“[I]ndividual self-defense is ‘the central component’
of the Second Amendment right[.]”
~ Justice Clarence Thomas
In NYSRPA v. Bruen, 597 U. S. ____ (2022), the United States Supreme Court told us that “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”[i]
The Supreme Court’s decision in NYSRPA might lead some to believe that the government can’t
restrict a law-abiding citizen’s right to bare arms for self-defense purposes. However, since September 2022, roughly 10% of all firearm sales are delayed by the Brady Handgun Violence Prevention Act of 1993.[ii] To put than into perspective, by September 2022, as estimated 1,183,507 total firearms were sold. Ten percent of those sale is 118,350, receives a “Delayed” response.[iii] And an unknown number of delayed potential transfers remain in “Open” status, which could put a perpetual hold on the purchase of a firearm.
This article discusses the firearms transfer process; the reasons for “Delayed”, “Denied”, and “Open” responses; as well as your right to sue the responsible state, political subdivision, or the United States for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.
The Gun Control Act of 1968
The Gun Control Act of 1968 (“GCA”) prohibits certain categories of persons from shipping, transporting, possessing or receiving firearms or ammunition in or affecting interstate commerce.[iv] This prohibition applies to individuals who:
Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year [18 U.S.C. §922 (g)(1)];
Is a fugitive from justice [18 U.S.C. §922 (g)(2)];
Is an unlawful user of or addicted to any controlled substance [18 U.S.C. §922 (g)(3)];
Has been adjudicated as a mental defective or committed to a mental institution [18 U.S.C. §922 (g)(4)];
Is an alien illegally or unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa [18 U.S.C. §922 (g) (5)];
Has been discharged from the Armed Forces under dishonorable conditions [18 U.S.C. §922 (g) (6)];
Having been a citizen of the United States, has renounced U.S. citizenship [18 U.S.C. §922 (g) (7)];
Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner 18 U.S.C. §922 (g) (8)];
Has been convicted in any court of a misdemeanor crime of domestic violence [18 U.S.C. §922 (g) (9)]; and/or
Is under indictment for a crime punishable by imprisonment for a term exceeding one year [18 U.S.C. §922 (n)].
Daniel Defeats Goliath
In Ross v. the ATF,[v] Daniel Ross, a self-represented plaintiff, sued the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and won! In short, the Ross Court ordered the ATF to approve the firearms transfer to Mr. Ross.
Here are the pertinent facts of the Ross case. In early 2010 Mr. Ross attempted to purchase a rifle from All Pawn, a FFL, in White Plains, Maryland. All Pawn contacted the National Instant Criminal Background Check System (“NICS”) Section, which created an NICS Transaction Number (or “NTN”) for Ross’ background check and returned a “Denied” response based Ross’ 1969 first degree murder conviction in North Carolina. However, in 1983, Ross murder conviction had been set aside. Ross promptly challenged the NICS denial. On July 12, 2010, the NICS Section sent Ross a letter in which it determined that the error had been “resolved” and agreed that the nullified murder conviction should not effect his transfer. But the letter went on to inform Ross that North Carolina record also revealed “one potentially prohibitive arrest” about which the NICS Section was “unable to obtain complete disposition information,” i.e. whether there had been a “conviction, dismissal, deferred adjudication, crime classification status level, domestic relationship, etc.” The North Carolina record referred only to the fact of an arrest in 1965 for “Assault on Female.” The NICS Section explained that “unless appropriate documentation is submitted and/or your record is updated, any future firearms transactions will be subject to a delay.” Thus, Ross’ attempted 2010 firearms purchase was moved to “Open” status.
Then, on February 12, 2011, Ross went back to All Pawn to purchase a different firearm. All Pawn once again called the NICS Section, which again generated an NTN, and again provided the shop with a “Delayed” response. Once again ignoring the fact that Ross’ 1969 murder conviction was set aside in 1983, the NICS Section called All Pawn and advised the shop that the transaction was “Denied.” Ross did not challenge the second denial, but the NICS Section later changed the second denial “Open” status.
