'A Right Delayed is a Right Denied'

January 17, 2022 By Jeff Knox

Our elected servants need to be introducing legislation to prevent any future repeat of the denial of rights that occurred during the pandemic shutdowns of the past two years.

Remember how, during the aftermath of Hurricane Katrina, various municipalities and government entities issued blanket bans on firearm possession? And how, in response, there was a big push by gun groups in DC and many states, to prohibit restrictions on the Second Amendment during declared emergencies? The model legislation became a core theme for the NRA and other pro-rights groups. Over the next several years it was successfully passed in a number of legislatures.

Similarly, the COVID-19 lockdowns have revealed problems with our current laws, and the need for legislation that should be introduced in every state. The right to keep and bear arms must not be subject to the whims of politicians and unelected bureaucrats, just because there’s a health crisis or other exigent circumstance limiting the ability of bureaucrats to get their work done. While there are safeguards built into most major gun laws on the books today, the COVID-19 pandemic demonstrated that those safeguards aren’t enough. What good is it to have a law which guarantees that a firearm purchase won’t be delayed by more than “three business days,” if the definition of a business day can be stretched out to weeks or months?

Current language specifically included in statutes to assure that Second Amendment rights would not be abrogated by bureaucratic slow-walking has proven insufficient. The pandemic revealed bureaucracies can simply ignore the right to arms, as long as they can claim to not have the manpower or resources to fulfill their statutory obligations in processing the requisite paperwork.

At the national level, the Brady Background Check law went into effect back in 1993, to be replaced by the “Instant” Background Check law in 1998. One of the key objections to any sort of background check bill, was the concern that politicians and bureaucrats might use some of the requirements of the law as a way to sidestep the Second Amendment. For instance, if a NICS examiner can’t immediately determine whether a prospective gun purchaser is prohibited or not, the dealer is sent a “Delayed” response for the background check inquiry. This is to give NICS more time to dig deeper and make a positive determination on the person’s status. During negotiations on the “instant” check bill, gun groups, concerned that the government could delay a transfer in perpetuity, insisted on language to limit the duration of this type of delay to no more than three business days. Language to that effect was included in the final law. If a dealer receives no definitive answer after the statutory three business days, the law says he “may proceed with the transfer.” We argued that NICS should send dealers a “Proceed” order after the 3-day delay, rather than just leaving the choice up to the dealer, but that didn’t make it into the final law.

With the pandemic shut-downs, a flaw in the law became evident. The flaw lies in the definition of “three business days?” The logical assumption would be that it would mean three days, excepting weekends and holidays. But what the law actually says is that a “business day” is a day when “state offices are open, in the state where the proposed firearm transaction is to take place, excluding weekends and state holidays.” That’s close to what we would expect, but during the pandemic, NICS interpreted that clause about “state offices are open,” to mean, not state offices in general, but specifically those state offices which NICS might query for information about a prospective gun buyer. So, if the governor of a state closed “non-essential” state offices during the pandemic, including things like court records offices, or those offices were closed due to personnel shortages caused by illness, then NICS did not count those days as part of the “three business days” rule, allowing “Delayed” NICS checks to drag on for weeks or potentially months.

To its credit, the federal NICS does not seem to have exploited this loophole much, and in fact there is evidence that they earnestly tried to get background checks cleared as quickly as possible. But at the state level, it looks like bureaucrats were not nearly as conscientious.

Laws requiring timely processing of state background checks, purchase permits, Firearm Owner ID cards, carry permits, and other such state-level red tape, are intended to guarantee that the right to arms is not “unreasonably” delayed or prevented due to bureaucratic incompetence or abuse. But when the pandemic hit, many state and local government offices were closed or shifted to skeleton crews. All of those timely response requirements were simply ignored. Many state police bureaus, sheriff’s offices, local police departments, and other state and local authorities, declared that firearm purchase and carry paperwork couldn’t be completed due to short staff, closed offices, or risks to personnel performing tasks such as interviewing applicants, or taking fingerprints. As a result, thousands, if not tens of thousands, of responsible, law-abiding Americans were denied their right to arms outright, or delayed from exercising that right for weeks or months.

In general, the courts have been generous to states requiring a wide variety of bureaucratic hurdles to acquiring, owning, possessing, and carrying firearms. Their rationale has been that the obstacles are only “minor inconveniences” and don’t “significantly impinge” on individuals’ rights. Compare that record with the courts’ rulings regarding voting rights, where some have argued that a requirement to show government-issued ID is tantamount to a denial of rights.

Some states have gone even farther, declaring that gun shops and other firearm-related businesses, are not “critical” or “essential,” and therefore had to remain closed, completely blocking some citizens’ ability to acquire firearms. And this happened during a time of civic unrest, when record numbers of Americans were attempting to purchase firearms, many of them for the first time.

The Solution

There is a simple solution to correct all of the problems with delays and de facto denials. That solution is to default to the Constitution. Language should be inserted into the NICS law, changing the “3-day” waiting period for “Delayed” responses, to “3 business days, not to exceed 7 calendar days,” after which NICS must return a “Proceed” order. A provision can be included to give NICS some additional time in which to continue investigating, but no delay of more than 7 days for the actual transfer should be tolerated.

All firearm-related businesses should be recognized as “constitutionally essential,” with limited leeway for any level of government to restrict their ability to engage in their lawful business.

All laws, whether federal, state, or local, which deal with the acquisition of firearms or ammunition, or licensing for possession or carry, should include a statutory time limit for completion, and should be amended to include an automatic default clause which says that if the statutory time limit cannot be met, the transfer, license, permit, etc., is approved by default. If it is later determined that the applicant is ineligible, then the agency involved can reverse the decision and revoke the license, permit, etc., and recover any firearm transferred to an ineligible person. The person’s dated application would serve as the license, permit, etc. until such time as the issuing body got their ducks in a row and issued a proper document.

Model legislation addressing these issues should have been at the top of every rights organization’s agenda for the past year, and needs to be moved into that position for the coming year.

The right to arms must not be subject to the whims of bureaucrats or obstacles generated by complications from, or fears of, a pandemic.

What You Can Do

These issues need to be addressed at all levels of government, so politicians at all levels need to be pushed in this direction. Send copies of this article to your elected servants, and ask them to address these serious problems. The Firearms Coalition® has been, and will continue to be reaching out to politicians, legislative aids, and candidates, to get them moving in the right direction, and we’re more than happy to talk with your elected servants about how best to proceed.

You are the Gun Lobby. You don’t need to wait for a pre-written letter from a rights organization before you contact your elected servants. Give them a call, send them an email, write them a letter, or stop by their offices, and let them know that you want these loopholes closed, and that The Firearms Coalition® is available to help them do it.

Jeff Knox is Director of The Firearms Coalition®, an independent rights advocacy organization comprised of gun clubs, grassroots organizations, and individual activists. Founded in 1984 by gun rights legend, Neal Knox, The Coalition has been actively working to educate, inform, and influence the public and our servants for almost 40 years. To join us, support our work, and subscribe to our newsletter and other services, visit our website at www.FirearmsCoalition.org. The website is currently undergoing an overhaul, so please excuse our dust, and let us know if you run into any difficulties.