Hindsight from The New Gun Week July 01, 1998
The Waiting Period Battle: Part II
by Joseph P. Tartaro
Executive Editor
Americans who thought the battle over the "Brady Bill" ended in 1993 had better wake up and start looking at the 1998 sequel.
Actually, the battle is already almost 40 years old. It really began as a proposed handgun purchase waiting period back in the mid-1960s, then became a centerpiece of the strategy of the anti-gun organizations which were formed in the 1970s to build on the foundation laid by the Gun Control Act of 1968 (GCA '68). Even though some NRA leaders in the early '70s supported the waiting period for background checks, it took more than 30 years-and the renaming of the proposal after James Brady was wounded in the 1981 assassination attempt on then President Reagan-plus a determined President Clinton to pass it into law.
When the final battle over handgun purchase waiting periods was joined in 1993, the concept of screening out prohibited persons was divided into two schemes: a seven-day waiting period (which was cut to five working days in the final bill) and the "instant check" for all prospective gun buyers. The anti-gunners wanted the straight waiting period. The pro-gunners, perhaps fearing that they needed an alternative or they would lose on any straight-up vote in Congress, backed the "instant check" approach, with the strategy that the waiting period would sunset and be replaced by the "instant check."
There is a consensus among Americans-anti-gun, pro-gun and uncommitted-that it is desirable to prevent convicted violent criminals, drug-abusers and the dangerously mentally ill from acquiring firearms. The debate seems to be over how to accomplish such a goal. (The two methods previously cited were the main approaches. The "felon ID card" did not surface until after Brady was enacted.)
The combined package, commonly known as the Brady Act, was signed into law in November 1993. Most Americans thereupon forgot about the ticking clock that edged closer month-by-month to the so-called end-game of the debate over waiting periods. Most people also forgot that the mandated background check involved all guns and that there were a number of other built-in problems.
When the bill passed in 1993, President Clinton had a Democratic Party majority in the House of Representatives. In all likelihood, he and his allies took what they could get in 1993, expecting that they would control the House and maybe the Senate after the 1994 elections, and would be able to delay the sunset of the "waiting period" or gut the "instant check" in a later Congress. At that time, Democrat strategists working with the anti-gun organizations never expected to have to give up the waiting period; the instant check was something they agreed to in order to pass one of the cornerstones of anti-gun strategy.
The 1994 congressional election threw a monkey wrench into that plan, and the 1996 elections didn't correct the situation. However, since the Administration could control the information mechanisms, the White House and Treasury and Justice Departments put out a continuous stream of propaganda about how effective the waiting period had been in preventing handgun sales to prohibited persons. At the same time, through the Lautenberg Amendment, they expanded the list of categories of people who would be prohibited from buying and owning guns. They also plan to expand that list further.
As recently as early June, Attorney General Janet Reno was claiming more success from the Brady Act and urging states to do their own criminal background checks of would-be gun buyers when the instant check takes effect at the end of November.
The Justice Department wants states to do the background checks to save money at the FBI and to prevent confusion over different state laws, which may be even more restrictive than federal laws with regard to classes of prohibited persons. As both a carrot and stick, the FBI plans to charge $13 to $16 per background check to states that won't do their own. About half the states have so far agreed to do their own checks.
Further complicating the debate is the fact that the background check law is implemented and interpreted by the ATF, a regulatory agency, and operated by the FBI, a law enforcement agency. The FBI's National Instant Check System (NICS) is designed to handle up to 15,000 requests an hour. And FBI witnesses at the June 11 House subcommittee hearing (see related story on Page One) claimed that the system is really geared to conduct only 4 million checks a year. That is another reason why Reno wants more states to be the point of contact (POC) for background checks. One complication of that, however, is that the states might agree to do the handgun checks, but not the long gun checks. Such a split would create a situation where a would-be buyer of both a handgun and a rifle or shotgun could be paying for two different checks, conducted through two different agencies.
Poison Pills
There are still more poison pills embedded in the Brady Act. As the law would be implemented at this point, the background check requirement for people who wish to re-claim their own property left at a pawn shop would also apply to customers of gunsmiths and even those who send a gun back to a manufacturer for warranty work. As presently interpreted, the law would require that all such persons would have to undergo, and possibly pay for, a background check to regain guns they already own.The American Pistolsmiths Guild wrote to the ATF in May to say that unless that requirement is dropped, it would ruin the gunsmithing business, without sorting out any criminals.
In pursing the question of whether or not a citizen had to undergo a background check to re-acquire a firearm he already owned, Gun Week was told that there had been verbal government assurances that the rule would not apply to those who were regaining their own gun from a smith or manufacturer's warranty service. But then we learned from Bob Ricker, chief Washington lobbyist for the American Shooting Sports Council, that the issue had been referred back to ATF and Treasury attorneys for further study.
Some analysts also question the source and quality of the information in NICS files, another ploy that supports Clinton's push for an extension of the waiting period (see related story on Page One). Since the Supreme Court has ruled that states cannot be obliged to do checks for the federal government, some states have chosen not to participate in the program, or only to the extent required by their own state's law. Further, recently published regulations concerning the system protect the FBI from responsibility for incorrect information. Once an individual is turned down, the refusal is retained in the records for 10 years. The FBI, in its regulations, exempts itself from the Privacy Act, which makes challenging a turn-down a nearly impossible task. Yet FBI bulletins claim that appeal regulations are yet to be made public.
James E. Kessler Jr., section chief of the Criminal Justice Information Services Division of the FBI, explained at the June 11 hearing how the system would work. The system gleans information from the National Crime Information Center (NCIC) and the Interstate Identification Index (Triple I). These systems are jointly managed by the FBI and the states. The NICS index is being created, using as sources the Departments of Justice (Immigration and Naturalization), Defense, Veterans Affairs, and Transportation. Kessler said that, "... states may contribute records to the NICS index pertaining to denied persons."
The addition of misdemeanor "spousal" abusers under Lautenberg to the list of prohibited persons as well as a number varying state laws that disqualify people for other reasons, such as repeated DUIs, have complicated the whole problem of identifying prohibited persons.
If the administrative and political shenanigans surrounding the sunset of the waiting period and the onset of instant check were not enough of a problem, the division of positions among gunowners and gun groups further complicates the issue. Some are as opposed to the instant check as they are to the waiting period and urge a repeal of both. Others are willing to accept the instant check if they are sure there will be no registration of gunowners and their firearms, and/or if there is no "user fee" or "gun tax."
While the public and congressional debate continues over the next several months, it will be interesting to see which side gives up what in exchange for advancing their own agenda. Clinton may have pushed a lot of his new requests, including the background check fees, simply to have bargaining chips to trade.
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.net
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