By giving firearms dealers an instant response as to whether or not someone is federally disqualified from possessing a gun, the National Instant Criminal Background Check System (NICS) has the potential to exclude people from obtaining guns who, on the face of things, should not have guns. However, even without the NICS, certain people are excluded from owning guns by federal law, and it is illegal for disqualified people to possess a gun and it is illegal for someone to transfer a gun to a disqualified person. NICS has nothing to do with those laws; NICS is only about helping firearms dealers to identify disqualified people. The system works reasonably well, but it has some drawbacks.
In a rational world, once the NICS system was in place, there is no reason why a person with a gun license from his or her home state should not be able to buy a gun from a federal dealer anywhere in the United States. The home state license proves the person is permitted to have a gun according to the laws of the home state and the NICS check proves the person is not disqualified on the federal level. Indeed, if both parties to a transaction have a valid state license, the NICS check has little purpose. Federal disqualifications include factors, such as having a felony conviction or being under indictment for a felony, being a fugitive, being a user of illegal drugs (even though marijuana might be legal in your state it is not legal under federal law), having a dishonorable discharge from the military, having been adjudicated a mental defective or having been committed to a mental institution (committed means an involuntary commitment by a court generally for being a danger to yourself or others and does not include a commitment for observation), being an illegal alien, renouncing your U.S. citizenship; being subject to a domestic relations restraining order (i.e., an order issued after a hearing in which the person was given actual notice and an opportunity to be heard – not an ex parte temporary order), or being convicted of a misdemeanor crime of domestic violence.
All federal laws must be connected to one of the enumerated powers that the Constitution grants to the federal government, otherwise the enactment is unconstitutional. For example, the right to regulate interstate commerce is one such power. When you buy a gun from a federally licensed dealer, the gun has probably been shipped in interstate commerce. You are therefore subject to the federal as well as the state rules on buying and selling guns. Federal gun laws are based on the power to regulate commerce.
The NICS check system is only available to federal firearms dealers. You, as an individual, cannot enter a name (even your own name) into the system to determine if someone is disqualified.
Those who clamor about “closing the gun show loophole, “ would do so by forcing all transactions to go through a federal dealer with the stated purpose of having all go through the NICS system, which has a number of drawbacks. One is that a dealer is going to charge for doing the paperwork. Another is that there are areas of the country where there are few gun dealers because the ATF, and in some cases local authorities, made a deliberate effort to put out of business smaller dealers who might serve rural or other areas that are underserved by high-volume licensed dealers. At the same time the anti-gun groups are pressuring larger vendors, such as Dick’s Sporting Goods, to stop carrying guns.
Interfamily transfers of guns should not be subject to the expense of going through a gun dealer. This is especially the case when guns are passing through an estate. A family member should know if the person who is receiving the gun is prohibited. That, after all, is the purpose of the NICS check. NICS does not govern the legality of the transfer if the person is disqualified. Other laws do that.
If the “close the loophole” crowd were sincere about their motives to make sure all purchases are to proper people, they would exempt from NICS transactions between persons licensed to own guns by their home states. Such persons have been pre-screened by their local authorities. They could also make NICS checks available to the general public. With the accessibility of computers today, such is perfectly attainable. In Massachusetts all transactions involving guns must be registered with the state. Any citizen with a license can go on line and record a transfer of a gun to any other citizen who is authorized to possess the gun. If the recipient is disqualified, the computer will let the parties know. In spite of this capability, some state politicians in Massachusetts are calling for legislation to ban all private sales even though private sales in Massachusetts go through a more rigorous screening process than the NICS check.
There is another problem with requiring a NICS check for all firearms transactions. Not all transactions involve interstate commerce and should be beyond federal control. This would include guns passing through an estate, guns transferred among family members, guns sold or transferred to individuals through a government surplus program or as prize, and guns that are authorized war trophies. Grandpa’s German Lugar that he brought home from WWII was never part of interstate commerce, nor were guns transferred as part of a government sponsored marksmanship program. Under the Constitution, the federal government should not have the power to regulate those guns.
A more troublesome problem with NICS, is that the program is not properly funded. Although most transactions go through without a delay, some do not. People trying to correct erroneous records have waited three and four years for a determination from NICS because NICS did not have the staffing to do the work any quicker. Lately NICS has made mistakes that allowed people who should not have guns being able to buy them. Some in Congress would address this by extending the time NICS has to process information; but, at the same time, they want to add thousands of transactions to the system by requiring all transactions go through dealers. This could cause a massive failure of NICS as it is not addressing the problems within NICS.
The first step to improving NICS is to increase its funding so that it can increase its manpower. The second step is to improve its information processing.
In 2018, NICS ran a total of 26,181,936 background checks. That number stressed the NICS system. It sounds like a lot of transactions but given a proper computer program, it is not. In comparison, Walmart processes 140,000,000 transactions per week while Amazon does 26,500,000 transactions per day. If NICS does not have the proper computing power or manpower it needs to do its job in a timely manner, it needs to be provided with the same.
NICS is dependent upon states and other federal agencies to provide it with information. If NCIS fails to obtain accurate information, then it cannot fulfill its duty. Someone who is not disqualified from owning a gun could be prohibited from buying one and thus be denied a core fundamental civil right. At the same time, someone who should not have a gun, might pass and be able to buy a gun from a dealer.
