NRA & National Instant Criminal Background System: Fact Checking WAPO’s Facts

Washington Post
Washington Post

Fairfax, VA – -( The Washington Post’s Fact Checker recently got the facts upside down in “The NRA’s flip-flop on federal mandates for states in gun background checks” by claiming that “after President Bill Clinton signed the Brady law in 1993, the NRA argued that the whole thing — including the NICS — should be struck down as unconstitutional.”

The NRA made no such argument. In fact, the NICS – the National Instant Criminal Background System – was the legislation that the NRA supported at its very inception and has consistently supported since

The NRA argued instead that the interim provision of the Brady Act that commandeered the State law enforcement authorities to conduct background checks on handgun purchasers was beyond the power of Congress.  Its brief didn’t even mention the NICS.

The Supreme Court agreed with the NRA in Sheriff Jay Printz v. U.S. (1997), holding that the federal mandate to local sheriffs and police violated the Tenth Amendment.

The NICS – set up by the permanent provisions of the Brady Act, which frankly should have been called the NRA Act – is run by the FBI and is constitutional because Congress has power to tell federal employees what to do. Congress also has power to offer financial assistance to the States to enable them to report criminal convictions, mental commitments, and other disabilities that render a person ineligible to obtain a firearm.  The States’ ability to make these reports to federal authorities was enhanced by the NRA-supported NICS Improvements Act of 2007.

The Fact Checker further states: “The NRA for years has claimed credit for the National Instant Criminal Background Check System (NICS), a database established in 1998 to conduct background checks on gun buyers. We looked at this claim previously, and the evidence was thin.”  But it posts a law review article by Richard E. Gardiner and Stephen P. Halbrook that demonstrates the legitimacy of NRA’s claimed credit for NICS.

The NRA opposed the original Brady bill because it was nothing but a waiting period with a mandate to the States to conduct background checks only on handgun buyers. The NRA originated the idea of and supported an instant background check by the FBI on all firearm buyers. That became NICS.

The interim Brady law was a bad idea to begin with.  For decades, the States have been reporting criminal records to the FBI for the National Crime Information Center and the Interstate Identification Index, which formed the basis for NICS.  Congress could and should have told the FBI to set up the NICS and conduct the background checks.  Instead, it told local sheriffs and police to conduct background checks using the very same FBI databases that the FBI could have been using. This delayed the FBI taking over the task for five years, until 1998.

Fact Checker asserts: “The NRA’s love-hate relationship with the NICS database is something to behold. The group once fought to strike down the law that created the database. Failing that, the NRA still managed to defang one of the law’s provisions.”  In fact, it was the Supreme Court that defanged the interim Brady provision as unconstitutional, but that had nothing to do with the NICS or its database. The NRA acted as a guardian of the Constitution when it fought to strike down the same type of State commandeering that the Supreme Court previously struck down in the case of New York v. U.S. (1992).

It was a no-brainer that the interim Brady provision would suffer the same fate. I represented local sheriffs in the Printz case before the Supreme Court.  They had no problem with federal employees doing what Congress told them to do, but the sheriffs were not federal agents and had their own priorities, such as responding to crimes in progress and solving homicides. Printz held that Congress may not conscript the States, but could offer financial incentives to help them report criminal and mental records of persons who may not obtain firearms. That’s federalism at work.

Dana Loesch has recently been outspoken on the need for the NICS database to include more complete records.  This is not just a problem of the States not supplying complete records, but of federal agencies themselves that haven’t bothered to follow federal law and report convictions. Fact Checker asserts that “the NRA and Loesch are concerned that the NICS is not getting all the records it needs … Getting those records might be easier today if not for the legal precedent the NRA helped create in the Printz case in 1997.” Well, a lot of things might be easier were it not for the Constitution, but the NICS will continue to improve through our system of cooperative federalism.

National Rifle Association Institute For Legislative Action (NRA-ILA)
National Rifle Association Institute For Legislative Action (NRA-ILA)

Fact Checker concludes that “Loesch’s position on the NICS represents a flip-flop for the NRA” and awarded Loesch an “Upside-Down Pinocchio.”

Perhaps Fact Checker deserves some Pinocchios for suggesting that NRA argued that the NICS is unconstitutional, when in fact it was the NRA that conceived of the NICS from the very beginning and it has been the NRA that has consistently supported improvements in the NICS system.

Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit:

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Donald L. Cline

It may be Constitutional for Congress to tell federal employees what to do, but it is not constitutional for the federal government or the States to 1) convert our right to keep and bear arms into a revocable government privilege for which permission must be granted at the point of sale; 2) compel a citizen to waive his 4th Amendment right to be secure from SEARCH of his “effects,” which are his records on government databases in the absence of a warrant alleging probable cause of criminal acts, 3) compel a citizen to waive his 5th Amendment right to be… Read more »


Any background check, enhanced, common sense, (add any Bravo-SIerra suffix) is only good when it was completed,
same goes for a driver license exam, medical license, etc etc. a snapshot in time.

What the person using the item makes the difference, you can’t stop a driver from being reckless or DUI DWI after they are issued the license or pass the NICS and are clear to purchase a firearm.


Here is my question, how can democrats claim that background checks are constitutional but voter ID is unconstitutional?
Both are rights, so it seems to me that it a bit hypocritical of them.


That’s a very good point. They epitomize hypocrisy. It’s justified as long as it’s in support of their agenda. Are they not stereotyping & discriminating against gun owners? Are they not bullying gun owners, the NRA & it’s business partners? Are they not having protests where they condone, encourage, & carry out violence? Are they not pro-choice?
But they’re anti-discrimination, anti-bullying, peace loving, child saviors, right?


One must remember who the wash compost listens too and works for.