Larry Keane of the NSSF says the Fix NICS Act is not gun control, despite what you may have heart from anti-gunners or read on the interwebs. (Photo: NSSF)
Editor’s note: The following is an article written by Lawrence G. Keane, the Senior Vice President and General Counsel of the National Shooting Sports Foundation. It was originally published on the NSSF website on Dec. 7, 2017.
With U.S. House passage of H.R. 38 this week, as amended to include the Fix NICS Act, we are moving toward the one reform that will do the most to help keep firearms out of the hands of those who should not have them. And, despite what some have falsely claimed, it will do so while not interfering with the Second Amendment rights of law-abiding Americans.
The National Instant Criminal Background Check System (NICS) was established 17 years ago with Congressional passage of the Brady Act. Today, it is generally not known that the instant criminal background check system itself was the recommendation of the firearms industry, long before there was a Brady Act. The operating principle then and now is to protect the Second Amendment rights of law-abiding citizens — and the lawful commerce in firearms — while denying access to firearms by those prohibited by current law from purchasing or possessing guns.
Fix NICS is Not Gun Control
Unlike restrictions on semi-automatic rifles or magazine capacity, Fix NICS is not a “gun control” measure, no matter how some opportunistic co-sponsors on that side of the gun debate may choose to characterize the bill. In truth, the legislation is based on the previous state-level work of the firearms industry to improve a system put into place nearly two decades ago. Ever since its inception, NICS has been hamstrung by the systemic failure to include all necessary disqualifying records in its database.
There are many reasons for this failure. And even so, for the most part, the system works. We know this system better than anyone because our retailers are on the front lines every day using it to help protect public safety. That’s why we launched the FixNICS® initiative in 2013. The legislation before Congress is built on this experience.
We are nearing the end of the fourth year of our industry’s national effort, led by the National Shooting Sports Foundation, to ensure that the system has all the appropriate disqualifying criminal and adjudicated mental health records put into it. We have been successful through our direct efforts with 16 state legislatures to pass reforms to ensure that there are no statutory, regulatory, administrative or procedural impediments to entering all appropriate records into NICS.
NSSF’s work has resulted in a 170 percent increase in records submission, to 4.5 million in 2013 up from only 1.7 million in 2013. That is a record of accomplishment. The legislation now before the U.S. Senate will build on this success by providing incentives for states to submit records and help ensure that the military and federal agencies do their part, as already required under federal law.
Now, let’s discuss what the bill does not do. The definition of a prohibited person is not being expanded. Unelected government bureaucrats cannot unilaterally and arbitrarily put the names of law-abiding Americans into the NICS database to stop them from buying firearms, no matter how loudly some might claim. But it will stop prohibited people like the murderer of the innocent victims in Sutherland Springs from being able to purchase firearms from a federally licensed firearms retailer.
If not NICS, What?
For those on the pro-gun side who argue online or respond to posts with the message that the entire system should be scrapped for whatever reason, or that it will lead someday to a national gun registry, you need to hear this: Take a breath, think. If there was not a NICS system, we would have had some other system imposed, just as we did in the five years before NICS was implemented. The Brady Act imposed a waiting period while NICS was under construction. Would you prefer that? Existing federal law prevents a national registry. That will not change with Fix NICS.
Opposing this legislation because a vocal anti-gun Senator has signed on as a co-sponsor is easy, but it accomplishes nothing meaningful. Most Americans want a system to ensure that gun buyers are law-abiding and not mentally ill. That’s why we have NICS. It is politically unrealistic to think that the abolishment of NICS is even remotely possible. It is absurd to think we can support our Second Amendment rights without it.
No one who sells firearms for their livelihood wants to put a gun into the hands of a criminal or a mentally unstable individual. While we know it’s not perfect, we want to work to improve the system – not expand the law – but improve the system. That’s what the Fix NICS Act will do.
We will oppose any senators’ amendments that may be offered that would be truly anti-gun. These senators need to know that they will fail if they put on a show of placing politics ahead of enacting needed reform and attempt to amend the legislation with a Christmas wish list of unworkable and unconstitutional measures. They will fail their constituents and they will fail America.
We have your back. Beware of those trying to politicize the issue – from either side.
