Default Proceed Sale Transparency Act & the So-Called ‘Charleston Shooter Loophole’
Article first appeared on Ammoland.com
New Jersey – -(AmmoLand.com)- In continuing with the tradition of de-evolution of our civil liberties, we have creatures crawling out of the primordial soup of government bureaucracy, and today’s soup du jour is from the Chicago suburbs.
With a long standing tradition of respecting fundamental rights and not being corrupt, anything outta Chicagoland and Illinois, which is predominately controlled by Chicagoland, must be a homerun for citizens across the nation, or hell, call the United Nations (another entity known for their upright ways) – citizens of the world can benefit from such polices!
On December 11, 2020 the office of anti-gun politician and a buddy of Shannon Watts, Brad Schneider snuck out in a semi-quiet press release on introduced legislation to stop the so-called “Charleston Shooter Loophole”. Schneider, a Congressman for the 10th legislative district of Illinois, goes straight for the jugular:
“Default proceed” system that allows gun sales before background check an absurd loophole.
What our fine soup covered Congressman is referencing is a provision in the Brady Handgun Violence Prevention Act. which allows, at the discretion of the FFL, for the sale of a firearm to proceed if the NICS system is unable to return results within three business days. This provision, which actually protects citizens from executive overreach, has not-so-eloquently been dubbed the “Charleston Loophole”. A reference to Dylann Roof, a domestic terrorist, and his procurement of a firearm. While Roof’s NICS background check did not return any of the disqualifier “flags”, as his criminal history had no disqualifying arrests per se, this precept has to do with a misdemeanor drug charge and possession of a recreational drug. By federal law users of illicit drugs are barred from firearm ownership and possession.
The big push behind how the “Charleston Loophole” is painted revolves around the three-day default proceed provisions. The logic is fairly flawed for several reasons.
First, if the hearts and minds of our do-good swamp creatures were in the right place, they’d be pushing for a provision that such misdemeanor offenses concerning possession of illicit drugs be incorporated into the halting of firearm purchase by default without interpretation, with the opportunity for appeal.
Second, when someone fills out the form 4473, they are beholden to the honor system on reporting back they are not a user of illegal drugs.
The problem with these two concepts, which really ought to be the focus of any potential reform, should reform even need to happen, neglects people’s abilities to no longer be users or addicts. After all didn’t Barrack Obama admit to smoking Marijuana? That admission would make him a felon if paired with those great pictures of him shooting a double barreled shotgun during clay shooting sports. By progressive logic in this context, once an addict always an addict, no? If we’re going to be fair and honest, then Obama should have been arrested and charged with a felony because he smoked a joint once upon a time (probably more than one if one had to guess) and had possession of a firearm.
This is not about Obama or Roof, but the much larger issue of progressive policies and actors that wish to decriminalize Schedule I Drugs while simultaneously strip us of our rights. The same progressives that want to decriminalize all these controlled substances are the same ones that are using Roof’s misdemeanor drug charge as proof positive of his ineligibility to own firearms and are constantly pushing for further laws that limit the civil rights of our citizenry. You can’t eat your cake and have it too!
Given all this information, would the abolishment of the “default proceed” provision have kept Roof from getting a firearm? The answer to that is NO. Even if Roof was somehow halted during the NICS process, domestic terrorists like him will always find a way to enact acts of violence (Cite Oklahoma City Bombing, Boston Marathon Bombing, Acid Attacks, and a little event where “some people did something”), and if he was that intent on getting a gun, he would have.
What does Schneider’s bill wish to introduce? From his press release:
Require FFLs to report to the FBI when they sell a firearm to someone whose background check was not completed;
Direct the FBI to prioritize completion of background checks for these default proceed sales;
Prohibit the destruction of open NICS records which currently must be destroyed if a background check is not completed in 88 days; and
Require the FBI to publicly report, on an annual basis, the number of default proceed sales that took place, including how many times an individual who should not have been able to purchase a firearm was able to do so and the number of firearms that were eventually retrieved from said individuals; and
Require the Bureau of Alcohol, Tobacco Firearms, and Explosives (ATF) to publicly report, on an annual basis, the average time to retrieve firearms sold as a delayed denial, the number of firearms that were delayed denials retrieved in criminal investigations, and the number of firearms that were delayed denials retrieved in criminal investigations across state lines.
But buried in the text of the actual bill are some other nuggets that need to be addressed:
CREATION OF ONLINE PORTAL AND TELEPHONE HOTLINE.—Within 180 days after the date of the enactment of this Act, the Attorney General shall create an online portal and telephone hotline, that are to be used exclusively for the purpose of reporting sufficient information to allow the Federal Bureau of Investigation to prioritize background checks in accordance with section 40901(j) of title 3 34, United States Code.
Why that is necessary is beyond my ken. With our current system in place with electronic records, there is no excuse for criminal records to not be already streamlined into this process. But creating another bureaucratic office to handle such things will somehow solve these problems? Someone’s brother-in-law somewhere would be getting a job, no doubt.
On the FBI public reporting provision noted in the press release, there is this section in the text of the bill which is not explicitly covered:
A licensed importer, licensed manufacturer, or licensed dealer who transfers a firearm in compliance with paragraph (1), but before the national instant criminal background check system provides the licensee with a unique identification number, shall report the transfer to the Federal Bureau of Investigation within 24 hours. If a State or local law enforcement authority is conducting the related background check, the Federal Bureau of Investigation shall transmit the report to that authority.’
