Tag Archives: NICS

authoritarian swine, gun control, Law, Rights

Voluntary Forfeiture Of Second Amendment Rights

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Democrats have pushed yet another troubling gun control bill through the House Judiciary committee, setting it up for a floor vote. The bill is H.R.8361 – Preventing Suicide Through Voluntary Firearm Purchase Delay Act.

This proposed law would create a new NICS database of people prohibited from obtaining firearms. Not criminals, or those adjudicated mentally ill; it’s to be a database of those stupid enough to voluntarily surrender their 2A rights. OK, perhaps those crazy enough to beg Daddy Government to protect them from themselves should not have guns. But you won’t see me “volunteering” for this. More on that point in a moment.

First off, the bill’s name — Voluntary Firearm Purchase Delay — is an outright lie.

When an FFL makes the NICS call, and the feds find your name on this list, the dealer is not told to delay the purchase. There’s no waiting period. It’s an outright denial just as if you were a convicted felon; the dealer is to be told that it would be unlawful to transfer a gun to you. Which is probably exactly what the dealer is going to assume (and might even call the cops on you).

And it would be unlawful, because this bill amends 18 U.S. Code § 922(d) to add voluntary idiots to the list of prohibited persons.

Personally, if anyone had asked for my input — and persuaded me that any such law was necessary (ha!) — I’d have gone a different route: Instead of adding suckers to the prohibited list and issuing denials, the dealer would simply be told that the would-be buyer requested that he not be allowed to buy a gun. Then it would be up to the FFL to decide, with specific language exempting them from any liability for not violating the buyer’s 2A rights.

The next issue is how one would get into that database. There are two ways.

First, fools can present a gov-issued photo ID in person (“where” isn’t explained), and give up their rights.

Secondly, someone can email a copy of a driver license along with a letter from a mental health professional that includes the “name and license number of the professional and the name and date of birth of the individual.”

Maybe I’ve got a couple of ‘noids showing, but…

Who has a copy of your driver license? Did the bank make a copy when you opened your account? Did some online or brick store make a copy when you bought an age restricted product? Or maybe an employer (or potential employer) wanted a copy to comply with E-Verify. I’ve done all of the above.

Just imagine someone with a copy and a grudge… maybe against you, maybe the 2A in general. They’ve got your name and date of birth. But that darned mental health pro’s name and license number…

I did one single web search, taking less than 30 seconds, that gave me the name, address, and license number of a random clinical psychologist. Problem solved. Interesting what you can find online; it’s probably good that I try to be an honorable person.

Another interesting point: When you — or some less than honorable scumbag — requests that you become a prohibited person, you/him can include up to five email addresses to be notified if you do attempt to buy a gun, or try to get off the naughty list. Maybe even “registry@atf.gov.”

Getting off said naughty list sounds simple enough. You just make the request — with the same documentation that got you on it — and the feds are supposed to remove you.

Three weeks after they acknowledge receiving your request. Maybe that is the “delay” they meant.

Or you can look up a mental health pro as above, and fake the letter. That’s supposedly going to get you out of the database in 24 hours. Lemme bookmark that psychologist I found…

Frankly the only good not as horrible part of this is that database victims are only prohibited persons under 18 U.S. Code § 922(d), not section (g). So you won’t instantly make yourself (or someone else) a criminal simply for currently possessing firearms. Unless they tack on an amendment.

Now for the bad news. I think this garbage has a fair chance of passing. H.R.8361 had two original sponsors; one a rabid Dim-wit as you should have expected, and one Repugnantcan. As you also you should have expected. Reps tend to like infringements for “law ‘n order” and this is only “voluntary.” If the Dims can move this to the floor and force a vote this session, before the new Rep bare majority takes over, it’ll go to the Senate, where…

“law ‘n order” and this is only “voluntary.” I think they’ll get the votes.

And then what other rights will they look at “voluntarily” criminalizing?

 

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gun control, Law

NICS Denials And Criminal Investigations

I received a GOA alert about S.675 – NICS Denial Notification Act of 2021, so I thought I would check it out.

On the bright side, it’s unlikely to go anywhere. It was introduced 3/10/2021 and was immediately referred to committee where it has sat ever since.

Downside? It’s a mess. Here’s the meat of the bill.

“(a) In General.—If the national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901) (commonly referred to as ‘NICS’) provides a notice pursuant to section 922(t) of this title that the receipt of a firearm by a person would violate subsection (g) or (n) of section 922 of this title or State law, the Attorney General shall, in accordance with subsection (b) of this section—

“(1) report to the law enforcement authorities of the State where the person sought to acquire the firearm and, if different, the law enforcement authorities of the State of residence of the person—

“(A) that the notice was provided;

“(B) the specific provision of law that would have been violated;

“(C) the date and time the notice was provided;

“(D) the location where the firearm was sought to be acquired; and

“(E) the identity of the person; and

“(2) where practicable, report the incident to local law enforcement authorities and State and local prosecutors in the jurisdiction where the firearm was sought and in the jurisdiction where the person resides.

