Enhanced Background Check Act of 2021

The Democrats are planning on ramming through their first two pieces of gun legislation. This bill, HR 1446, or the Enhanced Background Check Act of 2021 and also HR 8, the Bipartisan Background Check Act of 2021.

HR 1446 was introduced on March 1, 2021 and has been referred to the House Committee on the Judiciary. It proposes to fix the “Charleston Loophole” wherein a firearm may be transferred to an individual if there isn’t a denial of the background check within 3 days.

Currently, a Federal Firearm Licensee (FFL) must satisfy background check requirements prior to transferring a firearm to a non-FFL. In most cases, this involves running a background check on the individual purchasing the firearm.

Usually, a response to the background check is received by the FFL within a few minutes. However, sometimes there is a delay of the response for myriad reasons: slow system response, anomaly in the person’s background, or multiple people with the same name.

Thankfully, as to not violate the Constitutional rights of law abiding Americans, if a denial is not received within 3 days, the FFL may transfer the firearm to the customer. This prevents the government effectively banning guns by delaying a background check response.

Anti-gunners refer to this check on the government’s power as a “loophole” and they are trying to end it.

The bill, by Democratic House Whip Representative Jim Clyburn, was already introduced in the last Congress as HR 1112 and it passed the House 228 to 198 – this means it will likely pass again.

Enhanced Background Checks Act of 2021

We’ll attempt to summarize the effect of the bill and also show the actual legislative changes it will make to current law.

HR 1446 Bill Summary

The Enhanced Background Checks Act of 2021 will increase the waiting period an FFL must wait before transferring a firearm without an answer to a background check from 3 business days after the background check was submitted to 10 business days after a petition by the customer is filed.

The customer, the person on whom the background check was run and for which an answer was not received, must submit an electronic petition for review to the U.S. Attorney General certifying that there is no reason for them to believe that they wouldn’t pass the background check.

If there is still no answer 10 business days after the customer’s petition was filed, the firearm may be transferred.

Additionally, the bill changes the language of a category of “prohibited persons.” Currently, those who have been “adjudicated as a mental defective,” among other prohibiting factors, may not lawfully possess firearms or ammunition. The bill would change the language to “adjudicated with mental illness, severe developmental disability, or severe emotional instability.”

NOTE: Having to submit a petition and undergo a background check only apply to regular customers – if you have an FFL, even a home-based FFL, you don’t have to have a background check to purchase a firearm nor would you need to submit a petition. If this is just one more reason you’ve been thinking about getting an FFL, we’ve got you covered in our Get Your FFL Course.

Why the Bill is a Bad Idea

Larry Keane, of the National Shooting Sports Foundation, summarized the problems with this bill well when he said, “If the bill is the same as what was introduced in the last Congress, we will be opposed to it now as we were then. This bill increases the burden on small business firearm retailer owners and flips the burden of proof on its head. This would make it incumbent upon the law-abiding citizen to prove his or her innocence to the government to exercise their Second Amendment right to purchase a firearm instead of the government being responsible for proving an individual is prohibited. This could potentially deny a law-abiding citizen their rights for up to a month, while they are saddled with the burden of proving their innocence. That’s un-American.

“Rather than placing further burdens on retailers and law-abiding gun owners, Congress should focus on adequately resourcing NICS. NSSF is the only organization that has successfully advocated for NICS to have the necessary resources to perform its mission in a timely manner.”

 

Changes to Current Law

The Enhanced Background Check of 2021 in HR 1446 proposes to change the law concerning background check requirements found in 18 U.S. Code § 922.

The bill, if made into law, will remove the section which allows an FFL to transfer a firearm if a response its not received to a background check within 3 business days:

18 U.S. Code § 922(t)(1)(B)(ii) – [an FFL must run a background check and may not transfer the firearm unless they receive an approval or] “(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 the receipt of a firearm by such other person would [be prohibited from possessing a firearm]”

It will then replace that removed section with:

(ii)

in the event the system has not notified the licensee that the receipt of a firearm by such other person would violate subsection (g) or (n) of this section—

(I)

 

not fewer than 10 business days (meaning a day on which State offices are open) has elapsed since the licensee contacted the system, and the system has not notified the licensee that the receipt of a firearm by such other person would violate subsection (g) or (n) of this section, and the other person has submitted, electronically through a website established by the Attorney General or by first-class mail, a petition for review which—