So, NSSF thinks the 2A says: “…shall not be infringed…except for (insert arbitrary criteria here).”
Congratulations, you’ve exposed yourselves as subversive leftist trash.
Fix NICS requires the FBI to render a reason for refusal to approve a gun purchase in 60 days!!!! The current law requires the reason in five (5)days. How is that an improvement. Now they tell you to “make me” after five days. It’ll just take longer when you are turned down to “not figure out” what has happened to your records.
The other BIG PROBLEM with Fix NICS is the definition of a “fugitive from justice” is open to include people who have unpaid outstanding warrants for traffic offenses. Once the ticket is paid, the name of the violator is not guaranteed to be taken out of NCIS. Once your in, though the law says the FBI has to fix errors, they seldom do. The exceptions are mainly in cases where the innocent are willing to spend $20,000 plus to file a lawsuit to get their names cleared.
I am not shocked to see NSSF to be involved in this push for us to “trust the government” by giving the FBI/NCIS more power. NRA seems to be “sitting this one out,” too.” Only Gun Owners of America is giving clear warnings about the “monsters” hidden in this bill.
“1.) It’s the National Instant Criminal Criminal Background Check System, exactly how is that a burden on your second amendment right? You did read the word Instant, right?
2.) Your response to fixing NICS is that something bad will happen in the future so we shouldn’t do anything about it. Do you take out the garbage? Do you wash dishes or clothes? There will just be more garbage, dirty dishes, and clothes in the future. Right back to square one.
3.) Attempting to have every resoponsible and necessary organization report the appropriate information to the NICS is simply filling in the gaps in the original legislation.”
1. By demonstrably being of no use in enhancing public safety, the Brady law fails in its stated purpose while forcing people to ask permission via a background check from the government to exercise what is supposed to be an unalienable right.
2. We’ve had gun control in this nation since 1934, and each and every time we “do something” when something bad happens, WE THE PEOPLE have to tolerate more infringement on what is supposed to be an unalienable right. So yeah. Screw NICS. It doesn’t need fixing. Brady, as well as all your other worthless gun control “laws”, need REPEALING.
3. Missing the point is what you types do best. It doesn’t matter how many lists you give the government the power to make despite the constitution, Bill of Rights, clearly telling you you aren’t allowed to infringe on our rights; you aren’t going to achieve the goal of greater public safety with gun control.
Its had almost 100 years and multiple major federal laws not to mention tens of thousands of others to prove otherwise, and yet, you types still say we “need more”.
You keep telling us we need to pass more, after we gave you more the least time when you also said it would actually work.
Nope.
No more.
What we NEED, is for you types to STFU and let us fix the government YOU broke, and get it back to respecting its lawful limitations.
The record of the background check that’s supposed to drop off in 90 days out of the NICS. The paper 4473 has to be kept for 20 years. After 20 years, they can be destroyed. If the FFL conducting the transfer goes out of business before that 20-year period, they must box up those records and ship them to ATF Out-of-Business Center (ATF National Tracing Center). The ATF is not allowed to computer…ize them per Title 18 U.S.C. 926(a):
” . . . such records, (shall not) be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.”
For about 15 years, the ATF has been transferring this “out-of-business” data to microfilm and destroying the hard copies in violation of Title 18 U.S.C. 926(a). The ATF also requires the closing store to transfer hard copies of the Acquisition/ Disposition records or, “bound book”, to the ATF. The ATF has graciously allowed businesses to keep this record electronically and so also requires the electronic copy be transferred to the ATF if one exists. Clearly, this is also in violation of Title 18 U.S.C. 926(a) since this electronic record will clearly then exist within a facility owned, managed or controlled by the United States once transferred. The ATF receives millions of such records every year.
Shortly after the microfilm project commenced, the ATF began to create a “Computer Assisted Retrieval System” (CARS) using this out-of-business data. Since this data is derived from the Form 4473, it contains the name, address, height, weight, race, date of birth, place of birth, and driver’s license number (or other ID number) of every firearm purchaser as well as the serial number of the firearm(s) purchased or transferred. Think of how many transactions must be stored in the CARS. This data exists on a mainframe operated by the United States and is in clear violation of Title 18 U.S.C. 926(a).
