Shortfalls of NICS Background Checks and ACP's Solution

As previously mentioned, the Armed Citizen Project, along with other notable experts, such as John R. Lott Jr, view the current National Instant Criminal Background Check System (NICS) to be a flawed and broken system. As ACP is looking to be more engaged in public policy proposals concerning firearm ownership, the following is why we believe this to be so, as well as what we would propose to fix the NICS system.

First and foremost the Armed Citizen project does not, and I stress NOT, think that the NICS is flawed because it tries to keep firearms out of the hands of prohibited possessors, far from it. Rather it is because the system has become an undue burden, in the exercise of a constitutional civil right, particularly for law abiding citizens, that subsequently is no more “dangerous” of a right than other rights afforded citizens.

To elaborate on this essential point we first need a few numbers as the Armed Citizen Project is about facts, not feelings, when proposing public policy.

Starting with the worst possible way to defend the right to own arms, from the year Armed Citizen Project was founded, the following is the 2013 total number of deaths in the United States by firearms, including police, self-defense, and suicide deaths; along with the total number of motor vehicle fatalities from 2013 via the CDC:
2013 Vehicle Deaths: 33,804
2013 Firearm Deaths: 33,636

Next is the 2013 Drunk Driving Deaths along with the 2013 firearm homicide deaths via Sobering Up, and the CDC:
2013 Drunk Driving Deaths: 10,076
2013 Firearms Homicides: 11,208

Finally is the number of 2013 tobacco related deaths via the CDC along with all deaths:
2013 tobacco Deaths: 480,317
2013 All Deaths: 2,596,993

From these numbers we can therefore conclude the following…
1. The ownership of firearms is no more dangerous than the ownership of motor vehicles
2. Criminal misuse of firearms is on par with criminal misuse of alcohol
3. Firearms & alcohol deaths are significantly less than the 1 in 5 total deaths from tobacco use

Now what’s significant about these conclusions is that the right to bear arms, and drink alcohol, are constitutionally protected rights, while smoking & motor vehicles are not. Thus if we are to craft public policy from a logically balanced approach then we would conclude that firearms should be no more prohibited for citizens to own then motor vehicles, that efforts to prevent their misuse should be no more severe than those applied to alcohol. And also that any efforts to prevent misuse of firearms and alcohol should both be secondary to those of tobacco; assuming the government should be involved with such things.

Furthermore, from this perspective it is fitting that the Department of Motor Vehicles (DMV), is separate from the Bureau of Alcohol, Tobacco, & Firearms (ATF/ATFE) as motor vehicles by enlarge require registration & subsequent yearly taxation to fund the massive amounts of public infrastructure they use. Whereas Alcohol, Tobacco, & Firearms require no dedicated public infrastructure to be supported. A point for which it’s well worth noting that citizens have the right to buy a vehicle and not register it or pay any subsequent taxes if it’s for use strictly on private property. And furthermore, that any criminal misuse of the unregistered vehicle, such as a hit and run, would result in the perpetrators going through the criminal justice system, paid for by funds already allocated from other revenue sources, so that it can prosecute “any” kind of criminal act.

Therefore, because firearms are no more dangerous than any other kind of freedom to possess “dangerous things” afforded to citizens 16-21+ in the United States; for which manually cycled internal magazine firearms (I.E. Abolitionist Arms) are even less “dangerous”. And furthermore, that unlike any other such freedom the right to own firearms, by those not prohibited, has the notable qualifier of being a net benefit to society by reducing crime, arguably at a rate of “one every 13 seconds” to quote one famous study. It would then be reasonable for a neutral political body deciding how public policy regarding gun ownership should be handled, with no other considerations, to make acquisition of alcohol, tobacco and firearms the same simple ID check; with any extra levels of restriction applied first to tobacco products and last to firearms.

Thus the reality that there is, under the AFT, one set of standards for buying Alcohol, a slightly different standard for buying Tobacco, but a completely different magnitude of standards for buying firearms. Is a disconcerting reality indeed, if one considers how awkward going to buy a case of cigarettes would be if a buyer had to spend 20 minutes filling out paperwork and then wait up to 3 days to get approved. Or if someone had to write down the serial number of every bottle of alcohol they wanted to buy only to be told to come back tomorrow because “the system is down at the moment”.

Further compounding this discrepancy of consistency is the fact that the NICS has numerous failings, including an approximate 95% false positive rate that is heavily biased against veterans. More profound however, is that as pointed out by John R. Lott Jr in his book The War on Guns, this 95% false positive rate is also heavily biased against Black minorities due to a myriad of factors the NICS system fails to take into consideration.

