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https://www.nationalreview.com/corner/biden-can-act-on-guns-without-congress-and-should/
Biden Can Act on Guns without Congress, and Should
Let me give you an example of exactly how dumb and dishonest our gun-control debate is.
In his dopey candlelight-vigil speech on the issue, President Joe Biden said a lot of dumb things, some of them intentionally and some of them hilariously unintentional. Leave it to Joe Biden of all people to worry about “gum control” — sic — something he has never quite mastered.
One of Biden’s complaints was about the fact that if the federal government fails to complete the background check on a would-be gun-buyer within three business days, then the sale may proceed. (May, not must: It is up to the seller.) That is true. In the overwhelming majority of cases, this is just the federal government being its predictably slow and ineffective self. I have had background checks time-out myself, more than once.
However, in a few cases, a sale that should not have been approved ends up getting greenlighted because the clock runs out. Biden proposes to change the law to forbid that. That probably is not going to happen and definitely should not happen: The deadline was put into the law in the first place to stop the federal government from using bureaucratic delays to create a shadow ban on firearms sales.
Here’s the thing: President Biden could do something about this problem — today — if he wanted to, and he doesn’t need Congress’s approval or any change in the law.
Right now, when the federal government finds out that a sale that should have been stopped has proceeded because of the time limit, it does — this part will not surprise you! — absolutely nothing. Somewhere in some subbasement somewhere in the bowels of Washington, some bureaucrat mutters to himself, “Well, that’s unfortunate.” And then nothing else happens.
These are sales for which people have filed the requisite paperwork at a licensed firearms dealer. That means that we not only have the name, address, Social Security number, and other information about the buyer, we also have the make, model, and serial number of the firearm that changed hands. All it would take would be for someone to go and get the gun.You don’t need Batman to fight that crime — you need a guy with a car and a shoebox.
Sending somebody out to pick up those guns would be a real improvement for several reasons: For one, we’d be taking a gun out of the hand of a prohibited person, which is good in and of itself. Second, in almost every case, a prohibited person who buys from a licensed retailer does so by lying on his application — as Joe Biden’s son, Hunter, pretty obviously did when acquiring a handgun a few years ago. (Hunter Biden is a prohibited person because he is a drug addict, and if he had not lied about that fact on his application, then it would have been rejected.) That means that we not only have the opportunity to take the gun away, we also have the opportunity to arrest the offender for a serious gun crime. Often, there will be at least two charges that could be made: felon in possession (which by itself can bring as much as ten years in prison) and making a false statement to acquire a firearm — a fifth-degree federal felony.
If we wanted to, we could take those guns — and those criminals — off the streets.
President Biden does not need Congress to change the law to make that happen. He does not need Mitch McConnell’s permission. Nobody can filibuster him. All he has to do is pick up the phone or put his name on a memo and instruct the lazy, useless, complacent, feckless, self-serving, waiting-around-for-their-retirements bums who work for him to get off their asses and do the job we pay them to do. You don’t need a SWAT team for this — Skippy the Intern should be able to handle most of this work just fine.
But, of course, Biden will not do what is within his power — and not only because it would mean locking people up for a crime committed by his idiot crackhead son.
Likewise, Biden could instruct the U.S. attorneys — the federal prosecutors who serve at his pleasure — to start prosecuting straw-buyer cases and start putting real federal time on the table for the people who do so much to provide our nation’s career criminals with a steady supply of firearms. But he won’t do that, either.
It is not news that Joe Biden is a dishonest, lazy, conniving partisan coward. That has been clear since the last days of disco. But if there are any intellectually honest Democrats left out there — and if there are, please, stand up and be counted — they should be asking why Biden will not do the things that he can do, especially given the fact that doing these things would put the crosshairs on actual criminals, something we should all be able to get behind.
The numbers are what they are: More than 80 percent of our murderers are habitual criminals with a half-dozen prior arrests, while 0.8 percent of the criminals in custody who used firearms in the crimes that got them locked up got that firearm from one of those gun shows that Democrats are always going on about. If we were serious about gun crime, we would hunt where the ducks are.
