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"Kafkaesque" Gun Background Check Delays May Violate Second Amendment
From Judge Trevor McFadden's opinion last week in Sedita v. U.S. (D.D.C.):
"Where was the Judge whom he had never seen? Where was the High Court, to which he had never penetrated?" Franz Kafka, The Trial. Like Kafka's Joseph K., Plaintiff Giuseppe Sedita alleges he has been adjudged by a muddled and garbled governmental process that flouts his rights and offers no effectual remedy when he complains. Three times, he has been given the run-around when trying to buy a firearm. Each time, the Government has refused to greenlight his gun purchase. And each time, Sedita has walked away empty-handed. Although Sedita has repeatedly tried to set the record straight through the Government's administrative process, remedy has eluded him; the Government has rebuffed Sedita's attempts to clear himself through silence and nonresponsive form letters….
Sedita sued, claiming this violated his Second Amendment rights, and the court allowed the claim to go forward. The court began by holding that buying a gun "is covered by the clear prescription of the Second Amendment" (since keeping and bearing requires a pathway to buying), and goes on to reason thus:
[T]he Federal Officers [then] bear the burden of "demonstrat[ing] that the regulation is consistent with this Nation's historical tradition of firearm regulation." Bruen footnote nine acknowledges that "definite" and "objective" background checks fall comfortably within that tradition. But when a particular licensing regime diverges from that tradition—perhaps by becoming "abusive"—it infringes on the Second Amendment.
"Following Bruen, the Supreme Court has not explained what constitutes 'abusive ends' in the context of firearm regulations, aside from its discussion of 'shall issue' licensing regimes." … In the context of Sedita's challenge, the Court finds a seemingly permissible background check regime could become abusive if riddled with inaccuracies but bereft of an effective method to correct those inaccuracies, leading to perpetual and inevitable delays on firearm purchases. At the very least, the Federal Officers present no evidence of this nation's historical tradition suggesting otherwise.
More record development is necessary before the Court can conclude whether Sedita experienced an abusive background check system at the Federal Officers' hands. Sedita has shown that there is a genuine issue of material fact as to whether CJIS continued to harbor erroneous information about him, despite his corroborated protestations to the contrary. And he has established that there is a legitimate question about whether his attempts to utilize the Voluntary Appeals File were fruitless because of inherent procedural flaws with the system. This suggests delays will persist in the future, through no fault of his own and with no ability for him to correct it. More, it has raised the specter of a system that promises appeals and vindication, but in practice is intended to frustrate or dissuade individuals from exercising their Second Amendment rights. Kafkaesque indeed….
[T]here is a genuine dispute of material fact on Sedita's Second Amendment claim. So the Motion for Summary Judgment by the Federal Officers is DENIED….
Here's the court's description of Sedita's factual allegations
Now to Sedita. He alleges that he tried to buy two firearms in 2021, but both purchases were "erroneously denied by NICS [National Instant Criminal Background Check System]." Through his attorney, he contacted NICS to obtain the grounds for denial of his firearm purchases. NICS conveyed that the transaction numbers were "too old" and that the agency no longer had any information about the attempted purchases. So Sedita was stalled on these first two firearm purchases. With neither answers nor a gun, Sedita again tried to exercise his Second Amendment right and buy a different firearm. But he alleges that once more, "his transaction was wrongfully denied by NICS," and he could not obtain a gun.
Again, he wrote NICS to inquire why. CJIS informed Sedita that his purchase was not "denied" but merely "delayed." See also First NICS Packet, ECF No. 11-3, at 10 (indicating the transaction number could not "be matched to a transaction maintained in the NICS" and that "the FBI is required to destroy all proceeded transactions" and "delayed transactions" and thus it was "possible that [Sedita's] transaction fits one of these two categories."). Sedita decided to complete a Voluntary Appeal File packet to hopefully obtain a Unique Personal Information Number and prevent future delays or denials by NICS.
