ExecDirector
01-11-2016, 11:42 AM
One of the most regular discussion conflicts with 41P/41F is the assertion that ATF/DOJ claimed that prohibited persons could get NFA items without a background check by way of entity purchase. People rightly point to their FFL's following ATF guidance to run a NICS check on the entity at time of pick up. There is a problem with that guidance: It contradicts the law:
27 CFR § 478.102 Sales or deliveries of firearms on and after November 30, 1998
(d) Exceptions to NICS check. The provisions of paragraph (a) of this section shall not apply if—
(1) The transferee has presented to the licensee a valid permit or license that—
(i) Allows the transferee to possess, acquire, or carry a firearm;
(ii) Was issued not more than 5 years earlier by the State in which the transfer is to take place; and
(iii) The law of the State provides that such a permit or license is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by the transferee would be in violation of Federal, State, or local law: Provided, That on and after November 30, 1998, the information available to such official includes the NICS;
(2) The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479; or
(3) On application of the licensee, in accordance with the provisions of § 478.150, the Director has certified that compliance with paragraph (a)(1) of this section is impracticable.
This is exception to running a NICS check is further amplified in the instructions for Box 22 on Form 4473. If the transfer is for only an approved NFA item, no NICS check required. There is even a box to check to affirm.
Further, the law is very clear that it is actually illegal to use NICS for anything other than a required purpose:
28 CFR § 25.6 Accessing records in the system
(a)
FFLs may initiate a NICS background check only in connection with a proposed firearm transfer as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose. The process of accessing the NICS for the purpose of conducting a NICS background check is initiated by an FFL's contacting the FBI NICS Operations Center (by telephone or electronic dial-up access) or a POC. FFLs in each state will be advised by the ATF whether they are required to initiate NICS background checks with the NICS Operations Center or a POC and how they are to do so.
Were FFL's following ATF's guidance? Some were. Were some following the law and not running NICS? Some were. Have some FFL's been running NICS in contravention of the law even before ATF's guidance? Some were. Would any FFL be prosecuted for using NICS in this way? Doubtful.
Further, Form 1 approvals for making do not involve an FFL at all. So no 4473 or opportunity to run a NICS check on anyone. One can assume that at some point the host/donor weapon may have been purchased from an FFL that did run a lawful NICS check in connection with that sale. But one cannot be certain and there is no real way to connect the two events.
41P/41F seeks to insure that there is positive identification and a background check on responsible persons of entities in order to foreclose the possibility that prohibited persons are in possession of firearms with government approval. This process also removes the conflict between ATF's guidance and current law governing the use of NICS.
27 CFR § 478.102 Sales or deliveries of firearms on and after November 30, 1998
(d) Exceptions to NICS check. The provisions of paragraph (a) of this section shall not apply if—
(1) The transferee has presented to the licensee a valid permit or license that—
(i) Allows the transferee to possess, acquire, or carry a firearm;
(ii) Was issued not more than 5 years earlier by the State in which the transfer is to take place; and
(iii) The law of the State provides that such a permit or license is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by the transferee would be in violation of Federal, State, or local law: Provided, That on and after November 30, 1998, the information available to such official includes the NICS;
(2) The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479; or
(3) On application of the licensee, in accordance with the provisions of § 478.150, the Director has certified that compliance with paragraph (a)(1) of this section is impracticable.
This is exception to running a NICS check is further amplified in the instructions for Box 22 on Form 4473. If the transfer is for only an approved NFA item, no NICS check required. There is even a box to check to affirm.
Further, the law is very clear that it is actually illegal to use NICS for anything other than a required purpose:
28 CFR § 25.6 Accessing records in the system
(a)
FFLs may initiate a NICS background check only in connection with a proposed firearm transfer as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose. The process of accessing the NICS for the purpose of conducting a NICS background check is initiated by an FFL's contacting the FBI NICS Operations Center (by telephone or electronic dial-up access) or a POC. FFLs in each state will be advised by the ATF whether they are required to initiate NICS background checks with the NICS Operations Center or a POC and how they are to do so.
Were FFL's following ATF's guidance? Some were. Were some following the law and not running NICS? Some were. Have some FFL's been running NICS in contravention of the law even before ATF's guidance? Some were. Would any FFL be prosecuted for using NICS in this way? Doubtful.
Further, Form 1 approvals for making do not involve an FFL at all. So no 4473 or opportunity to run a NICS check on anyone. One can assume that at some point the host/donor weapon may have been purchased from an FFL that did run a lawful NICS check in connection with that sale. But one cannot be certain and there is no real way to connect the two events.
41P/41F seeks to insure that there is positive identification and a background check on responsible persons of entities in order to foreclose the possibility that prohibited persons are in possession of firearms with government approval. This process also removes the conflict between ATF's guidance and current law governing the use of NICS.