First off, as GOA notes, “9 out of 10 times these denials are false positives.” That’s a lot of pointless investigations.

Next up is what exactly are state and local authorities going to investigate? 18 U.S. Code § 922 is federal law, violations of which would be a matter of federal investigation. Making local authorities do it would be a unfunded mandate.

And what exactly would anyone be investigating? While it is a felony for a prohibited person to purchase or possess a firearm, 18 U.S. Code § 922 doesn’t have a provision for attempted, but failed, acquisition. Nor, I think, do most state laws. About all anyone could get such a person on is violation of this 922 provision, if they lied on the 4473.

(6)for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

And intent would matter, mens rea. Relatively few prohibited persons try to buy their guns from FFLs. In one case I know of, a man attempted to purchase a firearm. NICS turned him down. It turned out that decades before he had gotten a misdemeanor conviction (bar fight, I believe). It had never been an issue at gun stores before. But apparently that state had realized — again decades later — that his charge carried a potential two year sentence (if I recall correctly, he only got probation), and added him to the NICS database.

The poor guy never knew until that purchase attempt that he was a prohibited person. He had always heard that it only applied to felony convictions and misdemeanor domestic violence. Sadly, 922 doesn’t read “felony or misdemeanor domestic violence; ” it’s “a crime punishable by imprisonment for a term exceeding one year.

He filled out the 4473 in good faith. Would it be worth waste time and money on an investigation of him?

For the most part, this bill would just tie up law enforcement resources. There is one interesting part though. It would also add this to 18 USC “§ 925, an “Annual report to Congress. The report would require the ATF to report the number of denials; the number of denials determined to be false; and best of all, the number of investigations, prosecutions, and convictions. It would be nice to have all that gathered in one convenient document to wave in gungrabbers’ faces, to show how pointless NICS really is.

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Culture, self defense, Violence-Enabling Victim Disarmers

March NICS: 3,740,688

March set a new record. Not monthly record; highest monthly total ever. Eyeballing it, it appears the previous record was 3,314,594 in December 2015; March beat that by 12.9%. Bear in mind, that’s even with jurisdictions attempting to close gun stores to stop sales.

No, that wasn’t “superowners” panic-buying guns. We prepped years ago. A lot of that was first time buyers; maybe hundreds of thousands.

Nor was it all purchases. NICS covers carry license background checks, too. So figure many, many new carriers.

Maybe it’s the COVID-19 pandemic.

Maybe it’s “Tippy” Johnson’s HR 5717 Victim Disarmers Wet Dream Act. Major threats to 2A rights always drive sales.

Maybe it’s the combination of mass releases of inmates and law enforcement telling us respond to calls. If they won’t, we must ourselves.

Whatever it was, the next time you hear a violence-enabling victim disarmer claim that 90% of Americans want bans, red flag orders, licensing, or Johnson’s people control kitchen sink of a bill, remember: In one month, 3,740,688 people disagreed.

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gun control

GAO: Background checks STILL don’t work

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This just screams for comment, given that universal preemptively-prove-your-innocence prior restraint is probably going to pass next year.

GAO: Few Individuals Denied Firearms Purchases Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions
Federal and selected state law enforcement agencies that process firearm-related background checks through the National Instant Criminal Background Check System (NICS) collectively investigate and prosecute a small percentage of individuals who falsify information on a firearms form (e.g., do not disclose a felony conviction) and are denied a purchase. Federal NICS checks resulted in about 112,000 denied transactions in fiscal year 2017, of which the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) referred about 12,700 to its field divisions for further investigation. U.S. Attorney’s Offices (USAO) had prosecuted 12 of these cases as of June 2018.

CNN is reporting this as “More than 99.9% of those who were investigated escaped with nothing more than a warning.”

But that’s misleading. It’s far, far worse than that.

112,090 denials. 12 prosecutions. Only 0.0107% — a hair over one-one hundredth of one percent — of denials are prosecuted.

112,090 denials. Only 11% are even referred for investigation. Meaning it was clear that 89% of the denials were false positives. 89% of denials were clearly violations of constitutionally protected human/civil rights.

Of the 12,710 that warranted looking into, only 12 were clear enough cases of prohibited persons trying to obtain firearms to bother going to court. That suggests that the percentage of rights violations was actually 99.99%, but not necessarily.

