Mar/Apr 99
Behind the News

Instant Check Debuts
By Nancy Norell

Like that great big round rock that chased Harrison Ford in "Raiders of the Lost Ark," as inevitable as death and taxes, the implementation date for the National Instant Background Check for firearms purchases through a dealer came and went. How is the system working in the real world?

Dealers and buyers alike were braced for delays and snafus, and they were not disappointed. The FBI system went down for 90 minutes on the first day, and another 20 minutes the second. Dealers and customers were left fuming. At other times dealers attempting to run the check were greeted by persistent busy signals. Would-be buyers gave up in disgust, leaving shops without completing the sale. This meant big financial losses to dealers during the Christmas and deer hunting season.

Steve Shipley, a buyer for the Ohio Valley Trading and Exchange in Athens, OH, told Women & Guns, "Starting the check in December, when 80% of the guns in the country are sold, was not wise. There are a few customers who have always been used to just walking in and buying a rifle and shotgun who are a little upset. Now when you tell them they have a three-day wait, some of them don’t even want to hassle with that, but the majority wait for the process to go through. But they’re not happy about it."

John Adkins of the American Shooting Sports Council referred to a poll of ASSC member-dealers, "Quite a few of the dealers reported that they had customers leave the store in frustration over the delays. A number of dealers reported that they estimated losses of several hundred dollars to thousands of dollars. More than one gun store reported to us last week that their losses were upwards of $2,000. One dealer reported that he had heard that the chain stores were losing thousands of gun sales each day and that independent shops were losing an average of 40 sales a day."

Adkins also said that some of the dealers in states that run checks through state agencies were having delays, probably because long guns are being checked now, meaning more checks.

Andy Molchan of the National Association of Federally Licensed Firearms Dealers told W&G that sales had been lost as a result of the check. He said, "This is especially true at gun shows. Delays can be long, sometimes up to a whole day, and in some cases, a couple of days."

The financial impact of the check is not the most important long-term aspect of the system. In spite of clear prohibitions in the Brady Law, which states that the FBI "shall...destroy all records of the system with respect to the call," the FBI is determined to retain the names of applicants for clearance by the system who have no record of any prohibitions. This is clearly big-brother government, police-state tactics and a registration system, in spite of the FBI’s claim that somehow these names are necessary for some mysterious bookkeeping purpose. If it looks like a duck….

The National Rifle Association (NRA) has brought suit against the FBI to stop the retention of those records. James Baker, head of NRA’s Institute for Legislative Action, said, "The clear intent of the Congress was to conduct the background check unobtrusively at the point of sale, without delay, and with all respect to the privacy of the gun purchaser. Unfortunately, that is not what the Federal Government is doing. Clearly, the Attorney General and the Justice Department are in violation of that law."

Baker told The Chicago Tribune, "It is anathema to our system of government to stand idly by while a federal police force illegally compiles a database of citizens who are demonstrably law-abiding."

And, doomsayers, who occasionally get it right, predict that many would-be gun purchasers—unwilling to have their firearms ownership status a matter of government record—may not purchase any more firearms from federally licensed dealers.

President Clinton decried the NRA suit, saying in a Dec. 5, 1998, radio address, "...they’ll [The National Rifle Association] stop at nothing to gut the Brady law and undermine our efforts to keep more guns from falling into the wrong hands, even though we now have five years of evidence that it works." Nice talk from a guy who has let all those vicious characters walk, because Brady has never been used to apprehend criminals, only to turn them aside.

Handgun Control Inc.’s Sarah Brady also bristled at the NRA lawsuit. "What is particularly troublesome, however, is the National Rifle Association’s newfound opposition to the system it insisted on creating," Brady said, referring to the NRA’s support of the Instant Check System to replace the 5-day waiting period under the Brady law.

She continued, "…the NRA filed a lawsuit against the Justice Department, whose Instant Check system will retain the records of gun purchases for some months. Never mind that those records are critical for evaluation of the system—and never mind that new research demonstrates that a very high percentage of legally bought guns are getting into the criminal market very quickly after purchase." Perhaps Brady inadvertently let slip that somewhere, someone has plans for these records.

Brady said, "Despite the reasonable concern for thoroughness and public safety that underlies the temporary retention of Brady records, the NRA is more concerned about placating hard-line gun owners who object to any record at all of their transactions."

But back to the trenches. How is the system working for dealers? ASSC’s Adkins told W&G, "We did a poll of some of our member-dealers, and, pretty much all over the country, they were experiencing delays in getting through to the FBI, at least in the first several days of implementation. That was because the FBI computer went down several times on those first days. Some dealers could not get through at all. Other dealers said it took from a few minutes to hours to get through. Some had problems getting responses after they did get through. In some cases it took forever to hear back from the agents."

A member-dealer in North Carolina commented to ASSC, "Out of 47, attempts about two out of every 10 were successful. The average time to access NICS was five to eight minutes." The dealer had customers leave the store, and claimed losses of anywhere from 13 to 20 thousand dollars. A dealer in Idaho told ASSC, "The NICS personnel were very helpful, but the system is crazy. Sometimes my password doesn’t work. Too many delays."

Sheila Blakely, manager of Crazy Charlie’s Guns and Pawn in Greenwood, MS, told W&G, "It took me 37 times to get my first call through. I know that I’ve had a couple of customers leave because they didn’t want to wait. In the two newspapers that I get, there were lots of articles about how there would be a 15 minute wait, and it’s not a 15 minute wait. I don’t know anything about any 15 minute wait. When we were instructed on the use of the system, we were told that it would take 30 seconds—no longer than 2 to 3 minutes. A ‘delay’ would be 15 minutes. For some of my delays, I’m not getting back a reply at all. In other cases, I’ve waited a day or two and I have called back and find that those have been moved to a ‘proceed’ status, but no one called to let me know this. The customers are all expecting a 15 minute check. They think the inconvenience is our fault."

