Getting the Language Right : Background Checks and Balances

We have a national background check system.  The FBI is responsible for it.  It is a legal requirement for every Federal Firearms License holder (FFL - aka: "gun store") use it.

It's the National Instant Criminal Background Check System, but most people just call it NICS.

Here's the annual report for 2014.  I'm not sure the 2015 report is out yet.

Here's how it works.

You go into a gun store to buy a gun.  You fill out a form called a 4473.


If a gun store sells you a gun without making you fill out a 4473, they are committing a crime.

The FFL checks your valid photo ID, and puts in a request to NICS using the information you provided on the 4473.

Over the next few minutes-to-few-days, one of three things happens.

1) NICS responds with a "Yes" and the FFL is legally permitted to sell you the gun.

2) NICS responds with a "No" and the FFL is legally obligated to cancel the sale.

3) NICS responds with a "Wait" and the gun store owner waits up to 3 days for either "Yes" or "No".  After those three days are over, without a response from NICS, the FFL is legally permitted to sell you the gun, at their discretion.

In the first case, your record, as far as NICS knows, is totally clean.

This is what happened in the case of Seung-hui Cho.  Legally he should have been barred from purchasing weapons from an FFL dealer since he had been declared mentally ill and faced a commitment hearing in front of a Virginia district court.

NICS didn't know that, because Virginia law on mental illness reporting has a hole in it.  Virginia law only requires reporting due to an involuntary commitment, and he was instead ordered to undergo outpatient treatment at that hearing.  So NICS never received a notification, even though the federal law requires one.

In the second case, as far as NICS knows, there is something on your record--placed there as a result of a court-date of one kind or another--that bars you from owning a firearm.

In the event that is an error, you can appeal to have your NICS record corrected.  Which is good.  People who have common names often find flaws in their records when it comes to population-spanning databases.  A system of redress to reinstate access for people who deserve it is important to any just implementation of any law.

Note: it is illegal to lie on a 4473, but law enforcement does not commonly follow up on this crime, for a variety of reasons.  So what usually happens is the gun store says "we can't sell you this" and then the person just leaves the store, even if they knew they should be barred from owning a firearm and lied on the form hoping that NICS didn't have good records.  The gun store isn't really in a position to restrain them.  It's unfortunate and I'd like to see more resources put into catching these people.

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In the third case, there is something about your record that NICS doesn't know and it takes them too long to find the answer, because there is a 3 day time-limit imposed by federal law (It's a clever check on federal power--it keeps the Federal government from manufacturing a useless de-facto waiting period or temporary ban by stalling all record releases for as long as they want).

The result is called a "default proceed" and it's how Dylann Roof picked up the Glock pistol he used in the Charleston shooting, despite having a confession on his record that should have barred him from purchase.  The record wasn't filed correctly, and the response to the request took too long to reach NICS.

It takes NICS an average 25 days to get back whatever additional information they need to complete the record.

So by the time NICS figures out that there is something on the books barring that purchaser from buying a firearm, it has probably already been purchased.   They then send a "Firearms Retrieval Referral" to the ATF who has to go try to collect the gun.

So what happens during a NICS check for one of the 100,000 people on the No-Fly list, or the 90,000 Americans on the "Terrorist Watch List"?  Nothing.

Those lists include many, many names erroneously.  There's no judicial oversight and no pressure to remove names, or even a reasonable system for protesting your placement there.

Hell, someone at the FBI could decide they don't like this essay and add my name and I would have no legal recourse to correct that.

So when someone on one of those lists tries to buy a gun, NICS checks if there is any reason to keep the person from purchasing a firearm.  And, because of the 5th amendment guaranteeing due process, for that reason to count--it must involve a court of law at some point.

No reason?  You get a "Yes" and can buy your gun.

This is what the Republican bill called the "Cornyn amendment" was going to address.  It would have given the FBI a legal avenue to approach a judge as if they were requesting a warrant as soon as the NICS request for the purchase came in

The FBI would go to the judge and say "hey, we are in the middle of an ongoing investigation about this guy.  We believe he's dangerous, here's why.  Stop this sale." and the court could exercise their judgement based on the presented evidence and write a stay.  In which case NICS would have had a legal reason to reject the sale inside of the 72 hour window even though there wasn't anything on the person's official record.

It sounds like "common sense gun law" to me.  It's the law that Democrats voted against so that they could vote instead for a bill that violated due process, which I am thankful to say was voted down by Republicans.

This resulted in zero forward movement on the FBI's options when facing a default proceed situation with a suspected terrorist.  Because the Democrats didn't like the fact that the judicial system was going to have a check on the power of the executive branch to randomly deny the rights of American citizens.  It is my believe that if you identify as Democrat, that should trouble you, immensely.

Ok, back to NICS.

 Let's talk about the numbers, because I recently stumbled across the 2014 NICS operations report.

NICS processed 21 million requests in 2014.

It denied 90,000 of them.

Approximately 19 million of the determinations were immediate (Less than 2 minutes before the record determination was returned to the FFL after receiving the 4473).

Of the 2 million non-immediate determinations, there were 2,511 cases where they sent a Firearms Retrieval Referral to the ATF.

So, overall, the system is doing pretty well on the majority of cases.  But it has three big problems.

The first problem is
: Not all the states report everything correctly to NICS.  Some records are out of date, some are just not getting sent at all.  Some are cases like Virginia where the state laws and the federal laws don't line up correctly.  Who knows how many more of the 19 million "Yes" responses would be "No" if the records were correct?

Additional funding, guidance, and pressure from the White House (since NICS is an FBI project, which is part of the DoJ, which is a part of the executive branch) could help get the state records in line, online, and improved.

Weirdly, we passed a law about this back in 2007, which Bush signed into law.  It promised over a billion dollars in funding to NICS and to the states that needed to update records keeping databases.

Then we sat on the money.

There's a lot of reasons we sat on the money, and they're all bad.

Pro-gun-control Democrats sat on the money because they knew that their voters weren't keeping a close eye on the appropriations board decisions, so as long as they voted in favor of the law, it didn't matter whether they actually funded it or not.  Republicans sat on the money once our new president took office because it didn't jive with their goals of strangling any effort run through the executive branch, no matter how legitimate.

My least favorite reason is an allegation that NRA lobbied against releasing the funds so that NICS would continue to look "flawed enough" that they could argue against extending NICS to private sales.  I'm against mandating a universal background check on private sales, for a lot of reasons that I'll address in a future essay, but keeping NICS handicapped in order to achieve that aim is the wrong approach.  If the allegation is true, it's despicable, and the people at the NRA that hatched that plan are going to go to the special hell.

This was the topic of that other Republican bill the Democrats voted against last week.  It would have allocated more money, plus put more pressure on appropriations to release the money, and more pressure on the states to use it.

Unfortunately, that one failed too.  Shot down by democrats because it didn't mandate universal background checks, which were shot down by Republicans.

Now, I'm against Universal Background Checks.

Next time I write, I'll get into what the problem is with a UBC system, and what we can do to get closer to a world where a private citizen doesn't accidentally enable a mass-murdering fuckhead.

In the meantime, I'd like you to take a few moments and consider whether or not these two bills that were voted down last week sound like "common sense gun law" to you.

They do to me.

If you're a gun-control advocate, understand that hijinks like this week are why no-one on my side of the problem believes you when you try to insist that you're in favor of "common sense gun regulation"

Thursday, June 30, 2016