BerettaGuy
.308 Win
I have been preaching - bitching and screaming for months and months that when Clinton Signed the background check law, we (gun owners) were forced to voluntarily give up our civil rights. The 4473 is a violation of our Fourth and Fifth Amendment Rights and is an infringement of our Second Amendment Rights.
YES! We gave up those rights with the promise that the info would be held sacred and the leftist would Shut the hell up!
Now they want more! Mo betta background checks - Mo Common Sense Background Checks - Who the hell do Background checks even matter to? Legal Law Abiding Gun Owners ONLY! What do they accomplish? Nothing!
Full disclosure, I joined the lawsuit way back when:
Here is Loretta Lynch's Motion to Dismiss the law suit and in it, she agrees with me!
They also admit they have been sharing 4473 info which was part of the 1993 law that the info would be kept secret by BATF.
U.S. DOJ position is that the case should be dismissed because...well...in sum and substance: you waive your civil rights when you apply to purchase a gun.
Here is the actual filing by the DOJ
http://law-policy.com/wp-content/uploads/2016/01/MoL-by-DoJ-03252016.pdf
I have highlighted some key points. Bottom line it is a catch 22 now. They have their cake and they are eating it too.
Here is the DOJ version of the History and Mechanics of the Background Check
BACKGROUND A. Statutory and regulatory background The Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921-931 (“the Act”) imposes a comprehensive, federal regulatory scheme over the manufacture and distribution of firearms and ammunition. Congress’s “principal purpose” in enacting federal gun control legislation “was to curb crime by keeping firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.” Huddleston v. United States, 415 U.S. 814, 824 (1974) (citation and internal punctuation omitted). The Gun Control Act imposes restrictions on the receipt, possession, shipment, and transfer of firearms and ammunition in or affecting interstate or foreign commerce.
In 1993, the Brady Act amended the Act to require background checks of persons attempting to purchase firearms, in order to prevent transfers to individuals whom the Gun Control Act or state law bars from possessing firearms. See H.R. Rep. No. 103-344 at 7, reprinted in 1993 U.S.C.C.A.N. 1984.
The Brady Act directed the Attorney General to establish and operate a nationwide background check system that licensed firearms dealers could contact, by phone or electronically, to be informed whether information in the system indicates that transfer of a firearm to a particular individual would be prohibited. See 18 U.S.C. §§ 922(t)(1) & (t)(2). Under the authority delegated in the Brady Act, the Attorney General established the National Instant Criminal Background Check System (“NICS”), see 28 C.F.R. § 25.1 et seq., and assigned management of the NICS to the FBI, see 28 C.F.R. § 25.3.
As a general matter, the purchase of a firearm from a licensed dealer proceeds in two phases. In the first phase, a potential purchaser completes a Firearms Transaction Record (“Form 4473”), which asks for certain identifying information, such as the purchaser’s name, sex, residence address, date and place of birth, height, weight, race, and country of citizenship. 27 C.F.R. § 478.124(c)(1).
A purchaser must also complete a certification that he or she is not prohibited by the Act from receiving a firearm. Id. A purchaser has the option of providing additional identifying information, such as his or her Social Security number, to help facilitate the NICS background check. Id. § 478.124(c)(2). After the NICS background check is complete, the licensed dealer fills in additional information on the Form 4473, such as the type of identification (e.g., driver’s license) provided by the purchaser and the make, model, and serial number of the firearm(s) to be transferred to the purchaser. Id. § 478.124(c)(3). In the second phase of the process, the licensed dealer submits, either by phone or electronically, to the NICS via the FBI or a point-of-contact state agency the following information about the potential purchaser: name, sex, race, date of birth, and state of residence. See 28 C.F.R. § 25.7(a). A background check is then performed using this information, including checks against relevant databases maintained by the FBI, such as the NICS Index, the National Crime Information Center, and the Interstate Identification Index. See 28 C.F.R. §§ 25.6(c)(1)(iii), 25.6(f)(2).
The purpose of the check is to determine whether the individual attempting to purchase a firearm falls into one of the categories of persons prohibited from receiving or possessing firearms under federal or state law.
1 See 28 C.F.R. § 25.1. If the background check reveals information demonstrating that either state or federal law prohibits the transfer, the transfer is denied; however, if there is no information demonstrating that a person is prohibited, or if three business days elapse, the transfer is allowed to proceed. See 18 U.S.C. § 922(t); 28 C.F.R. § 25.6(c).
The retention of records generated in this process is tightly controlled by regulation.
Remember the NRA was instrumental in the passage of the law and lobbied for the privacy and records rules otherwise the law would not have passed.
