health adjudications submitted to NICS helping to keep firearms out of the hands of the dangerously mentally ill.
Now is the time to provide more resources for NICS and ATF. It is not the time to divert limited existing resources to suit the requests of those with alternative agendas.
Industry’s Safety Commitment
The firearm and ammunition industry is more dedicated than ever to ensuring the safe and legal purchase, use and storage of our products. NSSF is reaching out to new gun owners, as well as the existing firearm-owning community, through articles that review the rules of firearm safety and secure storage, and through video messages and interviews that emphasize the resources new owners should be aware of and rely on.
For decades now, manufacturers have included a free locking device with every new firearm shipped from the factory. In addition, NSSF, on behalf of our industry and through our award-winning Project ChildSafe® campaign, has distributed at no cost over 38 million firearm safety education kits that include a cable-style gun lock to more than 15,000 law enforcement partners in all 50 states and U.S. territories for distribution into their local communities. Combined, these two efforts have put over 100 million free locks in the hands of gun owners.
NSSF also works to support legislation such as the bipartisan FFL Protection Act (S.1788/H.R.2179), which would strengthen and enhance criminal penalties for thefts of firearms from licensees, and build on Operation Secure Store®, our partnership with ATF to match reward offers for such thefts and to educate firearm retailers on the steps they can take to reduce the chance that guns will be stolen from them during a burglary or robbery.
In addition, NSSF is working to help keep open shooting ranges, with appropriate social-distancing measures in place. Both public and private ranges are essential to public safety, as they are where firearm safety education is taught to new and inexperienced gun owners. Ranges are also where law enforcement officers typically train to be proficient with their duty firearms and where members of the military train before they deploy to defend our nation.
The firearm and ammunition industry is present in every community. The focus is ensuring that families can focus on what’s important right now: following government guidance to help stop the spread of this deadly virus. The last thing Americans should be worrying about is how to make sure they are physically safe against crime. NSSF urges groups attempting to use this crisis for their political gains to instead follow the firearm industry’s lead in asking Congress to devote more resources to NICS.
Lawrence G. Keane is the Senior Vice President and General Counsel for the National Shooting Sports Foundation, the firearm an ammunition industry trade association.
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