Guide to the
National Instant Criminal Background Check System
Metaksa, Tanya K
Q: How do the permanent and interim Brady
Act provisions differ significantly?
A: The Brady Act's interim provision will expire on Nov. 29, 1998, and its
permanent provision will take effect no later than Nov. 30, 1998. The
permanent provision mandates the establishment of a National Instant
Criminal Background Check System. NICS operation will be the responsibility
of the Justice Department.
The NICS system is intended to operate as a national version of the same
"instant check" criminal records check that many states have adopted to
exempt themselves from the Brady Act waiting period. NICS includes a
database of convicted felons and other persons prohibited from purchasing
firearms. When the system is contacted by a dealer or law enforcement
agency, it will check to ensure that gun buyers are not prohibited persons
under federal law. The methods used to contact NICS will vary in different
jurisdictions, depending on which state regulations are in place and whether
a state agency has volunteered to serve as a "pointof-contact" (POC) to the
system.
The interim provision of the Brady Act mandated a five-day waiting period
for all handgun purchases from a federal firearms licensee (FFL), while the
permanent provisions extend to both handguns and long guns sold at retail
and require an "immediate" response, within seconds or minutes, regarding
whether a firearms transaction is permitted to proceed. In some cases, if a
"delay" response is received by an FFL, the FBI has up to three business
days to investigate the situation. If the FFL does not receive a response
within those three days, the transfer may proceed.
States may qualify as alternatives to a dealer contacting NICS directly as
long as the state or local agencies conducting the checks include a check of
NICS as part of their own system. Finally, under the permanent provision of
the Brady Act, the law clearly states that NICS must destroy all records of
the system with respect to the call (other than the unique identification
number and the date of the transfer) and all records of the system relating
to the person or the transfer.
Q:How does NICS affect the state instant check systems?
A: Each state with its own "instant check" system may decide whether or not
to participate in NICS. The Attorney General is requesting every state to
participate in NICS and to designate a POC to perform NICS checks for FFLs.
Where states do participate and name a POC, the FBI says that it will not
charge state or local agencies a fee for using the system to perform NICS
background checks. Therefore, if a state is acting as a participating POC
check for NICS, then the federal "user" fee will not be charged by the FBI.
The benefit is that the state POCs will control the background check and may
or may not charge their FFLs a fee for that service consistent with their
state law.
Q: What are some of the exceptions to NICS?
A: According to its notice of proposed rulemaking, BATF intends to exempt
permits to carry concealed firearms as well as permits specifically
authorizing the purchase of a firearm from NICS if the following two
requirements are met: 1) the permit or license was issued not more than five
years earlier by the same state where a new firearms transfer is going to
take place and, 2) the permit was issued only after an authorized government
official verified that available information does not indicate that
possession of the firearm would be in violation of law. NRA strongly
supports right-tocarry permits serving as a substitute fox NICS, especially
since the laws in most states that issue carry permits already require some
form of background check. This exemption will also include
permits-to-purchase, giving states five years to configure their systems to
include an NICS check as part of the permit system. In addition, state
permits for the purchase of handguns will be acceptable for the purchase of
long guns as well.
Other exemptions to NICS concern purchases of firearms that are subject to
the National Firearms Act and purchases of firearms for which the Secretary
of the Treasury has certified that compliance with NICS is impracticable
because there are no more than 25 officers per 10,000 square miles of the
state and the premises of the licensee are remote and there are no
telecommunications facilities.
Q: Will NICS lead to the creation of federal gun registration?
A:
Both the Brady Act and the Firearms Owners Protection Act specifically
prohibit any records from being kept in a facility owned, managed or
controlled by the United States and prohibit the establishment of any system
of registration of firearms, firearms owners, or firearms transactions or
dispositions. The FBI has indicated, however, its intention to keep an
automated registration system of all personalized data and information on
all approved firearms transfers that go through an NICS check for a period
of 18 months. The FBI claims record retention is necessary to "audit" use of
the system, but its proposal amounts to a centralized registration system of
gun transactions and gun owners. This intended action is unlawful and must
be stopped by the U.S. Congress.
Q: What is NRA doing about ClintonGore Administration plans for a gun
registration system?
A: NRA resolutely has opposed the central registration of firearms and their
owners, and we fully intend to ensure that the NICS system be prevented from
establishing any such registry well before the implementation date. In our
comments to BATF's proposed rulemaking, we suggested that an independent
audit be conducted periodically to ensure Americans that the retention of
information and records run through the NICS is not being maintained, for
any purpose, unlawfully. Safeguards must be in place to ensure that the
privacy rights of gun dealers and gun buyers are protected.
