NICS IS ON

The most critical facets of the NICS
criminal background check system
have not hit the media.

by Alan Korwin
For Publication, 1,916 Words
December 22, 1998
One-time North American Serial Rights
Copyright 1998 Alan Korwin
Not-for-profit circulation approved.

Alan Korwin is the author of seven best-selling books on gun law, including "Gun Laws of America?Every Federal Gun Law on the Books, with Plain English Summaries," and state gun guides for AZ, CA, FL, TX, VA.

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I'll go out on a limb here. The fundamental shift in the balance of power created by the NICS gun-owner registration system is a greater national issue than the impeachment of a president.

For the first time in American history, in direct opposition to the U.S. Constitution, a citizen cannot get a new gun without informing the federal government, and without their approval. In contrast, impeachment is a recognized constitutional process.

A chapter in American history is now closed. The NICS scheme reverses the concept our nation has run on since its inception. What has been implemented under a crime prevention banner has given the federal government absolute control of firearms amongst the populace. To be sure, it will take some time for that control to reach critical mass, but the shift has been made and is unlikely to be reversed.

A single gap remains. People can still arm themselves without government knowledge or control, by swapping currently owned arms privately. A private sale between two law-abiding individuals hurts nothing and is perfectly legal. But plans to shut this down are under way using the clever "Gun Show Loophole" stratagem.

Stopping the gun tax was not a victory.
It was the status quo.

You'll be seeing stories on how pro-rights advocates won a big one by stopping the attempted FBI-levied sales tax. This was no victory, even though it's a good thing. We had no tax, we have no tax. You broke even.

The $42 million the FBI got in order to call off their tax, were tax dollars. If they don't get at least that much cash one year from now, they have said they will attempt to levy the per-sale tax again. The win that was only a draw, was really just a postponement. Don't let the pro- or anti-rights folks convince you otherwise.

If the government had succeeded in taxing your rights, that would be a loss. In a win, you get something. If you want a win, think about enacting a tax credit. I'm in favor of a tax credit for firearm training, because training is the socially responsible thing to do. Anyone who uses range time, or burns ammo training in any fashion, gets a reduction in their income tax. Create and pass an incentive for responsible gun ownership, and watch the immense positive effects of a real win. Stopping a tyrannical tax, levied without Congress, was net sum gain zero.

Record destruction probability

People have been asking me if I think the FBI will destroy records sometime down the road (now rumored to be six months hence). Sure... but only if you believe they'll follow the laws that say they can't write it down in the first place. Do not expect a single file to be deleted. And do not expect to be able to confirm any official statements in that regard.

Janet Reno responded to the NRA's anti-gun-registration lawsuit by claiming?hold on to your hat?that the current system is not capable of destroying the records of law-abiding gun buyers, and that to reprogram the system would require that it be shut down for six months, costing $2 million.

Record destruction is as probable as the government obeying the explicit McClure Volkmer or Brady requirement to keep no records of innocent Americans in the first place, what's the question. People who would like the public disarmed can't even fathom why you'd want to destroy such valuable information once it was gathered. The fact that no crime fighting purpose is served by keeping a pricey list of America's 10 to 15 million annual gun purchasers, is unreported in the media.

The gun show loophole stratagem

The text of the president's Nov. 7 radio address, incorrectly reported by the mainstream media?and mistakenly referred to by many pro-rights people as a proposed gun show ban of some sort?is not about gun shows at all. It calls for a total ban on any private sale of firearms among honest Americans.

Quoting from the president's speech: "a plan to close the loophole in the law and prohibit any gun sale without a background check" and "no background check, no gun, no exceptions." And from the subsequent BATF letter, "the President expressed his concern about the numbers of firearms sold at gun shows and elsewhere without Brady background checks."

If enacted it will totally seal off any gun acquisition by any American without pre-registration by federal government authorities?the very people who are supposed to NOT know who has decided to be armed. And the president did not call for a law, where your representatives might object, he called for executive action recommendations, which he can "enact" on his own. Jan. 7 is the due date. Check back with me on this.

Reported statistics

Published reports indicate that 951 gun sales were stopped in the first week of NICS operation, which is about one-half of one percent of the total. Reported arrests of Brady felons and fugitives is zero. Although the media keeps the masses in the dark, people on both sides of the gun debate recognize that the process of writing down the names of innocent Americans, and letting identified criminals roam free, is not related to crime control.

If the anti-rights advocates are correct and all denials are for bad guys, this represents 49,000 known criminals identified annually and left on the street. If the pro-rights side is correct and the numbers are grossly inflated by unjust denials that should be or are later reversed, then NICS will deny 49,000 people their rights annually, and the system will have to handle that many appeals. The NICS operators, of course, will know precisely what those numbers are.

