Should NICS be available to private transactions?

[Nuclear Unicorn]

I'm thinking NICS should be available for private sellers as an incentive to do so the seller would be provided with a reference number that is associated with the gun's serial number but not the buyer's personal information.

In the event the gun is later recovered in connection with a criminal act the previous owner could present the reference number as an immunity from civil or criminal complaints. That would incentivize private sellers to use the system.

Good idea? Bad idea? Needs amending?

[jeff47]

1. I'd prefer to require it instead of incentivize it.

Make it "free" for all transfers (Pay for it via existing taxes). And require it be done on all transfers, while also providing the immunity you were describing.

[tularetom]

2. As a seller, I would be responsible for forwarding a completed form 4473 to BATFE

Would I not already know the buyer's personal information? I would have had to determine he was who he said he was and not a straw purchaser.

I've never sold a firearm, never disposed of one in any way other than giving it to a family member. But I like the idea of running a sale through NICS so any seller can cover his ass if a buyer misuses the gun criminally.

[Travis_0004]

3. One issue with that is the NICS data is not kept long term

Also, serial numbers are never given out. They NICS will ask for the info, then ask 'handgun, rifle, or other'.

That is the only info they have.

Of course the idea would still work, as the seller would have proof a background check was done.

I have done NICS checks on guns with no serial numbers as well, so they just leave that blank. If engraved my last name in a hidden area, so they can be identified as mine if stolen.

[Revanchist]

4. I had a similar idea, but the responsibility would be on the buyer

You submit your information and pay the fee ($20 maybe?) and when you clear you are given a pass code that the seller could then type in to the website and then enter the gun's serial number to verify they are selling a legal gun. The seller wouldn't have access to the buyers personal info but could see that they are legally able to purchase said weapon.

[Eleanors38]

5. What are the problems with an on-line or private land line NICS access?

Some have expressed privacy concerns, that a purchaser would have to give out data to the seller. Also, what is to keep a purchaser from using another's i.d. when handing it over to the seller for a NICS test in a private setting?

[fifthofnine]

6. I have lurked for years...

...on DU. I have decided to create an account and participate. I have been tempted many time, prior to this, to do so. I would like to state, for the record, I am not an attorney. However, I am not ignorant about such issues. I will always welcome any retorts to this, or any other, post.
This is the way I see this issue. Opening the NICS to private sellers (civilians) can be argued 'til the cows come home, whether it is a "good" or "bad idea". The first question should be, "would such a thing be legal?" I believe the answer to that question is "no" for the following reason: It is illegal, with few exceptions, for private citizens to enforce the law. Opening the NICS to civilians would do exactly that, allow civilians to enforce the law. Doing so would certainly approach, if not meet, the legal definition of "vigilantism". As far as I know, the exceptions are limited to when one witnesses a felony being committed. The NICS would not qualify for this exception. Legally, it would be very difficult to create a "carve out" stating, "it is OK for civilians to enforce law 'A', but not laws 'B through 'Z'. As I said, I welcome any comments

[Nuclear Unicorn]

7. Thank you for your comments.

I'm not sure it could be considered to be civilians enforcing the law as there is no legal requirement to check for ID when disposing of personal property.

However (and I too am not a lawyer as I have never eaten a puppy) civilians do have an obligation to enforce such things as underage drinking laws even if on private, non-commercial property.

However, I see NICS being available to private sellers, not as a law enforcement tool but rather as an indemnification tool for the seller.

[gejohnston]

8. what about gun dealers who are required to use it?

they give their FFL number and a PIN number to identifiy themselves as an authorized user. The call center simply says "proceed", "deny", or "delay".

[fifthofnine]

9. I believe....

...it would legally be "civilians enforcing law". By using the NICS, they would be enforcing federal and/or state law requiring a background check and they would be learning if another civilian could legally purchase a firearm. If the NICS check came back "negative" they could not, under the law, sell the firearm to that person. I am unsure how that could be seen as "a civilian not enforcing the law"

As far as those with an FFL...they are, I believe, acting as "agents" for the government and therefore are not "civilians" while conducting their business.

Perhaps the next time I speak with an attorney I know, I will ask his opinion on this issue. I would love to see an attorney opine on this thread.

[discntnt_irny_srcsm]

10. IMHO...

...enforcing the law would consist of making an arrest in the case of someone violating the law. Accessing the database if required by law would be analogous to driving at or below the speed limit.

Welcome aboard.

[beevul]

11. No. No serial numbers. No gun info what so ever.

If people need to be background checked, then background check them.

A simple pass/fail is sufficient.


Recording gun info in any way shape size or form in a private party transaction, beyond simple 'handgun' or 'rifle/shotgun' is a 100 percent deal breaker for me.