But this, too, was in vain. The CJIS rejected Sedita's Voluntary Appeal File request after determining he was ineligible to be entered into the system. It noted that Sedita had a state conviction that fell under a "potentially prohibitive category." Specifically, CJIS thought Sedita was disqualified from owning a firearm under either 18 U.S.C. § 922(g)(8), which applies to those subject to a restraining order by an intimate partner or child, or 18 U.S.C. § 922(g)(9), which applies to someone who has been convicted of a domestic violence misdemeanor. A copy of the allegedly disqualifying criminal record was attached to the denial. The FBI informed Sedita that if he wished to challenge the accuracy of the record on which the Voluntary Appeal File rejection was based, he could apply directly to the state court from which the record originated.
But Sedita thought this denial was inappropriate. True, he had been convicted in state court of a misdemeanor charge of attempted assault and was formerly subject to a protective order as a result. But he insists that the assault did not qualify as domestic violence, as no covered relationship was implicated. Instead, the conviction involved a male complainant with whom Sedita claims he was not in a "qualifying relationship." 28 U.S.C. § 922(g)(9). Thus according to Sedita, the misdemeanor conviction should not have disqualified him from obtaining a firearm.
So he applied again to be entered into the Voluntary Appeal File. And he demanded that his most recent attempt to buy a firearm be greenlighted. He attached the charging documents from the state court to demonstrate that his convictions did not implicate domestic violence. And he insisted that he "has no disqualifiers to the transfer, receipt, possession or ownership of firearms." Then he waited. And waited. But he heard nothing back.
Six months later, Sedita sent another packet to the CJIS reiterating that he had wrongly been denied a firearm and entry into the Voluntary Appeal File. He again insisted that "[h]ad an investigation by NICS into the underlying facts been conducted, it would have revealed that … the convictions were not 'domestic violence' related." And he provided the documentation as proof.
The next week, the CJIS purported to "respond[ ] to [Sedita's] inquiry concerning [his] attempt to possess or receive a firearm." It again showed that the transaction number for his most recent attempt to buy a firearm could not be located, making it "possible" that the transaction was either "proceeded" or "delayed." And, in a fit of amnesia, it advised Sedita to apply for a Unique Personal Information Number through the Voluntary Appeals File program to prevent future extended delays or erroneous denials. It even attached a blank Voluntary Appeals File application.
Amy L. Bellantoni represents plaintiff.
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You've got to admire those bureaucrats and the exemplary example they've set for those who follow in their footsteps. No bureaucrat ever wants to resolve the problems which keep them employed.
Do you actually type out the word "bureaucrat" a hundred times a day or do you have it on some kind of macro?
Usually when i get about 5 characters in pops up on spellcheck.
Requiring a background check violates the second amendment.
What other right has this requirement?
It is an infringement. Every democrat says so when talking about voter id.
Well, yes, that's obviously so, but even after Bruen, the Court isn't yet ready to treat the 2nd amendment as an ordinary right subject to ordinary rules. They're still committed to "But, guns!" exceptions.
Time to make moves to overturn the NFA. Should have never been permitted to exist in the first place. And time to force states to accept gun licenses from other states if they demand licensing. If marriage licenses had to be honored, gun licenses should be as well.
The Feds don't require you to have a background check in order to purchase or possess a firearm.
They require a Federally licensed dealer to obtain a background check prior to selling the firearm.
Just like they don't prohibit you from manufacturing a machine gun. They require you to purchase a tax stamp, which they no longer offer.
Totes different.
It's not different at all.
no shit
I am not so sure either background checks or gun registries violate the 2nd amendment.
Congress does have an Article 1 power to 'arm the militia', so knowing what arms the unorganized militia has falls within their powers, so Congress does have the power to require the information, although I am glad they forbid keeping it in a database.
And it has been established that violent felons, at least, do not have 2nd amendment rights so it doesn't violate their rights, and as long as the delay for those that do have 2nd amendment rights is de minimis then I doubt it would violate their rights any more than a warrant check at a traffic stop.
There's a big difference between, "Prove you own a regulation militia rifle" and "tell us about every gun you own."