In August 2011, Ross sued the ATF in federal court to get an order directing the ATF to approve the transfer.
The question before the Court was whether the ATF could properly put a perpetual hold on Ross’ purchase of a firearm, or whether Ross has established as a matter of law that he has erroneously been denied a firearm.
Looking at the Ross’s North Carolina record, the court found that Ross’ North Carolina arrest record did not indicate that Ross was charged with or prosecuted for, let alone convicted of, a crime of domestic violence.
More importantly, the court held that the NICS Section erroneously shifted the burden to Ross to contact the North Carolina State Bureau of Investigation—the agency that presumably possessed the “potentially prohibitive criteria”—and required him to submit “appropriate documentation” and/or update his “record.”
Indeed, the Ross Court said that nothing in the regulations supports the NICS Section's position that the prospective transferee must disprove the existence of a potentially disqualifying criminal record to avoid all future delays. Consequently, the court held that Ross was improperly “denied a firearm” within the meaning of the GCA.[vi]
In its decision ordering the ATF to approve the firearms transfer to Mr. Ross, the United States District Court for the District of Maryland provides a succinct summary of the firearms transfer process. The following is derived from the Ross Court’s findings.
The Firearms Transfer Approval/Denial Process
In order to prevent certain individuals from purchasing firearms, the Brady Handgun Violence Prevention Act of 1993 directed the Attorney General to establish a background check procedure that licensed firearms dealers would be required to consult in order to determine whether the “transfer” of a firearm to a potential buyer would violate federal or state law. Id. § 922(t)(1).
Thereafter, the Attorney General thereafter established the National Instant Criminal Background Check System (“NICS”), managed by the FBI Criminal Justice Information Services Division's NICS Section. 28 C.F.R. § 25.3.
In many states, a gun or ammunitions dealer (i.e., a federal firearm licensee (“FFL”)) is required to contact the NICS Section by telephone or via the Internet in order to initiate a background check prior to the transfer of any firearm.
In its request, the FFL must provide the NICS Section with identifying information, including the proposed transferee's name, sex, race, date of birth, and state of residence.[vii]
The NICS Section assigns an NICS Transaction Number (or “NTN”) to the inquiry, gives that number to the FFL, and then searches three electronic databases—the Interstate Identification Index, the National Crime Information Center, and the NICS Index—to determine whether state or federal records establish that the transferee is for any reason prohibited from receiving a firearm.[viii]
If the search yields no disqualifying information, the NICS Section provides a “Proceed” response to the FFL. If at least one record is found that establishes “that receipt of a firearm by the prospective transferee would violate 18 U.S.C. § 922 or state law,” the NICS Section provides a “Denied” response to the FFL.[ix]
If, however, the NICS Section locates a record that “requires more research to determine whether the prospective transferee is disqualified from possessing a firearm by Federal or state law,” it provides a “Delayed” response to the FFL.
In the “Delayed” response scenario, the transaction remains in “Open” status, and the FFL may not complete a transfer unless
(1) the NICS Section provides a follow-up “Proceed” response, or
(2) three business days (exclusive of the day on which the request was made) elapse and the NICS Section does not provide a “Denied” response.[x] [xi]
An “Open” transaction is considered a “non-cancelled transaction where the FFL has not been notified of the final determination,” while the NICS Section “continues researching potentially prohibiting records regarding the transferee.” Still, if no final determination is communicated, the FFL is not prohibited from transferring a firearm “after three business days have elapsed since the FFL provided to the system the identifying information about the prospective transferee.”[xii]
So, what should I do if I am denied the purchase of
a firearm due to erroneous information?
Correcting erroneous NICS system information
As explained above, Federal law and regulations govern the correction of or challenge to erroneous records resulting in the denial of a firearms transfer. Here are the necessary regulated steps.