I also have an issue, in general, with the fed gov exercising power it wasn't granted here.

In my view, the federal government has already regulated interstate commerce by requiring gun retailers to be federally licensed, and doing so, defined interstate commerce where the gun issue is concerned, in general.

I doubt very much that any court would proclaim, literally, that all commerce is interstate where guns are concerned, and any ruling that a federal requirement for background checks for clearly intrastate commerce is constitutionally lawful, would be saying exactly that.

[fifthofnine]

12. I emailed an attorney/friend.....

....I will post my question to him and his response. (Ed. Note: I will edit my question and his response to remove personal and/or information outside the scope of the issue. I am sure other attorneys would give other answers/opinions.

Legal Question: (and you certainly don’t have to answer this….I am just curious) I have read various articles about the possibility of allowing civilians access to NICS for “private” firearm transfers. I view that as “civilians enforcing the law” or “vigilantism” which is, to my understanding, prohibited unless one is witnessing a felony. Do you think civilians could legally be permitted to access NICS? Perhaps there are two parts to this question: 1) could such access be permitted voluntarily? 2) could civilians be legally required to access NICS before transferring a firearm?

His response: Interesting questions. I think the Feds would have to change the law to allow it, then PA could permit it. Under current state law you could not require civilians to perform NICS checks. Only FFLs have any type of obligation, unless a civilian knows that a person is not to possess firearms and gives them one anyway. BTW, why isn’t that law enforced more strictly?
If the General Assembly were inclined to do anything different than what is in place now, it could open up the PSP (ed note A State Police) instant check system to civilians. You may not get too much kickback to requiring PICS checks for civilians transfers of long guns IF you allowed civilians to use PICS (ed note: PA Instant Check System) checks for private transfers of handguns and not require an FFL to be involved. I haven’t thought that through the whole way, but it has possibilities.
Always happy to dialogue on these issues. Thanks.

[fifthofnine]

13. my apologies...

...for the inadvertent face. It should read "PA" not A. This is my first time contributing to any such forum online. I am sure there will be a learning curve

Thank you for the "welcome aboard"

[Nuclear Unicorn]

14. .

[russ1943]

15. FFL’s it seems have the ability to facilitate transfers

OPEN LETTER TO ALL FEDERAL FIREAM LICENSEES….The purpose of this open letter is to remind all Federal firearms licensees (FFL)
Of their ready ability to enhance public safety and assist law enforcement by encouraging and facilitating transfers of firearms between private individuals through their businesses.
As background, millions of transactions involving the private sale of firearms between the residents of the same state occur each year in the United States at gun shows, and through
classified and online advertisements. These private sellers, who are not Federal firearms licensees, do not have the ability to use the National Instant Criminal Background Check System (NICS) to conduct background checks on prospective private purchasers and consequently Have no comprehensive way to confirm whether or not the private individual to whom they are selling a firearm is prohibited from possessing a firearm………………….
https://www.atf.gov/file/56331/download

[oneshooter]

16. I just sold a pump 22cal rifle over the net

It went to a dealer

I also sold a lever action shotgun built in 1893
It went directly to the buyer.

Both legal sales/transfers

[russ1943]

17. Why are you responding to my post?

[oneshooter]

18. Why not? n/t

[russ1943]

19. Never mind.

The single biggest problem in communication is the illusion that it has taken place.

George Bernard Shaw

[oneshooter]

22. Well since your comrads seem to believe that no internet sales of firearms

are made with a background check you would take offense at both the sales and the delivery of these firearms.

[fifthofnine]

20. This phrase....

..."These private sellers, who are not Federal firearms licensees, do not have the ability to use the National Instant Criminal Background Check System (NICS) to conduct background checks..." is in agreement what my attorney friend told me, "...I think the Feds would have to change the law to allow it,..."

I have no doubt many (all?) FFL holders would agree to conduct voluntary background checks for individuals. I have heard of, and read of, those who do it for a fee usually between $25 and $40 per check.

[russ1943]

21. ATF is encouraging FFL's to help private sellers.

The phrase your quoting follows a rather clear affirmation that the OP is pondering.
“I'm thinking NICS should be available for private sellers……..”
It is, not directly, but through FFL's.
My post #15 presents a Jan 16, 2013 letter from ATF to FFL’s reminding them they already have the ability to facilitate transfers between private individuals. The FFL’s have the authority already, the private sellers who do not have direct access to NICS , and some apparently are not aware they can utilize that access through the FFL’s. The FFL’s must record “ Private Party Transfer”. FFL’s providing a NICS check to private sellers doesn’t appear to be mandatory, they may charge an administration fee and they would have to comply with state laws. There would be no need as I understand it for any laws to be changed as this already occurs.

Read the letter. https://www.atf.gov/file/56331/download