Don’t expect Senate Majority Leader Chuck Schumer to let this bill get very far, but good on GOP senators for making the agency’s opaqueness an issue on Capitol Hill.
Sen James Risch (R-ID) and several of his Senate colleagues unveiled the ATF Transparency Act on Thursday, calling out the agency for delays in processing background checks and offering an opportunity for would-be gun owners to appeal any denial of a gun purchase based on a failed NICS check.
Risch’s bill would establish an appeals process within the ATF for Americans whose background checks were denied and requires the ATF to give National Instant Criminal Background Check System (NICS) transaction numbers as well as cover attorney fees for successful appeals.
The bill turns the ATF’s stated 90-day application turnaround goal into a hard 90-day deadline that would automatically approve the application if the deadline is not met.
The legislation would also require both the Government Accountability Office (GAO) and Department of Justice (DOJ) inspector general to report the number of National Firearms Act items that are involved in unfinished NICS background checks between 2014 and 2021, as well as give recommendations to the agency to minimize the number of background checks in limbo.
Additionally, Risch’s bill would require the DOJ inspector general to report how involved the FBI is in NICS background checks and obligates the ATF and FBI to create a joint agreement on the NICS background check process.
As the Crime Prevention Research Center’s Dr. John Lott has argued, the NICS system is “rife with errors” that can lead to false denials, and even when those determinations are overturned it can take an excruciatingly long time for the mistakes to be rectified. As Lott reported in 2015:
For gun purchases, the Bureau of Alcohol, Tobacco, Firearms and Explosives dropped over 94 percent of “initial denials” after just the first preliminary review. The annual National Instant Criminal Background Check System report explains that these cases were dropped either because the additional information showed that the wrong people had been stopped or because the covered offenses were so many decades old that the government decided not to prosecute. At least a fifth of the remaining 6 percent were still false positives.
All these denials mean delays for many law-abiding gun buyers. Although this is merely an inconvenience for most, initial denials cause dangerous delays for people who suddenly, legitimately need a gun for self-defense, such as a woman being stalked by an ex-boyfriend or spouse.
The ATF Transparency Act wouldn’t make this issue go away completely, but it would at least provide an avenue for would-be gun owners to escape the bureaucratic limbo they’re confined to while their background checks are delayed or falsely denied.
At least, that’s what would happen if the bill had a chance to become law. With Democrats in control of the Senate, however, I’d be shocked it Risch’s bill even gets a hearing. As far as the anti-gun majority is concerned even a false denial is a good thing because that’s one less gun owner out there, so they’re not likely to get on board with legislation that provides them with the opportunity to more easily appeal any denial, especially one that forces Uncle Sam to pay attorneys’ fees when denials are successfully challenged.
As far as agency transparency goes, the best chance to force the ATF’s decision-making out of the shadows and into the sunlight will probably come from House committees, where the GOP majority gives lawmakers on Oversight and Judiciary the opportunity to investigate agency abuses of power; not only the large number of delayed background checks, but the agency’s new rules on frames and receivers and stabilizing braces and the “zero tolerance” approach to gun store inspections that’s led to the agency revoking FFL licenses for minor paperwork errors like a customer mistaking the word “county” for “country”. The ATF Transparency Act may face long odds of actually getting to Joe Biden’s desk, but thankfully it’s not the only tool Republicans have to shine a spotlight on the agency’s actions.