Both voting and gun ownership are Constitutional rights. I always thought it would be interesting if they were treated the same way in terms of their regulation.
Perhaps the DMV can automatically register you for firearm ownership with your drivers license. Same day gun registration - and buying in certain states?
Or perhaps there's a national database of people that anyone who tries to register to vote is checked against, and it takes a few days, and if it comes back negative you can't vote.
Man, that's quite a gun registration regime you'll have going on.
And the penalties! Whew!
No.
The Feds are charged with providing for the arming of the Militia and for governing those who are employed in the service of the US.
In the context of recent history of the Brits disarming individuals, it's pretty nuts to believe that the framers intended to give this power to the feds.
If Congress wants to "arm the militia," it's free to pass out guns to "all able-bodied males at least 17 years of age and,.. under 45 years of age." See 10 U.S.C. 246(a). There's nothing about the power to arm a militia that implies a right to make people register whatever they own,
This is the section of Title 18 cited by the plaintiff:
The statutory scheme is straightforward. NICS has three days to block a sale, otherwise it goes through. If the government told the dealer not to sell the gun that should count as a denial notwithstanding the government's claim that it needs more time. So the court should resolve the question of whether the plaintiff has a qualifying domestic violence conviction.
The judge disagreed. He was only delayed, not denied. Maybe some day Charlie Brown can kick the football. So the plaintiff loses on the statutory claim.
The court allowed the case to proceed instead against certain federal officers under the federal equivalent of Ex parte Young.
If the plaintiff ultimately loses, the question of whether the three day waiting period can be extended is a good one for appellate review.
"The statutory scheme is straightforward. NICS has three days to block a sale, otherwise it goes through"
I don't have personal experience, but I have heard that many FFL's will refuse to make a 'delayed' sale even after the 3 day period, for fear of liability.
They are allowed to do that, they're just not mandated to.
The three day limit was inserted to prevent the NICS system from being used to simply shut down gun sales nation wide by the simple expedient of refusing to act. And early on, the system WAS being shut down with suspicious regularity on the weekends of big gun shows, preventing sales from happening at them.
Every delayed check I've processed, NICS called back within a day with permission to proceed.
I assume that Sedita resides in a jurisdiction that either does not allow a CCW permit to substitute for the NICS check, or burdens issue of such permits.
This is true. But doesn't that flip the case? It turns on whether they actually DENIED vs DELAYED the NICS check.
If they merely DELAYED then they haven't actually harmed him. The problem lies with the FFL. Buy it somewhere else.
"Buy it somewhere else."
I'm sympathetic to that argument until there aren't other places that are reasonable accessible.
Similarly, fed law says you can't buy a handgun from an out of state dealer. I don't really see any purpose to that, but whatever - until, say, the only dealer in your state is 5 hours away, and there is a dealer 10 miles away across a state line.
I'm interested in the practicalities more than the hairsplitting.
The purpose is to make law abiding ownership more difficult. Nothing legitimate.
The problem is that if it comes back later that the sale should have been denied, the ATF will show up at the FFL asking for their records to go retrieve the gun from the prohibited purchaser. Who wants ATF agents poking around? It makes perfect sense that they would voluntarily refuse.
A gun-friendly Congress could tilt the scale by stating that there is no duty to inquire about the reason for a delay.
I want to impose EVERY 2A law exactly as written onto the 1A. It should be constitutionally permitted in its entirety if it's good enough for 2A.
Background checks to become a journalist. 24h waiting period to publish news, social media posts, emails, you name it! Holy shit this would prevent so much violence and get a more pure form of conformity out of our subjects.
Fuck it, why stop there? Let's do this with the 4A too! You get searched first, and then you can appeal your 4A rights after the fact. This will be the rule, not the exception.
You cannot exercise your constitutional rights without government permission. The 2A is just the start, start spreading the love around!
This shit writes itself with how abhorrent it is. Call it "The Bill of Rights Test" where every "regulation" has to apply equally to the others. Yeah, piss in that regulatory punch bowl.
Yeah, watch the shit fly when you try doing that. Hypocrites in the swamp be moaning on that one...
