Explore The NRA Universe Of Websites

APPEARS IN News

Clyburn Background Check Bill Would Flip Burden of Proof, Allow FBI to Indefinitely Delay Firearm Transactions by Inaction

Monday, March 8, 2021

Clyburn Background Check Bill Would Flip Burden of Proof, Allow FBI to Indefinitely Delay Firearm Transactions by Inaction

Should the government be able to deny your right to obtain a firearm, simply by failing to complete a mandatory background check? Anti-gun Rep. James Clyburn (D-S.C.) apparently thinks so.

On March 1st, Clyburn introduced H.R. 1446, the so-called “Enhanced Background Checks Act.” Under the bill, the FBI could indefinitely block federally licensed dealers (FFLs) from transferring firearms, simply by failing to provide decisions on the background checks FFLs are required to run on their customers.

Currently, federal law requires FFLs to run a background check on any unlicensed customer who wants a firearm through the National Instant Criminal Background Check System (NICS), administered by the FBI. The purpose of the background check is to determine if the intended recipient of the firearm falls into any of the statutorily defined categories of “prohibited persons.” If the intended recipient is not a prohibited person, the FBI has no discretion to deny the transaction for other reasons.

To initiate a background check, the intended recipient fills out a government form (known as a Form 4473) that contains identifying information about the individual. The intended recipient must also make a series of legally binding declarations on the Form 4473, attesting that he or she is not in any of the prohibited categories. The FFL then uses the identifying information to run the NICS check.

The federal background check law originally imposed a five-day waiting period for law enforcement authorities to comb through their records to determine whether an intended firearm recipient was a prohibited person. The law specified, however, that the waiting period would be phased out once the government established a computerized system for an instant, point-of-sale background check.

That system (NICS) came online in 1998. Since then, the government has poured millions and millions of dollars into ensuring the system is complete, reliable, accurate, and truly “instant.” Needless to say, computer technology has only become more sophisticated, reliable, and common during this time.

Obtaining a firearm for lawful purposes is, of course, a constitutional right. Therefore, if the government is going to deny that right, it bears the burden of proving the grounds for doing so. In the NICS context, this requires that the FBI must be able to locate a record of a disqualifying event in NICS, such as a criminal conviction or a commitment to a mental institution, before denying a firearm transfer.

Sometimes, however, a record is unclear, and the FBI will need additional time to research it. Currently, the law allows the FBI to delay a transaction for up 3 business days to research any ambiguities in the records. If the FBI fails to resolve the issue within that timeframe, the FFL has the option (but not the requirement) of transferring the firearm to the intended recipient, so long as there is no reason for the FFL to believe the person is prohibited from receiving or possessing it. These transactions are known as default transfers.

Even in the case of a default transfer, however, the FBI will continue its attempts to resolve the question of the recipient’s eligibility. If it later determines the individual was, in fact, prohibited, the FBI will refer the matter to the BATFE so attempts can be made to retrieve the firearm.

This ensures the burden of proof always remains on the government to affirmatively deny a transfer. If it doesn’t, the transfer can proceed after the government has been given a set timeframe to build its case.

Under Clyburn’s bill, however, there would no longer be a set timeframe under which the FFL could proceed with a transfer if the FBI failed to give a definitive answer to a NICS check. An unresolved delay would become a presumptive prohibition on the transfer, even if the FBI never identified a disqualifying record.

Instead, the intended transferee – who already filed the Form 4473 with the FFL – would have to file a second petition with the government making the exact same declarations of eligibility and, once again, asking the FBI – pretty please this time -- to rule on the matter.

But what would happen if the FBI didn’t resolve the follow-up petition?

In that case, the Clyburn bill would require the FFL to wait at least 10 additional business days from the date the intended recipient filed the petition to consider making a default transfer. How the intended recipient is supposed to prove to the FFL the petition was even filed in the first place is not specified.

The bill, however, would eliminate the current automatic default transfer option for the FFL. If the intended recipient didn’t file the follow-up petition, and the FBI didn’t resolve the NICS check, the transfer could NEVER proceed.

This flips the burden of proof and makes the RIGHT to obtain a firearm a process in which the intended recipient might have to repeatedly beg, including at the NICS stage, again at the petition stage, and yet again with the FFL if the petition is never answered and the mandatory 10 day waiting period expires.

At no time, however, does the FBI actually have to point to a disqualifying record to block the transfer. Simply claiming, “We don’t know” would be enough to shift the burden of action to the intended recipient.

We of course would like to believe the FBI will act on all NICS requests professionally and will make good-faith efforts to correctly and promptly resolve any delayed checks.

But anybody who has been paying attention to the news for the last several years unfortunately cannot discount the possibility that politics or ideology has the same potential to affect the FBI as it does any other governmental institution.

