PERMANENT BRADY LAW PROVISIONS TAKE EFFECT ON NOVEMBER 30, 1998 – BIG CHANGES AHEAD

The permanent Brady law (18 U.S.C. section 922(t)) is scheduled to go into effect on November 30, 1998, sixty months after the Brady bill became Public Law 103-159 in 1993. These provisions will supersede the interim provisions which have been in effect since the law was passed.

The law creates new procedures for the purchase of any firearm, not just handguns, from a licensed dealer, manufacturer or importer (FFL’s), by an unlicensed person. Transactions between licensees are unchanged, and holders of a collector FFL (type 03) may continue to buy and sell curio or relic (C&R) firearms without being subject to any of the new Brady law requirements. In addition to purchases, the law applies to all “transfers” of a firearm, and the Bureau of Alcohol, Tobacco and Firearms (ATF) is including pawn redemptions as a transfer. Return of a firearm to its owner by a gunsmith, and consignments returned by an FFL to the consignor may also require an NICS check, but ATF has declined to clarify this issue at this time. The interim Brady law (18 U.S.C. section 922(s)) was amended by Congress soon after its enactment to exempt from the law transfers where a handgun was returned to the person from whom it was received, however the permanent Brady law provisions were not similarly amended.

Regulations implementing the law have been proposed by both ATF and the FBI. ATF is administering the provisions of the law, including compliance with it by FFL’s, and the FBI is administering the operation of the instant check computer system. The proposed ATF regulations were published in the Federal Register on February 19, 1998, starting on page 8379, and the FBI proposed regulations can be found in the June 4, 1998 Federal Register, beginning on page 30437. They can be viewed on the Internet, or at a library
that receives the Federal Register.

Basically the Brady law requires FFL’s to perform a check with the FBI’s National Instant Criminal Background Check System (NICS) on any person seeking to purchase a firearm. The FFL may not transfer the firearm to the buyer until either the FBI approves the sale, or does not disapprove the transfer request 3 business days after it is made. The NICS is a new database of information on persons who are disqualified from owning a firearm by federal or state law. It goes beyond criminal history information, and includes dishonorable discharges from the military, persons who have renounced their U.S. citizenship, persons subject to domestic violence restraining orders, persons convicted of domestic violence misdemeanors and persons adjudicated mentally defective or committed to a mental institution, among other information. The FBI has spent the time since the Brady law was passed collecting this information from states and other federal agencies, to create this new database. Employees of the FBI will view the NICS records on a prospective firearm buyer, and determine if the records indicate that the person is prohibited from buying a firearm under either federal law, or the law of the state where the purchaser resides.

In addition, ATF has proposed a regulation, 27 CFR section 179.86, to require that the NICS be checked as part of the background check to determine if the transfer of an National Firearms Act (NFA) firearm would place the transferee in violation of law. This check would be performed by ATF personnel in the course of approving the transfer of an NFA weapon, and should not result in any noticeable changes in transfer times or procedures.

In some states the new NICS check will be done voluntarily by state authorities, probably as part of a state background check and for residents of those states the new requirements will likely not be noticed, since the state will merely be checking one more database before they approve a firearm purchase to occur. In a few states, the state may do the NICS check for some firearms, like handguns, but not for others, and for any firearm which the state does not do the check, the FFL is required to do it directly with the FBI. The states that choose to do the check will be given access to the NICS database, and will make the determination of whether someone is disqualified from purchasing a firearm themselves. The FBI has notified FFL’s in each state about the permanent Brady law provisions, and whether that state will be performing some or all of the required checks.

FEES

The FBI plans to charge a fee to FFL’s to do a NICS check for them directly. They do not plan to charge states that do the check a fee for access to the database, although such states may well charge their own fee to firearm buyers. As of this writing (August, 1998) the federal fee has not been set, but a mailing to FFL’s by the FBI says the fee is anticipated to fall into the $13 to $16 range. Justice officials have mentioned a fee of $16 per instant check in testimony before Congress. The stated purpose of the fee is cost recovery, to pay for the program. However in large part the fee exists to try and persuade states to do the check themselves. The Supreme Court, in the case Printz v. United States, has decided that states may not be compelled to perform the check, and voided that requirement of the interim Brady law. However if firearm owners in a state get tired of the fee, and ask the state to take it over voluntarily (at a decreased or no fee), that would likely happen, and then the FBI would have less work to do.

