by TGM staff
US Rep. James E. Clyburn (D-SC), the Assistant Democratic Leader in the House, on July 14 introduced a measure titled the Background Check Completion Act, following the revelation by the FBI that Dylann Root, the alleged shooter in the Charleston church mass murders, was allowed to buy a handgun because of the three-day limit on holds.
Under current law, the Charleston shooter should have been barred from purchasing a firearm from a licensed dealer if the NICS database had complete criminal history information about him. But the gun was delivered when the three-day delay ended.
But Clyburn’s press release on his bill considers the three-day wait as a procedural “loophole” that allowed him to get around the law to buy the gun that he used to murder nine people at Mother Emanuel AME Church in Charleston on June 17. Clyburn’s release says the Background Check Completion Act (HR-3051) closes this loophole so that criminals forbidden by law from buying guns are not able to buy guns from federally licensed dealers.
According to the National Rifle Association, the bill seeks to repeal a critical safety valve in federal law that allows for a firearm transfer to proceed three business days after a NICS check is initiated, provided “the system has not notified the [FFL] that the receipt of a firearm by [the buyer or transferee] would [violate federal law.]” This provision ensures that Americans’ rights to acquire firearms are not arbitrarily denied because of bureaucratic delays, inefficiencies, or mistakes in identity, the NRA said.
The NICS was designed to be just that: instant. Recognizing, however, that some determinations might require additional research to resolve authoritatively, the law states that if an immediate answer is not available, the transfer must be put on hold for three business days to give the FBI more time to research the individual applicant’s background.
After the three days, the FFL has the option to release the firearm to the buyer or transferee, so long as the FFL has no other reason to believe the person is prohibited from possessing it. The FBI will then continue trying to resolve the case for up to 90 days. If it turns out the recipient is determined to be prohibited, the FBI queries the dealer to see if the firearm was transferred. If so, the FBI notifies the ATF, so appropriate action can be taken, which might include confiscation of the firearm and prosecution of the illegal possessor, if appropriate.
The safety valve provided by the three-day provision is necessary for several reasons, the NRA claimed. First, and most obviously, mistakes happen. Identities can be confused or records can be incomplete (for example, an arrest record could have been followed by dismissal of the charges or an acquittal at trial). Second, it encourages the FBI to administer the system quickly and efficiently. Third, it preserves a critical aspect of America’s constitutional system, the due process principle that the government cannot arbitrarily deprive a person of his or her rights without making its case against that person.
The NRA reported more background on the issue, citing the FBI’s most recent NICS operations report, which said that 9% of FBI NICS checks in 2014 were delayed “for additional review.” The report does not go on to detail how many of those delays extended beyond three days. Nevertheless, based on the total number of NICS checks the FBI ran in 2014, these delays affected some 743,102 people.
Meanwhile, the delays resulted in only 2,511 actions for firearm retrievals (or three-tenths of one percent of total delays). Thus, in over 99.6% of delayed cases, the delay was less than three days, the FBI could not substantiate the person was prohibited, or the FFL did not transfer the firearm. That hardly seems to indicate a public safety crisis demanding congressional intervention. This is especially so, because where prohibitions are substantiated after firearms are transferred following the three day window, law enforcement authorities already have the tools to act under current law.
But Clyburn, who has been rated “F” by the NRA has a different take.
“The Background Check Completion Act will guarantee that no gun is sold by a licensed dealer until a background check is completed,” Clyburn said in a press release.
“Tragically, the Charleston shooter was allowed to purchase a gun even though the FBI had not completed his background check. This should never be acceptable. My bill is a commonsense fix to our nation’s gun laws, and I call on my colleagues in Congress to move it immediately towards passage.”
According to Clyburn’s release, many retailers, including Walmart, have already voluntarily agreed to make this practice standard, to only allow gun sales to customers who have been approved through completed background checks. His bill will mandate that practice.
