N.I.C.S. Update

Blowing Smoke     NICS Stats    NICS Abuse    Lies, Damn Lies & Clinton

GAO-NICS Problems    Feds put Bill of Rights on hold

U.S. SENATE HOLDS NICS HEARINGS

NRA-ILA: U.S. Senator Orrin Hatch (R-Utah) has made good on his promise to investigate recurring problems with the National Instant Check System (NICS) (see FAX Alert Vol. 7, No. 20). Wednesday he chaired a Senate Judiciary Committee Hearing that sought to find solutions that will improve NICS. Those who testified before the committee included former Senate Majority Leader Bob Dole, U.S. Senator Dick Durbin (D-Ill.), U.S. Senator Craig Thomas (R-Wyo.), FBI Assistant Director for the Criminal Justice Information Services Division David R. Loesch, Captain Stuart Smith of the Utah Department of Public Safety, Director of the Vermont Criminal Information Center Max Schleuter, and Federal Firearms License (FFL) holder and 1999 "Jay M. Littlefield NRA-ILA Volunteer of the Year Award" recipient and NRA-ILA EVC Robin Ball (from Spokane, Wash.). Senator Hatch called for the hearing in response to the growing concern that the Clinton-Gore Administration has deliberately sabotaged the NICS system through shoddy implementation and operation practices, causing NICS to be frequently "down" for hours -- even days -- at a stretch. Hatch pointed out the fact that NICS was down for four days straight this year, which coincided with the so-called "Million Mom March," and that FBI reports show NICS was not operating for at least 215 hours last year. We thank Senator Hatch for his commitment to ensuring NICS operates as intended -- effectively, efficiently, and instantly -- and we will continue to report on progress on this front.

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Federal Suspension of Bill of Rights Runs 4 Days

"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.

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 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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GAO REPORTS NICS HAS MAJOR PROBLEMS

U.S. Senator Craig Thomas (R-Wyo.) requested early last year that the General Accounting Office (GAO) conduct an audit to examine whether the National Instant Check System (NICS) is efficiently designed and effectively managed by the FBI. The study is now complete, and it shows there are significant problems with NICS that prevent it from operating as Congress intended. The most glaring problems are:

1.2 million, or 28 percent, of all federal firearm checks were not instant.

1,505 individuals were denied the opportunity to purchase firearms as a result of FBI examiner error or misidentification.

As of December 31, 1999, BATF Headquarters reported that 3,353 prohibited individuals had obtained firearms, but only had active criminal investigations on 110 - or 3.3 percent of these individuals.

NICS failed to meet its operating accountability standards two-thirds of the time between 11/30/98 and 11/30/99.

Although NICS has been operational for 15 months, it has yet to be authorized as secure in accordance with the FBI's own routine requirements for computer security.

Senator Thomas's release cautioned that "the new NICS report should weigh heavily in the President's current push for additional laws to affect gun purchases and address violence." Thomas further stated "If during our oversight of current gun control laws it's found that criminals still get guns and a high number of legal gun purchases are denied, you have to question the effectiveness of additional layers of gun regulation. We have got to get serious about targeting and prosecuting the criminals and addressing the drug trade that often precipitates violence." The GAO report can be found online at http://www.gao.gov/new.items/g100064.pdf.

Fact Sheet - GAO Finds Faults With FBI's NICS Operation -- NRA-ILA

In The News - News Release from Sen. Thomas on GAO study of NICS. -- NRA-ILA

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LIES, DAMN LIES, AND CLINTON SPEECHES

The old joke that you can tell when a politician is lying when his lips move seems to always come to mind when Clinton makes public appearances. Of course, the President's appearance in Boston was no exception. Along with his usual claims that "gun control" is an effective response to violent crime, he also stated, in reference to the Brady Act, that "Congress passed it...but it had been vetoed by the previous President." The previous President, however, was President George Bush, who never vetoed anything resembling the Brady Act, as that bill did not pass Congress until Clinton was already in office. Clinton also claimed that "not a single hunter in America has been inconvenienced" by the Brady Act. Tell that to the thousands of law-abiding citizens who have attempted to lawfully purchase a firearm, only to be wrongfully denied or delayed by the National Instant Check System (NICS). It is very likely that many law-abiding hunters missed all or part of a hunting season because a NICS check resulted in an erroneous denial, leaving it up to the hunter to prove he is not prohibited from purchasing a hunting rifle, which certainly would seem a bit "inconvenient" to any person illegitimately denied his rights. When you contact your federal lawmakers, also be sure to remind them that NICS must be fixed, and they should work with NRA to ensure that the system operates fairly and efficiently, as it was originally intended. A comprehensive audit of NICS, conducted by the Congressional General Accounting Office (GAO) is due out in the next several weeks, which will offer the first independent review of NICS operations.

