The Second Amendment has been an unexpected casualty of the coronavirus pandemic in certain parts of the country as various anti-gun jurisdictions have deemed firearms manufacturers and retailers as “non-essential” businesses that have been ordered closed.
As it turns out, however, one part of the federal bureaucracy also appears to also have taken advantage of the public health crisis to limit or deny the right enshrined by the Second Amendment and guaranteed to the American people.
Former Georgia Rep. Bob Barr, a Republican who now serves as the president of the Law Enforcement Education Foundation in Atlanta, has alleged that the FBI has, at best, exploited a loophole in the federal laws. At worst, according to Barr, it is making up the rules as it goes to deny authorization for legal firearm purchases.
Barr’s assertion came in a commentary piece published by The Daily Caller in which he explained how the FBI appeared to be taking advantage of a certain provision within the 1998 law that created the National Instant Criminal Background Checks System, better known as NICS, that is required of all legal firearms purchases made through Federal Firearms Licensees, the official term for licensed gun dealers.
During normal operation of NICS, prospective purchasers of firearms are submitted through the system for a background check to see if they fall into any of the categories of those prohibited from possessing a firearm, a process that is typically done “instantly.”
However, there is a provision within the law that allows the FBI to place a “hold” on a purchase for up to three business days to allow sufficient time for a records check. If the FBI has failed to make a determination on the purchaser’s background after those three business days have elapsed, it falls to the discretion of the dealer whether to allow the purchase to proceed.
Where the FBI’s “skullduggery,” as Barr described it, comes into play is the fact that the “three business days” provision is tied to language defining those days as when “state offices are open,” which in normal times simply saves the FBI from being pressured to complete a check on an extended holiday weekend.
Unfortunately, during this ongoing public health crisis, every state is currently under both a state and federally declared “state of emergency” that, in theory, has state offices closed down — though in actuality, most state offices remain open, although in a limited fashion.
Nevertheless, it appears, according to Barr, that the FBI has extrapolated those emergency declarations into meaning that state offices are closed for upwards of a month, and as such has been reportedly sending out notices to dealers that the “three business days” allowed for a hold has been extended to 30 business days.
“Since the announcements over the past several weeks of federal and state-level COVID-19 ‘state of emergency’ decrees, during which many businesses and public events are closed, FFLs have been receiving notices from the FBI that certain transactions are delayed not for three business days, which is the maximum the law allows, but for 30 days or even longer.”
Interestingly, though, Barr pointed out that there is no provision anywhere within the federal laws allowing for such an extended hold, and he asserted that any interpretation of the laws as such constitutes “subterfuge” by the FBI that is a violation of Second Amendment rights.
He explained that, in effect, the FBI can use the 30-day hold to perpetually bar an individual from purchasing a firearm, given the fact that a submission to NICS is only valid for 30 days before it expires and must then be submitted again — a perpetual “never-ending loop,” in Barr’s words.
Barr further explained that what the FBI was doing had placed firearms dealers in a rather uncomfortable position, in that, by law, they are permitted to allow a purchase to proceed if a denial hasn’t been issued within the standard three business days. If, however, a dealer did decide to allow a purchase to be made and then later learned from the FBI that the purchaser was prohibited from buying a weapon, the dealer could potentially be exposed to legal consequences.
That predicament undoubtedly has chilled many firearms dealers from making potential sales — even to law-abiding citizens who’ve never been in trouble — during a time when there is unprecedented demand for firearms.
“The director of the FBI should step in and stop this bureaucratic skullduggery, and if he will not, the Attorney General should,” Barr wrote. “Anti-gun state and local government officials are trying every trick in the book during this pandemic to deny law-abiding citizens the ability to exercise their rights guaranteed by the Second Amendment. Americans do not need bureaucrats at the FBI making it even more difficult.”
If what Barr has asserted is true, and FBI bureaucrats are exploiting the NICS law — if not manufacturing a non-existent provision out of nothing — to deny American citizens their right to legally purchase a firearm, then that is a big problem.
As Barr noted, the American people already have enough problems dealing with infringements of the Second Amendment at the state and local level in certain jurisdictions and don’t need that problem compounded by power-hungry control freaks or anti-gun bureaucrats in the federal government.
Hopefully, FBI Director Christopher Wray and Attorney General William Barr, if not even President Donald Trump, will step in and clarify this rule and put a stop to this unconstitutional bureaucratic anti-gun nonsense.