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
Louisiana: Senate Passes Constitutional Carry - Take Action Now!

Thursday, February 22, 2024

Louisiana: Senate Passes Constitutional Carry - Take Action Now!

Today, the Senate passed Senate Bill 1, NRA backed constitutional carry legislation, on a 28-10 vote. The bill will next be considered in the House. Please contact your state representative and ask them to SUPPORT Senate Bill 1.

Ontario Latest Province to Snub Trudeau’s Gun Grab – “Ontario Should Not Be Spending Taxpayers’ Money Towards the Program”

News  

Tuesday, February 20, 2024

Ontario Latest Province to Snub Trudeau’s Gun Grab – “Ontario Should Not Be Spending Taxpayers’ Money Towards the Program”

The wheels are coming off the mandatory “assault weapon” gun ban and confiscation scheme that Canadian Prime Minister Justin Trudeau launched four years ago.

Hawaii Justices “Declare War” on U.S. Supreme Court, to the Cheers of Anti-Gun Media

News  

Tuesday, February 20, 2024

Hawaii Justices “Declare War” on U.S. Supreme Court, to the Cheers of Anti-Gun Media

In Hawaii, a man who was peacefully carrying a pistol for his own self-protection while on a nature hike was arrested and subject to felony prosecution under state laws that generally confine the possession of ...

Minnesota: "Assault Weapons" Ban Referred to the Committee on Public Safety Finance and Policy

Wednesday, February 14, 2024

Minnesota: "Assault Weapons" Ban Referred to the Committee on Public Safety Finance and Policy

On Monday, House File 3570 was referred to the House Committee on Public Safety Finance and Policy and would ban so called “assault weapons” by expanding upon an existing statute used to define these firearms. The bill ...

Colorado: Semi-Auto Ban Introduced in General Assembly

Wednesday, February 14, 2024

Colorado: Semi-Auto Ban Introduced in General Assembly

Anti-Gun extremist State Reps. Tim Hernandez (D-04) and Elisabeth Epps (D-06) introduced House Bill 24-1292, a bill banning the manufacturing, importing, purchasing, selling, offering to sell, or transferring ownership of so called “assault weapons”. 

South Carolina: Permitless Carry Passes the Senate, Waiting on Concurrence by the House

Tuesday, February 6, 2024

South Carolina: Permitless Carry Passes the Senate, Waiting on Concurrence by the House

Last week, South Carolina moved one step closer to becoming the 28th state to enact Permitless/Constitutional Carry! This effort has been years in the making, clearing a major hurdle by passing the Senate, which has been ...

Virginia: Mandatory Waiting Period and Other Anti-Gun Bills Headed to the Governor's Desk

Friday, February 23, 2024

Virginia: Mandatory Waiting Period and Other Anti-Gun Bills Headed to the Governor's Desk

Contact Governor Youngkin today and urge his veto!  Anti-gun extremists in the Virginia General Assembly have made diminishing your Second Amendment Rights a top priority this legislative session. This week a slew of gun control ...

Louisiana: House Committee to Hear Constitutional Carry Monday - Take Action Now!

Friday, February 23, 2024

Louisiana: House Committee to Hear Constitutional Carry Monday - Take Action Now!

Monday, February 26, at 10:00 AM, the House Administration of Criminal Justice Committee will hear Senate Bill 1, the NRA-backed constitutional carry legislation. SB 1 was passed by the Senate earlier this week with overwhelming support. Please contact committee members ...

New Hampshire: House Advances Critical Gun Owner Privacy Legislation

Friday, February 23, 2024

New Hampshire: House Advances Critical Gun Owner Privacy Legislation

On Thursday, February 22nd, the New Hampshire House of Representatives held floor votes on gun related bills.

Colorado: Legislation Requiring the Use of Firearm/Ammunition Merchant Category Codes Passes State Senate

Wednesday, February 21, 2024

Colorado: Legislation Requiring the Use of Firearm/Ammunition Merchant Category Codes Passes State Senate

SB24-066 legislation requiring the use of merchant category codes by payment processors to identify firearm, firearm accessories, and ammunition purchases passes the State Senate. 

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.