The NICS Report Followup

The FBI has made their intentions formally known, with the June 4 issuance of proposed regulations for the National Instant Check System. The McClure-Volkmer Act has no impact on the FBI's plans (McClure-Volkmer blanketly prohibits recording gun sale and gun owner information in any government facility, as the FBI plans to do). The FBI cites the Brady law as justification for recording gun buyers, but Brady itself repeats the McClure-Volkmer prohibition against any form of record keeping (verbatim quote at end). Gun buyers will be recorded by at least three independent systems (NCIC, NICS, III) and kept on line for a period to be determined solely by the FBI (the NCIC apparently will save records the longest). Most published reports have focused on the background check system only, ignoring the other two which have apparently been creating prohibited lists for some time, and will continue to do so. Long-term backup is not discussed (but is a fundamental element of any large-scale database). Although silent for a ponderously long time, the NRA has taken a strong position against the gun-owner registration plan in their formal response to BATF's proposed regulations. Their position was made known recently in a broadcast fax alert, on their website, and in hearings before the House Judiciary Crime Subcommittee (chaired by Bob Barr of Georgia). They have also come out vigorously against the FBI's intention to create and levy its own taxes. Unfortunately the NRA is also supporting Bob Barr's "fix-it" bill.

DANGEROUS LAW PROPOSED AS A FIX

As currently written, HR 3949 would override the absolute prohibition on gun registration now in effect. This bill (it's short, read it on Thomas), would allow the government to record gun buyers for a specified amount of time, something they may not do under current law. Contrary to some reports, this bill does not require record destruction or prohibit recording. What HR 3949 does do, is penalize anyone who retains gun registration records for longer than recommended, or transfers records after the time limit is up. At first blush, the stiff penalties ($250,000 and ten years in jail) seem like a step in the right direction, and may well be. But this is an incredibly bad law because it authorizes recording, and since no measure of accountability is included it will never make it to court. Who exactly has "retained" or "transferred" your records after your background check? The system operators in the basement? Or is it the clerk who pushes the "next customer" button, dumping your data to disk? Make that the 250 clerks now being hired. Maybe you could just charge Louis Freeh, Director of the FBI. who's going to file those charges and prosecute. You? The Attorney General who, uh, happens to work for that department? The point is, no one will be responsible under this terribly concocted bill, which just happens to defeat McClure-Volkmer. If we can't require the FBI to comply with McClure-Volkmer (record nothing) and Brady (destroy all records instantly), what difference will another, weaker, worse bill make. It just gives up ground that hasn't been lost, in a vain effort to stem blatantly illegal bureaucratic abuse. It has been pointed out that under Brady part 1, all records had to be destroyed within 20 days (a measure reportedly abused and ignored by states). Brady part 2 drops the 20-day requirement, prompting some officials to argue that there is no longer a destruction requirement. Brady part 2 does, however, say "destroy all records" and the only time frame it mentions is instant, which it says five times.

SERIOUS FEDERALISM IMPLICATIONS

One of the more insidious aspects of the plan is how it pressures state governments to comply, using the carrot of tax avoidance (by an entity not even empowered to tax). If your state police sign up with the FBI, they won't tax you. If your state does not comply, then the FBI will tax all your state's dealers individually. To conduct business, dealers will have to open an account with the FBI, or use a credit card to pay the tax. Anyone late on an invoice will be literally out of business. Dealers will be "authorized" to pass the tax on to customers. Officials readily admit that they expect this program to force rapid sign-ups from the hold-out states. Dealers and customers will cry out against the tax, and urge their states to "buy-in." People will, without realizing it, trade their current autonomy for relief from an unjust tax. The FBI in effect secures state-by-state control of a person's legal status. If your state believes your rights are intact but this federal agency does not, your rights will be denied. The states will have relinquished their power to determine a person's eligibility, to the federal police. In Arizona, when told at a government meeting that they wouldn't have to pay the tax since the state police were "players," the audience of dealers (about 100) cheered. Talk about irony.

NATIONAL DOWN TIME

The most shocking new wrinkle in the FBI proposal has to do with shutting down gun sales nationally from time to time. Any "hit" on data you provide will refer your inquiry to a criminal records analyst (currently being hired and trained) and either slow your approval or trigger a formal delay (or denial). Only one condition will automatically allow a sale: All databases queried, all systems responding, no records found. This condition is expected in about 80% of all inquiries. The proposed regulations are clear that if any system fails to respond the sale will be delayed. In other words, if any system is down, no retail sales will be possible across the board. Such a condition would invoke the highly publicized three-business-day wait, which works out to nearly a week in the proposal. The day of the sale isn't counted. In their example, a gun purchased at 9 a.m. Friday cannot be picked up legally until 12:01 a.m. Thursday, if they call for a delay. Holidays extend the delay. The FBI determines which computer systems will be linked, and is encouraging various agencies to get the interface specs and consider participating. The official list includes at least:

Other computer-system operators that have been mentioned as part of the database network include: Internal Revenue Service; Drug Enforcement Agency; U.S. Border Patrol; U.S. Customs Dept.; a Protective Orders database (there have been vague references to such a thing, related to domestic violence laws, federal availability is unclear) and of course, not to forget, the Bureau of Alcohol Tobacco and Firearms.