Under the Obama Administration, the Veterans Administration provided NICS with the name of any veteran who designated someone to hold a power of attorney to help the veteran. The VA claimed these people were mentally defective and should be denied gun ownership. That determination was not made in accordance with any concept of due process. There are many reasons someone might give a friend or family member a power of attorney to do business for them (including being physical disabled) that has nothing to do with whether or not the person can be trusted to own a gun. Under President Obama, the Social Security Administration was being pushed to do the same thing, thereby adding the names of thousands of harmless people to the lists of those disqualified from gun ownership. At the same time, the same executive department, did not insure that the names of those people who were dishonorably discharged from the armed services after a courts martial [the Air Force in particular] were placed on the list. Such people have the military equivalent of a felony conviction and should have been in the NICS database.
At a minimum, the federal government needs to insure all people in the federal court systems who are disqualified are accurately entered into the NICS system. Further, Congress should appropriate money to help the various states to modernize and bring their criminal information systems up to a uniform standard that can be used by NICS. Those systems should incorporates a coding system that insures to the greatest extent possible that no person who is not disqualified is carried as being disqualified; and, no person who is disqualified , is allowed to slip between the cracks.
Today, a problem arises when someone who is not disqualified tries to buy a gun and is denied by NICS. This could be as a result of faulty recordkeeping; different people having similar names; or, differences in the way states categorize crimes or use dispositions that are not convictions.
Even though NICS has an appeal process, it is not always clear to the person being denied why they were denied. Although NICS will identify the “denying agency,” they will not always identify the exact reason for the denial. Often they will instruct the individual to contact the “denying agency” to discover the reason for the denial. The denying agency, however, could be huge. It could be the VA or the Department of the Army, or it could be a state agency. Finding the exact problem NICS has with a person’s record might itself be a problem. In some states, the records relating to criminal offender information are not public. In some states, even the individual may not be able to gain access to those records because they are deemed to be for law enforcement use only. If there is an error in those records, the individual has no way of knowing what information was provided to the FBI for the NICS check.
Sometimes older court records can be a problem, especially those records created before computers. Although the examples that follows are from Massachusetts, other states probably have similar problems, especially in the lower level courts.
Example 1. The crime of larceny could be a felony (disqualifying) if it is over a certain amount of money; or, a misdemeanor if it is under a certain amount. In 1979 a person is charged with shoplifting at the age of 17. He/she took a pair of sun glasses. The judge says, this is a first offense, pay $10 court costs and the matter will be placed on file (no finding will be entered). Don’t do it again. The person is now 67. The original court records were destroyed as part of a regular program of getting rid of old records after 20 years in 1999. All the remains is a notation that says the individual was charged with larceny and paid $10. The individual sends for his record and is given a record that says larceny, paid $10, not responsible.” The records used by law enforcement (not available to the individual) say, “Larceny, paid $10.” This is then interpreted by NICS as a guilty finding on a felony larceny charge. The person is disqualified. NICS will only accept a correction that comes directly from the “denying agency.” If the person went back to original court, that court may not be able to send a correct record because it no longer has any records beyond “Larceny, paid $10.” Even if the individual had kept a certified copy of the original complaint and full court record, that certified copy would not be acceptable to NICS. Even if the individual obtained a current ruling from the original court that the matter was dismissed and there was not a finding of guilt, it would not satisfy NICS unless the individual could find the exact office in the state agency that sent NICS the record and convinced that office to correct its records. Even then, as the individual did not have access to the “law enforcement only” records, he or she would have no way of knowing if the record had been corrected in that data base and if the division which controlled that data base had forwarded the record to NICS.
Example 2. The individual is convicted of driving impaired. At the time of the offense, the crime is a misdemeanor. After the crime has been committed, the state increases the penalty to make the offense a felony. The NICS check comes back stating the individual has a felony conviction because the offense, if it occurred today, is a felony. The record provided by the state simply says, “Driving Impaired, Guilty.” The individual has the same problem because NICS will not accept a copy of the court order and the controlling statute showing the matter was a misdemeanor at the time it occurred. The original court record is correct so it cannot be changed. The problem is that the record has to be interpreted in accordance with the statutes that were in force at the time to accurately reflect if the crime is a felony or misdemeanor. There appears to be no practical administrative way to do this within the NICS system.
Example 3. The individual was involved in an argument and shoving match during a student protest 1969. He/she is charged with an affray (disturbing the peace), a common law crime described as “the fighting together of two or more persons in a public place to the terror of persons lawfully there.” The maximum penalty is 6 months in jail which makes the matter a misdemeanor. No records exist from 1969 that set forth the particulars of the crime. NICS denies the person because the offence could “potentially” be domestic abuse (assuming guilt of the more serious offense). Disqualification for a misdemeanor crime of domestic abuse was passed in 2000, long after the offense in the example took place. The record keepers had no reason to note if it were a crime involving domestic abuse or not. Although the burden is supposed to be on NICS to show person is disqualified, that does not always occur. NICS will not accept affidavits or secondary information as to what occurred.
It is next to impossible to speak with anyone at NICS to get added information or to get any kind of a legal review. Although NICS works most of the time, it still needs improvement.
Making NICS more efficient and more accurate has a greater chance of meeting public safety needs than expanding the workload of a system that is already overburdened.