In the early 2000s, the Microfilm Retrieval System (MRS) project commenced which took this data and added manufacturer and importer information along with “other” data to the database that already included the name, address, height, weight, race, date of birth, place of birth, and driver’s license number (or other ID number) of every firearm purchaser as well as the serial number of the firearm(s) purchased or transferred. Microfilmed out-of-business records are also being converted to digital image for who knows what purposes. This data exists on a mainframe operated by the United States and is in clear violation of Title 18 U.S.C. 926(a).
In addition to these new systems, the ATF has operated the Firearm Tracing System for almost 30 years. It contains firearm tracing information from all traces performed in that time period and includes data manually collected from Out-of-Business records and entered into the trace system by ATF, to include:
– Dealer, importer and manufacturer computer and paper “Bound Book” Out-of-Business records,
– Dealer “Bound Book” records (computer and/or paper) copied by ATF during annual inspections,
– ATF Form 4473 copied from dealers and Out-of-Business records,
– Multiple Firearm Sales reports,
– data obtained from traditional phone calls to the manufacturer, distributor and final selling dealer and additional data sources, such as some state firearms sales records,
– Dealer’s “Bound Books” over 20 years old voluntarily sent in to ATF,
– Data from some antique firearms allowed to be entered in “Bound Books”,
– Stolen guns reported to ATF and,
– “Suspect guns” which include (these are ATF’s own examples): individuals purchasing large quantities of firearms (including older C&R firearms), and firearms transferred by dealers with “improper” record keeping.
Now it is not known if all of these databases are linked together but it’s obvious that they borrow data from one another. ATF agents have access to this information via the eTrace System and Online LEAD. Here’s the thing, tens of thousands of people at thousands of law-enforcement centers in dozens of countries worldwide also have access to the eTrace System. Yes, these worldwide agencies have access to this information to include a “description of the original retail purchaser.”
But good news, the GAO has researched all of this and it’s all legal and in accordance with U.S.C. so we’re fine and should have nothing to worry about. Right?
It’s be great if the NICS was used just for that, instant checking of a potential purchaser’s background in order to process a lawful transfer and then that check and the information gathered to perform it deleted but it’s not and has not and truthfully, I don’t think it will ever operate like that. NICS is being used to stockpile information on every lawful transfer that has ever occurred. No thanks. I think it’s pretty simple to see how the system as it is currently operated and exists and any “improvements” infringe on my natural rights.
Information on the above can be found on the GAO’s and BATFE’s own websites.
I agree with what you have posted. The Bureau of Alcohol Tobacco Firearms are trying to create a registration database for possible future confiscation efforts. This is illegal and unConstitutional. I was sickened when I discovered this information before. The Fix National Instant Check System Act is just another chip off the table of liberty. The Second Amendment is under attack constantly by the tyrants. It has been destroyed almost in California, New York, New Jersey, Connecticut and the other tyrant States. Thank goodness there are States like Arizona and Wyoming and others to flee to presently.
Do not get me started on the Sixth Amendment. One of the greatest hedges against tyranny is the Sixth Amendment and it has been mostly destroyed by our legal system. Read about “Jury Nullification.”
Funny, this sounds like the same tired old NRA compromise rhetoric that has consistently allowed politicians to whittle away at our natural rights for decades. There is no room for compromise. In the United States we are protected by the Constitution’s recognition of this very basic right, and it acknowledges that this right “SHALL NOT BE INFRINGED”. Every human being has a natural right to defend themselves and we have sacrificed far too much already. The continuous demands for compromise will NEVER be satisfied. There will ALWAYS be “just one more” demand, until there is nothing left.
NICS was never intended for being used for background checks for firearms purchases. Its a patchwork system. Yea this thing is pretty much useless and a “feel good” measure, like a door lock keeps people from breaking into your home. Could there be something worse in place, of course, but that doesn’t justify its existence. NICS does need to be fixed, however the idea that there is a nationally centralized “permanent” record for anyone should seriously scare people.
the problem with NICS is as written it was supposed to delete input information within 30 days, however it has become a gun registration instrument by NOT deleting said information. this happened to a friend who got in trouble and was told by a probation officer to get rid of the firearm he had bought legaly several years prior to the arrest. when asked how the probation officer knew he had a firearm he was told “you filled out a 4473 in 2013 ” and told him the store name.
