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Old September 11, 2023, 10:02 PM   #1
Aguila Blanca
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Where in the law do we find NICS?

Just had a pair of e-mails from a friend in Connecticut. For those who don't know, it seems that Connecticut allows (or did, until today) private transfers, BUT only if the seller contacts the state police to obtain a authorization to make the transfer. To obtain that, the seller has to provide the state police with the buyer's name and a permit number. After the sale, the seller has to complete a form with the names and addresses of the buyer and the seller, along with the make, model, and serial number of the firearm.

In other words ... a de facto registration system.

To issue an authorization, the Connecticut state police apparently use the NICS system to determine if the buyer is a prohibited person. And, according to my friend (and he sent me a photo of a press release), as of 11:47 a.m. on 9/11 the state police sent an e-mail blast to all FFLs in the state saying that the state police have been notified by the BATFE that the NICS system cannot be used for private transfers. What this seems to mean is that in Connecticut from now on ALL transfers will have to go through FFLs.

My friend is an active member of Connecticut's grass-roots RKBA organization, and they are already discussing this with counsel. I'd like to do some research -- does anyone know what federal law(s) or regulation(s) established the NICS system and where it might say whether or not NICS can be used BY A LAW ENFORCEMENT AGENCY to clear prospective purchasers?
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Old September 11, 2023, 10:45 PM   #2
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This FBI summary explains NICS access and points to relevant sections of law and regulations.
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Old September 12, 2023, 12:15 AM   #3
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Thanks. That tells me the NICS system was created by the Brady Act of 1993, so I was able to look that up:
https://uscode.house.gov/statutes/pl/103/159.pdf

I'm not a lawyer, and the way federal laws are formatted frequently leaves my eyes glazed over. Maybe I'm missing something, but I do NOT see anything in the Brady act that says a state's state police department can't use the NICS system to verify eligibility of transfers between non-licensees. Mere mortals can't use NICS, but I don't see anything in the Brady Act that says state police can't use it -- am I missing something?
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Old September 12, 2023, 12:23 AM   #4
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According to the map in this link from the FBI, there are 13 states that do what Connecticut does, and funnel access to NICS through the state police:
https://www.fbi.gov/how-we-can-help-...ics/about-nics

This could shape up to be a major kerfuffle.
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Old September 12, 2023, 08:55 AM   #5
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The most specific reference I can find to your question is in 28 CFR 25.6(j):
Quote:
(j) Access to the NICS Index for purposes unrelated to NICS background checks required by the Brady Act. Access to the NICS Index for purposes unrelated to NICS background checks pursuant to 18 U.S.C. 922(t) shall be limited to uses for the purposes of:

(1) Providing information to Federal, state, tribal, or local criminal justice agencies in connection with the issuance of a firearm-related or explosives-related permit or license, including permits or licenses to possess, acquire, or transfer a firearm, or to carry a concealed firearm, or to import, manufacture, deal in, or purchase explosives;
The regulation's language in the above section is not specifically limited to FFL transfers and the section's inclusion of concealed carry is clearly not related to FFLs. Connecticut has been authorizing transfers, whether there is now a semantic efforts to claim the state is not issuing a "permit or license."

Section (h) of the regulation also refers to permit checks and we know some states periodically run checks on concealed carry permit holders to determine whether a person has been subject to a disqualifying event after a permit was issued.
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Old September 12, 2023, 11:11 AM   #6
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Quote:
Originally Posted by Aguila Blanca View Post
According to the map in this link from the FBI, there are 13 states that do what Connecticut does, and funnel access to NICS through the state police:
https://www.fbi.gov/how-we-can-help-...ics/about-nics

This could shape up to be a major kerfuffle.
Those 13 states do not conduct NICS inquiries for private sales, but only for FFL transfers. In fact, Connecticut is one of the 13 states, see the notes at the bottom of the map graphic. All of the transfers listed on the NICS participation map are for FFL sales, there are no private transfers in any category.

A similar situation occurred a few years ago when Nevada passed a "universal background check" ballot initiative. They planned to use the NICS system for private sales but the FBI said no, they did not have funding/capacity to support additional checks.
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Old September 12, 2023, 12:47 PM   #7
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If I remember correctly (and please correct me if I get something wrong).