The Fourth Amendment rule you propose is the law. There is no constitutional right to resist police.
Actually, there's a long line of case law to the contrary, that you CAN exercise your right of self defense against police under certain circumstances.
The catch is generally surviving long enough to be vindicated in court.
You can defend yourself against excessive force but not all illegal touching and searching.
With qualified immunity the police can literally dry fuck you in the ass and get away with it because a similar case doesn't exist....
Make it as difficult for women to get abortions or homosexuals to get marriage licenses as the blue states make it to buy guns.
I am 100% behind background checks before voting. Yeah, that shit will fly!
I'm supportive of civic tests for voting as well. Anything that neuters the power of the schvartes is a good thing.
I would classify this as a standard Due Process case rather than a 2nd Amendment case. His basic argument is that he was entitled to a hearing but never got one, getting a “runaround” instead. The fact that a gun permit was involved doesn’t strike me as making this a 2nd Amendment case any more than a denial of a right to hearing over an auto license would make the case a right to travel case.
I agree that he was entitled to a hearing and didn’t get one. But I think that his entitlement comes from and is analyzed by ordinary 14th Amendment Due Process considerations, not special 2nd Amendment ones. I agree the 2nd Amendment weighs down the balances on the Mathews v. Eldredge balancing test a bit. But that’s all it contributes. I don’t see a Bruen analysis, going back to see whether hearings were historically done and how they were historically done, as the relevant analysis.
Fifth Amendment, not 14th. He's suing the feds.
Just on the general subject of background checks and delays: I once bought a suppressor. For those not familiar with the process, it is:
1)You find the suppressor you like, pay for it ($900), pay the tax ($200), get fingerprinted, and send in your paperwork to the ATF.
2)The manufacturer or wholesaler applies for permission to transfer it to your local dealer. That approval took a couple of weeks or so, I'm not sure, because I'm waiting on step #1.
3)It arrives at your dealer. He can show it to you, but it stays at the dealer until step #1 completes.
4)In my case #1 took something like 13 months[1], but eventually the happy email comes from the ATF and I can bring it home.
This involves photocopying the paperwork and taking a copy to the safe deposit box, because the ATF has a history of losing their copy of the paperwork and that means years in jail if you can't produce your copy.
5)Oh noes, at some point while I was waiting a stress crack propagated from one of the letters in the ATF mandated engraving. Since that part has to contain the pressure of the muzzle blast, it has to be replaced.
6)The manufacturer agrees it is a warranty thing. They ask the ATF for a variance so they can make a new shell with the original serial number, thus bypassing the 13 month wait. Apparently the ATF sometimes agrees to this, but in my case they were being careful and denied the request. So the manufacturer has to replace the whole suppressor. I ship the bad one back, and the manufacturer starts the paperwork for the new one. This, of course, requires another $200 tax stamp, which the manufacturer pays as a goodwill gesture.
7)I wait another 13 months.
8)Oh, I forgot, at the end of each 13 month period, the dealer does a normal phone-the-FBI check as well.
Now I get that living in a society of ordered liberty absolutely requires a 13 month wait to do a background check, but the second wait seems a little hard to justify, given that days before they had just concluded I was not in fact so depraved that I couldn't be trusted with the first one.
[1]in fairness, I hear this has sped up quite a bit.
[1]in fairness, I hear this has sped up quite a bit.
It has. And in my experiences, once your first round of buying is successful, subsequent runs through the ATF paperwork check are significantly shorter than that first one.
In the past year it’s gotten much faster. My last few NFA tax stamps have come back in less than a week.
Back in November I heard an interesting talk from the American Suppressor Association about how the new head of the ATF’s NFA branch managed to speed things up by such a huge amount just by revising their internal processes. A big part of it is actually related to the problems Mr. Sedita was having: the FBI is required to destroy all records of a NICS check after 90 days. So if the ATF process takes longer than 90 days to approve a tax stamp, they have to start over from scratch.
