“Should Clyburn’s bill become law, people who are unjustly subjected to (National Instant Criminal Background Check System) delays for reasons beyond their control would, in effect, be prohibited from exercising their rights to obtain firearms from dealers,” reads the statement by the NRA’s Institute for Legislative Action. “The FBI could affect denials without having to substantiate them, as they must under current law.”
The “loophole” in question is whether or not federal firearms licensed dealers should be allowed to sell a gun if the Federal Bureau of Investigation is unable to answer unresolved questions about a potential gun buyer’s criminal history during a mandatory three-day delay if issues are in fact raised.
Clyburn, who has received an F rating by the gun lobby, and gun control advocates have said the “loophole” allowed a South Carolina man who would have failed a background check because of drug charges to obtain a gun legally. He slipped through cracks because of a clerical error by the FBI in March, and three months later he used that gun to murder nine worshipers at a church in Charleston.
Clyburn’s bill, dubbed the Background Check Completion Act, would bar FFLs from selling a gun without a completed background check.
But the NRA justifies limiting the delay to three days for several reasons. First, the gun lobby says that identities can be confused or records can be incomplete. Second, the rule encourages the FBI to administer the system quickly and efficiently. Lastly, the rule preserves a critical aspect of America’s constitutional system, the due process principle that the government cannot arbitrarily deprive a person of his or her rights without making its case against that person.
The gun industry’s lobbyist group, the National Shooting Sports Foundation, also supports maintaining the three-day delay but wants to refine the current system.
“Anti-gun advocates are choosing to fault the three-day rule, suggesting that the examiner did not have enough time to finish the background check. But it’s clear that whether the FBI had three days or two months, they were not able to get the right answers because they were asking the wrong people,” said Larry Keane, the NSSF’s senior vice president and general counsel.
“This mistake does not call for changes to the statute, but instead improving our current system,” he said and added mention of the NSSF’s long-running campaign FixNICS.
In most cases a delay in a background check completion does not equal a denial. According to a 2014 FBI report on the National Instant Criminal Background Check System, 9 percent of all transactions were delayed and of those an estimated 1.1 percent were ultimately denied. And many of the delays were due to incomplete records such as a missing disposition or a missing crime classification status.
The Background Check Completion Act was introduced to the House on July 14 and was referred to the House Committee on the Judiciary.