GLOBALISM vs. U.S. INDEPENDENCE

Section 25.4 of the proposal defines the valid record source categories. it's only three sentences long, but the last sentence packs a wallop. "Information in the NCIC and III systems that will be searched during a background check will be contributed voluntarily by Federal, state, local, and international criminal justice agencies." When combined with the rule that any data hit triggers at least a review, possibly a delay and based on a single person's evaluation a denial, this amounts to extra-national control of the criminal justice system. A nation could presumably load a set of names, identify the individuals as felons, and deny them their rights. The proposal makes it clear that the contributing agencies, not NICS operators, are responsible for accuracy.

Other Items that Need Further Examination:

-- The material about record destruction revolves around approved sales. Record keeping for denied sales is presumed to be at the government's discretion (and they've announced that they will save denial records permanently). Delayed sales records are in a poorly defined and largely ignored middle ground.

-- In one case the proposal says the system will "purge" a record. In another, information will be "destroyed." Neither term is in the definitions list. Only information in the "NICS Audit Log" will be destroyed; NCIC and III will operate based on "established policy," strongly suggesting these are already in violation of McClure-Volkmer. Backup systems are not discussed. There is mention of audit or assurance mechanisms, in relation mainly to system security, with no details given. Nothing deals with guaranteeing the legal operation of a national checkout system (and considering the current design, why bother).

-- The proposal says taxation will have no effect: "...this regulation will not have a significant economic impact on a substantial number of small entities."

-- The proposal says no laws interfere with the plans: "The FBI is not aware of any relevant Federal rules that duplicate, overlap or conflict with this rule."

-- The proposal says feds obtain no new power under the rules: "This rule will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federal Assessment." [Note: There is no 12612; it was replaced by 13083 (Clinton)].

-- A quick review of the appeals process shows it to be bureaucratically structured, possibly out-of-sync with the statutory requirements, and in need of in-depth study, which is not included in this report.

CONCLUSION

It would not be unreasonable to conclude, in light of the abject disregard for existing law that demonstrably permeates the NICS proposal, the NICS system should not be allowed to operate as currently planned. The recording of American gun purchasers is illegal, and operation of the system would be in direct violation of law.

LATE BREAKING DEVELOPMENTS

-- The Associated Press reports that Janet Reno will seek an extension of certain conditions of the original 12-page Brady law. The June 15 article refers to the five-day waiting period. As people in 31 states are well aware, there is no five-day waiting period. Extending conditions of Brady part 1 requires enacting new legislation, the effect of which is unknown. The highly convoluted Brady law does not have conditions that are severable everything is interlinked there is no way to simply extend one feature... especially a feature that doesn't really exist. The so-called five-day element is part of an interrelated set of conditions, all found in a single 644-word sentence, that affects how states may conduct business. The effect of enacting something new, called Brady, is open to literally anything.

-- The Department of Transportation has released its long awaited regulation on Federal ID Standards (June 17). Social Security numbers will indeed be needed for all gun sales as of Oct. 1, 2000, as previously reported.

Brady Law (Sec. 103):

(i) Prohibition Relating to Establishment of Registration Systems With Respect to Firearms.

No department, agency, officer, or employee of the United States may (1) require that any record or portion thereof generated by the system established under this section <referring to the NICS system> be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or (2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code [subsec. (g) or (n) of this section] or State law, from receiving a firearm. I can't find a way to bend or twist this language to "legalize" what the FBI is planning.

Transportation Dept. Proposal; Subpart B--Procedures:

Sec. 1331.4 Application process. A Federal agency may not accept for any identification related purpose a driver's license or other comparable identification document issued by a State, unless the license or document satisfies the following requirements. Sec. 1331.6 Social security number. (a) Before issuing a license or document each State shall: (1) Require the submission of the social security number by every applicant for a license or document. (2) Verify electronically the validity of each applicant's social security number with the Social Security Administration. (b) States may require licenses and documents to contain social security numbers that can be read visually or by electronic means.

Alan Korwin is a full-time free-lance writer and author of seven books on gun law, including Gun Laws of America Every Federal Gun Law on the Books with Plain English Summaries. Permission to reprint this article is granted to non-profit organizations, provided credit is given to Alan Korwin, Bloomfield Press, Phoenix, AZ. All others, just call us.