The most profound shortfall of the current NICS system, is the potential of the electronically based system for creating a national gun registry. For reports are that the ATF is eager to use the NICS system to create a national gun registry, and seem to not do so by an easily broken voluntary consent. Per this point I won’t greatly elaborate on why a gun registries are bad public policy, as NAGR, the NRA, and other groups already cover that position extensively; and simply put it as point of fact that existing public policy prohibits firearms registries. For at best these registries are almost useless in stopping or even solving crimes, notably they are used to increase crime, and at worst they are used to tax firearms ownership and/or confiscation of certain types of firearms, if not all types of firearms.

Worth mentioning, as it is perhaps the best contemporary proof of gun registries being bad public policy, is a map, that showed the names and addresses of all handgun permit holders in New York's Westchester and Rockland counties, published by The Journal News, which lead to an increase in robberies. The information was legally provided to the Journal by the County Clerks' Offices who had a registry of such things, and not the common decency to keep it confidential. Most shocking was that the paper wanted to publish the types of firearms each one of the listed individuals possessed, as that was also information the County clerks' offices had, but ultimately decided not to share. Meaning that a simple change of administration, or a yahoo hacker, could see that information made public. Which would likely result in just about everything except a reduction of crime, as is already the case with the registration information already published.

One last point about the shortcomings of the NICS system that needs be mentioned is that there has been no definitive proof that it has significantly reduced crime in the near two decades it's been in place. On par with other gun control efforts such as the millions spent in Maryland on firearms fingerprinting that solved exactly zero crimes. The cumulative effects of the NICS system, as nottted by John R. Lott Jr, has been minimal in lowering crime rates. Furthermore, even proponents of gun control, such as Philip J. Cook claim that the NICS system doesn't really prevent homicide. Thus the system could be removed entirely and the effects would be minimal if at all noticeable on crime rates.

However, as evidenced by the Fast and Furious gun walking program, in which the ATF told gun stores to sell to straw buyers despite numerous warning flags; along with frequent newsworthy stories where criminals had stolen guns, per them being barred from legal possession of firearms. There is still a substantive case to be made that preventing prohibited possessors from being able to buy open market firearms is good public policy, just the same same as it is to prevent those with a DUI related suspended license from buying alcohol at the supermarket. To this this end, the Armed Citizen Project would like to see a state officiated multi level background check system implemented to correct the current NICS system.

Though not yet a concrete policy position, and feedback/suggestions are welcome, the following proposed, state officiated multi level background check system, is currently the ideal approach for revising the NICS background check system; that ACP would advocate for, as time and resources allow. So that our primary mission of arming law abiding citizens is not unduly limited by federal infringements.

To start with, while it would be logical for a neutral political body to look at the ownership of “dangerous” things and subsequently make the sale of alcohol, tobacco, and firearms the same standard of showing a state approved ID, denoting any prohibited statues. With any further limitations of ownership added last to firearms; this is not a realistic viewpoint to expect to happen as background checks have been in place long enough that biased thinking in their favor exists on both the Left and Right of American politics. Thus what is needed is a background check system that meets the following criteria…
1.      Doesn’t create false positives for veterans and minorities
2.      Is not prone to downtime outages
3.      Can’t be used to create an additive gun registry

While these conditions might sound like a tall order to fill there is already a legal precedent for how this can be done. For in Texas concealed carry permit holders, who have to pass an NICS check to acquire said permit, may then use their permit as a truly instant background check when purchasing firearms. Directly equivalent to using a driver's license when buying alcohol at the supermarket, as both Id's require a verification process and proof of skill course to acquire.

Furthermore, just as the government does not have a list of every bottle of beer most people buy when they use their driver's license to buy them, neither does any agency have a list of the firearms purchased by concealed carry permit holders. Which is a point that is hard to understate as it is already being reported that an additive registry of gun owners is already happening. While the registry is only additive, in that it only tracks the sales of new firearms and firearms transfers, the expected rate of total FFL gun sales & official transfer, in the next decade, could well put the majority of avid gun owners on such a registry.

However, while a definite step in the right direction, concealed carry permits are best defined as a privilege given that they require a fee and mandatory training to acquire; whereas proper civil rights are inherently free and unrestricted. Furthermore, as NICS checks are specific to firearms, and an NICS check is required to get a concealed carry permit. There is still the potential for a hacker or administration change to see a similar map of permit holders published by a groups such as Journal News, only this list would be nationwide, and not just New York. Therefore what is needed is a multilevel background check system, that is not specific to just firearms.

