Author Topic: FBI’s Shadow Gun Bans Threaten First and Second Amendment Rights  (Read 424 times)

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Offline Elderberry

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NRA-ILA 3/22/2021

For several years the FBI has been operating a shadow gun ban regime whereby Americans who are not prohibited from possessing firearms under federal law are being denied their Second Amendment rights without due process. This extralegal practice was brought to light again in recent weeks in the U.S. Court of Appeals for the Sixth Circuit case Turaani v. Wray. The case revealed that the FBI’s current administration of the National Instant Criminal Background Check System amounts to a may-issue gun purchasing scheme that is incompatible with the proper adjudication of a Constitutional right.

For more than a decade, gun control advocates and their allies in Congress have pushed legislation that would prohibit those on one of the federal government’s watch lists from purchasing firearms through the NICS system. As the federal government’s watch lists are oftenerroneous and the procedures for placing an individual on them are nebulous, opaque, and do not comport to any reasonable standard of due process, such legislation would empower the government to extinguish Americans’ Second Amendment rights with nearly unfettered discretion.

Given that such measures are a threat not only to Americans’ Second Amendment rights, but also their First and Fifth Amendment rights, NRA has been joined by the American Civil Liberties Union in opposing this dangerous legislation. NRA is not opposed to prohibiting dangerous individuals from possessing firearms, but the government must be forced to prove that an individual is dangerous by securing a conviction against them in a court of law.

Despite Congress having repeatedly rejected this may-issue scheme for gun ownership, the FBI has pressed forward with their shadow gun ban.

In 2013, the Congressional Research Service published a report titled, “Terrorist Watch List Screening and Background Checks for Firearms.” The document made clear that the FBI was checking the government’s watch lists during NICS background checks. Moreover, if a person came up on a list the transfer would be flagged and delayed. The report explained,

As part of the background check process, NICS typically responds to a federally licensed gun dealer, otherwise known as a federal firearms licensee (FFL), with a NICS Transaction Number (NTN) and one of three outcomes: (1) “proceed” with transfer or permit/license issuance because no prohibiting record was found; (2) “denied,” indicating that a prohibiting record was found; or (3) “delayed,” indicating that the system produced information suggesting that there could be a prohibiting record.60 In the case of a possible watchlist match, NICS sends a delayed transfer (for up to three business days) response to the querying federally licensed gun dealer or state POC. During a delay, NICS staff contacts immediately the FBI Headquarters’ Counterterrorism Division and FBI Special Agents in the field, and a coordinated effort is made to research possibly unknown prohibiting factors. If no prohibiting factors are uncovered within this three-day period, firearms dealers may proceed with the transaction at their discretion.

Therefore, the FBI delays, as a matter of practice, firearms transactions involving individual for whom they have no information suggesting they are prohibited from possessing firearms. This would be bad enough if it involved a temporary delay, however, the FBI does not clear the delay. Rather, the non-prohibited individual must rely on the Federal Firearms Licensee (FFL or gun dealer) to proceed with firearm transfer once three business days have elapsed since the NICS check was initiated, as they are permitted to do by law. Such “default proceed” transfers are at the FFL’s discretion and some FFLs are reluctant to transfer a firearm under these circumstances. If a person delayed in this manner is unable to acquire the firearm from a reluctant FFL after a default proceed, the FBI has denied a non-prohibited individual their right to purchase a firearm.

More: https://www.nraila.org/articles/20210322/fbi-s-shadow-gun-bans-threaten-first-and-second-amendment-rights