Note that while the FBI maintains an automated National Instant Criminal Background Check System (“NICS”) Audit Log of all incoming and outgoing transactions, [xiii] the denial will not state the reason for the denial. Moreover, the NTN and the date of all transactions, whether the FFL is given a “Proceed,” “Denied,” or “Delayed” response, are retained indefinitely. Records relating to “Open” transactions, however, except for the NTN and date, are destroyed after 90 days. [xiv]
If the NICS Section issues a “Denied” response, you may request an explanation. [xv] Then, the FFL must provide you (the “denied individual”) with the name and address of the FBI and the NTN associated with the background check.
The “denying agency will respond to you with the reasons for the denial within five (5) business days of the receipt of your request.” [xvi]
If you wish to challenge the accuracy of the record upon which the denial is based, or if you wish to assert that your rights to possess a firearm have been restored, you may apply first to the denying agency. [xvii]
If the denying agency is unable to resolve your appeal, the denying agency will notify you and must provide the name and address of the agency that originated the document containing the erroneous information upon which the denial was based. Then, you may apply for correction of the record directly to the agency from which it originated. [xviii]
If the record is corrected as a result of your appeal to the originating agency, you may notify the denying agency, which—assuming the originating agency has not already notifying the denying agency of the correction—will, in turn, verify the record correction with the originating agency and take all necessary steps to correct the record in the NICS. [xix]
As an alternative to the above procedure where a state point of contact (“POC”) was the denying agency, you may elect to direct your challenge to the accuracy of the record, in writing, to the
FBI, NICS Operations Center
Criminal Justice Information Services Division
1000 Custer Hollow Road, Module C-3,
Clarksburg, West Virginia 26306-0147
Upon receipt of the information, the FBI will investigate the matter by contacting the POC that denied the transaction or the data source. The FBI will request the POC or the data source to verify that the record in question pertains to your denial, or to verify or correct the challenged record. The FBI will consider the information it receives from you and the response it receives from the POC or the data source. If the record is corrected as a result of the challenge, the FBI must notify you, correct the erroneous information in the NICS, and give notice of the error to any Federal department or agency or any state that was the source of such erroneous records. [xx]
Upon receipt of notice of the correction of a contested record from the originating agency, the FBI or the agency that contributed the record must correct the data in the NICS and the denying agency must provide a written confirmation of the correction of the erroneous data to you for presentation to the FFL.
If the appeal of a contested record is successful and thirty (30) days or less have transpired since the initial check, and there are no other disqualifying records upon which the denial was based, the NICS will communicate a “Proceed” response to the FFL.
If the appeal is successful and more than thirty (30) days have transpired since the initial check, the FFL must recheck the NICS before allowing you to purchase your desired firearm. In cases where multiple disqualifying records are the basis for your denial, you must pursue a correction for each record. [xxi]
Additionally, you “may provide written consent to the FBI to maintain information about you in a Voluntary Appeal Fileto be established by the FBI and checked by the NICS for the purpose of preventing the future erroneous denial or extended delay by the NICS of a firearm transfer.” [xxii]
Suing the responsible state, political subdivision, or the United States
Under federal law, you may also contest the accuracy or validity of a disqualifying record by bringing an action against the state or political subdivision responsible for providing the contested information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the contested information be corrected or that the firearm transfer be approved. [xxiii]
Caution: While the regulations indicate that you may apply to correct erroneous
information by suing the responsible state, political subdivision, or the United States, please be aware that, generally, in the case of “Delayed” and “Open” responses some courts may rule that you may not obtain judicial relief if you have not first exhausted your administrative remedies.[xxiv] Here administrative remedies refer to the appeal processes discussed above. That is to say, the safest course of action is to not file a lawsuit until you either:
(1) receive a “Denial”, or
(2) your transfer remains in “Open” status so long that if effectively places a perpetual hold on your purchase of a firearm.[xxv]
Indeed, if you encounter a Brady hold, but later receive your firearm after three business days (exclusive of the day on which the request was made) elapses, you probably should not try to sue the United States to correct erroneous information. Why? Because the federal government has no duty to correct records that originated at the state or local level. Also, if you receive your firearm after a Brady hold, you are not entitled to the same relief twice.[xxvi]
Conclusion
All law abiding citizens and responsible gun owners appreciate the need to keep weapons out to the hands of dangerous criminals and maniacs. However, as the Supreme Court stated individual self-defense is ‘the central component’ of our Second Amendment right and this right should not be abridged buy unreasonably burdensome bureaucratic mistakes.
