(National Instant Background Check)

For Publication, 1,208 Words
One-time North American Serial Rights
Copyright 1998 Alan Korwin
Not-for-profit circulation approved.

Contact: Alan Korwin, Bloomfield Press
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(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. 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 years.

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 "instantly."

"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 need more.

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 dismissal.

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?)


Contact: Alan Korwin

Fight for freedom. Buy a book. (At least look.) 

4848 E. Cactus, #505-440 • Scottsdale, AZ 85254
602-996-4020 Phone 602-494-0679 FAX
1-800-707-4020 Book orders
Order Online

Alan Korwin is the author of
"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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