The “Fix NICS Act” Solves Nothing By Itself and Ignores Fundamental Problems

Enforcement of Gun Control Law Is Still Gun Control

Despite the win for firearm owners during the last national election, gun controls are now being endorsed and approved from within the firearms community. The initial step was the NRA’s statement that it “believes that devices designed to allow semi-automatic rifles to function like fully-automatic rifles should be subject to additional regulations.” Unfortunately, the NRA does not recognize the simple fact that the Second Amendment is not about hunting, but about avoiding the control of a tyrannical government. Those laws banning “fully-automatic rifles” are a significant infringement on the ability of citizens to discourage the creation and maintenance of a tyrannical government. Fully-automatic weapons should never be the standard for determining what should and should not be banned.

More recently, the National Shooting Sports Foundation has claimed that the “Fix NICS Act” does not interfere with the Second Amendment rights of law-abiding Americans and that the “Fix NICS legislation is not a ‘gun control’ measure.” These statements require a redefinition of “gun control” not unlike “doublespeak.”  First, these conclusions require the assumption that merely extending the enforcement provisions of a gun control law is not “gun control.” After all, as NSSF asserts, the proposed law doesn’t “expand” the definition of prohibited persons. However, the very purpose of the Fix NICS Act is to keep firearms out of the hands of those the law designates should not possess firearms. Improving the enforcement of a gun control law is still gun control.

NICS Is Not Just About or Limited to “Criminals”

The second erroneous assumption is that the new law isn’t “gun control” because it only affects those who are “law-abiding.” This is factually erroneous on several grounds. Prohibited persons include those who have not committed any crimes, including persons with mental deficiencies, aliens admitted under nonimmigrant visas, those who have been dishonorably discharged from the armed forces, those who have renounced their U.S. citizenship, and those subjected to court-ordered domestic restraining orders. While there may be justifiable grounds for prohibiting firearms ownership by some of these persons, including them in the class of criminals is factually and legally erroneous. The inclusion of these individuals with criminals ignores consideration of the merits of why these persons are precluded from owning firearms. The failure to consider the application of the prohibition laws to these law-abiding citizens is particularly egregious in light of the over-reporting by the Social Security Administration and the Veterans Administration of individuals who have assigned their benefits to a third-party for handling– which does not meet the legal requirements for becoming a prohibited person. Nor do these “fixes” address problems with over-reporting by courts that have issued restraining orders in divorce and other family law cases based on nothing more than a request by one of the parties and which do not meet the standards set forth under federal law to disqualify a person from possessing a firearm.

Failing to address the differences between “criminals” and other prohibited persons leads to erroneous and dangerous oversimplifications. Once the government establishes that only “bad people” are being disqualified, it becomes easier to simply add to that list every time a horrible crime is committed or to attack minority groups based on anything from their race, nationality, religious beliefs, moral beliefs or conduct, political beliefs, etc. The first step requires that a group of people must be distinguished from being like the rest of us. Second, these people must be demonized. Lastly, these persons are added to the list of bad people who are “prohibited from owning firearms” among other restrictions. (See the following books: Jews for the Preservation of Firearms Ownership, ‘Gun Control,’ Gateway to Tyaranny; Stephen Halbrook, Gun Control in the Third Reich; and Aaron Zelman and Richard Stevens, Death by “Gun Control, The Human Cost of Victim Disarmament.)

NICS Continues to Target Non-Violent Crimes

The claim that the “fixes” to the NICS will not affect “law-abiding” citizens fails to properly distinguish those who should or should not possess firearms. An indirect, but progressively common method of gun control is the expansion of the number of crimes for which a person can be sentenced to a term of more than one year (generally defined as a felony, but may include some misdemeanors). These nonviolent felonies often include minor regulatory violations, particularly those involving environmental and business laws. (See Harvey Silvergate, Three Felonies A Day, How the Feds Target the Innocent.) Internet searches reveal many examples of crimes which can lead to a sentence of one year or more, but which have nothing to do with whether the person should be restricted from owning a firearm (i.e., releasing helium balloons because they are bad for the environment, sex between two teenagers, writing a bad check, etc.). While laws prohibiting violent felons from possessing firearms make sense, prohibiting non-violent felons from protecting themselves and their families with firearms does not.

The firearm prohibition for non-violent felonies was addressed by the Third Circuit of the Court of Appeals in a case where, in 1996, 41-year-old baker Daniel Binderup began a sexual relationship with a 17-year-old female employee. The baker pled guilty to a misdemeanor for corrupting a minor and was sentenced to three years of probation, a $300 fine, court costs, and restitution. He had no subsequent criminal offenses. Binderup could have been sentenced to up to five years imprisonment. Under the existing law, he was forever precluded from owning a firearm. Because of this prohibition, Binderup appealed. The court addressed Binderup’s case and a similar case of a non-violent criminal conviction that could have resulted in a sentence exceeding one year. The court found that these convicted individuals fell “outside the proper scope of the felon dispossession statute.” In so ruling, they allowed individuals to argue that the prohibition, as applied to them, was unconstitutional. Unfortunately, the Fifth, Ninth, Tenth, and Eleventh Circuits have ruled against such “as applied challenges” and the Fourth, Seventh, Eight, and D.C. Circuits “have left the door open to a successful as-applied challenge” but not yet upheld one. (Binderup v. AG of United States, 836 F.3d 336 (3d Cir. 2016).

