HR 2640 NICS Improvement Act
Signed into law Jan. 8, 2008
Read about the old defeated Brady-preferred version of this bill
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by Alan Korwin with Michael P. Anthony
"If you knew all your rights
you might demand them."
The Gist of the enacted new HR 2640
(Preliminary info, 1/9/08, subject to review and public input)
News announcement on the new law
The terms "court order," "adjudication as a mental defective" and "committed to a mental institution" now refer to a real court with due process intact and certifiable mental cases. In the prior Brady-approved version, almost anyone could inflict legal sanctions on you with virtually no controls or redress. That alone is a milestone. (See the defeated Brady-preferred draft.)
A federal agency or department that has real records of people who are prohibited possessors for legitimate reasons (mental cases, felons, illegal aliens, etc. listed in 18-922) must submit those records electronically (no longer manually) to the NICS system at least quarterly. (Click the link for the full NICS schematic drawing.)
If you bring those agencies proof that your disqualifying information does not apply or no longer applies, they must update, correct, modify or remove the records from their files and tell the Attorney General (who runs NICS), so NICS is kept up-to-date. The AG has 30 days to correct NICS with your information. This is also a major milestone. As a safety check, the AG has to report to Congress every year on the compliance of every agency or department that maintains and must submit and correct such records.
The Dept. of Homeland Security is singled out to also comply with the rules above. This is OK but needs to be watched closely, as DHS has in the past sought somewhat arbitrary control for anonymous no-remedy no-fly lists and rights-denial powers that could adversely affect the public. They do not currently have such authority.
DHS is also charged with removing illegal aliens from the NICS list (reinstating their rights), if they gain citizenship. This is hidden in tricky legalese (all persons, "who have changed their status to a category not identified under section 922(g)(5) of title 18"), and could be applied broadly under a future amnesty bill.
The AG is required to keep all this information accurate and "confidential," another nice touch. They also must remove and destroy obsolete and erroneous names and info in a timely way, and encourage development of computer systems to electronically provide info on relevant court orders that are issued, lifted or removed, and about certifiable mental cases.
Only Valid Records
The reporting agencies are forbidden from providing records to the AG for NICS if a) the adjudication or commitment has been set aside, expunged, or the person is fully released or discharged from any mandatory treatment, supervision or monitoring; b) the person is found to no longer suffer from the disqualifying condition by any lawful authority or legal procedure (broad latitude that works in favor of the public); or c) the disability was based on a procedure that did not include an opportunity for a hearing by the person. Exceptions are made for a person who pleads not guilty to a charge by reason of insanity, is found unfit to stand trial, and for criminal cases under the Uniform Code of Military Justice.
Application for Relief
All reporting agencies must establish procedures to allow people adjudicated or committed to apply for relief. Applications for relief must be processed within 365 days. This is a sore spot, giving the agencies this long to act; 90 days would seem to be a much more acceptable time frame.
Any agency that doesn't resolve the application within 365 days, including because they have no money to do so, is deemed to have automatically denied relief without cause. This allows the denied person to sue for relief. Although this is awkward, expensive and difficult, it is a significant step ahead. In the past, an agency's refusal to act, especially with a claim of no funding to act, left you high and dry -- failure to act was not a denial and so courts back then wouldn't handle the case. It's a very weak solution, better than nothing, and needs to be further improved in the future.
Helping out just a little, the procedure for the suit is spelled out (long-standing rules found in 18-925c), and you get your attorney's fees back if you win, at a modest rate (the rate for public-interest legal-aid organizations).
To remove any fuzziness, if you have relief from disabilities under this law, the reason for the disability is deemed to have never occurred for the prohibited possessor statute, another very nice touch. The agency that grants the relief must notify you of such, covering the "acquisition, receipt, transfer, shipment, transportation or possession of firearms." I would be happier if it specifically stated purchase, sell, use, carry, keep arms and bear arms, but I'm pretty fussy about that, having seen authorities squirm through any crack they can find (or imagine).
Advanced Warning Required
From now on (starting 2/8/08), any federal department or agency that could certify you're a mental case (and hence a prohibited possessor) must now give you oral and written notice that this would remove your gun rights, inform you of the penalties for illegal gun activity, and describe how you could reclaim your gun rights. These are very important safeguards that had been missing (like for all the vets who were classed as PTSD without realizing what that meant for their rights).
Protections Extend Back In Time
Anyone already in the NICS system has all the new protections and rights-restoration options. This is also important, because without this, anti-rights officials would be inclined to simply exclude everyone already suffering with rights disabilities. Don't get me wrong -- real nuts, hardened criminals, felony fugitives and similar need to be banned from gun activities, but decent members of society need a way to get their records fixed and their rights back.
States Must Maintain Records and Comply
A lengthy section of the new law carefully defines the record keeping requirements for the states.
Read what this new law means to you
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