Despite repeated assurances that it was on schedule, the Justice Dept.
has effectively missed a deadline required before the National Instant
Background Check can legally begin under Part 2 of the Brady law. When
Part 1 of Brady expires on Nov. 30, the requirements for waits and background
checks will cease, possibly creating a gaping legal hole in national gun
The instant check, or NICS as it is called by the FBI, cannot go into
effect--either by law or as a practical matter--until the nation's 60,000
licensed gun dealers have been notified that the system is built and running,
and instructed on its use.
A spot check of major dealers nationwide shows that they have not received
the required notice, user contracts, new forms or instructions on the system's
use. In addition, most states' dealers will have to "enroll"
with the FBI in order to stay in business, and dealers report that no contact
has been made. The law requires 30 days notice by the Justice Dept., to
gun dealers, before the system can begin.
The Justice and Treasury Depts., however, have taken the position that
since they published their final regulations in the Federal Register on
Oct. 30, the notification requirement has been met. [Note: Those regs will
be available on our site shortly.]
As a practical matter, the FBI will need significant lead time to register
dealers, and set up direct links with the bigger ones, using a computer
system it has built exclusively for this purpose but never actually used.
Dealers were formerly controlled by the Bureau of Alcohol, Tobacco and
Firearms, and the switch to FBI control is a major element of Brady 2.
In its latest newsletter, ATF advised dealers to discard any supplies of
blank forms they may have, and only use new FBI-compliant "4473"
gun-sale forms, which dealers have not yet seen.
"NICS first made news when people realized the Brady Handgun Law
would control all guns, not just handguns," says Alan Korwin, author
of seven books on gun law, including a plain English federal guide, Gun
Laws of America. "Next, the big news was that the FBI was taking control
from ATF, and planned to use NICS to register gun owners--something ATF
has longed for--even though it violates existing laws. But these are minor
compared to the fact that Brady will lapse altogether, unless the authorities
construct a fix--and their legal leg is wobbly--because dealers have not
in fact been notified."
Even if the Justice Dept. prevails, as it probably will, and the obscurely
published rules are taken as notification of 60,000 dealers who don't know
it, the NICS system clearly is not in place yet, and rumored to be quite
late. The Wall Street Journal reported on Nov. 12, with just 11 business
days to go, that NICS "isn't finished yet." Theoretically, for
each day that passes, the start of Brady 2 is pushed back a day, and the
Brady law lapses nationwide. A presidential statement and some sort of
quasi-legal patch seems likely.
Bloomfield Press, Korwin's Phoenix-based publisher, has detailed reports
on the subject and other gun-law information on its website, https://www.bloomfieldpress.com.
They have also posted a detailed schematic diagram of the NICS system.
BACKGROUNDER: Bloomfield Press is the largest publisher of gun law books
in the country, founded in 1989. "Gun Laws of America" for police
department and news media review is free on request, call 1-800-707-4020.
The author is available for interview, call us to schedule.
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