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Old September 9, 2010, 09:10 PM   #1
divil
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CCW license background check

This might be a tricky one - I'm hoping some of you guys who know a little about nonimmigrant alien laws will be able to help.

The AG's website in my state (ND) says that when you apply for a concealed carry license they run "state and national background checks".

When they say national background check - is that the same as the NICS check they do when you buy a gun?

I ask because I am in an unusual position in that I can legally own/posses a firearm, but I cannot pass a NICS check at the moment (because I left the country briefly within the last 90 days; if I tried to buy a gun the feds would not even run a check on me, they would tell the dealer to cancel immedately). I don't care about this because I already have the gun I want, but does this break in my residency mean that I would not be able to get a CCW?

Federal law says I cannot buy a gun from a dealer if I have left the country within the last 90 days, but it says nothing about a carry license - but if the state happens to implement the check in the same way, maybe I could run into a problem

Anyone know anything about this?
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Old September 9, 2010, 10:00 PM   #2
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Does leaving the country include Canada?? Ill bet not.
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Old September 9, 2010, 10:14 PM   #3
divil
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Hmm...not sure if you're joking...?

It certainly does include Canada - it includes literally any other country - but in any case, Canada is not where I went.
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Old September 9, 2010, 11:00 PM   #4
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How long were you out of the country for? This is the first I've ever heard of something like this.
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Old September 9, 2010, 11:02 PM   #5
divil
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Makes no difference how long it was. If you have a look at some of my previous posts in this section or look on the ATF website for laws regarding nonimmigrant aliens you will see what I mean.
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Old September 9, 2010, 11:15 PM   #6
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With today's DHS scrutiny, it doesn't surprise me in the least. If you are originally from ND with no NCIC alerts to your overseas activities or felony records, you should be okay. Normally, the State Dept. flags those with an exorbitant amount of OUTUS travel only if they carry anything deemed, well, threatening to National Security. While this includes everything from razor blades to rocket launchers, given a natural-born citizenship, military membership or legalized immigration status with a clean record, your CCW application will most likely go through the red tape with no problem. I hail from SD myself, originally, and have never had a problem with registering or getting license for the weapons I own and/or carry, even in MS. Besides, unless you're with the DOE, NSA, CIA or other assorted agencies so prevalent these days requiring a higher clearance, most States rely on their own intel before they check with the Feds. It's kind of embarrassing to have to check in with Big Brother every time a US State claiming any type of sovereignty runs one of these. They'd rather deal with it internally if they can.
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Old September 9, 2010, 11:22 PM   #7
divil
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Thanks c_jackson but none of that really applies to me, I am a non-immigrant alien. Because of that fact, and that alone, the NICS agency would not run a background check on me to buy a firearm unless I entered the US more than 90 days ago. This is the law laid out in the Gun Control Act (as amended in 1998 think)

But there is no law against me having a concealed carry license.
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Old September 9, 2010, 11:34 PM   #8
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From the ATF website:
Quote:
Q: May nonimmigrant aliens legally in the United States purchase or possess firearms and ammunition while in the United States?
Nonimmigrant aliens generally are prohibited from possessing or receiving (purchasing) firearms and ammunition in the United States.

There are exceptions to this general prohibition. The exceptions are as follows:

nonimmigrant aliens who possess a valid (unexpired) hunting license or permit lawfully issued by a State in the United States;
nonimmigrant aliens entering the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show sponsored by a national, State, or local firearms trade organization devoted to the collection, competitive use or other sporting use of firearms;
certain diplomats, if the firearms are for official duties;
officials of foreign governments, if the firearms are for official duties, or distinguished foreign visitors so designated by the U.S. State Department;
foreign law enforcement officers of friendly foreign governments entering the United States on official law enforcement business; and
persons who have received a waiver from the prohibition from the U.S. Attorney General.
Significantly, even if a nonimmigrant alien falls within one of these exceptions, the nonimmigrant alien cannot purchase a firearm from a Federal firearms licensee (FFL) unless he or she (1) has an alien number or admission number from the Department of Homeland Security (formerly the Immigration and Naturalization Service) and (2) can provide the FFL with documentation showing that he or she has resided in a State within the United States for 90 consecutive days immediately prior to the firearms transaction.

