NICS IS ON
The most critical facets of the
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.
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
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
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.
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,
- 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?
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"
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.
No nation has the right to keep and bear arms unless
its people have the right to keep and bear arms.
Guns save lives.
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