NRA strongly supports H.R. 3949, which includes a provision in it making it
a crime for any U.S. government official, agency, employee or officer to
knowingly retain any instant check information on an approved firearm
transaction. Current law must be amended to ensure that all personalizing
information and records received by a federal agency regarding approved
firearms transfers must be purged from their centralized data collection
system immediately. Call your Congressman and ask him or her to co-sponsor
this important bill.
Q: Does NICS create an unauthorized federal tax on guns purchased after Nov.
30, 1998?
A:
The Brady Act does not authorize the FBI to charge any type of fee to eun
owners exercising their right to buy a gun. However, yet again the
Clinton-Gore Administration has attempted to twist the law into a pretzel
and impose a so-called "user" fee whenever an NICS check is conducted
directly by a gun dealer. The proposed gun tax is created by the FBI only,
and BATF has no control over the charging of the fee in this case.
The FBI creatively has interpreted a 1991 Appropriations Act for the
Departments of Commerce, Justice, State and the Judiciary, and Related
Agencies. This law was written well before the Brady Act was enacted, and
was never intended to become a tax on Second Amendment rights. The 1991
Appropriations Act permits the Director of the FBI to establish and collect
fees to process fingerprint identification records and name checks for
non-criminal justice, nonlaw enforcement purposes. The FBI may claim that an
NICS check is a non-criminal justice matter, but what is very clear is that
once again the most anti-gun Administration in history wants honest gun
owners to pay for the acts of criminals. Gun owners must stand up for our
rights and oppose the proposed Clinton-Gore gun tax.
Q: What is NRA doing about the NICS gun tax?
A: NRA has worked closely with Congressman Bob Barr (R-7th GA) who along
with pro-Second Amendment Congressmen Rick Boucher (D-9th VA), Lindsey
Graham (R-3rd SC), James Barcia (D-5th MI) and Ted Strickland (D-6th OH)
have sponsored H.R. 3949, the "No Gun Tax Act of 1998." This bill prohibits
any officer, employee or agent of the United States, including a state or
local employee or officer of the United States, from charging any fee in
connection with any background check required in regard to a transfer of a
firearm. S. 2128 by Sen. Ted Stevens (R-AK) also prohibits this gun tax.
Please contact your Congressman and Senators and ask them to co-sponsor H.R.
3949 and S. 2128.
Q: How are pawn redemptions and repair of firearms handled under NICS?
A: The waiting period in the interim provision of the Brady Act specifically
exempted pawned redemptions with the following statutory language: "other
than the return of a handgun to the person from whom it was received."
However, the instant check permanent provision of Brady as stated in Section
922(t) of the Gun Control Act did not include such exemption. This is a
significant statutory difference, and BATF has stated in its notice of
proposed rulemaking that an NICS check must be conducted for redemption of a
pawned firearm.
Presently, BATF counsel is considering whether or not to require an NICS
check to be conducted for the return of firearms that are being repaired by
a dealer/gunsmith or manufacturer. However, BATF's comments published in the
Federal Register simply state that NICS does apply to pawn transactions, but
it says nothing in regard to firearms that are submitted for repair. NRA is
opposed to any gun owner having to go through an NICS check for return of a
firearm after it has been repaired by a manufacturer, dealer or licensed
gunsmith. NRA has written BATF to request its position in writing and to
underscore our position that NICS should not apply to the return of a
firearm sent for repair.
Q: Is there a three-day mandatory waiting period under NICS?
A: In a majority of cases under NICS, responses (at least 80 percent) are to
be "immediate." The system is being designed to provide a response within 30
seconds. Most transactions, from the time the transaction is initiated to
the time an FFL receives a response, will take approximately two to three
minutes. There are three possible responses that can be received by a
dealer: "proceed," "denied" or "delay." Only in the case of a "delay"
response will the FBI need more time to obtain additional information
concerning a purchaser's record. Therefore, the law gives the FBI up to
three business days to obtain the necessary information, and after that
time, if no follow-up response is received, the transfer may proceed.
Obviously, if after the system is operational, it is determined that too
many lawful transactions are receiving a "delay" response, NRA will
investigate and take action accordingly. The FBI also plans to monitor usage
of the system daily to ensure that capacity is adequate, and expand the
capacity if not.
Q: Are curio and relics exempt from NICS?
A: If you hold a collector's license, you may purchase a curio or relic
firearm without having to undergo an NICS check. Persons other than licensed
collectors are subject to NICS on all retail purchases of firearms,
including curio or relic firearms.
Copyright National Rifle Association of America Aug 1998
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