by Bob Barr
For more than two decades, the system codified in federal law for ensuring that persons prohibited from possessing a firearm are not able to lawfully acquire one from a licensed firearms retailer has worked reasonably well. Since 1998 when the National Instant Criminal Background Check System, or “NICS,” became operational, the FBI has completed hundreds of millions of background checks on prospective gun purchasers; 28.4 million last year alone.
For some reason, however, the FBI recently has taken to playing games with NICS, and by bureaucratic fiat ignoring or overriding an important provision in the law. Neither firearms purchasers nor retailers should stand for such skullduggery.
The provision at issue is that which permits the FBI to place what amounts to a “hold” on a prospective firearm purchase, in order to allow the Bureau time to determine if a particular purchaser falls within one of the several categories of persons not permitted to possess a gun. Under the law establishing NICS, with the FBI as the “go-to” agency, that temporary “hold” is strictly limited to “three business days.”
While the vast majority of inquiries submitted to the FBI each year by firearms dealers (Federal Firearms Licensees or “FFLs”) are approved or denied almost immediately (hence, the “instant” check system), occasionally there are those that raise questions, and in each such instance, the FFL is notified and the statutorily allowed “three business day” period begins to run. If the dealer does not receive a denial within that window, the dealer is permitted at its discretion to allow the purchase (or “transfer”) to proceed.
The three-business-day hold period is clearly defined as days in which “state offices are open” in the particular state where the transaction is taking place. This particular language was designed so as not to box the FBI into having to resolve the potential problem with a purchaser’s background on a Friday right before a three-day state or federal holiday. For the past 22 years this has been the common understanding. Until now, that is.
Since the announcements over the past several weeks of federal and state-level COVID-19 “state of emergency” decrees, during which many businesses and public events are closed, FFLs have been receiving notices from the FBI that certain transactions are delayed not for three business days, which is the maximum the law allows, but for 30 days or even longer.
Although the volume of requests to NICS during the current pandemic is unprecedented and places a strain on the Bureau’s staff in meeting the requirements of the law, there is no provision in federal law permitting the Bureau to extend any purchase “hold” beyond three business days.
The FBI may be interpreting the pandemic-based emergency decrees in effect in every state as constituting days in which state government offices are not “open.” If so, this is a subterfuge. State offices in all 50 states remain open, albeit under limiting guidelines set by the federal government and by individual state governors.
Businesses that receive notices from the FBI declaring planned firearms purchases are delayed for extended periods beyond the lawful maximum three business days are put in a delicate position. While such notices clearly are inconsistent with the law, if the retailer receiving one allows the sale to go forward after three business days – as the business is permitted to do lawfully – and the FBI later notifies the retailer that the buyer is in fact a prohibited person, it doesn’t take a rocket scientist to foresee potential legal issues looming.
Moreover, NICS checks are valid only for 30 days, so a retailer who obeys a 30-day (or even longer) hold and receives no denial during that time, places the purchaser in the position of having to come back and start the process all over again in a potential never-ending loop.
The director of the FBI should step in and stop this bureaucratic skullduggery, and if he will not, the Attorney General should. Anti-gun state and local government officials are trying every trick in the book during this pandemic to deny law-abiding citizens the ability to exercise their rights guaranteed by the Second Amendment. Americans do not need bureaucrats at the FBI making it even more difficult.
Bob Barr represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.