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
Prohibitionists Seek to Weaponize Yet Another Federal Agency to Target Guns

News  

Monday, February 6, 2023

Prohibitionists Seek to Weaponize Yet Another Federal Agency to Target Guns

Ambitious gun control advocates have long sought a “whole of government approach” to stamping out the right to keep and bear arms. This involves weaponizing not just the ATF and FBI against gun owners and ...

Updates to ATF Final Rule on Stabilizing Braces

News  

Monday, January 30, 2023

Updates to ATF Final Rule on Stabilizing Braces

On Monday, January 30, the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) published the final Factoring Criteria for Firearms with Attached “Stabilizing Braces” rule for public inspection in the federal register.

ATF Posts “Final” Rule on Stabilizing Braces

News  

Tuesday, January 17, 2023

ATF Posts “Final” Rule on Stabilizing Braces

On Friday, January, 13, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) posted the “final” Factoring Criteria for Firearms with Attached “Stabilizing Braces” rule to its website.

Biden-Appointed Judge Issues PI against New Jersey Anti-Gun “Public Nuisance” Law

News  

Monday, February 6, 2023

Biden-Appointed Judge Issues PI against New Jersey Anti-Gun “Public Nuisance” Law

New Jersey’s losing streak trying to defend its recent gun control laws in court continued last Tuesday when a federal judge – appointed by Joe Biden, no less – issued a preliminary injunction against enforcement of a ...

Florida: Constitutional Carry Introduced

Monday, January 30, 2023

Florida: Constitutional Carry Introduced

Today, Representative Chuck Brannan (R-10) filed House Bill 543, the NRA-backed constitutional carry bill. The Constitutional Rights, Rule of Law & Government Operations Subcommittee will hear it on February 7th from 4-6PM. Florida is currently in ...

Anti-Gun Group Wants California to Continue as Petri Dish for Failed Anti-Gun Policies

News  

Monday, February 6, 2023

Anti-Gun Group Wants California to Continue as Petri Dish for Failed Anti-Gun Policies

In a move that could have been predicted by anyone with a pulse, anti-gun extremists are calling for more anti-gun policies to be implemented in arguably the most anti-gun state in the nation: California.

Washington: Hearing Rescheduled & Updates on Other Anti-Gun Bills

Friday, February 3, 2023

Washington: Hearing Rescheduled & Updates on Other Anti-Gun Bills

On February 9th, the Senate Law and Justice Committee will hold a public hearing for Senate Bill 5232, the companion to House Bill 1144, which imposes a firearm permit requirement, a 10-day waiting period scheme, and allows indefinite ...

New Mexico: Radical Gun Restrictions on Deck in Committee Next Week: Magazine Limits, Waiting Periods, Semi-Auto, Suppressor & NFA Bans

Friday, February 3, 2023

New Mexico: Radical Gun Restrictions on Deck in Committee Next Week: Magazine Limits, Waiting Periods, Semi-Auto, Suppressor & NFA Bans

On Monday, February 6, the New Mexico Senate Health & Public Affairs Committee will hold a public hearing on Senate Bill 171 by Sen. Bill Soules (D-Las Cruces), legislation that attempts to supersede federal law and make it a ...

Minnesota: Gun Control Bills Committee Hearing on Friday!

Wednesday, February 1, 2023

Minnesota: Gun Control Bills Committee Hearing on Friday!

Friday morning at 8:30 a.m. the Public Safety Finance and Policy committee will meet in Capitol Room 120 to vote on numerous gun control bills. Please contact the committee members today asking them to oppose the "red ...

Fifth Circuit Court of Appeals Invalidates ATF Bump-Stock Rule—Holds that Congress, Not ATF, Declares What the Law Is.

News  

Monday, January 9, 2023

Fifth Circuit Court of Appeals Invalidates ATF Bump-Stock Rule—Holds that Congress, Not ATF, Declares What the Law Is.

On Friday, the Fifth Circuit Court of Appeals, sitting en banc, invalidated the ATF’s Rule classifying bump stocks as machine guns under the Administrative Procedure Act.

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.