Recently an FFL contact of mine alerted me of a new bulletin from the ATF. The email that they received noted that there was an important message concerning the NICS system that all FFLs needed to be made aware of. This message concerned provisions of the unconstitutional so-called Bipartisan Safer Communities Act (BSCA) of 2022 coming into effect.

From the message:

From: [email protected]
Date: November 4, 2022 at 10:58:11 AM EDT
Subject: ATF FFL ALERT – NICS NOTIFICATION UPDATE – 

This is an important message from the Bureau of Alcohol, Tobacco, Firearms and Explosives. As a result of the passage of the Bipartisan Safer Communities Act (BSCA) of 2022, the NICS Section has been working towards the implementation of an enhanced background check process for persons between the ages of 18-20. Please refer to https://nicsezcheckfbi.gov/ for further details.

Following the link to the FBI NICS system page the following new alert was posted in full:

As a result of the passage of the Bipartisan Safer Communities Act (BSCA) of 2022, signed into law on June 25, 2022, the NICS Section has been working towards the implementation of an enhanced background check process for persons between the ages of 18-20. The enhancement provides the opportunity for additional outreach and research to be conducted regarding the existence of any juvenile adjudication information and/or mental health prohibition. As a result, transactions on persons between the ages of 18-20 will initially be delayed and the address of the individual will be collected so that the appropriate local and state entities may be contacted. The enhanced process will begin on November 14, 2022, for all transactions on persons under the age of 21 as previously described. Checks on persons under the age of 21 could be extended for a period up to ten business days. Therefore, it is possible for an FFL to be contacted with an updated Brady Transfer Date. As a temporary measure and until the NICS can be updated to provide this information electronically, NICS staff will be calling FFLs to advise of any change in the transfer date. In preparation for calls from NICS, you will be asked to verify your license number and code word. You may wish to have this information readily available for you and your staff.

All descriptive information, including address, will follow normal purge requirements (i.e., deleted from NICS within 24 hours of the FFL receiving a proceed status.) Please note, if no potentially prohibiting information is located, the transaction will be proceeded as soon as possible.

Aside from alerting FFLs that this change is occurring shortly this is the FBI’s way of saying this is about to get bungled up. Let us not forget that the implementation of the NICS system in the first place did not go very smoothly, and further, that after the system went completely live, the ATF still illegally requires the retention of form 4473. The manual calling from the FBI to the FFLs is going to be an awesome feature.

The applicable portions of the Bipartisan Safer Communities Act (BSCA) of 2022 that we do need to visit are:

in the case of a person less than 21 years of age, in addition to all other requirements of this chapter–

“(i) the system provides the licensee with a unique identification number;
“(ii) 3 business days (meaning a day on which State offices are open) have elapsed since the licensee contacted the system, and the system has not notified the licensee that cause exists to further investigate a possibly disqualifying juvenile record under subsection (d); or
“(iii) <>  in the case of such a person with respect to whom the system notifies the licensee in accordance with clause (ii) that cause exists to further investigate a possibly disqualifying juvenile record under subsection (d), 10 business days (meaning a day on which State offices are open) have elapsed since the licensee contacted the system, and the system has not notified the licensee that–

“(I) transferring the firearm to the other person would violate subsection (d) of this section; or
“(II) receipt of a firearm by the other person would violate subsection (g) or (n) of this section, or State, local, or Tribal law; and”;

(ii) in paragraph (2)–

(I) by inserting “transfer or” before “receipt”; and
(II) by striking “(g) or (n)” and inserting “(d), (g), or (n) (as applicable)”;

(iii) in paragraph (4)–

(I) by inserting “transfer of a firearm to or” before “receipt”; and
(II) by striking “(g) or (n)” and inserting “(d), (g), or (n) (as applicable)”; and

(iv) in paragraph (5)–

(I) by inserting “transfer of a firearm to or” before “receipt”; and
(II) by striking “(g) or (n)” and inserting “(d), (g), or (n) (as applicable)”.

We’re looking at three distinct possibilities for those under 21 when getting a NICS check done. The first, a unique identifier number is on file for them, which we can assume is linked to a Voluntary Appeal File Application that’s been filed with the FBI. The second, a three day waiting period, without a denial. And third, there’s a reason for them to “further investigate”, potentially holding up the application for ten days.

Where is the FBI looking for this special information which may disqualify a person under 21 from purchasing a long gun?

(A) the criminal history repository or juvenile justice information system, as appropriate, of the State in which the person resides for the purpose of determining whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922;
(B) the appropriate State custodian of mental health adjudication records in the State in which the person resides to determine whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922; and
(C) a local law enforcement agency of the jurisdiction in which the person resides for the purpose of determining whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922;

Good luck to you FBI NICS check workers! To the rank and file FBI NICS screeners, remember that elections have consequences and who did this to you.

What can FFLs, and more importantly prospective gun buyers in this limbo age expect? I’m going to say lengthy delays and a whole lot of incomplete checks being done. Well, that is incomplete based on their new requirements. Honestly, implementation of any new system usually has its own bumps and bruises, but I suspect this’ll have its very own flavor of failure.

There does not seem to be any default proceed language in the measure. Are we to assume that’s a given? Or are these young adults going to be stuck when the local PD says to the FBI that an individual is a “bad egg” based on some juvenile delinquency the department is aware of that’s irrelevant to firearm disqualifiers?

There seems to be more subjectivity added into this process than there ever should be. Further, those same “local law enforcement” agencies should not be beholden to this in any way, shape, and or form. Looking back at Printz v. United States should be a clue as to one of the many ways this law is unconstitutional. In Printz, the United States Supreme Court found that local law enforcement agencies are not obligated to uphold federal laws. I think there’s a kinship there and look forward to the first police department that gets contacted when this requirement comes into effect and tells the FBI to go pound sand.

Here’s to hoping that there are plaintiffs already lined up.

The other element that this notice/law brings up is the targeting of those aged 18-20. We’ve already seen several challenges to laws that restrict such adults from being able to carry firearms side with liberty and freedom. There have been challenges to the federal prohibition of sales of handguns to those under 21 go on, with varied successes. As well as challenges to state laws that restrict those under 21 from purchasing certain long guns. The government entities involved in these laws, our Congress included, have created a class of people that are not fully patriated with their Second Amendment rights, and eventually all such prohibitions are doomed to fail (if everyone’s being honest).

What exactly do our citizens under the age of 21 have coming to them once this law comes into full force? Hard telling. It’s not a foregone conclusion this is going to be a mess, but use your own imagination. While members of Congress and other anti-freedom caucus members keep waging war on those adults under 21 when it comes to firearm sales, let’s all keep in the back of our minds the so-called leaders who are cut from the same cloth want to allow 16-year-olds the right to vote.