DOJ Proposal Suggests Unauthorized Use of NICS for NY Ammo Background Checks

“The Justice Department today announced it has submitted to the Federal Register two notices of proposed rulemaking (NPRM) that, if finalized, will fully implement the Bipartisan Safer Communities Act of 2022 (BSCA), the most significant gun safety legislation in over 30 years,” DOJ announced Wednesday.

So, new gun rules are being rushed in while Steve Dettelbach, Merrick Garland, and Joe Biden are still ostensibly running things? And we have Republicans who crossed the aisle and supported Democrat infringements to thank for it?

What are the rules?

“Following the language of the BSCA, the Firearm Handlers Rule proposes that federal firearm licensees (FFLs), such as gun stores, be allowed to use the National Instant Criminal Background Check System (NICS) to voluntarily conduct employment background checks for certain employees,” the release summarizes for the first.

“The second NPRM, known as the Under-21 Rule, would codify enhanced NICS background check procedures for prospective firearm purchasers under 21 years of age, among other changes,” the release declares.

How long will gun owners and interested parties have to comment on the proposed rules?

“Written comments must be postmarked, and electronic comments must be submitted, on or before [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER],” the employee background check rule states. “Written comments must be postmarked, and electronic comments must be submitted, on or before (INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER),” the Under-21 rule establishes.

Neither proposed rule has been published at this writing, but assuming it happens within the next few days, the one with the 30-day comment period could be in effect before Donald Trump is sworn in on Inauguration Day, January 20. And since the Under-21 rule comes from a “bipartisan deal” there may not be an appetite for some in Congress to take action to block it, and Trump had previously endorsed raising the minimum age.

It’s the first rule that holds a special relevance to previous reports by this correspondence because of an admission DOJ made in its release:

“Current NICS regulations prohibit FFLs from initiating background checks for any purpose other than the transfer of firearms.”

That’s what some of us have been saying for some time when questioning the DOJ on where they get the authority to allow New York State to use the system for ammunition sales.

And that’s because the FBI’s “Firearms Checks (NICS)” page, the DOJ’s NICS rules for FFLs and POCs (Point of Contact states), “Public Law 110–180, An Act To improve the National Instant Criminal Background Check System”, and the “Fix NICS Act” address firearm transfers. There is no mention of “ammunition.”

So, if the FBI and DOJ don’t have authority to do ammunition checks, where do they get authority to allow New York State to use NICS for that purpose?

To find out, I submitted a Freedom of Information Act (FOIA) request to the FBI in March for documents and records to clarify authority and determine decision-making (and decision-makers) authorizing the use of NICS for New York State ammunition background checks.

The records I was seeking included the following:

• All communication regarding New York’s usage of NICS for ammunition background checks, including all correspondence between FBI and New York for utilization of NICS for ammunition background checks;
• All records, including memoranda of understanding, user agreements or contracts for New York to be allowed access to the NICS system;
• All records regarding consequences for a state misusing the NICS system for non-approved uses, including communication/correspondence to that state warning about non-approved uses of the NICS system and resolution of any issue FBI raised with the state;
• All records regarding any authority for the FBI to conduct ammunition background checks;
• All records that discuss or describe permissible usage of the NICS system; and
• All records, including communication/correspondence from other states and the FBI limited to

In June, instead of producing what was asked for, the FBI returned copies of two nonresponsive Code of Federal Regulations (CFR) sections anyone can pull off the internet. Neither even remotely address the scope of the request.

“After carefully considering your appeal, I am affirming the FBI’s action on your client’s request,” DOJ’s Administrative Appeals Staff Chief Christina Troiani informed Stephen Stamboulieh, my attorney in the FOIA request. “I have determined that the FBI’s response was correct and that it conducted an adequate, reasonable search for responsive records subject to the FOIA.”

It’s clear that the government has no intention of complying with the request, which makes fair another question, “Why?”

To go forward with that inquiry, there were two choices: Go through the personal expense of filing a lawsuit that, based on experiences with other actions would result in interminable stonewalling and appeals (and at that time, Donald Trump taking the White House with Republican wins in the House and Senate were uncertain), or give it to the people whose job it is to make sure government agencies operate within the law, the House Committee on Oversight and Accountability. Unlike FOIA requests, which can only ask for records, the committee can ask questions and has subpoena power to cut through to the chase and get them answered.

To that end, in September I sent a letter to NRA A-rated Chairman James Comer and the committee, informing them of these concerns and asking them to investigate. We can assume they either felt the timing was off due to election campaign and other demands, had bigger fish to fry, or didn’t care, because to date, that letter has never been acknowledged.

To pursue either approach, filing a complaint against DOJ or renewing the call for House Oversight to do its job, it’s probably best to wait until after Trump is inaugurated and the dust settles. At that point, one of two questions will be answered:

Will House oversight investigate this and put a stop to New York and potentially other Democrat states using NICS for unauthorized infringements?

If I sue, will the Justice Department under Attorney General Pam Bondi do the same thing she did as Florida AG and defend state-imposed infringements?

If we are a nation of laws, they must be lawfully enacted. If no one is above the law, its chief enforcers must set the highest standards.

Will they?

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.