(aa)

 

certifies that such other person has no reason to believe that such other person is prohibited by Federal, State, or local law from purchasing or possessing a firearm; and

(bb)

 

requests that the system respond to the contact referred to in subparagraph (A) within 10 business days after the date the petition was submitted (or, if the petition is submitted by first-class mail, the date the letter containing the petition is postmarked); and

(II)

 

10 business days have elapsed since the other person so submitted the petition, and the system has not notified the licensee that the receipt of a firearm by such other person would violate subsection (g) or (n) of this section; and

and add the following to the end of the section:

(7)

 

The Attorney General shall—

(A)

 

prescribe the form on which a petition shall be submitted pursuant to paragraph (1)(B)(ii);

(B)

 

make the form available electronically, and provide a copy of the form to all licensees referred to in paragraph (1);

(C)

 

provide the petitioner and the licensee involved written notice of receipt of the petition, either electronically or by first-class mail; and

(D)

 

respond on an expedited basis to any such petition received by the Attorney General.

(8)

 

(A)

 

If, after 3 business days have elapsed since the licensee initially contacted the system about a firearm transaction, the system notifies the licensee that the receipt of a firearm by such other person would not violate subsection (g) or (n), the licensee may continue to rely on that notification for the longer of—

(i)

 

an additional 25 calendar days after the licensee receives the notification; or

(ii)

 

30 calendar days after the date of the initial contact.

(B)

 

If such other person has met the requirements of paragraph (1)(B)(ii) before the system destroys the records related to the firearm transaction, the licensee may continue to rely on such other person having met the requirements for an additional 25 calendar days after the date such other person first met the requirements.

The bill would also change the prohibition of firearms by “mental defectives” by removing the phrase:

adjudicated as a mental defective

and replacing it with:

adjudicated with mental illness, severe developmental disability, or severe emotional instability

Statement from Rep Clyburn’s Office on HR 1446

The following is the statement released from Rep Clyburn’s office on this bill:

Enhanced Background Checks Act of 2021

The purpose of the Enhanced Background Checks Act of 2021 is to strengthen the background check procedures to be followed before a Federal firearms licensee may transfer a firearm to a person who is not such a licensee. 

When an individual attempts to purchase a firearm from a licensed dealer, the FBI has three days to complete a background check. If the background check is not completed within three days, the firearm sale may proceed without a completed check. This provision- the “Charleston Loophole” allowed a gunman to purchase the firearm used to murder nine parishioners at Emanuel A.M.E. Church in Charleston, South Carolina in 2015. 

The Enhanced Background Checks Act of 2021 addresses this deficiency by providing the FBI additional time to complete background checks, and gives notice to the FBI which cases need to be prioritized for review. 

Sec. 1: Short Title

Sec. 2: Amends the Brady Act (18 U.S.C. § 922) to require the following events before a firearm can be transferred:

  1. The passage of 10 business days since a firearms licensee requested a NCIS background check AND the system has not notified the licensee that the receipt of a firearm by such person would be unlawful;
  2. The person trying to obtain the firearm submit an electronic petition for review to the U.S. Attorney General; and

(This petition requires the person to certify that they have no reason to believe that Federal, State, or local law prohibit them from purchasing or possessing a firearm AND requests the system respond within 10 days after the date the petition was submitted.)

  1. The passage of 10 business days since the person trying to obtain the firearm submitted the petition AND the system has not noticed the licensee that the receipt of firearm by such person would be unlawful.

Further, this section outlines how long a licensee can rely on a system notification that the receipt of a firearm by a person would not be unlawful.  

Sec. 3: Requires a GAO report to the House and Senate Judiciary Committees analyzing the extent to which this language has prevented firearms from being transferred to prohibited persons. 

Sec. 4: Requires the FBI make an annual report to the public on the number of petitions received for which a determination was not made within the 10-day petition period.

Sec. 5: Requires a GAO report analyzing this Act’s effect on the safety of victims of domestic violence and whether any further amendments to the background check process are needed.

Sec. 6: Effective Date- 210 days after the date of the enactment of this Act.