A big problem for Blakely’s business was that the FBI doesn’t seem to know how a pawn shop works. The system does not differentiate between the sale of a gun and the redemption of property. "The majority of my calls to the system are for people redeeming their own guns, not for new sales, which we do also. I tried to correct the person I talked to just yesterday. As far as I know, NICS is classifying redemptions as sales. I have several customers who bring their guns in every week to get gas money. Then they redeem them when they get paid. Is NICS going to indicate that these people are buying that many guns? How does that affect multiple sales? This person hasn’t done anything wrong. I have another customer who pawns his gun every week because he wants to store it, but he wants it back during the weekend. I have a number of people who pawn firearms just because they know they will be safely stored. The NICS statistics are going to be way off."

Blakely continued, "I had one customer who had to wait three days for an approval after a $20 loan on a $400 gun. Another customer came in to get his guns on a Friday because he was going hunting on Saturday. He was delayed and missed his hunting weekend."

Blakely said that the system isn’t put together by people who live in the real world. "The poor little girl who put on the seminar to explain the system to us six months ago couldn’t answer any pawn shop questions. All of her information was on new sales. New gun sales are such a small amount of what’s going on."

The fact that the checks now go through West Virginia will mean a smaller role for local police. Blakely said, "Our local police officers used to do the checks. Now they don’t know who’s buying a firearm. I don’t keep a list of who bought a handgun. The sheriff’s office might have been called to a certain person’s house because they were fighting. Now that person is buying a gun. And federally, this new check is supposed to help with domestic violence?"

Paul Bresson, a spokesman for the FBI, defended the system to W&G. "...what we’ve got here is a very impressive system that is working. It’s already turned aside over 1300 would-be gun purchasers. The system is doing what it was directed to do. Just to develop the system in the amount of time we had was an overwhelming task. The rules changed during the development of the system. One day we were doing checks for gunsmiths, and the next day we weren’t. It’s a complicated system. Every day we’ve had 20 to 30 thousand checks. That means there are quite a few people getting through. Over 75% of those resulted in an immediate ‘proceed with the sale’. We think it’s working."

The Constitutionality of the entire system is open to question. Larry Pratt, Executive Director of Gun Owners of America, told The Chicago Tribune, "We should have a bumper sticker that says ‘Nix NICS.’ We’re converting a right into a privilege, saying you have to get permission to exercise your Second Amendment rights. It’s like having to go through a government background check to be a journalist."

Anti-gun forces are critical as well. They are not used to giving up any of the ground they have gained. Sulking over the trade of the 5-day Brady waiting period for the Instant Check System, they are looking to have both. Clinton said, in his radio address, "...when the new Congress goes into session next month, one of my top priorities will be to pass legislation to require a minimum waiting period before a handgun sale becomes final. This ‘cooling off’ period will help prevent rash acts of violence and give authorities more time to stop illegal gun purchases."

In all the huffing and puffing about whether NICS works or not, something has been forgotten. What’s the purpose of the system? Ohio Valley Trading and Exchange’s Shipley, raised this point. "The biggest problem is that 90% of the people that are being delayed are not criminals. Who gets hurt is the sportsman. The criminal doesn’t usually come in and fill out paperwork to buy a gun. That happens so rarely that most all the problems affect law-abiding citizens. We’re the ones who suffer and pay."

And what happens when a genuinely prohibited person is caught by the check? Even though it is a federal felony for prohibited persons even to walk into the shop, they generally walk right back out again. This does not stop Clinton from bragging that since NICS went on line "...we stopped 400 felons, fugitives, stalkers and other prohibited purchasers from walking away with new guns." As usual, anti-gunners see nothing wrong with allowing these allegedly evil thugs from roaming the streets, where no doubt they will take up counted cross-stitch, and make no attempt to obtain a weapon of some sort illegally.

The Federal Bureau of Investigation does recognize this problem. Bresson told W&G, "Frankly, we could be doing better in going after prohibited persons who are trying to buy a firearm. We need to pursue these people aggressively. Realistically, it doesn’t always happen."

Bresson said that the Bureau did notify local jurisdictions if a prohibited person attempted to buy a gun through a dealer. "We would notify the proper authorities. They would have to go after the prohibited person. Whether they follow up is up to them."

In some cases, police have nabbed prohibited persons rash enough to attempt a firearms purchase that involves a background check. Pennsylvania’s background check, called "PICS," is run through the state, not the FBI. The background check for handgun purchases went into effect July 1. Right after the system went on line, a man wanted in Allegheny County on charges of forgery, writing bad checks and false statement for transfer of firearms tried to buy a handgun from a dealer in Fayette County. He left the shop before the PICS check was complete. He then tried to purchase a gun in an Allegheny shop. While he was in the second shop, the PICS staff in Harrisburg had time to contact the local police, who went to the shop and arrested him.

Does the system keep firearms out of the hands of prohibited persons? In a very small percentage of cases, it prevents a sale through a licensed dealer. But even the FBI recognized that unless prohibited persons are locked up, there is no guarantee that they will not obtain a gun. Bresson told W&G, "...we know that [being stopped by the background check] doesn’t prevent prohibited persons from going out and getting a gun from some other source."

All in all, some of the bugs are likely to be worked out of the system. New and unforeseen problems will crop up. But is it worth it? Is this vast Rube Goldberg machine going to make a reasonable contribution to the safety of peaceable Americans?