No fee is authorized by the Brady law, and legislation has been introduced in Congress to expressly prohibit it. H.R. 3949, sponsored by Representatives Barr (R-GA), Boucher (D-VA), Graham (R-SC), Barcia (D-MI) and Strickland (D-OH), would bar such a fee. An amendment offered by Senators Smith (R-NH) and Enzi (R-WY) to S. 2260, a spending bill, passed the Senate on July 21, 1998, and would accomplish the same goal. Senator Stevens (R-AK) has also introduced a bill in the Senate, S. 2128, which is similar to the adopted Smith amendment. The FBI plans to require FFL’s to sign a contract, promising to pay the illegal fee, and also promising not to use the NICS system for any purpose but checking on purchasers of firearms, as FFL’s are required to do by the Brady law.

HOW THE LAW WILL WORK

In cases where the FFL does the check directly with the FBI the basic procedure, as outlined by the FBI and ATF in the proposed regulations, would be as follows. After a prospective purchaser has completed a 4473 form (which will be revised and distributed before the end of November, and which will ask for new “voluntary” information, including the purchaser’s Social Security Number or alien registration number), and the FFL has inspected a photo ID of the purchaser, the FFL will call the FBI NICS Operations Center’s toll-free number. The FFL will provide the FBI telephone operator with his FFL number and a password. The password is meant to prevent unauthorized persons from accessing the NICS by impersonating an FFL. The FFL will then tell the operator the name, sex, race, date of birth and state of residence of the prospective purchaser, as well as whether the purchase is of a long gun or handgun. In some cases, the FBI may request additional information on the purchaser, including Social Security Number, hair color, eye color, height, weight and place of birth, in an effort to distinguish between persons with similar names and birthdates. Every transaction will be assigned an identifying number, a “NICS Transaction Number” (NTN).

The operator will immediately advise the FFL that he may “proceed” with the transfer, or that the transfer is “delayed”, or that the transfer is “denied”. A delayed transfer will be followed up on within three full business days (defined as days that state offices are open, beginning with the day following the initial call), with a “denied” or “proceed” command. An FFL will not be told the reason for a denial, and the prospective purchaser must follow up with the FBI for an explanation. If the FFL is given permission to “proceed”, ATF is requiring that the firearm must be transferred to the buyer within thirty days of the approval, so that a “stale” NICS check cannot be used to justify a transfer. The FFL will note the NTN on the 4473, whether the transaction is approved or not. The NTN is also to be noted in the disposition record of the FFL’s bound book; ATF has prescribed a new format for the acquisition and disposition record FFL’s are required to maintain. While a person may buy as many firearms as they care to in one transaction, with only one NICS check, a separate NICS check must be made before each separate transaction is completed.

In addition to telephone operators, who will be available from 9:00 A.M. to 2:00 A.M. eastern time, every day, the FBI plans to offer a computerized NICS check available at any time. A FFL would dial up the FBI computer, enter his password, the information on the customer, and automated computer software would be able to approve the transfer and provide an NTN. The FBI says this service will not be widely available initially. The FBI has also indicated that they may offer this service by electronic device, perhaps like a credit card reader, if there is interest, and it is feasible.

GUN OWNER REGISTRATION

The Brady law prohibits the NICS check from being used to compile lists of firearm owners or firearms. 18 U.S.C. section 922(t)(2)(C) states,”[i]f receipt of a firearm would not violate section 922(g) or (n) or State law, the system shall . . . destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” In addition section 103(i) of the Brady Law, Public Law 103-159, states: “(i) Prohibition Relating To Establishment of Registration Systems With Respect to Firearms.—

“No department, agency, officer, or employee of the United States may—

“(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or

“(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm.”

In spite of that clear language, the FBI proposes to retain information on prospective firearm buyers who were approved to purchase a firearm by the system, in an “Audit Log” for eighteen months. The Audit Log is needed to “analyze system performance, assist users in resolving operational problems, support the appeals process or support audits of the use of the system”. This proposal is found at 28 CFR section 25.9(b)(2). Whatever that is supposed to mean about the use of the Audit Log, and despite the additional clause in the regulation that the Audit Log will not be used “by any department, agency, officer or employee of the United States to establish any system for the registration of firearms, firearms owners, or firearms transactions or dispositions,” the Log is in fact firearm purchaser registration. After 18 months, all the information relating to an approved transaction is supposedly going to be destroyed, except the identifying number and date the number was assigned, the information the FBI is actually permitted to keep by the Brady law.

