Anti-rights "NICS Improvement Act" Re-Written


Staff member
by Alan Korwin, Author
Gun Laws of America

Without fanfare or advanced notice, the incredibly dangerous anti-rights gun law drafted by the Brady group and its allies, HR 2640, has been rewritten by attorneys coordinated by the NRA.

The new bill, though not perfect, is a giant leap ahead of the highly controversial first draft. The improved bill was passed by Congress in a surprise last-minute vote before Christmas recess, and signed into law yesterday (1/8/08) by president Bush.

Key points are summarized below. A complete plain-English description of the new bill is posted at
New NICS Improvement Act Bloomfield Press Books

It makes sense for the NRA to attribute the exceptional improvements in HR 2640 to the brave and solitary stance of Sen. Tom Coburn (R-Okla.), along with NRA's "careful analysis" of the earlier bill. This is politically savvy, enhances credibility, and saves some face after an arduous and rancorous struggle to get the bill to this better place. Many gun-rights activists properly called the earlier draft horrendous.

It would go a long way toward smoothing troubled waters to acknowledge that the insight and determination of gun-rights advocates nationwide contributed to a significantly improved product. Many folks were glad to see NRA listened to the chorus of voices, and took heed where heed was needed. It may be hard getting the ear of the firearms fathers in Fairfax, but it's important to do so when circumstance requires. Link RemovedThe current draft is indeed immeasurably better, and does address the many valid (and some less than valid) concerns numerous decent people raised in good faith over the original Brady-backed bill. Some voices are still raised -- but clearly the most egregious problems and the open-ended traps are gone or diminished.

It speaks volumes that the viciously anti-rights Violence Policy Center, a former supporter of the bill, now curses the final product, saying that a once fine piece of legislation has been ruined by the NRA ("hijacked by the gun lobby"). Thank you VPC. The idea that the bill would simply "rearm mentally disabled veterans" is pure baloney, and their claim that the bill is "a gun-lobby wish list" is preposterous.
Link Removed

Knowing a little about how sausage and laws are made, I have to wonder if the plan all along was to get the anti-rights groups encouraged by appearing to promote an awful gun-rights power grab, and then at the last minute pushing through the right stuff and leaving them shivering in the cold. That would be a difficult, thankless road to walk, against the slings and arrows of otherwise supportive friends.

The right stuff means:

1. Preventing certifiable mental cases from getting their hands on guns at retail.

2. Providing and funding a long-absent, fairly reasonable path toward rights restoration in cases where it is truly appropriate, and there are many.

3. Requiring government agencies to comply with rights-restoration procedures.

4. Notifying you in advance that proceedings could remove your rights, and how you can get your rights restored.

My plain-English technical analysis of the new law is posted on my site (always check my "New Stuff" button for inside scoops):
New NICS Improvement Act Bloomfield Press Books

My plain-English technical analysis of the prior awful bill is posted here:
NICS Improvement Analysis

Do keep in mind, this law suffers from the same problems as any other these days:

1. It's only as good as the authorities' willingness to follow it. If they don't act on a request to restore rights, they're not punished (but now you can proceed without them if they stall). If the courts act in a corrupt manner you'll get no justice.

2. If officials fail to fix records, they're not punished (but deadlines are now spelled out).

3. If they miss their deadlines, they're not punished. If they don't respond to you, they're not punished. New laws need to include sanctions against authorities who fail to act, act too slowly or in any way compromise your rights under the law.

It's time to punish our elected officials and bureaucrats the same as the laws punish us, the people, for failure to comply. I had recommended such language, but it had a snowball's chance in h*ll given the current climate. I recommended it anyway, and will continue to do so. You should start demanding this in all proposed new laws:

(a) Failure to act on a remedy provided by law in a specified short time frame shall incur fines, paid by the agency, to the aggrieved party (a sweet addition many laws could benefit from; why would an honest bureaucrat intent on obeying the law object?).

(b) Failure to act on requests for a legal remedy in a specified short time frame shall subject the agency itself to budget cuts based on the length of delay and the number of people whose rights are held in limbo.

(c) If delays exceed a specified limit, the head of the agency is subject to sanctions (another sweet feet-to-the-fire remedy for many rampant abuses at federal and local levels -- activists should start adding related language to bills as standard procedure). Sanctions should include suspension without pay, dismissal, a ban from being hired at other agencies, and for particularly egregious failures, prison. Can you see how this simple measure would keep officials in line finally?

(d) Any person whose civil rights are wrongly denied in any way by the NICS system may seek damages in addition to attorney fees and court costs. Why would an honest person object? To reduce the risk of hefty costs to government, simply make careful determinations before adding names to NICS, instead of allowing the innocent to appeal after their rights are denied. It's just a reasonable, common-sense safeguard.

4. Also note the new law does nothing for 140,000 veterans whose rights were denied en masse on bureaucratic grounds (diagnosis of post traumatic stress disorder), without the current safeguards. Those safeguards include advance notice that you face rights denial, notice that there is an appeals process, and that only a true due-process procedure before a real court (plus a valid medical diagnosis) can make the decision. Under the new law, those vets could appeal, and if they win, their attorney's fees are covered (at a somewhat less-than-full rate).

5. The massive funding to states (with threats of lost funding for failure to comply) continues an uncomfortable policy of strong-arming states to follow federal rules, weakening federalism (states' rights). In fairness though, if states don't put the certifiable mental cases in the NICS background check system, the plan won't work. (Whether NICS is a good idea altogether is a separate discussion; the proposed BIDS system seems far better, cheaper and less intrusive, but that die is cast.)

6. We still don't know who the anonymous 21 million people are, mentioned by the Brady-clique in the bill's intro as possible prohibited possessors, who might face rights denial. Are there that many certifiable mental cases running around loose? That implies an awful lot of court time tied up to fill the NICS database (tripling the current set of records).

Although the original Brady-backed gun-grabbing nightmare has been gutted, in keeping with modern spin control, Brady supporters like Schumer and McCarthy are calling this a win. That's a little like Hillary's exceptionally clever twist, saying anything less than a two-digit loss for her is a victory (yes, her side actually promoted that idea).

In the final analysis though, gun owners have a mixed bag here. We dodged a virtually arbitrary set of rules for denying gun ownership. A method, not great but a method, for restoring rights is now in law. And certifiable mental cases fall under greater control. But we have a lot of new gun law, and with gun law growing with no end in sight, the overall threat to Americans everywhere can not be denied.

Thanks for reading.

Permission to circulate granted.


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