Clyburn Background Check Bill Would Flip Burden of Proof, Allow FBI to Indefinitely Delay Firearm Transactions by Inaction

Should the government be able to deny your right to obtain a firearm, simply by failing to complete a mandatory background check? Anti-gun Rep. James Clyburn (D-S.C.) apparently thinks so.

On March 1^st, Clyburn introduced H.R. 1446, the so-called “Enhanced Background Checks Act.” Under the bill, the FBI could indefinitely block federally licensed dealers (FFLs) from transferring firearms, simply by failing to provide decisions on the background checks FFLs are required to run on their customers.

Currently, federal law requires FFLs to run a background check on any unlicensed customer who wants a firearm through the National Instant Criminal Background Check System (NICS), administered by the FBI. The purpose of the background check is to determine if the intended recipient of the firearm falls into any of the statutorily defined categories of “prohibited persons.” If the intended recipient is not a prohibited person, the FBI has no discretion to deny the transaction for other reasons.

To initiate a background check, the intended recipient fills out a government form (known as a Form 4473) that contains identifying information about the individual. The intended recipient must also make a series of legally binding declarations on the Form 4473, attesting that he or she is not in any of the prohibited categories. The FFL then uses the identifying information to run the NICS check.

The federal background check law originally imposed a five-day waiting period for law enforcement authorities to comb through their records to determine whether an intended firearm recipient was a prohibited person. The law specified, however, that the waiting period would be phased out once the government established a computerized system for an instant, point-of-sale background check.

That system (NICS) came online in 1998. Since then, the government has poured millions and millions of dollars into ensuring the system is complete, reliable, accurate, and truly “instant.” Needless to say, computer technology has only become more sophisticated, reliable, and common during this time.

Obtaining a firearm for lawful purposes is, of course, a constitutional right. Therefore, if the government is going to deny that right, it bears the burden of proving the grounds for doing so. In the NICS context, this requires that the FBI must be able to locate a record of a disqualifying event in NICS, such as a criminal conviction or a commitment to a mental institution, before denying a firearm transfer.

Sometimes, however, a record is unclear, and the FBI will need additional time to research it. Currently, the law allows the FBI to delay a transaction for up 3 business days to research any ambiguities in the records. If the FBI fails to resolve the issue within that timeframe, the FFL has the option (but not the requirement) of transferring the firearm to the intended recipient, so long as there is no reason for the FFL to believe the person is prohibited from receiving or possessing it. These transactions are known as default transfers.

Even in the case of a default transfer, however, the FBI will continue its attempts to resolve the question of the recipient’s eligibility. If it later determines the individual was, in fact, prohibited, the FBI will refer the matter to the BATFE so attempts can be made to retrieve the firearm.

This ensures the burden of proof always remains on the government to affirmatively deny a transfer. If it doesn’t, the transfer can proceed after the government has been given a set timeframe to build its case.

Under Clyburn’s bill, however, there would no longer be a set timeframe under which the FFL could proceed with a transfer if the FBI failed to give a definitive answer to a NICS check. An unresolved delay would become a presumptive prohibition on the transfer, even if the FBI never identified a disqualifying record.

Instead, the intended transferee – who already filed the Form 4473 with the FFL – would have to file a second petition with the government making the exact same declarations of eligibility and, once again, asking the FBI – pretty please this time -- to rule on the matter.

But what would happen if the FBI didn’t resolve the follow-up petition?

In that case, the Clyburn bill would require the FFL to wait at least 10 additional business days from the date the intended recipient filed the petition to consider making a default transfer. How the intended recipient is supposed to prove to the FFL the petition was even filed in the first place is not specified.

The bill, however, would eliminate the current automatic default transfer option for the FFL. If the intended recipient didn’t file the follow-up petition, and the FBI didn’t resolve the NICS check, the transfer could NEVER proceed.

This flips the burden of proof and makes the RIGHT to obtain a firearm a process in which the intended recipient might have to repeatedly beg, including at the NICS stage, again at the petition stage, and yet again with the FFL if the petition is never answered and the mandatory 10 day waiting period expires.

At no time, however, does the FBI actually have to point to a disqualifying record to block the transfer. Simply claiming, “We don’t know” would be enough to shift the burden of action to the intended recipient.

We of course would like to believe the FBI will act on all NICS requests professionally and will make good-faith efforts to correctly and promptly resolve any delayed checks.

But anybody who has been paying attention to the news for the last several years unfortunately cannot discount the possibility that politics or ideology has the same potential to affect the FBI as it does any other governmental institution.

One thing is for sure, though. The FBI currently has the pressure of the 3-day default transfer option to provide a serious incentive in swiftly answering NICS checks.  

Under the Clyburn bill, that incentive would disappear. The FBI could simply wash its hands of definitively resolving a check, secure in the knowledge that the transfer could not occur unless and until the intended recipient decided to make an issue of it and to wait the minimum 10 days. The presumption would otherwise ALWAYS go against the buyer.

That’s not how constitutional rights are supposed to work.

Which is why only a gun control advocate who denies the individual right under the Second Amendment could in good conscience support H.R. 1446.