The Smith and Enzi amendment to S. 2260 noted above would also prohibit spending federal funds on “any system to implement 18 U.S.C. 922(t) that does not require and result in the immediate destruction of all information, in any form whatsoever, submitted by or on behalf of any person who has bee determined not to be prohibited from owning a firearm”, in addition to prohibiting the check fee. It would also permit any person whose records are retained in violation of the prohibition to sue the FBI for damages. H.R. 3949 has a similar prohibition.

EXCEPTIONS TO THE LAW

CCW and Purchase Permits

In some cases an FFL will not be required to perform an NICS check. The law provides that possessors of a state permit to purchase, possess or carry a firearm need not have a check done before a FFL can transfer them a firearm. The permit must have been issued within five years of the transaction at issue, by the state in which the transfer is to take place, and will only work to exempt the holder from the NICS check if state law requires verification that persons issued a permit are eligible under federal and state law to possess a firearm. If the permit was issued after November 30, 1998, an NICS check of the permit holder must have also been performed before issuance.

The permit may be used to purchase a firearm for which it was not issued. For example, persons wishing to purchase a handgun in North Carolina must obtain a permit from their county sheriff. No state permit is required to buy a long gun. However, assuming the handgun purchase permit complies with the requirements above, it can exempt the holder from the NICS check when buying a rifle or shotgun, as well as a handgun. On the other hand, Colorado law does not disqualify anyone from being issued a concealed carry of weapons permit. Persons who are not permitted by state or federal law to possess a firearm may lawfully be issued a Colorado CCW permit. Such a permit probably would not exempt the holder from an NICS check.

ATF will advise FFL’s in each state of whether any state issued permits satisfy the requirements of the law and qualify to exempt holders from the Brady law. The FFL is required to either attach a copy of the permit to the 4473, or record on the 4473 any identifying number, any date of issuance and date of expiration of the permit. Law enforcement officers will not be exempt from the NICS check requirement by virtue of their status as law enforcement officers.

NFA Weapons

Transfers of firearms where “the Secretary has approved the transfer under section 5812 of the Internal Revenue Code of 1986”, which is to say NFA weapon transfers, are also exempted from the Brady law. See 18 U.S.C. section 922(t)(3)(C). This exception does not apparently include title 1 firearms transferred at the same time – for example a pistol to which a silencer has been attached, permanently or not.

Remote Locations

The Brady law also exempts FFLs located in defined remote areas from compliance with the NICS check requirement. This exception was found in the interim Brady provisions as well. However according to ATF no FFL has met the remoteness requirements of the law thus far, and this exception does not seem to have any practical application.

Correcting Erroneous Information

The law provides that a person denied a transfer of a firearm by the NICS has a right to receive the reason for that denial within 5 business days of a written request for that information. The reason for the denial will be provided by the FBI if it performed the check, or by a state agency, if the state performed the check. A person denied a purchase may appeal the denial, or offer additional information to the FBI, whether the record in question originated with the FBI or not. The person may also request the agency, which was the source of the record in question, correct it. The FBI is supposed to “immediately consider the information, investigate the matter further, and correct all erroneous Federal records relating to the prospective transferee and give notice of the error to any Federal department or agency or any State that was the source of such erroneous records.” See section 103(g), P.L. 103-159. The agency that originated the information would investigate as they see fit, they are not required to take any action by the Brady law.

In the event a person does not get approved by appealing to the FBI, or the agency originating the information, or elects not to proceed in that manner, he may instead file a federal lawsuit to compel correction of the records, and approval of the firearm transfer. See 18 U.S.C. section 925A. The FBI has indicated that it plans to furnish a pamphlet or handout to FFL’s, for them to give to customers who are denied approval by the NICS check.

It is likely that some procedures may be added or changed as the date for the law to go into effect gets closer, and even after it has been in operation. The above information is what appears to be on the horizon.

In Kasler v. Lungren, released March 4, 1998, a panel of judges from the California Court of Appeals, Third District, struck down part of the Roberti-Roos assault weapon ban as unconstitutional, and indicated that the rest of the law would likely be found unconstitutional after the case was remanded to the trial court for further proceedings.

The suit was brought by several plaintiffs, including California attorney and author Peter Alan Kasler, and Colt’s Manufacturing Company, partly in response to an attempt by the California Attorney General to use one of the law’s provisions to add the Colt Sporter rifle to the list of banned weapons.