Licensed dealers are required to keep copies of each Form 4473 for at least 20 years following the date of sale. 27 C.F.R. § 478.129(b). Where a NICS background check is initiated but the sale or transfer of the firearm is not made, the licensed dealer must retain the form for at least five years. Id. By statute, the government has access to the Forms 4473 retained by licensed dealers only in three limited scenarios: (1) during a routine inspection of the licensed dealer, which occur no more than once per year, 18 U.S.C. § 923(g)(1)(B)(ii); (2) when a licensed dealer goes out of business and is not replaced by a successor, id. § 923(g)(4); or (3) as part of a criminal investigation, id. § 923(g)(1).
With respect to the NICS background check, the NICS retains records indicating that receipt of a firearm by a potential purchaser would violate federal or state law. 28 C.F.R. § 25.9(a). If a sale is allowed to proceed, all records pertaining to that sale generated as part of the background check, except for a unique identifying number assigned to the check and the date such a number was assigned, are destroyed within twenty-four hours. 18 U.S.C. § 922(t)(2)(C); 28 C.F.R. § 25.9(b)(1)(iii).
The FBI also maintains an automated NICS Audit Log of all incoming and outgoing transactions that pass through the NICS system. 28 C.F.R. § 25.9(b). This log contains certain information supplied to the NICS about the firearm transaction, with only identifying information about denied transactions being retained on a long-term basis. See id. § 25.9(b)(1) (requiring identifying information about an open-status transaction to be deleted within 90 days from the date of the inquiry and identifying information about allowed transactions to be deleted within 24 hours after the licensed dealer is cleared to transfer the firearm to the purchaser). Information kept in the log is used largely for maintenance purposes, including to analyze system performance, assist users in resolving operational problems, and to support audits of the system. Id. § 25.9(b)(2). Information from the log may also be used to assist ATF with investigations and conducting inspections of licensed dealers. Id. § 25.9(b)(2)(i)-(ii).
Individuals who were denied a firearms purchase following a NICS background check may apply to either the FBI or point-of-contact state agency to request the reasons for the denial. 28 C.F.R. § 25.10(a). The denying agency must respond within five days. Id. § 25.10(b). Individuals who were denied a firearms purchase may also challenge the accuracy of the record upon which the denial was based, or may demonstrate that their rights to possess a firearm have been restored.
Now for the crux of my message: Page 19 of the filing. This is the DOJ speaking:
Construed in the most generous light possible, Plaintiffs’ Fourth Amendment claim appears to rest on the belief that Defendants’ alleged use of information gathered in the NICS background check process to cross-check against the Terrorist Screening Database and the alleged disclosure of that information to other government entities constitutes a Fourth Amendment violation. To the extent this vague assertion can be construed as alleging a search or seizure, which it cannot, Plaintiffs’ claim must still fail because they have not identified any unreasonable search. The touchstone of Fourth Amendment jurisprudence counsels that an unreasonable search occurs only “when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 133 (1984). Yet the Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). Here, as Plaintiffs allege in their complaint, the information purportedly used improperly by Defendants, is provided by a customer to a federally licensed dealer when the customer applies to purchase a firearm. FAC ¶ 6. Plaintiffs have no reasonable expectation of privacy in this information that they provide to a licensed dealer during a firearms transaction. See Smith, 442 U.S. at 744 (holding that a person has no reasonable expectation of privacy in the numerical information provided to telephone companies when dialing); United States v. Miller, 425 U.S. 435, 443 (1976) (holding that a bank customer has no reasonable expectation of privacy in information submitted on checks and deposit slips, for “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed”). Plaintiffs’ Fourth Amendment claim should accordingly be dismissed.11 5. Plaintiffs’ equal protection claim fails because they have not plead facts demonstrating that Defendants acted in a discriminatory manner and because they have not shown they were treated differently than similarly situated individuals Plaintiffs next assert that Defendants’ operation of the NICS background check has discriminated against them “as potential customers of firearms,” which, in turn, has stigmatized Plaintiffs as “terrorists and potential terrorists.” FAC ¶ 125. Plaintiffs bring this claim pursuant to the Fourteenth Amendment, see id., which precludes states from, among other things, denying persons “the equal protection of the laws,” U.S. Const. amend. XIV, § 1. As a preliminary matter, the Fourteenth Amendment applies only to the acts of “states” and does not extend to the federal government, though it “has been judicially interpreted to apply to the federal government as part of the Fifth Amendment.” Weinstein v. Albright, 261 F.3d 127, 139 n.14 (2d Cir. 2001).
Plaintiffs’ claim fails for the additional reason that they have no reasonable expectation of privacy in the information provided as part of the application. See Soucie v. Cty. of Monroe, 736 F. Supp. 33, 36 (W.D.N.Y. 1990) (“Whether the Constitution in fact protects against the type of disclosure alleged to have occurred here depends upon whether the plaintiff had a reasonable expectation of privacy in the information.”). As discussed in Section B(4), Plaintiffs lack any expectation of privacy in information they voluntarily provide to a third party as part of their application to purchase a firearm.
