May 06, 2020
Too many Americans were cringing in the first weeks of March when the COVID-19 pandemic began to grip the nation. Grocery stores had their shelves stripped bare, the stock market went into freefall, and government officials began talking in tones that sounded a lot like a prelude to martial law. Law and order within our crowded, complex society started to feel as tenuous as it always is, though human nature prevents most of us from acknowledging it because it’s too unsettling.
Many of today’s new gun owners have developed a self-defense mindset, but they haven’t had any real guidance or motivation to act beyond making the decision to purchase a gun. With the COVID-19 crisis, those who did not act may be experiencing regret.
In the third week of March, governors began to issue “stay-at-home” orders and closed all businesses that were not deemed “essential.” Most, even in those states considered radically anti-gun like Illinois, Connecticut, and Hawaii designated firearm-related businesses as essential but others in New York, Massachusetts, and even New Mexico refused and ordered their closure. New Jersey and Pennsylvania initially closed all gun stores but soon reversed course.
New Jersey’s governor badly wanted to keep his citizens from acquiring firearms but reluctantly submitted after the National Shooting Sports Foundation (NSSF), the firearm industry trade association, was successful in its work with the Trump Administration. At its request, the Department of Homeland Security (DHS) issued a second set of non-binding guidance to states that included those who are part of the firearm and ammunition industries naming their workers as essential in the effort to maintain the nation’s key infrastructure. The NSSF’s work at the federal, state, and local levels was instrumental in keeping many gun stores and ranges open across the country.
Cities and counties generated their own orders if governors chose to keep their powder dry and refrain from statewide mandates. Gun shops in places like Dallas, Austin, and Houston, all in what is generally deemed the pro-gun state of Texas, were ordered to close by local officials. They knew they were violating the states’ strong firearm preemption laws, thanks to the lobbying work of the NRA through the years, but arrogance prevailed in certain areas. After a few days of chaos, Texas Attorney General Ken Paxton slapped his local tyrants across the chops with a formal opinion citing the unambiguous state law prohibiting them from restricting gun sales in any manner. Governor Greg Abbott also issued his own statewide order that recognized gun stores and ranges as essential, pursuant to the NSSF-won DHS guidance.
The clear lesson from all of this is that anti-gun government officials will act with craven disregard for individual rights and the Constitution if they think they have justification to do so. Because of the gun store closures in New York, Massachusetts, and New Mexico, 10 percent of the country’s population – more than 30 million people – live in places where they cannot buy firearms. Even buying a firearm from a willing neighbor is not possible because each of these states have imposed universal background check laws. Americans are literally being prevented from exercising their right to keep and bear arms.
In these states, businesses like dry cleaners and liquor stores remain open as essential, but the stores that sell the only explicitly protected property named in the Constitution are forcibly shuttered. If social order ever collapses and violence results, at least those who sought the protection offered by a firearm can wear a freshly starched shirt and have a bourbon in hand as the trouble comes. The NRA and other groups have filed lawsuits, but they will be resolved long after the COVID-19 emergency has passed.
In the beginning, dealers rationed gun and ammo sales in an effort to ensure as many customers as possible could find the protection they desired. March set an all-time record for the FBI’s National Instant Criminal Background Check System (NICS) associated with gun purchases in a single month at 3.74 million. That is 34 percent more than February and 12 percent more than the previous record in December 2015. The month of April 2020 settled slightly to more than 2.91 million.
Even in states where gun stores remain open and supply has not been depleted, the ability to actually buy a gun has been far from guaranteed. NICS has been overwhelmed for the volume of gun purchases. As usual, any checks that do not get an immediate approval from a database search go into “delay” status to allow time for an investigation. This might be due to a past arrest with no clear disposition or a customer’s name and date of birth are too similar to a someone who is actually prohibited.
Federal law specifies that the background investigation may take up to three business days. After these three days, the dealer can transfer the firearm to the customer, approved or not. This is a critical component of law that keeps government officials from unilaterally and indefinitely delaying firearm transfers through never-ending investigations. A “business day” is considered a day when the offices in the state where the transfer is occurring are open for official business. No state has completely shuttered all state offices during the COVID-19 crisis.
Regardless, the FBI has been giving gun dealers a Brady Transfer Date that is as many as 28 days out from the date the background check is requested by the dealer. There is no legal authority for the FBI to do this and it is another example of the United States government behaving badly during times of uncertainty. Even gun dealers in small towns who know their customers refuse to transfer guns after the three days specified in law because they fear the consequences of disobeying the FBI’s extralegal guidance.
The appropriate and legal act that the FBI should have done while tens of thousands of investigations piled up was to simply tell gun dealers, “You know you have the right to transfer the firearm(s) to the customer after three business days. However, we kindly request that you wait until _____ to transfer the firearm(s) in order to give us time to deal with this mess.” It chose not to do this, which is why citizens are right to be suspicious of the government’s growing power.
There are about 20 states including Nevada where gun dealers must first go through state officials for the background check before it is sent to the FBI for the national check. These are called “Point of Contact” states. Nevada’s Department of Public Safety (DPS) runs the state’s portion of the background check. It is so overwhelmed that Nevada’s DPS simply stopped answering calls from gun stores. Dealers began to FAX customer information out of desperation, but the FAX machines were often ignored.
Under federal law, a background check that has been initiated by a dealer expires after 30 days. The delays in Nevada, due to the overwhelmed DPS, have been so bad that dealers must often call customers back into their shop to start the process over again. All of this has made a mockery of the so-called “instant” background check system. Many would-be new gun owners living in Nevada and other places have not been able to get past the administrative blockade associated with the background check system that gun control advocates want to expand.
Between the manufacturers’ supply challenges to distributors and retailers, state and local governments’ orders to shut down gun stores, and the broken background check system becoming so overwhelmed that it ceases to function, law-abiding Americans can never be certain that they’ll be able to buy guns when they need them most. The lesson here is to buy guns, ammo, and other essentials long before you actually need them.
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