May 29, 2020

Gun sales and the number of instant background checks performed have soared since the COVID-19 lockdown began two months ago.  Due to the rising number of background checks, they have often lagged to the point that “instant” does not always apply.  A group of Republican senators wrote to FBI Director Christopher Ray, proposing ways that the National Instant Criminal Background System (NICS) can be more efficient.  NICS provides that if a proceed is not received within three days of the background check, the retailer can transfer the firearm to the purchaser. The senators wrote: “NICS was designed to provide a quick and accurate determination about whether a person can lawfully purchase a firearm from a federally licensed firearms dealer.  Any unreasonable and unnecessary delay beyond the three business days unlawfully impedes the exercise of a person’s fundamental constitutional right.”
A group of anti-gun Democratic senators, however, wrote their own letter to Director Ray, claiming that firearm dealers following the law by releasing firearms to purchasers after three days with no notice from the FBI are distributing these firearms too quickly. They wrote: “The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) should issue guidance alerting FFLs that background checks are likely to take longer than three business days for NICS to complete during the pandemic, especially in states where state employees are working remotely…. [and] [g]uidance should urge FFLs to wait for NICS to complete those background checks before transferring firearms, and remind FFLs of their obligations under 18 U.S.C. §§ 922(b), (d), and (x) not to transfer firearms to any person whom they know, or have reasonable cause to believe, is prohibited from possessing a firearm.” Senate Democrats are also urging incomplete background checks in the NCIS database to be retained past the 90 day limit as prescribed by federal law.  “Because the pandemic and recovery may last longer than 90 days, the FBI should issue an emergency directive to maintain all background-check information related to transactions with an ‘open’ status for 90 days beyond the current state of emergency,” the senators wrote.
We are following this issue and will report back with any relevant developments.  If you have any questions concerning this issue or any other firearms-related issues, please contact John F. Renzulli or Christopher Renzulli.