System Break Down? Fall Back on the Constitution

National Instant Criminal Background Check System NICS
National Instant Criminal Background Check System NICS

When the system and laws break down, Americans must fall back on their State Constitutions and the U.S. Constitution.

The Constitution represents the trunk of the tree of government and laws, with state constitutions, statutes, and regulations branching off of it. If there is ever a fault or failure in these branches, the natural path is to bypass the problem branch and return to the Constitution. In the current Chinese coronavirus scare, we see examples of various “non-essential” government agencies going to skeleton crews or shutting down entirely. Some of these agencies that are cutting back play a role in the convoluted process and many paperwork hoops that lawful firearm purchasers are required to jump through. That’s a problem.

U.S. Code says that if a National Instant Check System (NICS) criminal background check on a gun purchaser turns up some information indicating that the buyer might be a prohibited person, but the system can’t verify the information, then the file is kicked out of the computer to a human to investigate further, and a “Delay” order is sent to the dealer selling the gun. Under the law, NICS has 3 business days to resolve the question, before the dealer may proceed with the transfer. Some dealers refuse to ever do transfers without a green light from NICS, while most automatically complete transfers after 3 business days.

In the midst of the panic and confusion caused by China’s COVID-19, the FBI, which operates NICS, has sent out a directive to gun dealers, warning them that the “3 business days” allotted for investigation of “Delayed” reports, means 3 days during which all of the various repositories of information that a NICS examiner might call upon to clear-up a question, are open. That means that the closures and skeleton crews mentioned above are making it difficult for NICS examiners – if they are even still working – to do their job, and that gun dealers are supposed to refuse to process any transfer until the government gets its act back together and everyone gets back to work.

This is totally unacceptable.

Gun Shop Closed
The closures and skeleton crews mentioned above are making it difficult for NICS examiners – if they are even still working – to do their job, and that gun dealers are supposed to refuse to process any transfer until the government gets its act back together and everyone gets back to work.

The 3-day limit was included in the law as a fail-safe, specifically to prevent the government from being able to block firearm sales via bureaucratic inaction or computer glitches. The definition of “3 business days” has always been Monday through Friday, not including federal holidays.

It is outrageous and indefensible for the FBI to be redefining this term now.

At the time the “Instant Check” compromise was worked out between the NRA and Congress, as an alternative to the 5-day waiting period mandated by the Brady Bill, we opposed the whole concept, but if the bill was going to pass, we were pushing for the best deal possible, including a provision that offered more protection to dealers and gun buyers. Our version of this transfer option would have required NICS to automatically send out a “Proceed” notice to a dealer after 3 business days or 5 calendar days, whichever was shorter. There would have been no discretion left to dealers as to whether or not to transfer the firearm and no negative repercussions for dealers doing so. While that’s still not a perfect solution, it would have provided more legal and PR protection for dealers, and a stronger guarantee for people exercising their right to arms.

Of course, our compromise on the compromise wasn’t adopted and instead, we got “Instant-Check” language that provides that a dealer may transfer the firearm after 3 business days, and the FBI’s reinterpretation turns that on its ear, making the “Delay” indefinite.

Similar chicanery is occurring in states that run their own checks, rather than relying on the FBI’s NICS system, and among state and local agencies that issue concealed carry licenses and permits. As with the FBI, processing background checks and license paperwork appears to be a low priority for many of these agencies, and the response from the agencies and the politicians that oversee them has been abysmal. They simply don’t care. They don’t care that it’s a constitutionally protected right. They don’t care that their bureaucratic indifference could cost someone their life. They don’t care that the red tape is unfair, racially-biased, and discriminatory. They just don’t care at all.

Meanwhile, around the country, dozens of petty dictators, in the form of governors and mayors, are issuing “shelter-in-place” orders, requiring “non-essential” businesses, like gun stores, to close their doors, and in some cases, claiming the authority to legally prohibit the sale of guns, ammunition, gasoline, liquor, and other “dangerous” items. So far, no one has offered up any rational explanation for why such restrictions might be needed or how they would assist in preventing the spread of COVID-19.

Some patriot-gun shops in California, Illinois, Pennsylvania, and probably other states, have refused to close their doors, in spite of orders from politicians and police to do so. As of this writing, there have been no serious confrontations, but seeds have been planted and things could easily get ugly in a hurry.

The really frustrating part of all of this is that there is a simple and obvious solution: Obey the Constitution.

Gun owners are constantly being berated by gun control advocates and the media for not being “reasonable” and accepting “minor inconveniences” in the form of additional restrictions on firearm ownership rights. Well, the laws that are currently on the books, which law-abiding gun owners follow every day, are examples of gun owners being reasonable and compromising. And the current blocks, delays, and bans in the name of protecting society from a germ, are examples of why we resist all of these “minor,” “reasonable,” “commonsense” gun control laws that they keep throwing at us. They’re not minor, reasonable, or commonsense. They’re infringements on our rights, and they cause the most harm at the worst times.

Many supporters of “reasonable” gun control laws in California have begun to realize just how unreasonable those laws really are, but they’ll probably reelect the same politicians who gave them those laws, come November.

In our constitutional republic, the default position for any law or regulation is always supposed to be to the benefit of the individual, not the government, and the burden is always supposed to be on the government, not the individual. This is especially true when dealing with enumerated rights. If we allow the government to institute some laws that encroach on our rights, it is the government’s obligation to ensure that they do so in the most limited way, and it is the government’s burden to meet. If they cannot meet their burden, the process must default to the benefit of individual rights, not the convenience or preference of the government.

In Arizona and many other states, the governor has declared that people with drivers licenses that are expiring, will be given a grace period and their licenses will continue to be recognized as valid for a yet-to-be-determined period. The same sort of blanket extension should apply to all concealed carry licenses and permits, and all firearm owner ID cards and purchase permits in states that require them. If government agencies are unable or unwilling to fulfill their responsibilities in processing firearm and ammunition sales, then those restrictions and regulations are null and void. As to any suggestion of forcing gun stores to close, or banning the sale of firearms or ammunition, such notions should be roundly rejected as blatantly unconstitutional, and immediately quashed by the courts.

The Firearms Coalition is in discussions with attorneys and legal scholars to determine the most expedient way to force a stop to this government neglect, overreach, and duplicity.
A right delayed is a right denied. Saying “We don’t have the personnel,” is not an acceptable excuse for withholding fundamental rights.