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Gun Control Measures & Protecting Due Process (Overview of H.R. 8 and H.R. 1112) – Feb 28

As we take action to keep Americans safe from mass shootings, we must also ensure we are not creating unintended consequences for the millions of law abiding citizens who responsibly exercise their right to protect themselves each day.To ensure I’m putting my best foot forward for you in Washington, I will always make a point to look at an issue from all angles, do my homework, listen to your concerns, and determine the best course of action for Nevadans.

As you may know, the House voted on two gun control bills in February, H.R. 8, the Bipartisan Background CheckActand H.R. 1112, the Enhanced Background Checks Act. I voted against each of these bills because they fail to address some of the specific breakdowns in our current system that have led to recent acts of violence. Instead of strengthening current laws in the areas that have failed us in the past, these bills increase bureaucratic red tape which will ultimately do little or actually weaken efforts to prevent firearms from being used in criminal activity. 

H.R. 8, THE BIPARTISAN BACKGROUND CHECK ACT

H.R. 8 would require universal background checks for all firearm sales (even private) with specific exceptions. Unfortunately, universal background checks would do little to prevent firearm violence. In fact, the firearms used in 19 of the most recent mass shootings  in the United States were purchased legally by individuals who passed a federal background check. In cases where firearms were not purchased legally, they were illegally acquired by individuals intentionally circumventing the federal background check process.

FEDERAL BACKGROUND CHECK PROCESS

Under current law, a National Instant Criminal Background Check System(NICS) check is valid for up to 30 days, and will provide sellers with one of three verdicts about a potential buyer’s background: “proceed”, “denied”, or “delayed”. If the check directs the seller to proceed, the gun is sold. If it’s denied, the sale doesn’t go through. If it’s delayed, the seller must wait three days to hear back on the buyer’s background check – known as the three-day “safety valve” provision – at which point, the sale may go through even if NICS has not gotten back to the seller regarding the purchaser’s background. However, the seller is not required to complete the transfer.

After the three-day window, the FBI continues to research the matter that gave rise to an individual’s delay for 90 days after the check was initiated. If it is later determined that the person is prohibited from possessing firearms, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is notified and tasked with retrieving the firearm.

H.R. 1112, THE ENHANCED BACKGROUND CHECKS ACT

H.R. 1112 seeks to further enhance our current background check system by extending the current three-day “safety valve” provision to 10 days. If the seller does not hear back from NICS regarding the buyer’s background check after this 10 day period, under H.R. 1112, the buyer would now be required to submit an appeal to the Department of Justice (DOJ) to proceed with the purchase. The DOJ has an additional 10 days to approve or deny the purchase.

The problem with this bill is it fails to take into consideration existing federal law which limits the validity of a NICS background check to 30 calendar days from the date the check is initiated. Because H.R. 1112 uses business days, and the NICS validity provision uses calendar days, it is incredibly unlikely the additional 10 day wait period after an appeal is made to the DOJ would provide enough time for the transfer to be made within the 30 day window.This means, the purchaser must begin the process again with another NICS check, which would likely include the same bureaucratic delays.

Additionally, it’s important to note the three-day “safety valve” provision is in place to protect law abiding citizens by ensuring lawful transfers can still take place if there is ever a disruption to the NICS system or an overwhelming volume of background checks to be processed. Most importantly, the current law serves as an incentive for the FBI to carry out background checks in a comprehensive, accurate, and timely manner.

Extending the “safety valve” provision by an additional seven days would certainly not incentivize the FBI to conduct NICS checks in a timelier manner, which is a point to consider since this legislation is being marketed as closing the “Charleston Loophole,” following the tragic killing of nine people at Emanuel A.M.E. Churchin Charleston, S.C. The gunman in the Charleston attack had attempted to buy the firearm used in the shooting from a licensed dealer, but his NICS check was delayed due to a prior arrest for drug possession. Following the three-day wait period, the firearm was transferred to the gunman five days later on April 15, 2015 at the discretion of the seller.

BREAKDOWNS AT THE FEDERAL LEVEL

Prior to the Charleston attack, the FBI examiner conducting the required background check failed to obtain the police report detailing the gunman’s drug conviction. Since the transfer was made without a direct “proceed” order from NICS following the three-day wait period, FBI counterterrorism officials had the option to continue working this case for up to 90 days. The attack did not occur until June 17, meaning the FBI had more than two months to investigate the validity of the transfer to determine if the gunman should have been prevented from obtaining a firearm. 

Instead of specifically addressing these system breakdowns, these bills merely add more bureaucracy to the system, creating unintended consequences for law abiding citizens, while doing absolutely nothing to address the failures that led to previous incidents of mass violence. 

EFFECTIVELY LEGISLATING TO ELIMINATE FUTURE BREAKDOWNS

Our law enforcement communities must be given the tools and resources necessary to effectively enforce the laws that are already on the books while Congress works to enact meaningful solutions that will – without infringing on due process or privacy protections – keep firearms out of the hands of criminals and the mentally ill. Unfortunately, neither of these bills will achieve this goal, which is why I did not support them.

Rest assured, I will continue working with my colleagues to advance and support common sense measures that will actually strengthen our system in the areas it has failed us.

In fact, you might be interested to know that last Congress, I worked to get the Fix NICS Act signed into law. This legislation improves NICS checks by ensuring accurate records of persons prohibited from receiving or possessing a firearm are recorded in the federal system.

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