RELATED ARTICLE: Do Christians have a right to defend themselves?
Endnotes
[i] NYSRPA v. Bruen, 597 U. S. ____ (2022), Pp. 8–63. [ii] 18 U.S.C. § 922 [iii] Source: Trends in Gun Sales [2022]– Brady Campaign https://www.bradyunited.org/fact-sheets/trends-in-gun-sales [iv] The Gun Control Act of 1968 (“GCA”) is codified at 18 U.S.C. § 922(g). Notes that "[P]ossessing any firearm in or affecting commerce" means that “a commerce nexus is an element of the crime defined by section 922(g)[.]” See U.S. v. Lopez, 2 F.3d 1342, 1348 (5th Cir. 1993) citing United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990) (holding that section 922(g) "reaches only those firearms that [have] traveled in interstate or foreign commerce and is thus constitutional"). [v] Ross v. Fed. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 903 F.Supp.2d 333 (D. Md. 2012). [vi] I.e., 18 U.S.C. § 925A [vii] 28 C.F.R. § 25.7. [viii] 28 C.F.R. § 25.6(c)(1). [ix] Each “response” communicates only the appropriate directive—Proceed, Denied, or Delayed. It indicates nothing about how or why the NICS Section reached its decision or the criminal records it searched. See 28 C.F.R. § 25.8(g)(2) (“The NICS Representative will only provide a response of ‘Proceed’ or ‘Delayed’ (with regard to the prospective firearms transfer), and will not provide the details of any record information about the transferee.”). [x] 18 U.S. Code § 922(t)(1)(B)(ii). [xi] This is known as the “The Charleston Loophole.” The Charleston Loophole seen by many as a dangerous gap in the federal gun control system that allows gun sales to proceed after three business days, even if the background check has not yet been completed. Contrary to the federal law, some believe that states can addressed this loophole by giving background check operators more time to determine if a buyer is prohibited. [xii] 28 C.F.R. § 25.2. [xiii] 28 C.F.R. § 25.9(b). [xiv] 28 C.F.R. § 25.9(b)(1)(ii). [xv] 28 C.F.R. § 29.10(a). [xvi] 28 C.F.R. § 29.10(b). [xvii] 28 C.F.R. § 29.10(c). [xviii] 28 C.F.R. § 29.10(c). [xix] 28 C.F.R. § 29.10(c). [xx] 28 C.F.R. § 29.10(d). [xxi] 28 C.F.R. § 29.10(e). [xxii] 28 C.F.R. § 25.10(g). [xxiii] 28 C.F.R. § 29.10(f) and 18 U.S. Code § 925A(2). [xxiv] See, e.g., Allen v. Grand Central Aircraft Co., 347 U.S. 535, 553 (1954); Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752 (1947). Exhaustion is also required in Federal Tort Claims Acts suits, 28 U.S.C. § 2675(a), Privacy Act suits, 5 U.S.C. § 552a, in suits challenging adverse personnel actions, and in many other contexts. [xxv] See, e.g., Ross v. Fed. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 903 F.Supp.2d 333 (D. Md. 2012). [xxvi] See, e.g., Snyder v. United States, CASE NO. 18-5504 RJB, p 11 (W.D. Wash. Oct. 30, 2019), holding that the federal government has no duty to correct erroneous records that originated elsewhere; and, “Plaintiff is not entitled to the same relief again - an order requiring the United States to allow transfer of a firearm. It already has. There is no showing that the United States violated his second amendment rights by issuing the "delayed" response.”
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