Again, this sounds like a tall order but there is already a legal precedent we can use to find an ideal solution. As it stands with the NICS system, states have the option to add additional limitations to ownership based on state databases of criminal or mental activity. Notably California takes advantage of this policy, and makes the CA-DJO the point of contact for firearms background checks. Thus as states have the autonomy to augment NICS statues to make them harsher, a simple policy change to also allow states to make them more lenient for acquiring firearms considered “common use”, within that state, would be all that is required to make the following ideal system possible to implement.

  • The FBI would have as part of its charter, have an obligation to provide states a listing of federal level offense (AKA felonies) for residence residing in their state.
  • Not a simple black and white listing however, the FBI crime database would list the type of felony offense, notably violent or nonviolent, as well as the date of the offense.
  • States would then periodically bulk update from the FBI database into state crime databases, thus preventing individual searches from creating an additive registry at the federal level.
  • The states would then add any additional information, deemed relevant by the legislator, to their criminal database and create not a simple pass/fail listing for prohibited statutes, but rather a multilevel listing that might for example go from green for non-prohibited, to red for fully-prohibited, and in between statuses such as yellow for semi-prohibited.
  • Any statewide civic function requiring verification would ping the state database and return the state adjusted prohibited status for the individual in question. Thus making it near impossible to tell if a request for verification came from a voter registration center, a gun store, or anyone of dozens of other entities thereby preventing the possibility of a state level additive gun registry too.
  • Finally, state law would then dictate how prohibited status relates to the purchasing of common use firearms with states like California likely requiring a “green” for any firearms purchases, and states like Texas allowing ownership of at least Abolitionist Arms so long as an individual is not flagged as “red”.
This proposed approach to background checks would reduce false positives by moving the ultimate authorization from the federal government to the states, where officials are both more numerous and accessible. Furthermore, by replacing pass/fail with a multi level code; potential infringements are further minimized, for ideally it would allow someone with a false yellow status, wanting to help with Texas’s feral hog problem, to at least get a Lever Action Winchester, while they wait for the appeal process to allow them to get a proper 300 AAC Tactical Hog Rifle.

Additionally, having the aforementioned appeals process become a state level process will further reduce infringing false positives in the first place as State legislators are more apt to account for service & ethnic factors, due to the more localized elector base. Not to mention that state officials are also more numerous and accessible for the processing of any appeals. Which is a factor that cannot be understated  for as reported by USA Today, the FBI stopped processing NICS denial appeals in October 2015, leaving approximately 7,100 appeals unprocessed as of January 20 2016. Which is a situation I personally suspect will only grow worse if firearms background checks stay primarily a function of the federal government.

Worth noting with the Armed Citizen Project’s proposed state officiated multi level background check system, is that the application process for concealed carry permits, would go unchanged, with regards to the federal criminal checks performed to acquire one. Our rationale for not wanting to also make concealed permits a state adjusted process is that there is growing support for making concealed carry permits have intra state reciprocity, the same as all drivers license currently have, now that Illinois has implemented a concealed carry policy. However, as this rather profound restoration of constitutional civil rights seems to be hinged on a consistent federal standard for the issuing of said licenses, at the moment. The Armed Citizen Project therefore does not believe trying to affect change in the issuing of concealed carry permits would be a good use of our time or funds.

In summary, the purpose of the Armed Citizen Project advocating against the current NICS background check system is not to eliminate background checks that prevent due-process prohibited possessors from owning firearms. Rather, it is to address the numerous  infringements to constitutional civil rights caused by the current mostly federal NICS background check system to acquire common use firearms; that notably discriminates against veterans and persons of African American heritage. Our solution is a state officiated multi level background check system that will allow states replace pass/fail checks with a more dynamic and easier to appeal process.

As with any of our other public policy proposals, ACP is first and foremost by the community and for the law. Thus while we seek to advance a state officiated multi level background check system to fix said NICS infringements, ACP will first and foremost abide by the system as dictated by law, in addition to any other applicable state/municipal laws where we operate to reduce crime by empowering citizens.

For questions or comments about ACP's approach to firearms rights of wanting NICS reform please contact Kenny Wolfam via or Twitter @KennyWolfam

 Read more at Armed Citizen Project