On the same date, and with lack of debate, analysis or consideration as H.R. 8, H.R. 1446 – the so-called Enhanced Background Check Act of 2021 was rammed through the U.S. House of Representatives on a mostly party line vote. This is only the second gun control measure to come from the Harris-Biden [sic] administration and Democrat controlled House and Senate. Many more are expected to follow.
This bill, like the Universal Background Check bill, does absolutely nothing to enhance public safety. It merely creates a two week, or more, national waiting period for purchasing a firearm. This waiting period, which comes with no time limits for the actual completion of the background check, can be used to administratively stop firearm sales, period.
Before we dive into H.R. 1446, let’s take a little look at the history of the Brady Act, the law this bill is attempting to modify.
Enacted in 1993, the Brady Handgun Violence Prevention Act imposed a five-day waiting period on the delivery of handguns. It ended in 1998 with the establishment of NICS (National Instant Criminal Background Check System). At this point, the five-day waiting period was dropped and the instant check system we have in place now applied to ALL firearms sales, not just handguns. The responsibility for conducting the background checks is placed on the FBI/NICS team within a predetermined time so as not to infringe on the purchaser’s constitutionally protected rights. Please note there are a number of states with their own background checks and waiting periods as well.
Then comes the myth of the so-called “Charleston Loophole”. This is the case where an individual purchased a firearm from an FFL (Federal Firearm Dealer) who conducted a NCIS background check. That FFL did not receive a delay or denial after three days, and legally transferred the firearm. Tragically, the individual later used that firearm to kill nine people and injure three others in a church in Charleston. Only AFTER the shooting was it discovered the shooter should have been denied his purchase based on a recent arrest.
This purchase would not have happened but for a series of government errors. The NICS analyst contacted the wrong department due to not knowing the agencies in the area where the arrest occurred. The pending charge was also listed as a felony, when in reality it was a misdemeanor due to a data entry error, meaning that would not have prevented him from receiving the firearm, but his use of illegal drugs uncovered in this arrest would have. The other thing that is absolutely critical to realize from this horrific incident is two months passed from the time he purchased the firearm to when he used it in the shooting. It was only AFTER the shooting did the FBI determine the errors in the NICS background check. Yet as falsely quoted by the runner up in the 2016 Presidential Election, if it had been delayed “just one more day”, this would never have happened.
So that brings us to the absolute soup-sandwich that is H.R. 1446. Instead of the current default proceed of three-days, it creates a MINIMUM 10-business day waiting period on the transfer of firearm, but ONLY after the purchaser, not having received a response at the FFL after an indetermined amount of time, submits an electronic form (or inconceivably mails a paper copy via first-class mail) to the FBI attesting to the very same information on the ATF Form 4473 and again swearing the information is correct and asking the FBI/NCIS to complete the background check. IF the FFL does receive a response back from NCIS, the information is only good for the longer of 25 calendar days after the licensee receives the notification OR 30 calendar days after the date of the initial contact.
Keep in mind that currently if a firearm is delivered to someone who is later determined to be ineligible, as occurs in a very small percentage of NCIS checks, there is a mechanism in place to retrieve the firearm. There is also a process to charge those who made false statements on the ATF Form 4473 and are determined to be ineligible, although prosecutions are only pursued in an infinitesimally small number of these cases.
Among the obvious flaws in this bill are the lack of any deadlines for NCIS to actually perform the checks and that the onus is on the potential purchaser to properly file additional paperwork in order to trigger any kind of a default delivery.
It is important to recognize waiting periods for the purchases of firearms are a popular tactic of the gun control zealots, calling it a cooling off period as well as time needed to conduct a proper background check. In reality, other than “studies” funded by gun control organizations, there is no evidence that waiting periods prevent violent acts or even suicides. Further, successful background checks themselves have not proven to be a determination of eventual criminal activity.
Sadly, there have been numerous cases where errors and omissions from local, county, state and federal government agencies – including the U.S. Department of Defense – which have made it possible for individuals who should not have been able to pass a NICS background check and purchase a firearm, to do so. Only AFTER the tragic results have come to light did the information show there was a failure in the system. Yet this bill bolsters the concept that when the government makes mistakes it logically leads to more laws and more constitutional infringements on law-abiding citizens who themselves have done nothing wrong.
A quote attributed to Dr. Martin Luther King Jr. says, “A right delayed is a right denied”. This quote has been used across the board for civil rights, abortion rights, voting rights, etc. etc. But when it is used in the context of Second Amendment rights, it suddenly becomes moot and an insult to Dr. King’s nonviolent principles. This of course dismisses the fact that firearms are used lawfully in the United States to prevent violent crime by a ratio of at least three-to-one over unlawful acts, actually SAVING lives vs. taking them.
The anti-gun zealots have always treated Second Amendment rights as second class rights, not deserving of full and equal protection under the law. This bill continues to perpetuate that belief by putting the burden on the law-abiding citizens to pursue having their own rights recognized. It creates a national two week+ firearm waiting period with no government accountability while doing nothing to increase public safety.
Perhaps holding criminals accountable for their actions might be a good place to start instead.
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