Unlike the federal assault weapon ban law, the California law bans only a list of named models of weapons, and has a mechanism for the Attorney General to petition a court to add specified weapons to the list, based on their similarity to the weapons already listed by the Legislature. In addition to a list of banned guns, the definition in the federal law (18 U.S.C. section 921(a)(30)) has a criteria test, any weapon possessing certain features is also banned. Many state and local laws also have a two part definition of what is an assault weapon, listing both specific guns as well as certain characteristics which bring a gun into the definition.

The Court found that the procedure for judges to add guns to the ban list, based on a petition from the Attorney General, to be unconstitutional. The Court mentioned several problems with the scheme, but the main problem was having judges add weapons to the ban list violated the doctrine of separation of powers created by the California constitution. As a general rule, California government is supposed to be composed of three separate, co-equal branches, an executive branch, a legislative branch and a judicial branch. Having judges performing a legislative function, by deciding which guns should be banned, was not permissible in this case.

The Court also noted that the law provided for a time period when a gun would be temporarily included in the list, but when no notice of the inclusion was required to be given. While the Attorney General could petition a court to add a gun to the ban list, and the court could then temporarily add the gun, the Attorney General was not required to publish notice of the decision before it became effective, nor was he required to immediately publish the revised list of banned guns. This failure to require notice to the public of which guns are banned creates a constitutional due process problem, which the Court found was also fatal to the “add-on” provisions of the law.

The Court also found the criteria for guns to be added to the list to be impermissibly vague; the law only refers to weapons which are “slight modifications” of listed guns, or which have been “redesigned, renamed or renumbered” from listed guns as those which can be added by a court. The Court did not see how anyone could rationally decide whether a modification was slight, or whether a gun was redesigned from another, listed, gun.

The Court decided that this unconstitutional “add-on” section was severable from the remainder of the Roberti-Roos law; declaring this section was unconstitutional did not cause the remainder of the law to be void as well. This first conclusion was unanimous, with all three judges in agreement.

With two of the judges agreeing, one dissenting, the Court also decided that the trial court’s rejection of the plaintiffs equal protection argument was mistaken, and remanded that issue to the trial court for further fact finding.

The Court refused to find that banning guns based on military appearance alone was irrational, saying there was some basis for the Legislature to decide that a scary appearance made the guns more intimidating to victims when used for criminal purposes, or the military appearance may give the guns more appeal to persons with criminal inclination.

The plaintiffs argued that banning some guns, and not banning others that are indistinguishable from the banned guns, violates the equal protection clauses of the California and U.S. Constitutions. In particular, they asserted that some listed guns had identical or functional copies that were not listed; they pointed to the ban on the Heckler and Koch PSG-1 sniper rifle, but no ban on the Communist-Bloc Dragunov SVD sniper rifle, or the ban on the Springfield BM-59, but no ban on the Beretta made BM-59. They also noted that the Springfield M1A was almost identical in appearance and function to the Springfield BM-59, but was not banned either. And with AR-15 style rifles, the law only bans ones marked Colt AR-15, while literally identical copies from several other makers were not banned.

The Court noted that while the Legislature did not have to make an exhaustive list, and could act one step at a time to address the perceived problem, in this case there was evidence the Legislature consciously elected to exclude some weapons with identical features to banned guns. Apparently they feared that some guns, the M-1 Carbine, the M-1 Garand and the Ruger Mini-14 in particular, had too large a constituency to ever be worth the political risk of banning, even though they had exactly the same capacity for heavy firepower that was cited as the basis for banning the listed guns. Further, the add-on section, even if it were not unconstitutional, was too limited in scope to cure the defect in the law, in that it did not allow the addition of many weapons that met the statute’s stated basis for inclusion.

The Court indicated that if the plaintiff’s allegations were true then the law violated the equal protection rights of persons affected by the law, and the law would be unconstitutional. However, since the trial court had refused to consider this issue, the appeals court remanded the case to the trial court for consideration of these allegations.

What does this decision mean? It only affects the California law, and not the federal law, nor any local laws based on the California law. I would expect the State to appeal this decision to the California Supreme Court, which could overturn it; this decision is not final. I think this decision makes it even more likely that the list of banned guns contained in the federal assault weapon ban will be struck down as unconstitutional when a court finally addresses the issue.