The Brady Bill was about a national waiting period for handgun purchases. NICS did not exist (as a functional system) at the time. And, this only applied to purchases from FFL dealers.

A compromise was reached, where the waiting period was not enacted, in exchange for ALL FFL gun sales going through an "instant check" when it became available, and NICS went active a couple years later.

Directly using NICS was not a requirement, provided a background check was done, and state run systems met the requirements of the Fed law. Most states just went with the Fed system, some did not.
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Old September 12, 2023, 02:38 PM   #8
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Quote:
Originally Posted by LeverGunFan
Those 13 states do not conduct NICS inquiries for private sales, but only for FFL transfers. In fact, Connecticut is one of the 13 states, see the notes at the bottom of the map graphic. All of the transfers listed on the NICS participation map are for FFL sales, there are no private transfers in any category.
Yes, Connecticut is one of those 13 states. And the Connecticut State Police have been using NICS to run background checks on private party transfers for at least 20 years. So you are incorrect in stating that those 13 states do not conduct NICS inquiries for private sales.

The question is: Now that the Connecticut state police have said they are NOT supposed to use NICS for private sales -- is that legally correct, or does NICS allow them to verify the transferee in a private sale? I'm not seeing where the law prohibits what they've been doing for decades.
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Old September 12, 2023, 05:49 PM   #9
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Quote:
Originally Posted by Aguila Blanca View Post
...So you are incorrect in stating that those 13 states do not conduct NICS inquiries for private sales....
Only because Connecticut was improperly accessing the NICS system for private sales?

The Brady Handgun Violence Prevention Act was passed as Public Law 103-159 of the 103d Congress, and amended Title 18 US Code Section 922. It established that a FFL holder was required to conduct a criminal background check (NICS) before the transfer of a firearm to a non-licensee. It allows that an authorized state government official may verify that the NICS information allows the transfer from the FFL to the transferee, which is the system that Connecticut uses. It does not have a provision to authorize a non-licensee to access NICS, nor does it have a provision to allow a state government official to access NICS for a non-licensee.

Connecticut could issue permits which meet the Brady Act provisions and require those permits for private sales. They would have to conduct periodic NICS checks on those permit holders, and the permits would be valid for sales from a FFL. Otherwise they would have to require all private sales be conducted through a FFL.
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Old September 12, 2023, 06:12 PM   #10
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Quote:
Aguila Blanca.... according to my friend (and he sent me a photo of a press release), as of 11:47 a.m. on 9/11 the state police sent an e-mail blast to all FFLs in the state saying that the state police have been notified by the BATFE that the NICS system cannot be used for private transfers. What this seems to mean is that in Connecticut from now on ALL transfers will have to go through FFLs.
Only FFL's are supposed to submit a transaction thorough FBI NICS or via a state "point of contact" .....like the state police. The NICS check is performed only after the buyer has completed and signed a Form 4473, which isn't a Form any state or local PD is going to use.

ATF has procedures for FFL's to facilitate a "private party transfer", its Question 8 on the 4473. Buyer and seller meet at the local FFL, buyer completes the 4473, dealer conducts the NICS check.
-If the NICS result is a proceed, the dealer records the firearm in his records as an acquisition from the seller, then disposition to the buyer.
-If the NICS result is a delay, the buyer may leave the premises with the firearm. The FFL does not need to record the acquisition into the FFL’s A&D record. However, the private party seller must return the firearm to the FFL’s business premises prior to transfer of the firearm to the prospective buyer.
If the private party seller chooses to allow the FFL to retain the firearm at the
FFL’s business premises, the FFL is required to take the firearm into inventory
and record the firearm as an acquisition
If the NICS status is "denied", and the private party seller has not
relinquished possession, he or she may leave the business premises with the
firearm. The FFL does not enter the firearm as an acquisition in his bound book.






