NICS denial overload implications

I wanted to post something about this last night but it was dinner and video night with my daughter so I decided to do it tonight. Then Sebastian made nearly all the points I wanted to make.

The one issue I want to elaborate on further is:

The surge of criminal background checks required of new gun purchasers has been so unrelenting in recent months that the FBI had been forced to temporarily halt the processing of thousands of appeals from prospective buyers whose firearm purchase attempts have been denied.

Since October, the bureau’s entire cadre of appeal examiners— about 70 analysts — was redeployed here to help keep pace with waves of incoming background investigations that continued through December when a record 3.3 million firearm sales were processed.

This shows us there is a loophole in the system an (redundancy alert) unscrupulous, anti-gun administration could deny the majority of the people in this country their right to purchase new firearms. If they can ignore the appeals of denials then it would seem that instead of actually doing a proper background check and giving a pass or fail response they could just say, “Fail” to everyone. Then they just ignore their appeals.

It would seem to me this loophole needs to be fixed. Best case is to just eliminate NICS and if states want background check for firearm purchases they can put “Firearm exclusions” on drivers licenses and state ID cards. And if it is impractical to eliminate NCIS the law should require the FBI/DOJ/whoever respond appropriately to the appeals within 10 days or else the denial is automatically overturned.

6 thoughts on “NICS denial overload implications

  1. Pingback: Gun madness again | The View From North Central Idaho

  2. A simple solution would be the NH CC rule, where a failure to reply within the (non-negotiable) time limit is automatic approval. Also, if I remember right, the approving authorities are personally liable for conforming to the law.

  3. That fear when the NICS law was passed was the reason “default proceeds” were put into the law. If they shut down NICS nationwide, there’d still be enough gun stores that would release after 3 days to ensure that 2nd Amendment rights would be exercised. And once it because known that NICS was down for everyone, I suspect a lot more “default proceeds” would go forward.

    Then the FBI wouldn’t have to worry about appeals. They’d be too busy getting caught up on the million plus background checks that were pending. Then the administration would be a real pickle as their plan to stop gun purchases would backfire.

    • There is a difference between a NICS denial and a failure for them to respond. There is no “default proceed” for a denial.

      So the loophole that I’m worried about is them returning “denied” to everyone then ignoring the appeals. At that point there are no legal sales through FFLs.

      • True. But even that would be rapidly noticeable by FFLs across the country. Every FFL has a deep innate knowledge of the number of denials they process on a given day/week/month. It’s fairly rare. Rare enough to raise eyebrows. Then suddenly every call to NICS results in a denial? I don’t even give it an hour before everyone realizes something is up.

        Even the MSM would be reporting on that. The question is: Would FFLs risk their licenses and start letting firearms go out of their inventory and ignore NICS? Let the BATFE audit them later. Or how many gun stores would suddenly suffer a rash of flash mob thefts at the same time their in-store cameras were undergoing a software update? They might lose in the end but a principled FFL01 could drag the process out for months.

        And there are wildcards like me and many who hold FFL03s. Can’t buy just any gun but it bypasses NICS. It would be perfectly legal for an FFL01 to log out a C&R rifle or handgun to me once I hand over a copy of my license. That could be enough to keep some guns in motion within the population. Especially since the FFL03 could then sell their collection off privately where legal (“no longer what I want to collect”). No loophole there. It’s all legal.

        Of course, additional FFL03s could be denied on the argument that if NICS is down, BATFE won’t issue the 03s. I don’t know which system(s) the BATFE uses to clear FFL03 background checks. If it is NICS, no more FFL03s. But if is not, FFL03s could be a way to bypass a NICS takedown.

        Once it became national knowledge that NICS had been shut down, I think there would be enough political backlash to bring it back up and apologize saying, “Sorry, big technical glitch.”. It would be BS, of course, but would give cover for their denial of rights. And if it stayed down, how long do you think the NICS Repeal Bill would be heading through Congress?

        While an administration might think about trying it, I don’t think there are enough people in the FBI on the ground willing to go along with it. Word would get out from examiners about orders they received to “deny everyone” or “not issue NTNs for proceeds” and so on. All it takes is one or two whistleblowers and proof across the country of what is happening that they couldn’t be dismissed as crackpots or chronic complainers.

        Even if an administration was deeply anti-gun, I don’t think it would have the stones to actually attempt this. While there have been no real attempts to enforce 18 USC 242, I suspect taking NICS down might trigger a few. It’s too obvious an attempt to subvert the 2nd Amendment by the government. And if it continued and the courts refused to intervene and a sympathetic Congress decided not to act, I fear where that path leads. Revolutions don’t always happen with a chain of obvious events. They often spark into being at the smallest, seemingly innocuous or minor thing.

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