Well, you’ve answered my question below, Trailguy. Looks like an Australian-style “buyback” is next. When and if this is realized by enough people, I predict a new national record of 4473s most days of the week.
in this day of data breaches and identity theft there are very good reasons to worry about abuse imo.I recently did a background check and found a arrest for speeding over 25mph from 2006,only problem was I was not living in the state it occurred in and I’ve been in a wheelchair and unable to drive since 2004.Even though it is not a felony,it shows that none of us are immune from false info in this day and age.
more fixes ,mean more gun control,,,there are ample laws already,,,,,,on the texas shooter, it was the military who was lax,,,,,,,,gonna make a new law for that ? you must work with gabby giffords,,,,,
The military was not “LAX” they violated the law, as did the judge in West VA who did not enter the West VA Tech killer in NICS when she convicted him.
This act only FIXES learned short-comings in the NICS law, it does not add to it.
please read these law and the case history.
The attitude of “if we didn’t have this we would have something else” is nothing less than a gun-control advocate’s loser attitude. Let me ask this; WHEN ARE YOU CLOSET LIBERALS GOING TO STOP BEING PAWNS FOR BLOOMBERG AND FEINSTEIN? This is the very reason I don’t have any respect whatsoever for the NSSF and never will. If this bothers folks in GunsAmerica and/or NSSF then remove my e-mail address from your address list.
I completely agree! Take me off your email list! This bill has the potential to destroy our rights. Maybe not right away…but you watch, soon as we get someone in the White House that is anti-gun they will have free reign to do as they please. I said before, I recently broke my leg. Under this (NRA backed bill) my doctor informs the NICS that they prescribed me pain killers. I didn’t even pick it up…AND I have a FFL/SOT. The FBI could then say (under the direction of the anti-gun administration) you have the means to a controlled substance. You must relinquish all firearms….oh ya including my customers SBRs and suppressors.
God help you if you use medical-cannabis in adherence to State law! This is an all out assault on our rights to be in control of our own health. The NRAs best friend Attorney General Jeff Sessions is behind the NICS “fix.” If you want to see the face of Trump era gun control look no further than Hawaii, they are already turning their guns in and Jeff will be coming for you next!
This fix NICS bill is a perfect example of the gov’t screwing up everything they touch simply because there is no accountability for mistakes that are made. If these types of screw ups that they are trying to “fix” were made in private industry heads would roll, but with the government we “fix” it with more laws. More laws more screw ups, and as previously commented above and admitted by senator Feinstein, none of the laws on the books will stop a kook bent on killing.
So, you’re just scrambling for something to complain about?
Ok, lets “fix NICS”.
But when the next mass killer that happens to use guns had/has no trouble passing their check, and nothing in their background up until the moment they perpetrate their vile crime would have stopped them from doing so, just like the Vegas killer and so many others, were back to square one.
These background checks don’t work. No law will stop bad people from doing bad things.
If the evil monster that provoked all this had been on the lists “like he should have”, what would have stopped him from stealing his guns like so many criminals do, or buying them illegally, or even killing someone for them like Adam Lanza did or maybe just renting a big truck from UHaul…….
The point being- these background checks don’t do anything other then place a burden on the exercise of what is supposed to be an unalienable right, and NOTHING more.
Ya’ll are just fooling yourselves if you think that any of this will increase public safety, but you go right on ahead if it makes you feel better.
And the only way, the ONLY way, it should pass AT ALL is if national CCW reciprocity is included. Period.
Thats actual COMPROMISE, and in my opinion, the only way we ultimately win this little war on our rights (barring outright civil war, that is)- by PROVING that what STOPS bad people, are GOOD PEOPLE WITH GUNS.
1.) It’s the National Instant Criminal Criminal Background Check System, exactly how is that a burden on your second amendment right? You did read the word Instant, right?
2.) Your response to fixing NICS is that something bad will happen in the future so we shouldn’t do anything about it. Do you take out the garbage? Do you wash dishes or clothes? There will just be more garbage, dirty dishes, and clothes in the future. Right back to square one.
