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Congressional Research Service, "Gun Control Legislation," November 14, 2012

Congressional Research Service, "Gun Control Legislation," November 14, 2012

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Published by Joel Lawson
"Congress has debated the efficacy and constitutionality of federal regulation of firearms and ammunition, with strong advocates arguing for and against greater gun control...This report also includes discussion of other salient and recurring gun control issues that have
generated past or current congressional interest...To set these and other emerging issues in context, this report provides basic
firearms-related statistics, an overview of federal firearms law, and a summary of legislative action in the 111th and 112th Congresses."
"Congress has debated the efficacy and constitutionality of federal regulation of firearms and ammunition, with strong advocates arguing for and against greater gun control...This report also includes discussion of other salient and recurring gun control issues that have
generated past or current congressional interest...To set these and other emerging issues in context, this report provides basic
firearms-related statistics, an overview of federal firearms law, and a summary of legislative action in the 111th and 112th Congresses."

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Published by: Joel Lawson on Dec 18, 2012
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Beginning in FY1999, Congress has prohibited the collection of any fee for firearms-related
background checks made through the FBI-administered NICS in DOJ appropriations.139

134

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “State-by-State Summaries for
FY2011 NICS Improvement Amendments Act Grant Awards,” http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=
491#funding.

135

U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L.
110-180)
, July 1, 2010, p. 12.

136

Ibid.

137

Ibid.

138

CRS conversation with BJS on March 7, 2011.

139

In the 110th

Congress, the House-passed H.R. 2640 and Senate-reported S. 2084 include provisions that would
permanently codify the NICS fee prohibition (see discussion of the NICS Improvement Amendments Act of 2007
(continued...)

Gun Control Legislation

Congressional Research Service

36

Beginning in FY2004, that provision also included language to require the next-day destruction of
approved background check records. The issue of approved Brady background check record
retention has been contentious since the inception of the FBI-administered NICS, because a
provision in the Brady Act (§103(i)) prohibits the establishment of any electronic registry of
firearms, firearms owners, or approved firearms transactions and dispositions.

Nevertheless, under Attorney General Janet Reno DOJ proposed a rule on October 30, 1998, that
would have allowed such records to be maintained for up to six months for audit purposes.140

The

NRA challenged this proposed rule in federal court, arguing that retaining the approved records
was tantamount to a temporary registry. On July 11, 2000, the United States Court of Appeals for
the District of Columbia found that nothing in the Brady Act prohibited the temporary retention
of information about lawful firearms transfers for certain audit purposes.141

On January 22, 2001,

DOJ promulgated a final rule that allowed such records to be maintained for up to 90 days.142
Attorney General John Ashcroft opposed this rule, however, and DOJ proposed another rule on
July 6, 2001, that called for the next-day destruction of those files.143

In July 2002, meanwhile, GAO reported that under Attorney General Reno, the FBI had
conducted “non-routine” searches of the NICS audit log for law enforcement agencies to
determine whether a person, whom subsequent information showed was a prohibited person, had
been transferred a firearm within the previous 90 days. The FBI informed GAO that such
searches were routinely conducted but were a “secondary benefit” given that the audit log was
maintained primarily to check for system “accuracy, privacy, and performance.” In addition,
GAO reported that the next-day destruction of records would “adversely affect” other NICS
operations, including firearms-retrieval actions, NICS audit log checks for previous background
checks, verifications of NICS determinations for federal firearms licensees, and ATF inspections
of federal firearms licensees’ record keeping.144

Despite those adverse effects, opponents of greater federal gun control viewed the non-routine
use of NICS records as being beyond the scope of authority given to the Attorney General under
the Brady Act. GAO reported that DOJ took steps to minimize the adverse effects of the next-day
destruction of those records. In the wake of the September 11, 2001, terrorist attacks, additional
issues regarding Brady background checks emerged (see heading below, “Terrorist Watch List
Screening and Brady Background Checks”).

The Consolidated and Further Continuing Appropriations Act, 2012 (H.R. 2112), which the
President has signed into law (P.L. 112-55), includes “futurity” language in the provision (§511)
requiring that NICS approved firearm transfer records be destroyed within 24 hours. This
“futurity” language makes the provision permanent law, as opposed to an annual appropriations
restriction. Similar language was included in the House-reported FY2012 CJS appropriations bill

(...continued)
above). For FY2012, such a prohibition is also included on an annual basis in the House-reported Commerce, Justice,
Science Appropriations bill (H.R. 2596).

140

63 Federal Register 58303.

141

NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906).

142

66 Federal Register 6470.

143

66 Federal Register 35567.

144

For further information on these issues, see GAO, Gun Control: Potential Effects of Next-Day Destruction of NICS
Background Check Records
, GAO-02-653, July 2002.

Gun Control Legislation

Congressional Research Service

37

(H.R. 2596). Senator Orrin Hatch offered several related amendments during Senate
consideration of H.R. 2112, but the Senate ultimately did not vote upon those amendments.

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