Bottom line: Everything the NRA promised us has been violated by the Obama Administration's Dept of Justice. Even John Ascroft after Sept 11 said he could not access the 4473 info legally.
YES! We gave up those rights with the promise that the info would be held sacred and the leftist would Shut the hell up!
Now they want more! Mo betta background checks - Mo Common Sense Background Checks - Who the hell do Background checks even matter to? Legal Law Abiding Gun Owners ONLY! What do they accomplish? Nothing!
Full disclosure, I joined the lawsuit way back when:
Here is Loretta Lynch's Motion to Dismiss the law suit and in it, she agrees with me!
They also admit they have been sharing 4473 info which was part of the 1993 law that the info would be kept secret by BATF.
U.S. DOJ position is that the case should be dismissed because...well...in sum and substance: you waive your civil rights when you apply to purchase a gun.
Here is the actual filing by the DOJ
http://law-policy.com/wp-content/uploads/2016/01/MoL-by-DoJ-03252016.pdf
I have highlighted some key points. Bottom line it is a catch 22 now. They have their cake and they are eating it too.
Here is the DOJ version of the History and Mechanics of the Background Check
BACKGROUND A. Statutory and regulatory background The Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921-931 (“the Act”) imposes a comprehensive, federal regulatory scheme over the manufacture and distribution of firearms and ammunition. Congress’s “principal purpose” in enacting federal gun control legislation “was to curb crime by keeping firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.” Huddleston v. United States, 415 U.S. 814, 824 (1974) (citation and internal punctuation omitted). The Gun Control Act imposes restrictions on the receipt, possession, shipment, and transfer of firearms and ammunition in or affecting interstate or foreign commerce.
In 1993, the Brady Act amended the Act to require background checks of persons attempting to purchase firearms, in order to prevent transfers to individuals whom the Gun Control Act or state law bars from possessing firearms. See H.R. Rep. No. 103-344 at 7, reprinted in 1993 U.S.C.C.A.N. 1984.
The Brady Act directed the Attorney General to establish and operate a nationwide background check system that licensed firearms dealers could contact, by phone or electronically, to be informed whether information in the system indicates that transfer of a firearm to a particular individual would be prohibited. See 18 U.S.C. §§ 922(t)(1) & (t)(2). Under the authority delegated in the Brady Act, the Attorney General established the National Instant Criminal Background Check System (“NICS”), see 28 C.F.R. § 25.1 et seq., and assigned management of the NICS to the FBI, see 28 C.F.R. § 25.3.
As a general matter, the purchase of a firearm from a licensed dealer proceeds in two phases. In the first phase, a potential purchaser completes a Firearms Transaction Record (“Form 4473”), which asks for certain identifying information, such as the purchaser’s name, sex, residence address, date and place of birth, height, weight, race, and country of citizenship. 27 C.F.R. § 478.124(c)(1).
A purchaser must also complete a certification that he or she is not prohibited by the Act from receiving a firearm. Id. A purchaser has the option of providing additional identifying information, such as his or her Social Security number, to help facilitate the NICS background check. Id. § 478.124(c)(2). After the NICS background check is complete, the licensed dealer fills in additional information on the Form 4473, such as the type of identification (e.g., driver’s license) provided by the purchaser and the make, model, and serial number of the firearm(s) to be transferred to the purchaser. Id. § 478.124(c)(3). In the second phase of the process, the licensed dealer submits, either by phone or electronically, to the NICS via the FBI or a point-of-contact state agency the following information about the potential purchaser: name, sex, race, date of birth, and state of residence. See 28 C.F.R. § 25.7(a). A background check is then performed using this information, including checks against relevant databases maintained by the FBI, such as the NICS Index, the National Crime Information Center, and the Interstate Identification Index. See 28 C.F.R. §§ 25.6(c)(1)(iii), 25.6(f)(2).
The purpose of the check is to determine whether the individual attempting to purchase a firearm falls into one of the categories of persons prohibited from receiving or possessing firearms under federal or state law.
- 1 The ten categories are as follows: (1) persons convicted of a crime punishable by imprisonment for a term of more than one year;
- (2) fugitives from justice;
- (3) unlawful users of or addicted to any controlled substance;
- (4) persons adjudicated as mentally defective or committed to a mental institution;
- (5) aliens illegally or unlawfully in the United States, or admitted to the United States pursuant to a non-immigrant visa;
- (6) persons discharged from the military under dishonorable conditions;
- (7) persons who have renounced their U.S. citizenship;
- (8) persons subject to certain types of restraining orders;
- (9) persons who have been convicted of a misdemeanor crime of violence; and
- (10) persons under indictment for a crime punishable by a term exceeding one year.