One thing is for sure, though. The FBI currently has the pressure of the 3-day default transfer option to provide a serious incentive in swiftly answering NICS checks.  

Under the Clyburn bill, that incentive would disappear. The FBI could simply wash its hands of definitively resolving a check, secure in the knowledge that the transfer could not occur unless and until the intended recipient decided to make an issue of it and to wait the minimum 10 days. The presumption would otherwise ALWAYS go against the buyer.

That’s not how constitutional rights are supposed to work.

Which is why only a gun control advocate who denies the individual right under the Second Amendment could in good conscience support H.R. 1446.

IN THIS ARTICLE
Waiting Periods James Clyburn
TRENDING NOW
Colorado: Mandatory Storage Bill Passes General Assembly and Semi-Auto Ban Temporarily Removed from Calendar

Tuesday, March 26, 2024

Colorado: Mandatory Storage Bill Passes General Assembly and Semi-Auto Ban Temporarily Removed from Calendar

In a temporary reprieve for Colorado gun owners, the semi-auto ban HB24-1292 has been removed from the calendar. But we cannot let our guard down as gun control advocates can bring it up for a vote at ...

The U.S. Supreme Court Looks at Government “Blacklists”

News  

Tuesday, March 26, 2024

The U.S. Supreme Court Looks at Government “Blacklists”

Much of the attention this past week in the United States Supreme Court was the oral arguments in National Rifle Association of America v. Vullo, No. 22-842, a First Amendment case on whether government officials ...

25 years and one PLCAA Later, Chicago is Still Harassing Gunmakers

News  

Tuesday, March 26, 2024

25 years and one PLCAA Later, Chicago is Still Harassing Gunmakers

On March 19, the city of Chicago filed suit against handgun manufacturer Glock. Seeking to shift responsibility for the city’s woeful governance, Chicago’s lawsuit blames the popular firearm manufacturer for the third-party criminal misuse of ...

Washington: Governor Signs Anti-Gun Legislation

Wednesday, March 27, 2024

Washington: Governor Signs Anti-Gun Legislation

Today, Governor Inslee signed five anti-gun bills into law that were recently passed by the Washington State Legislature. The bills include:

Colorado: Semi-Auto Ban Passes Committee and Sensitive Places Bill Hearing Rescheduled for Today!

Wednesday, March 20, 2024

Colorado: Semi-Auto Ban Passes Committee and Sensitive Places Bill Hearing Rescheduled for Today!

Yesterday the House Judiciary Committee held a hearing on House Bill 24-1292, the semi-auto ban, that lasted over 12 hours where hundreds of patriotic Coloradans overloaded the committee with opposition testimony. The hearing concluded with an ...

NRA Files Amicus Brief Asking Supreme Court to Hear Antonyuk v. James

News  

Second Amendment  

Monday, March 25, 2024

NRA Files Amicus Brief Asking Supreme Court to Hear Antonyuk v. James

In response to the NRA’s victory in Bruen, which secured every American’s right to carry arms, NY passed the “Concealed Carry Improvement Act,” severely restricting carry throughout the state. The 2nd Circuit upheld many of ...

Pennsylvania: Senate Committee Passes Full Inclusion Sunday Hunting

Wednesday, March 20, 2024

Pennsylvania: Senate Committee Passes Full Inclusion Sunday Hunting

On Wednesday, the Senate Game & Fisheries Committee voted 7-4 to pass Senate Bill 67 to the Senate floor for a vote. 

California: DOJ Proposes Emergency Rule that Reauthorizes NRA Instructors

Wednesday, March 27, 2024

California: DOJ Proposes Emergency Rule that Reauthorizes NRA Instructors

On Monday, March 25th, the California Department of Justice published an emergency rulemaking package proposing to amend the Carry Concealed Weapons DOJ Certified Instructors regulations. Under the proposed rulemaking, NRA Certified Instructors would once again ...

Grassroots Spotlight: Michigan Grassroots

Take Action  

Tuesday, March 19, 2024

Grassroots Spotlight: Michigan Grassroots

It's been a busy start to the year in the Wolverine State, as the Michigan NRA-ILA Grassroots Team has been out alerting and educating members and supporters on the critical changes in gun laws and working to stop ...

Kentucky: Credit Card Data Privacy Bill Passed Into Law

Tuesday, March 26, 2024

Kentucky: Credit Card Data Privacy Bill Passed Into Law

Today, Governor Andy Beshear let HB 357, the Merchant Category Code ban legislation pass into law without his signature. Your NRA would like to thank Representatives Derek Lewis (R, H-90), Michael Meredith (R, H-19), and Senator ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.