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PREZ BLOWING SMOKE ON NICS---

During a recent trip to the Republik of Kalifornia, our prez has claimed that over 470,000 criminals have been denied guns. However the Government Accounting Office has found that almost 50% of denials under this system were erroneous. Some of the denials were based upon traffic violations and administration foul-ups, such as, sending the paperwork to the wrong department. Another fact that I'd like to bring up is that the criminals that do get denied do not get arrested. I mean I thought that was what the point of this thing was supposed to be about. Benjamin Smith, who went on a shooting spree earlier, is one those supposedly denied a firearm through this system. Now what's really interesting is that this one done a week before he committed his horrible act. Abviously the government doesn't give a crap about the criminals, but it does want to make a list of those who legally acquire firearms.

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NICS UPDATE---

Here are the National Instant Background Check (NICS) statistics for the
first four months of Brady Pt. 2 (from startup on Nov. 30, 1998 to Mar.
31, 1999). I obtained these from the FBI.

It seems more than 23,000 people a day buy guns for lawful use. All of
their names and addresses are carefully recorded by the federal
government, citing the Brady Law as authorization (although it, and the
McClure Volkmer Act, explicitly prohibit such recording). No records
are kept on the results of the 238 criminals turned away daily.

1,419,414 Inquiries from FFLs to the FBI Call Center
1,471,376 Inquiries from POCs, run by state police, to FBI
2,890,790 Total Calls Recorded for time period (23,695/day)
8,672,370 (Annualized estimate of total calls)

$19,871,796 (Calculated value if FFL calls were taxed $14 each)
$59,615,388 (Annualized value at $14 tax per FFL call)

In most states, the FFLs (Federal Firearms Licensees, commonly called
dealers) call the NICS center directly to conduct background checks.
These are tracked separately from POCs (Points of Contact), where a
centralized state police bureau takes the calls from its state's FFLs,
and then serves as a go-between with the FBI. The FBI's controversial
gun-tax plan, postponed for one year (through Oct. 1999), was to only
tax FFLs in states that had no POC, at about $14 per call, to encourage
those states to get their state police to comply.

786,006 Delayed (27.19%; 6,443 people are delayed daily)

27,000 Denials for prior-criminal-history file found (felonies)
975 Domestic Violence
800 Fugitives/Wanted
182 Illegal alien
26 Dishonorable discharge
15 Denied persons list
28,998 Total Denials (1%, 238 people per day)
86,994 (Annualized estimate of total denials)

4,900 Appeals: 72% sustained (3,528), 29% overturned (1,421)

Standard operating procedure is to notify the Bureau of Alcohol, Tobacco
and Firearms of all denials (238 per day). Local law enforcement
agencies are notified on people with outstanding warrants. Results are
not tracked.

At its current rate, NICS will record in the neighborhood of 10 million
American gun buyers' names in its first year, about 14% of the total
citizens estimated to bear arms. Because making such recordings is
strictly prohibited under federal law, the FBI has indicated they will
begin deleting names six months after startup (that would be 6/1/99,
less than 3 weeks from now), to prevent creating an illegal gun
registry. If they do, the NICS "registry" will only contain between
four and five million of the most recent American gun buyers at any one
time.
            The above was provided by: Alan Korwin @  www.gunlaws.com

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NICS Abuse---The Department of Justice has proposed a regulation that it will turn over the identities of lawful firearm transferees to the BATF so that the BATF can "audit" such persons and the Federal Firearms Licensees (FFL) from whom they purchased their guns. FBI proposes to keep these records for three months. This is clearly illegal under the Brady Act, which requires that National Instant Check System (NICS) records be destroyed and forbids 1) "any record or portion thereof" generated by NICS "be recorded at or transferred to a facility owned, managed or controlled by" the United States, and 2) using NICS "to establish any system for the registration of firearms, firearm owners or firearm transactions." The Firearms Owners' Protection Act of 1986 also made it illegal for BATF to have these records. We urge those concerned with this proposed illegal registry to submit comments opposing the regulation by the comment period deadline of June 1, 1999; to: Emmit A. Rathbun, Unit Chief, Federal Bureau of Investigation, Module C-3, 1000 Cluster Hollow Road, Claksburg, WV 26306-0147. (from the National Rifle Association)

"COMPROMISE" PROPOSAL FLOATED?

While the juvenile justice legislation is still pending in a conference committee, reports of a "compromise" proposal concerning the gun show issue have been circulating on Capitol Hill. Under this draft proposal, records of approved purchases under NICS would be destroyed "within 24 hours." This is unacceptable to NRA, for the law says that purchases not denied under NICS must be destroyed immediately. The draft also envisions a modified three-day delay in circumstances where the system discovers an arrest or other similar record indicating that transfer of the firearm may violate the law. Like the 24-hour record retention, we also oppose this three-day wait provision, as the NICS system was intended to approve transfers "if the receipt of a firearm would not violate" federal or state law. Mere arrest records, which may not contain final dispositions, are inconsistent with the stated purpose of NICS. Only convictions, not arrests, are disqualifiers for gun ownership. Rather than applying band-aids to the current shortcomings of NICS, we will continue to ask Congress to address the core problems concerning deficiencies with the system.

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Last update: March 22, 2005