Here is an interesting writeup on how the process was optimized. With pursuit of government efficiency in the news, it's an interesting case study:
"According to the industry experts I spoke with, average wait times used to be in excess of 200 days for an individual Form 4 filed electronically. Many applicants (myself included) had to wait over a year to be approved.
Now, Silencer Central and Silencer Shop, two of the biggest suppressor dealers in the country, are reporting an average wait time of about four days for the same application. Some applicants are walking home with their suppressor on the same day.
...
The ATF didn’t receive an influx of cash to process suppressor applications more quickly. They didn’t hire an army of new approvers, and Congress didn’t pass any new laws to force their hand. They introduced a revamped electronic filing system, but that was all the way back in 2022, and wait times were actually longer in the months that followed.
And yet, somehow, this giant federal agency increased their efficiency by 50x, seemingly overnight.
...
Hiller started the job by working through 100 Form 4 applications and looking for ways to speed up the process.
“He determined that 80% of the work they were doing didn’t need to be done,”
...
Those process tweaks, however, weren’t the biggest reason for the change. (discussion of FIFO and NICS delays)"
So here we have an example of a government process that has been badly broken for years fixed for no extra cost because a disrupter sat down and took a fresh look at the process. That's a good thing. Correction - that's a great thing.
Before everyone starts chanting "Trump! Musk! Trump! Musk!" it's worth noting that Mr. Hiller took the time to understand the details and come up with intelligent improvements, and managed to implement them without the conversion making things work. You don't want to waste time, but you don't want to break things worse either.
People don't usually go to work at the BATF in order to be helpful to gun owners. Quite the opposite, normally.
That's why it took a personnel change to accomplish this: You needed somebody in charge who at the very least wouldn't view delaying legal sales as good in itself.
Normally you'd expect a Biden administration to make a priority of filling this sort of position with somebody hostile to gun rights. Looks like they screwed up, thankfully.
I would opine that your average ATF clerk could not care less about guns. They shuffle paper according to instructions. They go to work at the ATF instead of SSA because that's who had an opening when they were looking for a job.
Too bad they couldn't find a way to declare the new part to be the same as the old one. Years ago I knew somebody who built a vehicle out of junkyard parts, reusing the VIN of a scrapped vehicle. It did in fact contain parts from that scrapped vehicle. That would not work now in my state where a VIN recorded as junked can never be registered.
You can't get an "R" title in your state?
Interesting. I've got a junkyard very near me who specializes in rebuildable totals. Some are wrecked, others are mechanical totals, like a blown engine or a destroyed interior from a wild animal getting inside, etc.
Way back in the 90's I considered buying a theft recovered Geo Tracker there. I figured a little 4WD convertible could be fun. It was less than a year old. It was mechanically basically brand new, less than 5000 miles on it, but the interior, dash, soft top, and wheels had been stripped for less than 2 grand. They had a wrecked one with all the parts I needed for less than $200. I figured it would be a simple job of swapping the parts over from one to the other until I saw all the wiring that had been slashed. I decided rewiring was more than I wanted to get into.
#8 is not true, although I suppose your FFL could do one anyway for funsies.. Current (until someone finds out about the 'non-binary' Sex checkbox) 4473 line 28 "[ ] No NICS check is required because a background check was completed during the NFA approval process on the individual who will receive the NFA firearm(s), as reflected on the approved NFA application. "
Interesting! I've gotten them from a three dealers now and they all did the parting NICS check.
This source agrees with you:
"After the ATF has approved your ATF Form 4 application and sent your tax stamp to your SOT dealer, you will then be able to pickup your NFA Firearm(s). ... When you do visit your SOT dealer to pick up your NFA Firearm(s), you will then be required to fill out the ATF 4473 for the NFA firearms(s). This is completely normal and required by the ATF. However, you aren’t required to go through the NICS background check for the NFA firearm(s) that you are picking up. The SOT dealer will simply use Box 20 of the ATF 4473 do indicate that you will not need to have a NICS background check performed at that time. "
While this one seems to disagree:
"Even after completing all of the necessary investigation into a person's Form 4 application for a suppressor, you still have to pass a NICS check before taking possession of your new purchase. As can sometimes happen with NICS checks when purchasing a regular, non-NFA item, there may be instances when the check comes back as "delayed" or denied." You have the right to appeal that status."