[18 U.S.C. 922(g)(5)(b) and 922(y), 27 CFR 478.124, ATF Rul. 2004-1]

Q: Typically, who are “nonimmigrant aliens?”
In large part, nonimmigrant aliens are persons traveling temporarily in the United States for business or pleasure, persons studying in the United States who maintain a foreign residence abroad, and certain foreign workers. Permanent resident aliens are not nonimmigrant aliens. Permanent resident aliens often are referred to as people with “green cards.”

Q: How do I obtain a waiver from the Attorney General?
You should contact ATF’s Firearms Programs Division for information on that procedure. However, in order to apply for the waiver you must have resided in the United States continuously for at least 180 days prior to submitting your application.

Q: I’m a nonimmigrant alien. I have a State concealed weapons permit. Does this exempt me from the prohibition on nonimmigrant aliens possessing or receiving firearms and ammunition?
No. A State concealed weapons license/permit does not satisfy the hunting license or permit exception to the prohibition.
Well, that doesn't answer your question. I guess the only way to get the correct answer would be to contact your local licensing division and ask them.

Jim

Last edited by laytonj1; September 10, 2010 at 12:53 AM.
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Old September 10, 2010, 01:21 AM   #9
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They want you to have been in the U.S. for a continuous period long enough to give some semblance of validity to any background check they run on you. (Ever hear the term "security theater"?) I am not an attorney and I am not an expert in this, but as I am undergoing some other dealings with DHS at the moment I'm going to take a guess that if they won't run a NICS on you to buy a gun, they also won't run one on you for the purpose of obtaining a carry permit/license.

That's purely a guess on my part, but based on slightly better than nothing at all.
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Old September 10, 2010, 04:19 AM   #10
Bud Helms
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Let's get this to the L&CR Forum.
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Old September 10, 2010, 04:20 AM   #11
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Seems to me like you might get delayed ... but not really denied...

just my opinion though.
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Old September 10, 2010, 09:21 AM   #12
Al Norris
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The definitive answer is that it depends upon the individual State laws, as regards issuing a concealed carry permit.

If your State laws do not prohibit a non-immigrant from possession or carry (open and/or concealed), then you should be able to get the license/permit.

As an example: In Idaho, the only mention of such a disability is if you are an illegal alien. The law in Idaho is silent on immigrant or non-immigrant aliens. Since it does not prohibit you, you can apply and receive the permit. In Idaho.
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Old September 10, 2010, 09:36 AM   #13
divil
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Quote:
If your State laws do not prohibit a non-immigrant from possession or carry (open and/or concealed), then you should be able to get the license/permit.
I wish it was that simple. There is no law, state or federal, prohibiting me from possessing a gun, or disqualifying me from having a concealed carry license. But there is a federal law that prohibits me from buying a gun, at the moment.

On the other hand, there is no law that obliges the NICS agency to give me the all clear in a background check. They can turn me down on a whim (and have done in the past), and I'd have to appeal - but that takes a long time and there's no law against it taking a long time either. So the law is really on their side, not mine!

What I trying to find out is whether or not I will have to go through such a NICS check for a concealed carry license - and if so, are the criteria to pass in this case the same as the criteria needed to buy a gun. Because they shouldn't be.

It might sound strange to most people, especially citizens or permanent residents who have never had to think about this - but for me, qualifying to buy a gun, and qualifying to posses one and get a CCW license, these are 2 separate things.
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Old September 10, 2010, 10:46 AM   #14
ChuckS
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Quote:
What I trying to find out is whether or not I will have to go through such a NICS check for a concealed carry license - and if so, are the criteria to pass in this case the same as the criteria needed to buy a gun. Because they shouldn't be.
Don't know which state you're in but in PA the PSP use NICS.
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Old September 10, 2010, 03:10 PM   #15
wally626
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One key would be does the carry permit exclude you from needing a NICS check to buy a gun? Some states do a NICS check as part of the background and will allow the use of the permit to skip the purchase check, some states do not. I would assume the national check is just to do a criminal background to make sure you are not listed as having a felony conviction at the federal level or from another state. You are going to have to either wait 90 days from your last trip or call the state police and check.
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Old September 10, 2010, 03:42 PM   #16
Support_and_Defend
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The residency requirement you speak of divil is for purchasing a firearm, not for carrying one (otherwise a person would not be able to carry a firearm for 90 days after returning, which is not the case). It has no bearing on whether or not you will get your CCW. You must pay attention only to the residency requirements for the state CCW you are applying for.
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Old September 10, 2010, 03:51 PM   #17
divil
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Support_and_Defend, that's what I'm hoping, but I'm concerned that if the background check system used is the same it could cause a problem.

wally626, good point - FFLs in this state can waive the NICS check at their discretion if the buyer has a CCW. Theoretically this could allow me to circumvent the 90 day rule if I had the CCW. But this is true regardless of whether I fulfil the 90 day requirement at the time I get the CCW. I could pass a NICS check, get the CCW license, leave the country, come back and immediately buy a gun with the CCW license - I guess that's a flaw in the system. I wouldn't do it of course since I am legally responsible for making sure I meet the 90 day requirement.

