TODAY IS NICS DAY! (National Instant Background Check)
For Publication, 1,208 Words
One-time North American Serial Rights
Copyright 1998 Alan Korwin
Not-for-profit circulation approved.
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TODAY IS NICS DAY!
(October 31, 1998)
By Missing Today's Deadline,
the Justice Dept. Can't Legally Start On Time
by Alan Korwin
Contrary to what you've heard from pro-, anti-, and media sources, the
National Instant Background Check System (NICS), required under Part 2
of the Brady law, does not start on November 30, 1998.
NICS starts 30 days after the Attorney General notifies every licensed
firearms dealer in America that NICS is established. That must be by today,
if they're to be on time. Here's the law:
18 USC Section 922 (t) [Brady Part 2] (1) Beginning on the date that
is 30 days after the Attorney General notifies licensees under section
103(d) of the Brady Handgun Violence Prevention Act that the national instant
criminal background check system is established, a licensed importer, licensed
manufacturer, or licensed dealer shall not transfer a firearm to any other
person who is not licensed under this chapter,... [unless all of the NICS
requirements are followed by the licensee, described in the 714 words that
follow paragraph (t)(1), above. See Gun Laws of America, pgs. 166 to 168.
http://www.bloomfieldpress.com for info about Gun Laws of America.]
A quick check of local FFLs reveals THEY HAVE NOT BEEN NOTIFIED. Have
any of you FFLs out there been notified? No? Guess what. Legal implementation
of NICS must be delayed, if the government follows the law.
For every day that FFLs are not notified from this point on, NICS begins
one day later.
Only two things happen on Nov. 30, 1998, according to the statute. Brady
Part 1, the part America is familiar with and has been operating under
for five years, expires. It is no longer law. Brady Part 1 was set up,
"Beginning on the date that is 90 days after the date of enactment
of this subsection and ending on the day before the date that is 60 months
after such date of enactment..." which turns out to be Nov. 30, 1998.
The other event is that Congress told the Attorney General to build
NICS by that same date. But if the AG decides not to build it, or is late,
nothing happens. There is no punishment for failing to meet Congress' request,
and in fact, Congress constantly asks its agencies to do things, and maybe
they do, maybe they don't, maybe they're on time or not, no punishment
is involved, and Congress takes it from there. Wrangling can go on for
Aside from verbal assurances from the agencies involved, no one knows
for sure if the FBI will have NICS built on time. Some indications suggest
they are as far behind as any large-scale computer development project
normally is (85% of which routinely finish more than six months late).
Their interface specs were late, test states were late or not implemented
yet, coordination with data-supplying agencies has not been publicly disclosed.
At any rate, it appears that notification to FFLs is in fact delayed,
which by law delays the start date for NICS. Certainly wouldn't want to
violate the law, right?
The latest FFL Newsletter, sent to all FFLs by the Treasury Dept. (not
the AG's office which is in the Justice Dept.) talks about the NICS situation
in its lead story. The newsletter, dated August 1998, was received from
ATF this week by one of my local dealers, who faxed me a copy. It carefully
dances around the critical issue of the start date, that you've just read
about here. It also says:
"Furthermore, while there is no five-day waiting period under the
permanent provisions [their name for Brady Part 2], the system may take
up to three business days to notify the licensee whether receipt of a firearm
by the prospective purchaser would be in violation." They fail to
mention that the law says a three-work-day wait only kicks in under very
narrow circumstances, and all other transactions are required to take place
"ATF will notify each FFL by letter of whom to contact to perform
NICS background checks prior to the date that NICS is operational."
ATF notification clearly does not satisfy the law's requirement that all
FFLs be notified by the Attorney General, and neither notification has
apparently been sent yet. The cautious phrase, "prior to the date
that NICS is operational" fails to instruct dealers that thirty days
must elapse from the proper notification date, before the system can be
considered legally "on."
"FFLs will be required to enroll with the FBI to be able to initiate
NICS background checks. The FBI will mail an enrollment package..."
This will probably constitute the notification required by law. Have any
of you seen one of these yet? Not yet? That's what my review has shown.
The package will include something called a "User Agreement,"
in states where the state police are unwilling or unable to act as an FBI
service center (the federal term is "point-of-contact"). The
content of this contract is unknown. The newsletter says if you have not
received your packet yet, call ATF or the FBI.
Dealers are expected to use a NEW Form 4473 Transaction Record (the
yellow sheet used in all retail firearm sales) when Brady Part 2 begins,
and must destroy all their old blank forms. "Each dealer should receive
a number of these new forms..." and there's a number to call if you
In what might seem a minor point, it's probably worth mentioning that
the government is specifically prohibited by law from requiring any recording
of innocent gun owner's names or other identifying information:
"(i) No department, agency, officer, or employee of the United
States may--(1) require that any record or portion thereof generated by
the system established under this section [referring to the NICS system]
be recorded at or transferred to a facility owned, managed, or controlled
by the United States or any State or political subdivision thereof;"
[from the Brady law.]
I'm still sorting out the Smith Amendment, the law that was to place
controls on the FBI and stop their illegal plan to record innocent gun
buyer's names and addresses (both the McClure Volkmer Act and the Brady
law strictly forbid any such recording, see the Position Papers on my website
if you need details).
As you probably know, after resounding passage by the Senate, the Smith
Amendment was changed in secret by the leaders of "your" Congress,
and then voted on, without being seen (even by Sen. Smith himself!), in
the 4,000-page spending package just passed. This was the 40-pounds of
brand new and un-read law that Speaker Gingrich had the nerve to call a
triumph for the democratic process. He should be ashamed of himself.
My message to my legislators, same as it has been for years: Do Not
Sign Anything You Have Not Personally Read. We all know this. You seem
to have forgotten. Violating this fundamental principle is grounds for
My next message to you will likely be about the Smith Amendment. As
of yesterday, Virginia-based Gun Owners of America had not been able to
positively confirm the verbiage that passed into law last week, and no
one knows how the FBI will interpret and act upon it anyway.
More later, now this: (Have you ever noticed how the news media communicates
like that, without verbs?)
If you knew all your rights you might demand them.
When you disarm your subjects you offend them by showing that
either from cowardliness or lack of faith, you distrust them; and either
conclusion will induce them to hate you.
Niccolo Machiavelli "The Prince"
Only the rulers should be armed.
IF YOU'VE GOT A GUN YOU'RE NOT A CROOK AND THE GUN'S NOT ILLEGAL,
THAT'S NOT A CRIME.
The Committee to Arrest Criminals and Leave Decent People