There Is No “Charleston Loophole”

On June 17, 2015, Dylann Roof entered shot and killed nine people at Emanuel African Methodist Episcopal Church. Before his murder spree, Roof asked to purchase a gun at a local gun store. He filled out his ATF background check form 4473. The gun store plugged his info into the FBI NICS database. The system failed to respond with a yes/no within the legally specified three-day time limit. The sale then proceeded. This failure was not a “loophole.” It was  . . .

a double failure of the background check system — from both the Charleston police (who didn’t enter Roof’s addiction to opiates into the FBI’s database) and the FBI (which didn’t process the NICS request within the allotted three-day time period).

Calling this failure “the Charleston loophole” is gun control advocates’ attempt to remove the three-day NICS approval/denial mandatory maximum.

Keep in mind that NICS is supposed to be an instant system, and usually is. Normally, a NICS check takes seconds.

The mandatory maximum waiting period for a NICS approval/denial ensures that gun purchases don’t fall afoul of bureaucratic delay, whether from malfeasance or political manipulation. It also conforms wth the general principle that a right delayed is a right denied.

A principle already violated in states with “cooling off periods” between purchase and delivery (e.g., California’s ten-day waiting period). There is no scientific evidence that these delays have an effect on criminal use or suicides.

All of which underscores the futility indeed inadvisability of “closing the Charlestown loophole.”

Those arguing for removing the mandatory maximum NICS delay don’t want any mandatory waiting period. They want the FBI to withhold approval/denial for “as long as it takes.” Which violates the terms of the NICS mandate and opens-up the possibilities described above.

One more thing . .

Even when the FBI’s background checks system works properly, it’s nothing more than security theater. A criminal, terrorist or crazy can and obtain guns outside the FBI background check system, by stealing a firearm (e.g., Newtown killer Adam Lanza) or buying one “on the street.”

Suggesting that “fixing” the FBI’s background check system will limit “gun violence” is dangerously naive — and just plain dangerous for Americans’ seeking to exercise their natural, civil and Constitutionally protected right to keep and bear arms.

comments

  1. avatar Nanashi says:

    Whenever failures of NICS are in the news, remember to thank the anti-second amendment NRA for restricting your rights in the first place!

    1. avatar Mike Crognale says:

      Troll much? The NRA is the bullwark defender of the 2nd Amendment.

      1. avatar Ralph Humphrey says:

        I’ve always said that CCW permits makes the 2nd Amendment a privilege instead of a right!

      2. avatar FedUp says:

        Mike, have you never heard the expression Negotiating Rights Away, or seen the NRA deliberately sabotage a pro-gun bill because it was more pro-gun than the slightly pro-gun bill they were endorsing?

        Somewhere I’ve got a 1962 American Rifleman which includes an editorial bragging about the NRA’s role in passing the blatant 2A violation known as the NFA of 1934. And yes, I believe the GCA of 1968 might not have passed if the NRA hadn’t endorsed it.

        Of course you know the NICS (the topic of this discussion) was the NRA’s baby from the beginning.

    2. avatar James in AZ says:

      The NRA sucks in many ways, but you gotta give credit where credit is due

      There’s no way a blunt resolution like “remove all restrictions right now effective in 12hr” would go anywhere in any legislature, state or fed

      In situations like ours where we are taking back grounds previously taken, sometimes giving a chip or two away is the necessary evil. Yknow, they chip away at ours, we chip away at theirs, and see who get more at the end of the day

      Just like voting conservative or libertarian. The GOP sucks, but by the time we truly transform all the pro-freedom voters into voting libertarian, you have no idea how much irrevocable damage the libtards have already done

      1. avatar Nanashi says:

        How would you know? It’s never been tried (largely because the NRA doesn’t want it tried).

        At the very least pushing NFA repeal will force the libtards to realize automatics are banned.

        1. avatar AnarchoCatholic says:

          By libtard do you mean Libertarian? Liberal as we’ve come to understand in contemporary America is a leftist, a big government supporter. Libertarian is the opposite, one who champions minimal government and maximum individual liberty.

  2. avatar Jim says:

    Things I covered in my Civics class concerning the 2nd Amendment:
    1. You can’t buy a gun off the internet and have it delivered to your home. Explained FFL part of the process.
    2. There is no Charleston loophole. Explained how the NICS works.
    3. Self defense is a right.
    4. Armed self defense is a right.
    5. Oh, yeah, the American Revolution started when the British troops tried a gun grab in Lexington and Concord.
    6. And some other cool and true stuff about the right to keep and bear arms.