ATF field divisions […] generally only refer cases to USAOs for prosecution when aggravating circumstances exist, such as violent felonies or multiple serious offenses over a short period of time.

It turns out that they referred 50 cases for prosecution. Fifty cases of people allegedly with a history of “violent felonies or multiple serious offenses over a short period of time” referred.

12 the prosecutors actually think can be prosecuted.

But there’s a big gap between 12,710 investigations and 50 prosecution referrals. And the report does not give a number for “proper denial, but we didn’t think it worth wasting our time,” or “Nope; X number shouldn’t have been denied.”

By the government’s own numbers, a bare minimum of 89% percent of false positive denials are proof that NICS background checks don’t work. The number could range as high as 99.99%.

Background checks don’t work. The results are meaningless. And the GAO essentially found that other folks agree with that assessment.

Officials from 10 of our 13 selected POC states said that they do not
investigate or prosecute NICS denials.

Here’s another number: 77% of states know NICS results are worthless and will not even try to investigate referred (the one’s which might actually be problems, much less the rest) denials.

 

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authoritarian swine, gun control, gun grabbers, Rights

What color is your coat?

David Codrea addresses the recent minor furor over the lack of prosecutions for NICS denials.

Gun Groups and Grabbers Find Common Ground on NICS Denial Prosecutions
That mass roundups of the scofflaws haven’t begun has got gun-grabbers – and some gun groups – in a lather. Lost in much of the noise is economist and author John Lott’s contention that a “high percentage” of “false positives” wrongly deny purchases. Not that due process is a concern when there are guns to be “taken off the street”…

I was a bit concerned where Codrea was going with this initially, since I’m not one of those in a lather over lackadaisical enforcement. My take differs that; and it certainly doesn’t share common ground with human/civil rights violating victim-disarmers.

Let me spell it out for those who have not yet caught on:

We now have 20 years of data that clearly establishes that preemptively-prove-your-innocence (PPYI) prior restraint on Second Amendment-guaranteed (not “protected,” sadly) human/civil rights is a complete failure as “gun safety.”

1. Roughly 96% of the denials proved to be false positives. As David notes, there were a mere 12 referrals for prosecution in 2017. The last time I checked the total number since it began, it was…

140. In two decades. Out of tens of millions of NICS transactions.

When the Bradys et al proudly point at three million denials, they are gleefully bragging on violating constitutionally guaranteed (not “protected,” damnit) rights of 2,880,000 innocent people.

Almost three million people that they have successfully — at least for a time — rendered into helpless targets for criminal predators. And they’re happy about it. If you hadn’t before, think about that now.

That’s false positives, which brings us to…

2. False Negatives. Almost every week, I come across a news story about a felon (or other prohibited person) who got a gun by passing the NICS check. No one seems to track false negatives, so I don’t know how common it is. And I’m not speaking of cases like the DC Navy Yard or Sutherland Springs shooters, whom the “authorities” never entered into the NICS databases. I’m speaking of those who are in the databases, who pass by misspelling a name, changing their name, or just giving the wrong birth date.

And those are just the few felons who bother gaming NICS. Roughly 94% of firearms used in crimes were obtained through unlawful channels, completely bypassing NICS.

NICS doesn’t have a bloody thing to do with most criminals; those who do submit to checks can easily spoof it.

The only thing NICS is good for is delaying rights, and completely denying them, for honest folks.

And that is precisely the point.

I have heard well-meaning people call for 18 U.S. Code § 242 – Deprivation of rights under color of law charges for those responsible for the violation of rights through improper denials, or for deaths when a sale is improperly allowed. In fact, survivors of Sutherland Springs (where the Air Force failed to report a felony-equivalent conviction, a domestic violence conviction, and an involuntary committal) trying to sue over it.

I wish them luck, but I’m astonished that the judge hasn’t dismissed the case already. There’s something in 18 U.S. Code § 922 that many people don’t seems to know about.

18 U.S. Code § 922(t):

(6) Neither a local government nor an employee of the Federal Government or of any State or local government, responsible for providing information to the national instant criminal background check system shall be liable in an action at law for damages—
(A) for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful under this section; or
(B) for preventing such a sale or transfer to a person who may lawfully receive or possess a firearm.

Bureaucratese Translator: We can directly violate your rights — even get you killed — and you cannot hold us responsible for our failures, sucker!

That was built into the Brady Bill. Its original intent was to rape human/civil rights with total impunity.

And the Bradys brag.

As I said, I was briefly concerned about Codrea’s direction, which seemed odd for someone with whom I’ve been somewhat acquainted for years. My confidence in his respect for rights was rewarded.

Enforce existing “Intolerable Acts?”

