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Instant Check, Permanent Record

The NICS is hardly reasonable

By Dave Kopel, Dr. Paul Gallant & Dr. Joanne Eisen of the Independence Institute

8/10/00 1:10 p.m., National Review Online. More by Kopel on the National Instant Check System.

When he questioned the meaning of "is," Bill Clinton gave Americans a crash course on the fine art of parsing words, and validated their deep mistrust of government. A July 13 ruling of the U.S. Court of Appeals for the D.C. Circuit now adds to Clinton's infamous legacy.

In 1993, Congress enacted the "Brady Bill," while providing that the Brady waiting period would sunset in five years, to be replaced with the National Instant Check System (NICS) for all retail gun purchases. Although prior law and the 1993 law both forbade the federal government from using the NICS to register gun owners, Janet Reno and the FBI immediately began using the NICS for gun registration.

The National Rifle Association sued, and eventually lost a 2-1 decision before the District of Columbia Court of Appeals. This loss should be a caution to everyone who believes that moderate gun controls can still protect Second Amendment rights.

Under the NICS, when a firearm purchase is made through a licensed dealer, that dealer must submit detailed information about the prospective purchaser to the FBI before the firearm is transferred.

The NRA lawsuit argued that the law requires Instant Check records to be destroyed immediately upon "proceed" or "denial" of firearm purchase. But the FBI wants to keep that information for six months. And thanks to the use of computer backup tapes, information that is erases from a particular computer after six months may exist on backup tapes forever.

When the NICS law was enacted in November 1993, Section 103(i)(2) made it clear that the names of firearm purchasers were not to be retained in the system: "No department, agency, officer, or employee of the United States may...use the system established under this section to establish any system for the registration of firearms (or) firearm owners..." The same prohibition against federal gun registration also appears in the 1986 Firearms Owners Protection Act.

Nevertheless, Judges David S. Tatel and Merrick B. Garland, both Clinton appointees, maintained that Federal law "does not prohibit all forms of registration." Actually, the federal statute explicitly bans any registration.

In arguing that FBI retention of information does not constitute registration, the two Clinton-appointed judges noted that the FBI list does not contain the names of every U.S. gun-owner, and that the retention of names was not intended to be permanent. These arguments ignore the obvious fact that partial or temporary registration is still a "system of registration."

Dissenting Judge David B. Sentelle, a Reagan appointee, opined that Congress was perfectly clear when stating it wanted the NICS records destroyed – and destroyed immediately, not six months later. "The Attorney General [Janet Reno]'s position," Sentelle wrote, "strikes me as reminiscent of a petulant child pulling her sister's hair. Her mother tells her, 'Don't pull the baby's hair.' The child says, 'All right, Mama,' but again pulls the infant's hair. Her defense is, 'Mama, you didn't say I had to stop right now.'"

The experience of Canada, Great Britain, and Australia shows quite plainly that gun registration precedes gun confiscation. The late Nelson T. "Pete" Shields, the Founding Chair of Handgun Control, Inc., explained:

The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition—except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors—totally illegal." (Richard Harris, A Reporter at Large: Handguns, The New Yorker, July 26, 1976, p. 58.)

In this context, the focus of the gun prohibition groups on total gun registration makes great sense, even though registration has been proven useless around the world as a crime-fighting tool.

Thus, we have the current effort to close the non-existent "gun show loophole," which will simply set the stage for a ban on unregistered firearms transfers, even among family members. (This is currently the law in Canada and some American states.)

The National Instant Check System was touted by its proponents as a "reasonable" law for keeping guns out of the hands of criminals.  But just how "reasonable" is it to allow the federal government to illegally compile a list of gun-owners? And just how "reasonable" is it for citizens to trust a federal government that, time and again, has proven itself untrustworthy?

 
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