The “Fix NICS” Legislation Accomplishes Little More than Requiring Future Plans, Benchmarks, Reports, and Bureaucracy

The “Fix NICS Act” doesn’t actually “fix” anything. Instead, it shifts the actual work to the Executive Branch to create a complicated process of coordination between the “head of each Federal department or agency” and the Attorney General whereby each department and agency are required to establish “a plan to ensure maximum coordination and automated reporting or making available of records to the Attorney General.” These plans must include the establishment of benchmarks, “qualitative goals and quantitative measures,” and continual compliance monitoring and assessment of this reporting and certification bureaucracy. There are no provisions to exclude any federal department or agency on grounds they have nothing to do with reporting disqualifications to NICS. Because these “plans” are established through the AG and “the head of each Federal department or agency,” dozens of differing plans may be developed. (Also problematic, no one seems to know how many agencies exist. There are figures of 60, 78, 96, 252, 257, 316, and 430. (See Competitive Enterprise Instsitute, “Nobody Knows How Many Federal Agencies Exist.) Those departments and agencies not providing the required reports will be tattled on by the DOJ to Congress and on the DOJ’s website. They will also not be “eligible for the receipt of bonus pay.”

Because the federal government cannot technically force states to provide information to the NICS system, the Act requires the AG to “create a priority area under the NICS Act . . . to identify and upload all felony conviction records and domestic violence records.” This oddly worded requirement for the AG to create an “area” under the Act is nothing more than a $100,000,000 bribe to state agencies to submit to the federal government’s wishes. With these bribes, the AG and “each State or Indian tribal government” are required to create plans to “ensure maximum coordination and automation of the reporting” or “making available of appropriate records” to the NICS system. These plans are also subject to benchmarks and associated compliance evaluations by the AG with penalties of publication of those states and tribal governments failing to meet those standards and the loss of the federal bribe money.

The proposed law also attempts to address the concern where the background checks determine a person is “prohibited” from receiving a firearm, but only “after 3 business days . . . since the [FFL] contacted the [NICS] system.” The proposed law does not state who is required to report the disqualification, but only that “the System shall notify” the person’s local FBI office, local law enforcement agency, and state law enforcement agency. The notification is apparently so someone from one of these agencies will retrieve the firearm the person who received it during the first three days, but was later determined to be a prohibited person. No penalties are provided if law enforcement is not notified, but then it’s hard to hold a “system” accountable for its failures.

AG Report to Congress Regarding Bump Stocks

The last area of the legislation (other than the $100 million bribe) requires the AG to prepare and submit to Congress a report regarding “bump stocks” that includes information about how often they are used to commit a crime and what types of firearms are used to commit those crimes. FBI statistics establish that rifles are used in a small number of murders in this country, but because of one horrific use of these devices, a full evaluation and report is being required.

Part of the definition of a “bump stock” is a device that “is designed and intended to repeatedly activate the trigger without the deliberate and volitional act of the user pulling the trigger each time the firearm is fired.” This definition implies that by pushing the “fore end” forward, the person is not making a “deliberate and volitional act” to pull the trigger. This is nonsense. It also complicates the issue of determining criminal intent because this proposed law concludes that a person using a bump stock is not making a “deliberate and volitional” act to pull the trigger if all the person does is push the “fore end” of the rifle forward. Apparently, the bad gun pulls its own trigger because the person holding the gun did not deliberately do so, nor did the person take a volitional act to pull the trigger.

This definition also ignores the issue of controlled fire. While some may wish to simply empty a magazine in the direction of a target as quickly as possible, the bump stock can be used for two- and three-round bursts in the same manner as a fully automatic weapon. Such select fire of a bump stock specifically requires a “deliberate and volitional act” to control the number of times the trigger is pulled and the number of rounds to be fired, which would remove it from the proposed law’s definition of a bump stock. Each time a law attempts to isolate the decision-making process of the person holding the firearm from the results of those actions, it ignores the responsibility of the person and shifts it to the “bad gun.” Of course, there is no such thing as a “bad gun,” but blaming the gun makes “gun control” easier to pursue.

Any “Fix” Should First Redefine Person Who Qualify as Prohibited Person

Any “fix” to the NICS system should first address and clarify the underlying problems of over-inclusive reporting, wrongful denials, and the lack of clarity under the “system” as to how a person becomes a prohibited person. The proposed “fix” does nothing more than create another expensive federal and state bureaucracy with plans, benchmarks, and reports that will lead to further extensive regulations and wrongful denials. The result will not lead to a better system, but a more-inclusive bad system that will affect primarily those who should not be restricted from possessing a firearm. Generally, laws against murder/robbery/rape are not prevented by gun laws because someone inclined to commit such base acts are not concerned about obeying the law. Those with criminal backgrounds will continue to illegally bypass the NICS system. Adding further layers of bureaucracy to an already failing system accomplishes nothing, but unfortunately is the consistent approach for any failing bureaucratic system.

Gary is licensed as an attorney in Texas and California and the author of two books on Firearm Laws for Businesses and Their Customers: Volume 1 is for federal infringements and Volume 2 is for Texas infringements. He provides legal services to businesses by helping them get started and remain in compliance with state and federal laws with a particular focus on firearms businesses. He also works with individuals and business owners by helping them with their estate planning needs (wills, trusts, gun trusts, powers of attorney, etc.); transfer and possession issues including restoration of rights, federal and state appeals; and family law mediation.

More information about Gary’s books can be found at his website: www.firearmslaw.attorney.

Contact Info: Gary B. Wells, 9350 Hilltop Rd., Argyle, TX 76226, (559)517-7446

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