The COVID-19 panic has been used by would-be state and local authoritarians as an excuse to keep Americans from exercising their right to keep and bear arms. Thankfully, American gun owners have a friend in the White House that has worked to protect their rights on the federal level by declaring the firearms industry to be critical infrastructure. However, this respect for the Second Amendment isn’t uniform in the federal government. There are some federal lawmakers seeking to exploit COVID-19 to pursue their pre-existing gun control agenda.
On April 2, a group of anti-gun U.S. Senators led by Sen. Chris Murphy (D-Conn.), Sen. Richard Blumenthal (D-Conn.) and Sen. Edward Markey (D-Mass.) sent a letter to the directors of the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco, Firearms and Explosives demanding a crackdown on gun sales nationwide. Citing the recent surge in gun sales, the senators urged the agencies to adopt policies long sought by gun control advocates.
The senators are correct about one thing – gun sales have surged in the wake of COVID-19. Faced with increasing uncertainty and the prospect of the mass release of prison inmates, Americans are buying guns.
In March the FBI National Instance Criminal Check System office conducted a record 3.7 million background checks, more than 400,000 more than the previous record month. The week of March 16th to 22nd set the record for most background checks in a week with 1,197,788 –surpassing the previous record by 244,175.Friday, March 20th, is now the single-day record for background checks with 210,308 checks. Moreover, gun stores across the country are reporting that many of those purchasing firearms are first time gun buyers.
This newfound appreciation for the Second Amendment spells trouble for gun control advocates. Sen. Blumenthal admitted as much when he whined to the press, “[t]here is no reason that Americans need more guns at a time of COVID-19 than they did before.” Noting his position that there should not be any lawful gun sales, Blumenthal added, “[m]y view is that retailers selling guns are not an essential service.”
As Blumenthal could not obtain his goal of zero gun sales, he and his senate colleagues have encouraged the FBI and ATF to encumber prospective gun buyers. Their letter asked the FBI and ATF to do this in two important ways.
First, the senators asked ATF to issue guidance urging Federal Firearms Licensees (FFLs) to forego the three-day safety-valve provision and suspend delayed firearms transfers indefinitely.
Under federal law, if a NICS check is delayed for further research and the FBI’s NICS section is unable to determine that the prospective firearm transferee is prohibited from possessing firearms under federal or state law three business days after the check was initiated by a firearms dealer, the firearms transfer may proceed at the dealer’s option. This provision encourages the FBI to conduct NICS checks in an efficient manner and prevents the government from arbitrarily denying an individual their Second Amendment rights through an indefinite delay.
According to the 2018 NICS Operations Report only 70 percent of NICS checks that year resulted in an “instant determination,” with the remaining 30 percent requiring some analysis or additional research. Despite the fact that 30 percent of checks were subject to some amount of delay, only about 1 percent of all checks resulted in a denial. Such delays have been exacerbated due to recent demand on the NICS. So, under the senators’ scheme, the vast majority of law-abiding individuals who have a check delayed would have their firearm transfer upheld indefinitely.
Some may point out that the letter is only asking that ATF issue guidance to FFLs to forego the three-day safety-valve and that FFLs would still be able to decide whether to go forward with a transfer before NICS has made a final determination. However, the proposed guidance would come from the agency that controls an FFL’s license. This leaves the gun dealer little choice – comply or risk their livelihood.
If this attempt to eliminate the three-day safety-valve provision seems familiar, that’s because it is a longtime gun control policy position. On February 28, 2019 the U.S. House passed H.R. 1112, which would eliminate this vital protection by statute.
Second, the senators have urged the FBI to diminish protections against the creation of a federal gun or gun owner registry by encouraging them to retain firearm transaction data longer than permissible under federal regulations.
28 CFR §25.9requires that “NICS Audit Log records relating to transactions in an open status, except the [NICS Transaction Number] and date, will be destroyed after not more than 90 days from the date of inquiry.” The senators’ letter contended “[b]ecause 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 as the president proclaimed under the National Emergencies Act.
The federal regulations concerning NICS contain stringent record destruction provisions in order to prevent the creation of a federal gun or gun owner registry. As previously noted, many law-abiding individuals experience NICS delays that result in an open status. Under the senators’ scheme, these individuals’ information would be kept for an indeterminate period of time in what amounts to a registry of gun owners.
This request by the senators fits in with long-standing gun control efforts to indefinitely retain information on NICS transfers. For instance, in 2009 Sen. Frank Lautenberg (D-N.J.) introduced S.2820, which would have required the retention of all NICS background check transactions for 180 days and information on a subset of approved checks indefinitely.
It is unfortunate that some federal lawmakers view a tragedy like the COVID-19 crisis as an opportunity to institute gun control measures that the American people have repeatedly rejected through their elected representatives. NRA-ILA will continue to monitor these crass opportunists and work to thwart their attempts to undermine our hard-fought liberties.