You can just look at the instructions on the 4473 itself.
https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download
Page 7.
Sure, not arguing that. Just wondering how common a practice it is.
Britain, France, Finland , and other countries treat silencers (sound suppressors, mufflers, different name - same thing) as ordinary accessories for legally owned firearms and are amazed by our 1934 NFA silencer rigamarole.
"For the motion to dismiss, Sedita has plausibly alleged that he was denied a firearm by the Government. His Complaint repeatedly makes this claim."
If the delay extends beyond the period allowed for a delay, it's no longer a delay. It's a denial.
A delay of one day should be viewed as a denial. A delay of one hour should be viewed as a denial.
I'm okay with giving it the same timeframe as "delay" is used in the context of 4th Amendment protections for traffic stops.
Assume, for the sake of argument, that it is constitutional to ban people convicted of certain types of crimes from owning weapons. Also assume that the criminal offenses at the state level do not match, on their face, the crimes that preclude gun ownership (as was what happened in this case). Finally, assume that society wants the absolute ban to apply.
We have two choices. First, we can tell the person you can get a weapon and we will look into it. If you are barred from getting the weapon, we will take it away. Second, we can tell the person to wait until an investigation is done. The US has chosen the second, to prevent weapons from getting into the hands of malcontents.
The problem with the first is that bad guys will get guns. The problem with the second is that some good guys won't get their guns quickly.
Should we take the approach it is better that 10 bad people get guns, than that 1 good person be delayed in getting a gun (to paraphrase Blackstone)?
I don't know.
But the U.S. HASN'T chosen the second. The law is after 3 days, you get your gun. D.C. is illegally circumventing that.
Actually the law is after three days without a clear denial or a clear OK, the assumption is no denial.
But if a dealer wants to keep his federal firearms license, he'll often treat no denial as no OK.
"some good guys won't get their guns quickly."
Or not at all, as in this case.
Actually good guys could use the "non-commercial sources" cited by 91% of firearms using offenders in the last DoJ Bureau of Justice Statistics survey of U.S. state prison inmates who carried or used a gun in the crime for which they were serving time.
The survey has been done every six or seven years since the Carter Administration hired James D. Wright and Peter Rossi to research and report in 1977.
"The problem with the first is that bad guys will get guns."
The problem is that, generally, the bad guys will get guns anyway. You're not keeping them from getting guns, you're inconveniencing them. Black markets exist, we should not pretend otherwise.
So any argument that starts from the assumption, as yours does, that these laws actually keep criminals from getting guns, is invalid right out of the starting gate.
The trade off is inconveniencing a large number of law abiding people in the exercise of a civil liberty, vs inconveniencing a much smaller number of criminals.
My conclusion is that the whole thing is simply not worth it.
We should simply restore felons to ALL their civil liberties once their sentences are served, because the cost in infringed civil liberties on the part of the innocent majority far outweighs the minor inconvenience we can subject criminals to. Setting up a system where some people walking around free are second class citizens is simply not worth it.
Somehow I doubt MAGA is onboard with the whole "forgive and forget" thing.
Where did you see him advocating for forgive and forget?
Even if we assume that some people can be disarmed (and Rahimi holds that is the case at least temporarily) where is the history and tradition that a citizen must first prove to the government by way of a background check that he is NOT one of those people who can be disarmed?
Bruen doesn't justify its bald ipse dixit in any way or even pretend to try. There is no founding era law or anything close that suggests background checks are constitutional.
What you are doing is interest balancing. How important is the individual right versus the government power? Bruen says (at least I thought it said) that constitutionally we don't consider that a bit. We simply look at history and tradition and the government must then justify its regulation based on such history.
I don't see how they can do that in this case. In fact, I don't see how they win ANY case which is admittedly a problem with Bruen. Almost everyone agrees with at least some gun laws--and those laws were absent at the founding.