But it would be an equal flaw in the system if I have to wait 90 days before I can apply for my CCW, because that is not legally necessary - the federal government has no say in the issuing of state carry licenses.
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Old September 10, 2010, 06:06 PM   #18
Aguila Blanca
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So what state are we talking about? I originally thought you were positing it as a given that the process for obtaining a carry permit in your state requires a NICS clearance.

Now it appears you are not stating this to be the case, but asking us if WE know. We cannot answer without knowing what state you are in.
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Old September 10, 2010, 07:30 PM   #19
divil
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Me, from the original post:

Quote:
The AG's website in my state (ND) says that when you apply for a concealed carry license they run "state and national background checks".

When they say national background check - is that the same as the NICS check they do when you buy a gun?
ND is North Dakota

The second paragraph is my question.
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Old September 10, 2010, 07:35 PM   #20
Rob228
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Wouldn't waiting 90 days solve the problem?
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Old September 10, 2010, 07:39 PM   #21
divil
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It would, if the problem wasn't that I don't want to wait for 90 days
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Old September 10, 2010, 08:52 PM   #22
Al Norris
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I went and looked at the laws for North Dakota and found this:
Quote:
1. The director of the bureau of criminal investigation shall issue a license to carry a firearm or dangerous weapon concealed upon review of an application submitted to the director by a resident or nonresident citizen of the United States if the following criteria are met:
Notice the part I highlighted? Particularly the underlined portion.

It appears that if you are not a US citizen, you are not eligible to obtain a CCW. See this State site and look at the regs yourself.
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Old September 10, 2010, 09:11 PM   #23
divil
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hmm. doesn't look good

Does the fact that aliens are not specifically mentioned in there mean they definitely won't issue the license?

Edit: I knew I had seen something before to make me think it was possible:
http://www.nraila.org/statelawpdfs/NDSL.pdf

Looks like the law has changed since that was put together.

Another edit: I just noticed that the NRA link above says "As of June 2010". The law would not have changed since then because the legislature is not in session this year. NRA must have paraphrased it I suppose.

Last edited by divil; September 10, 2010 at 09:39 PM.
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Old September 10, 2010, 10:30 PM   #24
Al Norris
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Divil, if you look at the pdf for 62.1-04, you will see that the law I cited was valid up to 2011. Reading further, it even lists what the law will be in 2011.

Notice also that the permit will become a 2-tiered permitting system.

Given all of that, the NRA's information is out of date.

Now, since the current law says you must be a US citizen, then being an alien, of any kind, will simply kill your ability to obtain the permit. Unless...

You would have to file a civil suit based upon the ND Constitution, Article I, Section 1, which states:
Quote:
DECLARATION OF RIGHTS
Section 1. All individuals are by nature equally free and independent and have certain
inalienable rights, among which are those of enjoying and defending life and liberty; acquiring,
possessing and protecting property and reputation; pursuing and obtaining safety and happiness;
and to keep and bear arms for the defense of their person, family, property, and the state, and for
lawful hunting, recreational, and other lawful purposes, which shall not be infringed.
It states "individuals" not citizens. Therefore the statute in question is violative of the rights of individuals. Call the SAF and see if they're interested in funding the challenge.
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Old September 11, 2010, 03:27 AM   #25
c_jackson
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Look man, simple question. DO YOU HAVE A GREEN CARD? If you're not a natural-born citizen of the good ol' USA by birth, you still have the right to be here, right? I don't know your personal situation, but I know those ND folks. They get pretty strict. Citizen/non-citizen? Which are you? If not, don't even think about it. If you're good, apply for the CCW. If you're GTG, now worries, dig? If not, you shouldn't be applying for one in the first place. You think that's bad, try coming to Mississippi, I've been here for 14 yrs. and I still don't get a break!

SSGT C. Jackson(FORECON)
1/8/2 USMCR (Ret.)

Last edited by c_jackson; September 11, 2010 at 03:32 AM.
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