    1. avatar Robert Farago says:

      If and when the Lexington/Concord gun/powder grab becomes the standard received take on the match that set the American Revolution alight, our gun rights will reach an important milestone.

      1. avatar AnarchoCatholic says:

        Wait, the American Revolution didn’t start in Texas?! [sarc.]

        Seriously though, speaking of Lexington and Concord, when you visit the battle site today the visitor center does not allow firearms. DOH!

    2. avatar Wilson says:

      NIce. +50 to you sir!

    3. avatar Gruney says:

      Another loophole, how awful.

      What’s really more awful is the stinking pile of security theater called NICS.

      If only we all had a nanny to follow us around and powder our butt. The progressive dream……..

  3. avatar Martin Gomez says:

    Charleston ws as fishy as they come. Within minutes, the media — which usually takes weeks to find out anything — knew everything about the shooter. Secondly, the incident was both immediately used to push the president’s gun control agenda and foment antiwhite sentiment. It also turns out that many of the alleged facts were later challenged. Don’t be so sure that Charleston, like Sandy Hook, wasn’t Democrat gun control theater.

    1. avatar Wilson says:

      I don’t find it fishy.

      The simple truth is that the media no longer cares about getting the story right they care about getting the story FIRST. They seem to think that printing a retraction makes putting out bad information acceptable.

      People might remember that after Aurora a certain media outlet put out that a “Jim Holmes” was a TEA Party member. Well that guy lived a few blocks from me (as did the actual James Holmes, actually everything about that shooting was crazy close to me but that’s another story). The cops had to show up and put Jim Holmes in protective custody out of fear he might get murdered by someone who saw that report.

      You think the media cared that they could have gotten an innocent guy killed? I don’t.

    2. avatar Naz says:

      Gomez, am I to infer that democrat operatives killed the Sandy Hook children and adults as well as were behind the South Carolina church murders? That the President would order mass killings to move the needle on gun confiscation?

  4. avatar Southern Cross says:

    The NSW Firearms Registry could give a few examples of delayed processing.

    The permit to acquire is supposed to be a 28 day cooling off period and approval process. In reality it is 28 WORKING DAYS so in reality is closer to 6 weeks, and then add the delays caused by the postal service (about 3 days each way, so another week again in reality). And on top of this the fee is deducted from your credit card when they receive the paperwork. And if you have paid a deposit, the store has to hold on to your purchase until the form has been approved. So you and the store are inconvenienced.

    There have been times when the registry is flooded with re-applications. You do not renew your license but have to re-apply. The first time this happened, new applications were put on top of the already received applications and any application at the bottom of the pile had an extremely long delay. 6 months-plus was well known, with 8 months being the average. Your previous license, although the expiry date has now passed, is supposed to be still valid until your re-application is approved or denied. But most people suspended their shooting activities until the re-application was approved. They didn’t want to encounter a know-it-all cop who would eagerly arrest the unlicensed gun owner.

    Since then the registry sends a form saying to tick a box if nothing has changed for your next re-application. Much quicker. Even they thought the process was badly designed.

    1. avatar Robert Duchien says:

      Coming to the USA next spring and summer thanks to Hillary and the democrats.
      Can’t wait.

  5. avatar Matt in FL says:

    The mandatory maximum waiting period for a NICS approval/denial ensures that gun purchases don’t fall afoul of bureaucratic delay, whether from malfeasance or political manipulation.

    And we know which one is more likely, don’t we?

    1. avatar anaxis says:

      ….whether from malfeasance or political manipulation.

      In the case of antigun statists; same difference.

    2. avatar peirsonb says:

      Never attribute malice to that which can adequately explained by stupidity.

      1. avatar Jim says:

        Unless malice has already been clearly demonstrated…and it has.

        1. avatar Yellow Devil says:

          I actually say “Don’t claim conspiracy when complacency will suffice.”

  6. avatar Eddie says:

    I wonder if the families have tried to sue Charleston PD for not registering his addiction, or the FBI for its failure?

    1. avatar Reef Blastbody says:

      They can try, but there’s tons of SCOTUS level precedent that says law enforcement agencies and individual officers are not required to specifically provide protection to any individual or group, rather they’re there to protect “society as a whole”.

      1. avatar Reef Blastbody says:

        Though one possible avenue is to file charges based on procedural violations, i.e. if there was a law on the books requiring an LEA to forward certain types of information to the FBI for inclusion into the NICS database, and they failed to do so, then that wouldn’t fall under the “cops aren’t required to protect any one person or group of persons” protection, though it’d probably amount to nothing more than a stern lecturing from a judge to the departments management staff that fumbled the ball.