Quote:
My friend is an active member of Connecticut's grass-roots RKBA organization, and they are already discussing this with counsel. I'd like to do some research -- does anyone know what federal law(s) or regulation(s) established the NICS system and where it might say whether or not NICS can be used BY A LAW ENFORCEMENT AGENCY to clear prospective purchasers?
Well, the Brady Law requires a background check. CSP is likely not having the buyer complete and sign a Form 4473.
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Old September 12, 2023, 06:28 PM   #11
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Quote:
LeverGunFan
Those 13 states do not conduct NICS inquiries for private sales, but only for FFL transfers. In fact, Connecticut is one of the 13 states, see the notes at the bottom of the map graphic. All of the transfers listed on the NICS participation map are for FFL sales, there are no private transfers in any category.
In any state, an FFL can facilitate a private transfer.
Further, EVERY state conducts NICS checks, its the Brady law. In most states, the FFL contact FBI NICS directly, in POC states the FFL contacts a state agency (who in turn contacts the FBI NICS) for the Brady check.



Quote:
A similar situation occurred a few years ago when Nevada passed a "universal background check" ballot initiative. They planned to use the NICS system for private sales but the FBI said no, they did not have funding/capacity to support additional checks.
That's not exactly what happened. it wasn't the massive number of new background checks, but them coming from different origins.

Nevada passed a law that required background checks on private party transfers. That law required FFL's to contact FBI NICS directly, bypassing the state POC. The FBI basically said "you gotta do private party background checks just like all your other background checks"". You can read the FBI NICS letters here: https://www.reviewjournal.com/local/...ore-it-begins/
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Old September 12, 2023, 06:34 PM   #12
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Quote:
44 AMP If I remember correctly (and please correct me if I get something wrong).

The Brady Bill was about a national waiting period for handgun purchases. NICS did not exist (as a functional system) at the time. And, this only applied to purchases from FFL dealers.
Correct.

Quote:
A compromise was reached, where the waiting period was not enacted, in exchange for ALL FFL gun sales going through an "instant check" when it became available, and NICS went active a couple years later.
That compromise was due to SCOTUS in Printz vs US in 1997.
In its 1997 decision in the case, the Supreme Court ruled that the provision of the Brady Act that compelled state and local law enforcement officials to perform the background checks was unconstitutional on 10th amendment grounds. The Court determined that this provision violated both the concept of federalism and that of the unitary executive. However, the overall Brady statute was upheld and state and local law enforcement officials remained free to conduct background checks if they so chose.
NICS came on line in 1998.

Quote:
Directly using NICS was not a requirement, provided a background check was done, and state run systems met the requirements of the Fed law. Most states just went with the Fed system, some did not.
Dealers in every state must conduct its background check via NICS, either directly with the FBI or through a state POC.
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Old September 12, 2023, 06:56 PM   #13
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Quote:
Originally Posted by dogtown tom View Post
In any state, an FFL can facilitate a private transfer.
Further, EVERY state conducts NICS checks, its the Brady law. In most states, the FFL contact FBI NICS directly, in POC states the FFL contacts a state agency (who in turn contacts the FBI NICS) for the Brady check.
My post was regarding the Connecticut POC accessing NICS for private sales that were not facilitated by a FFL, as described by AB in his original post.


Quote:
Originally Posted by dogtown tom View Post
That's not exactly what happened. it wasn't the massive number of new background checks, but them coming from different origins.

Nevada passed a law that required background checks on private party transfers. That law required FFL's to contact FBI NICS directly, bypassing the state POC. The FBI basically said "you gotta do private party background checks just like all your other background checks"". You can read the FBI NICS letters here: https://www.reviewjournal.com/local/...ore-it-begins/
That's a more correct summary of the FBI position. I was influenced by the FBI statement “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.”
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Old September 13, 2023, 03:38 PM   #14
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I'm not a lawyer, and the way federal laws are formatted frequently leaves my eyes glazed over.
Pardon me for a slight thread veer here.

IMhO the social contract is that we elect folk to make our laws and we agree to abide by them. The laws need to be written so that almost everyone (me) can read and understand them without much trouble.

Writing a clear, unambiguous law seems to be a lost art.

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Don't get me started on all the rules, regulations, and executive orders implemented by those we HAVE NOT ELECTED!
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Old September 13, 2023, 05:07 PM   #15
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You have to vote for the bill to see what's in the bill...

I tried to read part of the "Obama-care" bill because it was going to affect my work. One page ended up driving roughly 25% of my workload for instance. I gave up pretty quickly.
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