But Democrats have no interest in that, because they have an enemies list that supersedes substantive considerations.
So, President Biden: How about we keep our constitutional rights, and you and the people who work for you start doing your goddamned jobs?
There’s your bipartisan solution.
This is a bit of a shock, really. I've never really thought about it, but would have presumed that if a prohibited person fell through a loophole, and purchased a weapon, then the cops would make a beeline to his house, to confiscate the weapon, and arrest that individual.
None of that is happening.
If you slip through a loophole, you keep your weapon. That is so very wrong.
But it does make more statistics to use in the talking points.
(Score: 1, Interesting) by Anonymous Coward on Sunday June 05 2022, @10:09PM
The NICS process is complicated for a number of reasons, some of them intentional choices to prevent bureaucrats from building a shadow gun registry.
I'm not saying it isn't posssible to do as your article suggests -- I don't know enough of the details of every law and regulation to be sure one way or the other. But I do know enough to be suspicious of a "plan" so long on handwaving and short on specific detail.
NICS is run by FBI, not ATF.
The FBI only gets the potential buyer's information, but not any information about the gun. The gun's information gets recorded in the FFL's bound book and on the ATF form 4473 (for "tracing" crime guns, which is a farce in itself), which remain at the FFL.
Neither FBI nor ATF has any way of knowing whether a buyer came back to complete the purchase after the 3-day limit, nor do they have any legal basis to demand the FFL notify them. So a substantial amount of effort will likely be spent starting a case, and finding out the guy never came back, or only came back after the "delay" finally became a "deny". You can still go for a perjury conviction in these cases, if you've got the evidence (same as with an immediate "deny"), but you aren't getting felon in possession or recovering the gun, because it never left.
I'm not entirely clear on current procedure, but my understanding is that, after the buyer has had the opportunity to appeal (and either didn't, or lost), FBI refers select cases (those with enough evidence for an investigation -- less than 10% of denials) to the ATF. Lying on 4473 is perjury, and a handful of people do get convicted every year -- but only a handful. The most likely explanation is that the vast majority of NICS "deny" responses are in fact bogus -- someone's name matched a felon, or FBI has a record of a criminal charge, but is missing the corresponding record that it was eventually dropped or acquitted. After all, real felons already know they can't pass a background check, and mostly are smart enough not to try on the off chance they might sneak through on a slow "delay" result.
NICS is under strict privacy laws -- while the strictest parts only affect "proceed" results (information about a "deny" is needed in case of an appeal, and doesn't lead to a registry of legal gunowners in any case), it's not clear whether, and under what circumstances they could share this information with ATF sooner or more frequently than they do. (e.g. before appeal, or regardless of evidence level)
Even assuming the current level of evidence is discretionary, and FBI is legally able to just send all "deny" cases on to ATF regardless, that just pushes the problem down the line. Before you can send the man with his shoebox (and handcuffs) around, you're going to need some actual evidence, rather than "His name is John Smith, and there's a felon named John Smith in the same state" that NICS seems to run on.
Finally, and most worryingly, NICS is subject to a high false positive rate -- some estimates (based on referrals to the ATF) suggest over 90% of "deny" responses are incorrect, but we know for a fact from the FBI's records that of the "deny" results which get appealed through NICS, over 25% get corrected. How many of the others (upheld) are still bogus is hard to say; we know some of them are, because some people take the FBI to court, and win, but most people don't have the time and money to pursue legal action.
And then there's the people we're specifically talking about -- those who received a '"delay" response, and proceeded with the transaction after the three-day limit expired. They don't know (or, likely, care) what answer the FBI finally comes back with, and even if they do find out, they're extremely unlikely to file an appeal in the first place, much less contest it in court, since they already have the gun.
Bottom line, this is already being done in a few cases, and without new laws, I doubt you'll be able to expand that much, and with those new laws (or if I'm wrong and a significant expansion is within executive power), the main effect will be revealing how many people are wrongly being denied their rights by NICS.