      2. avatar I1ULUZ says:

        Castle Rock v. Gonzales 28 June 2005, SOTUS ruled that law enforcement is not there to protect, but to catch criminals after the act.

  7. avatar Drew R says:

    The only Federal firearms law loophole that I’m aware of is the one they use to pass Federal firearms laws.

  8. avatar G says:

    “There is no scientific evidence that these delays have an effect on criminal use or suicides.”

    I don’t know of any studies showing an effect on crimes, but effect on suicides has some science behind it. Before Politifact jumped the shark with gun-related checks (the last 6-8 months of gun-related fact checks have been ridiculously biased), they put out a decent article showcasing studies (real studies, not Everytown/Brady BS) on suicide and waiting periods:

    http://www.politifact.com/wisconsin/statements/2015/apr/27/van-wanggaard/no-evidence-waiting-period-handgun-purchases-reduc/

    1. avatar Nanashi says:

      Politfact has always been a liberal rag and not to be trusted. I remember like a decade ago when they admit then Acorn was involved in suspicious voting related activity but then immediately tried to claim they weren’t involved in voter fraud.

    2. avatar uncommon_sense says:

      G,

      Whether or not someone produces data that “cooling off periods” on firearm purchases reduce suicide is irrelevant: government has no legitimate authority to infringe on my rights because someone else might do something destructive to themselves or anyone else.

      Suppose data shows that men will commit substantially fewer murders if they can force any woman to have sex with them on demand. Does that justify compelling women to give up their right to chastity? Neither do reductions in suicide rates compel me to give up my rights.

  9. avatar Mark N. says:

    Technically, California’s ten day wait is not a “cooling off” period, although the Attorney General argued that it was in opposition to a challenge to the law as applicable to those persons who already own firearms (and who presumably would not be affected by a waiting period if they had determined to do harm. Which the vast majority do not). It was initially enacted to allow the Department of Justice (in the days before computers) sufficient time to process the background checks. It was five days, then fifteen, and now ten. In discovery, the State admitted that approximately 20% of checks clear within an hour, the vast remainder in 6-8 days. There is not one shred of evidence int he Legislative record that the waiting period was enacted as a cooing off period.

  10. avatar FormerWaterWalker says:

    Oh puh-leese. If those church folks had a tiny minimum of security young dumb dylan would not have succeeded. Wise as serpents-harmless as doves. As in when a white boy lunatic shows up(to your black church) be a bit suspicious. They ARE at my multi-ethnic/race/class church attended by thousands(Hammond 1st Baptist,Hammond,IND…and yeah NICS sucks.

    1. avatar Naz says:

      Yeah, those lazy black folk had it coming. I bet they were shiftless too.

      1. avatar FormerWaterWalker says:

        No-just naive and trusting souls troll…

  11. avatar Drew R says:

    If it’s not one already could someone on social media (This is as social as I get) start a #NixNICS campaign?

  12. avatar Libertarian says:

    Loophole ? Yes south carolinas restrictive public carry laws same crap as floridas (no open carry and not any public place) ………..

  13. avatar Andrew Lias says:

    I personally want to see the Holder/Obama loophole closed. Fast and Furious:Never Forget!

  14. avatar Rusty Chains says:

    Never give the banners an inch as they will tell you they just want this one reasonable gun control item (they will use the word safety, but that is a lie) of course if you give in and allow that one item they will be back as soon as they finish their celebration asking for just this one reasonable gun control item. We need to be on the offensive; demand that your legislators remove muzzle mounted hearing safety devices from NFA ’34 for a start. Any time they ask for something, refuse and push back by demanding some gun control item be rolled back. Remember that concealed carry licenses lead to open carry on the same license and that has lead to many states adopting constitutional carry.

    Never give up and never surrender, and never fail to push back. That is how we will win!

  15. avatar Kyle says:

    The FBI already decided to stop processing background check denial appeals, right? Saying that they don’t have enough money or something, and since the vast majority of background check denials are false-flags, this means that all those people are thus, due to the FBI, being denied both their right to keep and bear arms and their right to due process.

    The three-day mandatory period is to prevent the FBI from pulling similar shenanigans with gun purchases period, which they very much I am sure would do if they could. IMO, there should be a law drafted that mandates that the FBI have to process the appeals within a certain period of time, and if they don’t, then the person can purchase their firearm.

  16. avatar Bungameng says:

    I fail to understand – how can the background check in the Czech Republic take 5 seconds to be undertaken and 10 minutes to have all paperwork done, and it can’t be done in 3 days in the US?

  17. avatar Sam I Am says:

    Why is this so difficult to understand?

    Anything that does not prevent a person from buying a gun is a loophole.

    Gun control is not all that complicated.

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