3.) Attempting to have every resoponsible and necessary organization report the appropriate information to the NICS is simply filling in the gaps in the original legislation.
Well Z, seems to me that you are a gun control advocate. Every response has been very snarky.
The give away was this “…exactly how is that a burden on your second amendment right?”. So, it is not OUR 2A but your 2A. I guess you do not want to have any 2A rights.
Troll seems to be an appropriate descriptor for you.
You went out of your way to make a snarky comment without any substance based solely on your opinion, you are the very definition of troll.
There’s little “instant” about it. In Alaska, where I’ve never been, in Federal Prison, where I’ve never been, there’s a person with the same name, approximate same age, doing a long stretch for drug crimes, which I’ve never done either. Every time I buy a gun, it’s delayed because of this coincidence. Last time(last month) the request timed out. Really? Isn’t the system, or the administrators, capable of learning anything? A veteran, solid citizen with no record, etc., has repeated problems, but the Texas shooter sails through? And are the names and serial numbers tossed after the NICS check, or are they retained? As remember it, the NRA supported instant background checks until Schumer, et al started clamoring that the names and serial numbers should be retained, even going on 60 Minutes about it. At that point, the NRA about faced, as retaining this info is in fact back door registration. Will someone please tell us what’s the scoop on this? Pretty critical.
Of course the mysterious “Z” is a gun control troll who thinks he can come onto this board and “reason” with us gun nut Neanderthals. How very transparent … another libturd who thinks he’s so superior, his massive intellect will bowl over the mental midgets, the oafs who actually appreciate those nasty gun things! Sorry, troll boy, your circular arguments are tiresome and oh so revealing. Head on back to the Kos website where your snide, dopey illogic masquerading as college-prof brilliance will be appreciated. It’s laughed at here.
I’m not opposed to NICS in principle, in fact it is the right solution. The problem arises when anti-American administrations such as the Obama admin try to manipulate the law to their own end of gun confiscation. “Fix NICS” is troubling because no one seems to be able to explain in detail exactly what this amendment to NICS does or doesn’t do. such a wide diversity of opinion means one thing – this law CAN and WILL be used to enforce whatever end any future administration wants base on that future administration’s interpretation of the law. We have just witnessed EXACTLY that with the Obama administration. NO ONE in NRA_ILF or the NSSF can GUARANTEE that this new part of the NICS law will not be abused in the future. Therefore it is by definition a BAD LAW.
Actually, the campaign to “Fix NICS” spells out EXACTLY what it aims to accomplish. Put in a little effort and read their proposal.
Your claim that it’s an inherently bad law now because it might possibly, could be, altered in the future is ridiculous. Your children might possibly, could be, criminals when they grow up. By your logic they are inherently bad right now.
No, not altered, twisted by a lawyer to accomplish what ever they want. And telling others that they need to read the entire thing? Have you even read the latest version? The one that has nothing in it about reciprocity. Ya, thats right…nothing. The thing that the NRA wants so bad that they were willing to trade “some” of our rights for.
The article is about fixing NICS, not national reciprocity.
Some of us don’t agree with the use of NICS at all so there goes your argument that it’s a good “fix”. Please take that point elsewhere because some of us don’t care what you want or think.
Politicians and people of your ilk never bother to look at what laws actually accomplish, only what they say they will accomplish. Take a hike troll!
The NSSF is evidently to the point of accepting gun control out of fear that not doing so will result in stricter gun control. This is precisely the inch-by-inch approach the gun grabbers have used all along. Another alternative is simply say no and apply the 2A just as it was written – “The right to keep and bear arms shall not be infringed”. That seems fairly simple to me.
You took the words right off my keyboard. You are correct.
Amen!
So true. Here are some of the most egregious loss of due process being advocated.
1. Want to have someone help with your finances? Power of Attorney may terminate your rights.
2. Having some problem with your kids on drugs or behavior and decide to discuss with clinician? Bam, loss of 2A rights.
3. Say the wrong thing or make a joke to the wrong person? Bam loss of 2A rights.
4. Piss off a mental health “professional,” Doctor, or cop? Loss of 2A.
The list goes on and on. Many have been corrected, but if I know one thing, if it worked once before, they will continue to try to implement again.
