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NICS: Delaying and Denying Your Right to Keep and Bear Arms

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Article first appeared on Ammoland.com

U.S.A. -(AmmoLand.com)-Despite claims to the contrary by some firearms advocates, NICS has not been fixed. It is badly broken, and instead of “fixing” it, we should have a serious discussion about repealing this significant infringement on the right to keep and bear arms.

Way back in 1993 when Congress was debating what would become the Brady Law, GOA predicted that people who can lawfully purchase a gun would, at worst be denied that right and, at best have the right delayed — because contrary to the claims of politicians on both sides of the aisle, instant checks are NOT instant. Hence, GOA has consistently opposed NICS and every single misguided attempt to “FIX NICS.”

I was recently contacted by Mr. Jim McLoud who is the owner of Shooters Outpost in Hooksett, NH about the lengthy NICS delays and the problems they are causing for his business. Mr. McLoud told me that he has over $100, 000 in handguns that have been sold but cannot be handed over to the buyers because of delays in the “instant check” — delays that are averaging about a hundred transactions per week.

Some may say think that he should just hand over the gun to the buyer at the end of three business days — because that is what the law says. That would be reasonable if Mr. McLoud’s business was located in a state where the FBI handles NICS and the majority of checks are processed within a few minutes and very few are delayed. However, Shooters Outpost is in New Hampshire and the New Hampshire State
Police (NHSP) are the “point of contact” for NICS checks for handguns sold by licensed dealers in that state.

Here’s how it all works: Shooters Outpost (or any other dealer) contacts the “Gun Line” and one of two things happens. Either they are told “we will call you back,” then at some later time, the dealer is asked for the customer’s information (name, date of birth, etc.) Or NHSP takes the buyer’s information on the initial call and just says “we will call you back.”

The sad truth is the New Hampshire “Gun Line” has always been operated in this grossly inefficient manner. When gun sales are not hitting record-high volumes, the call back comes anywhere from 15 minutes to a few hours. However, during busy times, the hours turn into days and in the wake of the COVID-19 pandemic, the days are turning into weeks. This is far from instant and completely
unacceptable.

The reason that dealers like Mr. McLoud are reluctant to transfer the gun at the end of three business days is because delays exceeding three days are now the norm instead of the exception and as the numbers increase the likelihood of a “delayed denial” increases. When this happens, NHSP asks the dealer to attempt to retrieve the handgun. Now a dealer has a used gun on his hands, and many customers expect a full refund. That is just bad business. From both the point of view of a retailer and purchaser, this is a nightmare scenario.

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I contacted the NHSP to find out why there are such long delays when the FBI is able to issue an approval, denial, or delay in less than five minutes. I was told that from January 1, 2020, through early June NHSP processed about 40,000 checks, while for the full year in, 2019, they processed 59,000. They claim a 36% increase in gun sales but have not received anywhere near a 36% increase in staff. I was also told that NHSP has denied about 500 attempted purchases in 2020, some by known felons. But as we have pointed out, the real truth is that close to 95% of NICS denials are false positives.

To get further clarity, and possibly a different perspective, I spoke with Jay E. Simkin, who has held an FFL since 1983 and is an international economist. Jay told me that:

Background checks are a consumer fraud: The Federal authorities basically do not prosecute those, who being prohibited, seek to acquire firearms from a Federally-licensed dealer. Such an attempt to acquire is a Federal felony. Most states (including New Hampshire) do not prosecute those properly denied.

Simkin also said that:

“Further, with some 411,000,000 firearms in the U.S. (military items excluded) a person properly denied will get a firearm, just not from a licensed dealer in firearms.”

He went on to explain that:

A broad-based study, by the U.S. Government Accountability Office (GAO), found that: “In fiscal 2017, the Bureau of Alcohol, Tobacco, Firearms, and Explosives referred about 12,700 denied purchases to its field divisions for investigation. As of June 2018, U.S. Attorney’s Offices prosecuted 12 of these cases.” And the states are not doing any better, at the state level, officials from 10 of 13 selected states said they did not investigate or prosecute firearm(s) denials, some citing competing resource demands and the lack of statutes with which states prosecute as reasons.

Under 18 U.S.C. § 922(a)(6), it is unlawful for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a federal firearms licensee to knowingly make any false or fictitious oral or written statement. Furthermore, it is unlawful to furnish or exhibit any false, fictitious, or misrepresented identification, that is intended or likely to deceive such federal firearms licensee with respect to any fact material to the lawfulness of the sale or other disposition of the firearm or ammunition. In addition, generally under 18 U.S.C. § 924(a)(1)(A), it is unlawful for a person to knowingly make any false statement or representation with respect to the information required to be kept in the records of a federal firearms licensee.

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GOA has been credibly informed that gun sales all across America are hitting record-high levels due to COVID-19. While you can’t shoot the virus, it is common knowledge that police departments have not been responding to calls for service due to the pandemic — which means that, in many cases, you are on your own. Then, when it looked like the pandemic was coming to an end, we saw riots and looting in
major American cities due to the behavior of a few police officers in Minneapolis. It is long-settled caselaw that a private citizen cannot sue the police for failure to provide protection services. Firearms are the great equalizer — but only if people can get them. Due to the widespread problems with NICS, it has become difficult for many would-be gun owners to become actual gun owners.

GOA has opposed NICS since its inception. And now that gun buyers are seeing first hand that what we predicted would happen is actually happening — that is, they can’t obtain a self-defense firearm in a timely fashion — the time is right to start talking to state legislators and Members of Congress about a full repeal of NICS infringements.


About Alan M. Rice

Alan M. Rice serves as a spokesman and New Hampshire State Director for Gun Owners of America (GOA), a grassroots organization representing more than two million gun owners.  Mr. Rice, a firearms instructor, has been involved with protecting Second Amendment rights for over 30 years.  He has a background in law enforcement as well as firearms training for police and private citizens.  In addition to
fighting in the halls of Congress and in state capitols across the country to protect the right to keep and bear arms, GOA is also fighting in the courts to restore rights that have been unconstitutionally taken. GOA will not accept any restrictions on this enumerated right.  Ammoland readers who would like to support our work can join GOA by visiting Gunowners.org

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