gun buyers form a line outside a gun shop, as background checks get overwhelmed during the pandemic.
gun buyers form a line outside a gun shop, as background checks get overwhelmed during the pandemic.

In light of an overwhelming surge of gun sales that puts a warm feeling in our bellies (and likely strikes neurotic fear in the hearts of so many anti-gun advocates), the National Instant Criminal Background Check System (NICS) used to vet prospective gun buyers before they purchase their firearms is overwhelmed, according to the FBI. In response, the National Shooting Sports Foundation has issued an advisory to thousands of U.S. gun dealers: Don’t finalize surging weapons’ sales until the FBI has the opportunity to complete the background check. Even if that review process extends beyond the currently-mandated three business days.

Larry Keane, general counsel for the NSSF, said the advisory was issued in March after dealers in over twenty four states received notices from the bureau indicating background check reviews could take up to 28 days. “There is no question that the NICS (National Instant Criminal Background Check System) is overwhelmed by the volume,” Keane confirmed, a tertiary issue to the record monthly sales that have caused lines outside gun stores.

In March, the FBI reported over 3.7 million background checks. That’s the most in a single month ever recorded in the history of the NICS, since its founding 1998. That number was followed by 2.9 million more in April, the largest number of checks recorded for that month, too. The FBI’s review process doesn’t record individual firearms, and instead records the background check for a given transaction. That means there are likely tens of thousands to hundreds of thousands of additional firearms that were sold. If that is true, then at least — probably more than — 6.6 million guns were snatched up by worried Americans in this time of unrest in just 60 days.

Gun shop owners like Natham Williams of Outdoorsman gun shop in Santa Fe, have been urged to delay gun sales while the NICS background check system experiences massive delays.

But why is a pro-Second Amendment organization like the NSSF advocating against gun dealers allowing purchases to go forward? Existing federal law mandates that once a firearm transaction is initiated and the background check is requested, that review must be completed within three days of the proposed sale. If the review process cannot be completed within the 3-day time period, federal law also says the purchase may proceed. Dealers who allow sales to proceed may be allowing criminals who would otherwise fail the NICS check while they wait at the gun store counter could otherwise get their hands on firearms directly from a licensed dealer.

In short, dealers run the risk of potentially causing a needless shooting that, of course, the media would use as leverage in its typical anti-gun advocacy. “In the meantime… we advise you not to transfer a firearm earlier than the date provided to you by NICS,” the NSSF said. In a written statement, the FBI said the NICS “remains fully operational and will continue to process [background checks].”

The NSSF’s stance is well-calculated: Liberal lawmakers were quick to declare their fear that the system will be overrun by a spike in sales. “Even absent a public health emergency, law enforcement does not always have enough time to accurately determine pre-sale whether someone is a prohibited buyer,” Massachusetts Sen. Edward Markey said in the letter also signed by Connecticut Sens. Richard Blumenthal and Chris Murphy. “We fear that a drastic increase in gun sales in response to the coronavirus pandemic could overwhelm NICS and allow prohibited individuals to obtain firearms.” In 2018, the Democratic senators said, more than 270,000 background checks were not completed within the three-business-day limit, resulting in more than 4,800 gun transfers to buyers who should have been denied because of criminal records or other conditions that disqualified them from making gun purchases.

Christian Heyne, a vice president at the Brady Campaign to Prevent Gun Violence, was “encouraged” by the actions taken by gun dealers to abide by the FBI’s timelines. He was quick to express concern for dealers who may not be so accommodating. Not one to skip the opportunity to fearmonger over gun rights, the Heyne was quick to warn he is “afraid that we are going to be dealing with the implications of these gun sales much longer than the pandemic.” The Brady VP argued that an emergency declaration of powers should be instituted so that “investigators can have a little more time,” effectively superseding the guarantee that Americans would have continued access to their purchased firearms while the FBI plays catch-up.

Keane also pointed out the potential for longterm delays with NICS, setting up what may likely amount to yet another discussion of Second Amendment access in Congress. President Donald Trump has been largely embraced by gun rights advocates, while Democratic presidential nominee Joe Biden has expressed a strong position against gun ownership. Biden also supported the 1994 Assault Weapons Ban introduced by Bill Clinton. “We don’t think the volume of sales will subside as we move closer to the election,” Kean said. “The difference between the two candidates is too stark.” Keane argued the FBI’s capacity to conduct background checks should be ramped up, suggesting a $20 million budget earmarked to enhance NICS in the next fiscal year should be provided immediately.