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DOES LOOPHOLE ALLOW GUN
SALE "Escape Clause" Was Designed
For FBI Computer Failure Federal Suspension of Bill of Rights Runs 4 Days For Immediate Release / For Immediate Release --------------------------------------------- "It's not a loophole, exactly," according to gun-law expert Alan Korwin, author of the unabridged guide, Gun Laws of America. "The so-called 'escape clause' was deliberately put into the Brady law to allow gun sales if the national computer ever went down, or in case it was never actually built. I followed that legislation closely -- it's designed to help prevent federal agents from suspending the Bill of Rights and blaming it on a computer." The latest computer outage, however, froze gun sales nationwide for four days, and ended Sunday. It was blamed on the part of the system known as the triple "I", the interstate identification index. A schematic of the $200 million background check system is posted at gunlaws.com. Recognizing that the national background check (NICS) could stop gun sales altogether, Congress explicitly required its use only if it is running and information is available (under law 18 USC §922(t)(5), reprinted below*). But gun dealers, afraid for their livelihood and licenses, have so far been reluctant to risk relying on the law, at least not on their own, creating a sort of rights-denial-by-default. When NICS is down, dealers generally refuse to make sales, costing them a small fortune. Doing business without NICS would almost certainly attract the wrath of federal agents. "Though the intent was to protect you, and that language was specifically placed there during drafting for this very reason, I have little doubt that the feds would be, shall we say, displeased, at such challenge to their power," Korwin says. "The fact is, 't5' has a penalty for a dealer who doesn't use NICS--but only if --it's running." Gun rights groups have been uncharacteristically quiet about this new federal "off" switch for gun sales. A review of FBI computer records reveals that the firearms industry has been shut down for more than eight full business days, between Dec. 10 to June 15, 1999, due to FBI down times. A four-page report, obtained by the National Association of Federally Licensed Firearms Dealers, indicates that legitimate businesses endured federal closures 84 times in the six-month period. "Let's not forget that people endured these closures as well, at the hands of the FBI and its new computerized control system," Korwin commented. "They claim these stoppages of your rights are accidents, and that they are not accountable. Are we to infer they could do this deliberately as well?" "What other industry would tolerate such dramatic and constant damage to its business?" Korwin asks. "The most amazing aspect is the deafening silence from the mainstream media," he says, "where a mere 5-hour outage at amazon.com makes national headlines for days." NICS had been touted as a tool to stop criminals from buying guns at retail. But widely publicized stings in Chicago suburbs, which lead to municipal lawsuits against gun makers, pretty clearly showed that the FBI's system was not having that effect, and that police work could do the job. Gangs were sidestepping Brady with impunity until the police finally took action and made some arrests. FBI figures show that 23,000 Americans buy guns at retail on an average day. When the FBI system is off your only option for legally obtaining firearms in America is by private sale from another person. If private sales are the sole channel for obtaining arms, there are extraordinary implications to the president's stated goal, supported by a portion of Congress, in seeking to outlaw law-abiding private sales, and deceptively categorizing such legitimate and legal activity "a loophole." A CNN report on Sunday indicated that 28% of all Americans going through the "instant" check do not get an instant response. That hardly matters, though, if the government can simply turn off retail gun sales day after day, and no one stands up to them. ---------------------------------------------- 18 USC §922(t)(5) <* Note: Paragraph (1), referred to below, is the NICS check.> If the licensee knowingly transfers a firearm to such other person and knowingly fails to comply with paragraph (1) of this subsection with respect to the transfer and, at the time such other person most recently proposed the transfer, the national instant criminal background check system was operating and information was available to the system demonstrating that receipt of a firearm by such other person would violate subsection (g) or (n) of this section or State law, the Secretary may, after notice and opportunity for a hearing, suspend for not more than 6 months or revoke any license issued to the licensee under section 923, and may impose on the licensee a civil fine of not more than $5,000. ###
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