Do you really think there shouldn’t be any restrictions on firearm ownership? None at all? Ten year old kids with AK-47’s like they have in Africa? Nothing says second amendment like an army of child soldiers. What about prison inmates? Can’t put a restriction on them can we? How about MS-13, the drug cartel, sneaks 500 people across the border and they drive to your neighborhood Walmart and buy automatic, belt fed, M249’s at a really great price. You can’t impose the burden of requiring people to prove citizenship and thereby infringe on the 2nd amendment, right? How about the halfway house for sex offenders who’ve served their prison sentence, no second amendment reason to deny any of them ownership of a MAC-10.
What’s that? Children, prison inmates, violent parolees, and illegal immigrants shouldn’t be able to “bear arms”? I dunno man, that sounds like, “gun control”, are you some sort of commie libtard snowflake?
Question: “Do you really think there shouldn’t be any restrictions on firearm ownership? None at all? ”
Answer: This has always been a lame, losing, and stupid question. It has long been established that aggravated felons have no right to keep and bear arms. This is the furthest extent that gun control needs to be. Beyond this NO … there is no need for any further gun control. Any crime(s) committed by firearms is every bit as illegal as those same crimes committed while using some other tool. The 2nd. Amendment provides for freedom to keep and bear small arms OF MILITARY GRADE to ultimately maintain the freedom and security of our nation against the rule of criminals and tyrants. There is no gray area in this nor is there any exception(s) to this other than the aforementioned regarding agg. felons. Like it or not; THAT’S IT.
I will tell you that I hold YOU and other like-minded individuals in more ease of expendability than I do the freedoms of the Bill of Rights and other articles in the U.S. Constitution. If this is the answer you’re looking for, the attitude you’re looking for, then there you have it. I will have no further dialog with you on this matter. Please go elsewhere to sell your point(s) as they are neither wanted nor welcome here.
It’s not gun-control by itself, but what it does is allow state and federal agencies to add whomever they want to the “No Guns For You!” NICS ban list – Just what King Obama had envisioned.
Read the actual regulation and find out how a person gets placed on the NICS list. I’ll give you a hint, C stands for criminal.
Don’t be a smartass in trying to prove your point. Criminals (felons) are already prohibited from owning firearms therefore the NICS is not needed.
By being retired military with a MOS that the .gov feels threaten by, high clearance , your left handed, what ever those in charge say it is.
This has happened and will happen again with who controls White House .
The NSSF argument is a False Fallacy argument. The NSSF says its either NICS or nothing, without considering other potential options. The argument is weak.
Sorry but NICS is gun control and a waste of time and money. Argument with your spouse that gets a little heated, lifetime ban! Thanks NICS. Just another way of adding people to an ever expanding list who can never own firearms. Also, once an individual has paid their debt to society for an offense they should have all their rights restored. Someone who committed a felony 20 years ago still enjoys freedom of speech, why not 2A?
“Argument with your spouse gets a little heated…”
Man… Maybe you need a new spouse. If arguments frequently escalate to hands-on, it’s time to pack up. Save your gun-rights. Marry a sane person.
“Marry a sane person.” How many “sane” women are there in this country? I’m not married and I’ve never hit a woman but just because a man or woman makes a stupid mistake it shouldn’t mean the lifetime surrender of your 2A. Also, any of these “sane” women can just say you escalated to “hands-on”. Good luck with your 2A rights in the courts with “sane” cops and judges!
Ha. DELIGHTED to hear you are not married. We don’t need any more episodes of COPS.
We can thank the late Sen. Frank Lautenberg for a lifetime ban for a misdemeanor offense! Ridiculous.
That felon 20 years hence may indeed enjoy his right to free speech among others, but his rights are still restricted compared to non-felons. He cannot vote, for example, except maybe in Virginia.
I can envision the current “sexual harassment” paranoia expanding to guns: “he said something ‘threatening’ to me 40 years ago, so he shouldn’t be allowed to own guns!” An ex-wife or jilted girlfriend can throttle your rights just with hearsay, no physical proof needed.