That is veiled code for gun registration, which is federally outlawed via the Brady Bill. On form 4473 the only mention of a “unique identification number” is in field 17. The explanation for question 17 on the form is:
Question 17. Unique Personal Identification Number (UPIN) or Appeals Management Database Identification (AMD ID): For transferees/buyers approved to have information maintained about them in the FBI NICS Voluntary Appeal File, NICS will provide them with a UPIN, which the transferee/buyer should record in question 17. The AMD ID is a number that will be provided to an appellant on certain types of overturned appeals and should also be recorded in question 17. The transferor/seller should provide the UPIN/AMD ID when conducting background checks through the NICS or the State POC.
As noted, the UPIN is a VOLUNTARY APPEAL FILE, which this bill aims to make NON-VOLUNTARY in these “default proceed” situations.
If one were interested in having a UPIN assigned to them, they may do so currently via the NICS Voluntary Appeal File Application. The form clearly outlines what this bill aims to overturn, with a statement on the Brady Act. This statement ensures that applicants understand their rights and why they may opt for a UPIN via their own volition:
A final rule was published by the Department of Justice in The Federal Register, outlining the following changes. Per Title 28, Code of Federal Regulations, Part 25.9(b)(1), (2), and (3), the NICS Section must destroy all identifying information on allowed transactions within 24 hours of notification to the FFL. If a potential purchaser is delayed or denied a firearm and successfully appeals the decision, the NICS Section cannot retain a record of the overturned appeal. If the record is not able to be updated, the purchaser continues to be denied or delayed, and if that individual appeals the decision the documentation must be resubmitted on every subsequent appeal. For this reason, the Voluntary Appeal File (VAF) has been established. This process permits applicants to request the NICS maintain information about themselves in the VAF to prevent future erroneous denials or extended delays of a firearm transfer.
More text from the bill that also indicates registration:
the number of firearms transferred as described in such section 922(t)(7) during the period covered by the report, that were recovered as part of a criminal investigation, where receipt by the transferee violated such subsection (g) or (n) or State law, disaggregated by State;
The intricacies of our current NCIS system should be regarded with how any individual deals with a government agency. This would be on par with the frustration many people have when going to their Motor Vehicle agency to renew a license or get new plates…some places have it figured out and the process is painless, the exception to the rule. Others, its an onerous task that can create a stop-gap in your life if all the I’s are not dotted and T’s crossed appropriately. When it comes to NICS, just because they did not report back in 3 days does not mean the person is prohibited. That is important in this debate.
Back to the provision protecting civil liberties…The “default proceed” has to do with making sure the people are able to exercise their rights and are allowed the assumption of innocence, a principle of our justice system. In Schneider’s press release, they attack and mock the NRA via a partial quote:
The National Rifle Association has called the “default proceed” sale loophole a “critical safety valve.”
I cannot speak for the NRA or put words in the mouths of their representatives, but in my humble opinion, the “critical safety valve” mechanism is doing exactly what the provision was put in there in the first place, allowing the assumption of innocence and due process of the law. Coming from a Chicagoland politician, I think we all have cause to be concerned given their hostility towards the civil rights we have enumerated under the 2nd Amendment.
Continuing to pass the buck in cases like Roof’s, where proper police work and follow-through on such issues could have created the halting of a legal purchase, is a perfect example of trying to legislate away incompetence. The tools are already there, they just need to be used properly! Had Roof been stopped from purchasing a firearm at a licensed FFL, the conversation would be about straw purchases or “the Iron Pipeline”, because a probable terroristic event would happen at his hand regardless.
The press release is also loaded with quotes from other creatures that have crawled out of the soup of civil liberty de-evolution. Representatives from Handgun Control, Inc, now dubbed Brady: United Against Gun Violence, and the lead screaming Mommy from Moms Demand Action, all spewed out the perfect soundbites, patting each other on the backs for this tremendous victory. You can read them on your own in the press release.
While our NICS system is far from perfect, it was implemented to not usurp civil liberties and keep firearms from prohibited persons. Can it afford to be fixed? Well yes, that was the driving motivation of the Fix NICS Act of 2017. Is there still room for improvement? Sure. But one thing is for certain, as citizens of a free Republic, we don’t want our abilities to purchase firearms to fall further into the hands of a system with no equal protections and is loaded with gun registration schemes. That would lead to “gun control” beyond imagination. Make no mistake about it, the anti-freedom crowd wants to maintain and create a list of doors to (no-)knock on when the time comes.
The full text of the currently named Default Proceed Sale Transparency Act can be read here and below.
Tracking of the progress of this Bill can be done on Govtrack.us
The Dangerous ‘Default Proceed Sale Transparency Act’
John Petrolino is a US Merchant Marine Officer, writer, author of Decoding Firearms: An Easy to Read Guide on General Gun Safety & Use and NRA certified pistol, rifle, and shotgun instructor living under and working to change New Jersey’s draconian and unconstitutional gun laws. You can find him on the web at www.johnpetrolino.com on twitter at @johnpetrolino and on Instagram @jpetrolinoiii .