In the first week, the Associated Press reports 177,391 checks were conducted, which annualizes to 9.2 million sales. Some 25% were said to be delayed, equal to about 44,000 delays (2.3 million per year, about 6,300 every day). Of all the delays, 98% were errors, later approved, the figures show. Because the first week was beset with slowdowns and multiple system crashes, annual numbers will likely be higher.

NICS Report Generator

I've done a ton of documentation for large scale computer systems. A system as intricate as NICS must have an extraordinarily robust report generator. Some key reports I would expect daily, weekly and monthly, on-line and in hard copy, in addition to routine operation and performance specs, would include:

  • Top gun stores by sales volume
  • Top gun shows by sales volume
  • Top states and top cities by sales
  • Peak periods by day and season
  • Most guns purchased by an individual
  • Stats on all multiple gun buyers, with names
  • Gun sales in NICS traced to misuse

(includes the nation's complete inventory of new guns)

  • Delayed sales that are reversed, with time frames and cause
  • Denials reversed and the appeals process stats
  • Sales allowed because delay period expired, with names listed
  • Value of background checks if NICS were grossing $14 a pop
  • Felons and fugitives identified by the system
  • Felons and fugitives identified more than once
  • Reasons for denials, stats by age, race, zip, store, you name it.

Think up your own. It's unclear who will have access to this invaluable public resource. It seems to me the commercial elements of NICS and federal management of that commerce may be the most profound aspect of NICS. Does any other industry on the planet have 100% real-time tracking of every sale, with full customer ID?

Verbiage mistake

There is no reason to call this new Brady stuff and NICS the "permanent" Brady provisions, like the government does. That's their term. It has no legal basis. It's only real if you help make it so.

What you have now is really Brady "Part 2" and you should let the world know you know that, by calling it Part 2. The last thing you want to do when you're interested in fixing bad laws is calling and thinking of the current ones as permanent. I believe the government would like you to think that way. Disappoint them.

ATF asks for side 2

In a last minute hustle, without notice, debate, approval or apparent author-ity, some ATF officials here were telling FFLs to fax BOTH sides of the new 4473 gun registration form to the government. This made NICS even worse than we believed. At the last minute, and lacking any semblance of legality, ATF agents decided to collect complete gun-type data (make, model, serial number), straight off the 4473 form, tied directly to complete ID of all buyers. The forms however, are poorly suited to this task. Only the buyer's ID number appears on side 2, and when received as a separate transmission or on multiple fax machines is hard to match to side 1. They have since rescinded this requirement. Talk about luck.

The pawn shop wrinkle

Some number of guns will be confiscated at pawn shops. When a person returns to pick up a pawned gun, the required NICS check will undoubtedly detect some that cannot be legally returned. Who then owns that merchandise? What can the shop owner do with those firearms? Is this a confiscation of property by a civilian, acting for the state? No one knows yet.

Arizona now has "may issue" waiting periods

Arizona (where I am), the same as many states, thought we were clever in passing our own "exception" to the Brady law, a locally run "instant" check system. But as Larry Pratt of Gun Owners of America has repeatedly warned, this was short sighted and dangerous. We now have a waiting period anyway, selectively enforceable by the FBI, and our state gun-check administrators are powerless against it.

Our state police forces are not autonomous, as contemplated by the Tenth Amendment. The FBI dictates our Dept. of Public Safety policy with respect to the Second Amendment. The state no longer determines your legal status?if the feds hold up DPS, Arizonans are denied their rights.

Federal choke point

Although no one wants to officially admit it, everyone recognizes that the NICS system can be used to shut down gun sales nationally, or in selected areas, at the direction of the federal government. We have already seen dealers nationwide comply, at enormous dollar cost, by selling no guns during their busiest season, as the system struggled and wheezed into halting operation in its first days. If operations remain slow, or become non-existent for periods of time, will dealers sell firearms regardless? Experience shows they would rather not jeopardize their licenses, livelihoods or lives, who can blame them, the authorities know this.

On that note it's important to remember that, anticipating the potential for abuse, Congress made it clear: the requirement to use NICS only exists if the system is up and running. The statute is unambiguous: 18 USC 922(t)(5) provides a penalty for failing to use NICS only if "the system was operating and information was available", and then only if the purchaser would have been found to be ineligible. Read it yourself on page 167 of Gun Laws of America.

Year 2000 issues

I've been examining the Y2K situation and I've come to believe that a) it's far worse than currently recognized by the public, and b) it represents a potential challenge to and opportunities for our fundamental liberties. If you hear from DOCTOR ZERO about all this, that's me.

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No nation has the right to keep and bear arms unless
its people have the right to keep and bear arms.
?Alan Korwin

Guns save lives.

 

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Alan Korwin
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