The people who have been complaining consistently are the NRA’s “leaders.” They’ve made “enforce existing gun laws” a mantra many gun owners repeat unthinkingly, as if ceding to the status quo of infringements will dissuade the totalitarian lobby from enacting any new citizen disarmament edicts.

Substitute “Intolerable Acts” for “gun laws” and see how much amplification that gets from members and supporters. Instead, we got “bipartisan” kabuki.

Intolerable Acts, indeed. Any supposed “pro-gun” group or person in a “lather” over the lack of enforcement of a law meant to violate rights, is supporting exactly the same disarmament which sparked the American Revolution.

Is it any wonder the field of pro-PPYI NRA’s logo is red?

What color is your coat?

Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his tip jar. He could really use the money, what with truck repairs and recurring bills. And the rabbits need feed. Truck insurance, lest I be forced to sell it. Click here to donate via PayPal.
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gun control

About those “fugitives”

Anti-gun types are all upset now that they noticed the FBI was eliminating some folks with active warrants from the NICS database, making them eligible to purchase firearms.

Tens of thousands with outstanding warrants purged from background check database for gun purchases
Tens of thousands of people wanted by law enforcement officials have been removed this year from the FBI criminal background check database that prohibits fugitives from justice from buying guns.

The names were taken out after the FBI in February changed its legal interpretation of “fugitive from justice” to say it pertains only to wanted people who have crossed state lines.

Well… No. It isn’t so much as they changed the interpretation as that they noticed they weren’t in compliance with federal law. Again. (Kind of the inverse of the military not bothering to report felons.)

Allow me to explain, setting aside for the moment the unconstitutional prior restrain of preemptively-prove-your-innocence checks.

It appears from a search on US Code that to be a “fugitive” under 18 U.S. Code § 922, once has to have actively fled when a warrant is issued. The fact that a warrant was issued doesn’t make one a fugitive; or even necessarily aware of the warrant.

No flight, no fugitive.

I find it interesting, but not surprising, that gun controllers think people should be denied rights based on a mere warrant… when it’s Second Amendment rights. But not so much when it comes to other rights.

A federal court found it unconstitutional for for Michigan to deny welfare benefits to people with felony warrants unless they are actually fugitives.

So… same thing for 2nd Amendment rights. For once the DOJ did something half right (the other half being the whole prior restraint bit).

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gun control, Politics

“Fix NICS” right

In a bipartisan act of insanity, Senator Cornyn and cronies from both sides of the aisle have come up with a wonderful plan to “Fix NICS.” Basically, it bribes states to report more people.

But there’s a “penalty,” too. Sort of. If an agency fails to report properly the politically appointed agency chief bunghole boffer doesn’t get a bonus (presupposing that bureaucrats should by default get bonuses).

If we must be saddled with a background check system that forces people to preemptively-prove-your-innocence (PPYI), a clear prior restraint, in order to exercise a constitutionally protected right, then let’s fix NICS properly.

Simply not giving a bonus to a political bureaucrat for a failure is not sufficient. Penalties must be imposed at the individual level:

1. Any individual who, through malfeasance, misfeasance, or nonfeasance, fails to properly report a prohibited person under 18 U.S. Code § 922 to the NICS databases shall be guilty of a felony; the penalty for which shall be a prison term of no more than five years and a fine of no more than $10,000 for each offense.

   a. In addition, if the failure results in a prohibited person obtaining a firearm and using it in a crime, the individual shall be charged and tried as an accessory before the fact in the prohibited person’s crime.

   b. Should malfeasance, misfeasance, or nonfeasance in supervision at any level be a contributing factor in the failure, all supervisors, up to and including appointed agency heads, shall be guilty of a felony; the penalty for which shall be a prison term of no more than five years and a fine of no more than $10,000 for each offense.

   c. “Sovereign immunity” shall not be a defense.

2. And individual who, through malfeasance, misfeasance, or nonfeasance, causes a person who is not prohibited under 18 U.S. Code § 922 to be denied or delayed the exercise of a constitutional right shall be charged under 18 U.S. Code § 242 – Deprivation of rights under color of law.

   a. In addition, if the denial or delay of the right to a firearm results in injury or death, the individual responsible for the denial or delay shall be guilty of a felony the penalty for which shall be a maximum of life in prison and a fine of up to $1,000,000.

   b. Should malfeasance, misfeasance, or nonfeasance in supervision at any level be a contributing factor in the failure, all supervisors, up to and including appointed agency heads, shall be guilty of a felony the penalty for which shall be a maximum of life in prison and a fine of up to $1,000,000.

   c. “Sovereign immunity” shall not be a defense.

Private citizens — licensed dealers, private sellers, would be buyers — all face criminal penalties for their errors that could allow a prohibited person to obtain and misuse a firearm. It’s time for bureaucrats to join the party.

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