1 See 28 C.F.R. § 25.1. If the background check reveals information demonstrating that either state or federal law prohibits the transfer, the transfer is denied; however, if there is no information demonstrating that a person is prohibited, or if three business days elapse, the transfer is allowed to proceed. See 18 U.S.C. § 922(t); 28 C.F.R. § 25.6(c).
The retention of records generated in this process is tightly controlled by regulation.
Remember the NRA was instrumental in the passage of the law and lobbied for the privacy and records rules otherwise the law would not have passed.
Licensed dealers are required to keep copies of each Form 4473 for at least 20 years following the date of sale. 27 C.F.R. § 478.129(b). Where a NICS background check is initiated but the sale or transfer of the firearm is not made, the licensed dealer must retain the form for at least five years. Id. By statute, the government has access to the Forms 4473 retained by licensed dealers only in three limited scenarios: (1) during a routine inspection of the licensed dealer, which occur no more than once per year, 18 U.S.C. § 923(g)(1)(B)(ii); (2) when a licensed dealer goes out of business and is not replaced by a successor, id. § 923(g)(4); or (3) as part of a criminal investigation, id. § 923(g)(1).
With respect to the NICS background check, the NICS retains records indicating that receipt of a firearm by a potential purchaser would violate federal or state law. 28 C.F.R. § 25.9(a). If a sale is allowed to proceed, all records pertaining to that sale generated as part of the background check, except for a unique identifying number assigned to the check and the date such a number was assigned, are destroyed within twenty-four hours. 18 U.S.C. § 922(t)(2)(C); 28 C.F.R. § 25.9(b)(1)(iii).
The FBI also maintains an automated NICS Audit Log of all incoming and outgoing transactions that pass through the NICS system. 28 C.F.R. § 25.9(b). This log contains certain information supplied to the NICS about the firearm transaction, with only identifying information about denied transactions being retained on a long-term basis. See id. § 25.9(b)(1) (requiring identifying information about an open-status transaction to be deleted within 90 days from the date of the inquiry and identifying information about allowed transactions to be deleted within 24 hours after the licensed dealer is cleared to transfer the firearm to the purchaser). Information kept in the log is used largely for maintenance purposes, including to analyze system performance, assist users in resolving operational problems, and to support audits of the system. Id. § 25.9(b)(2). Information from the log may also be used to assist ATF with investigations and conducting inspections of licensed dealers. Id. § 25.9(b)(2)(i)-(ii).
Individuals who were denied a firearms purchase following a NICS background check may apply to either the FBI or point-of-contact state agency to request the reasons for the denial. 28 C.F.R. § 25.10(a). The denying agency must respond within five days. Id. § 25.10(b). Individuals who were denied a firearms purchase may also challenge the accuracy of the record upon which the denial was based, or may demonstrate that their rights to possess a firearm have been restored.
Now for the crux of my message: Page 19 of the filing. This is the DOJ speaking:
Construed in the most generous light possible, Plaintiffs’ Fourth Amendment claim appears to rest on the belief that Defendants’ alleged use of information gathered in the NICS background check process to cross-check against the Terrorist Screening Database and the alleged disclosure of that information to other government entities constitutes a Fourth Amendment violation. To the extent this vague assertion can be construed as alleging a search or seizure, which it cannot, Plaintiffs’ claim must still fail because they have not identified any unreasonable search. The touchstone of Fourth Amendment jurisprudence counsels that an unreasonable search occurs only “when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 133 (1984). Yet the Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). Here, as Plaintiffs allege in their complaint, the information purportedly used improperly by Defendants, is provided by a customer to a federally licensed dealer when the customer applies to purchase a firearm. FAC ¶ 6. Plaintiffs have no reasonable expectation of privacy in this information that they provide to a licensed dealer during a firearms transaction. See Smith, 442 U.S. at 744 (holding that a person has no reasonable expectation of privacy in the numerical information provided to telephone companies when dialing); United States v. Miller, 425 U.S. 435, 443 (1976) (holding that a bank customer has no reasonable expectation of privacy in information submitted on checks and deposit slips, for “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed”). Plaintiffs’ Fourth Amendment claim should accordingly be dismissed.11 5. Plaintiffs’ equal protection claim fails because they have not plead facts demonstrating that Defendants acted in a discriminatory manner and because they have not shown they were treated differently than similarly situated individuals Plaintiffs next assert that Defendants’ operation of the NICS background check has discriminated against them “as potential customers of firearms,” which, in turn, has stigmatized Plaintiffs as “terrorists and potential terrorists.” FAC ¶ 125. Plaintiffs bring this claim pursuant to the Fourteenth Amendment, see id., which precludes states from, among other things, denying persons “the equal protection of the laws,” U.S. Const. amend. XIV, § 1. As a preliminary matter, the Fourteenth Amendment applies only to the acts of “states” and does not extend to the federal government, though it “has been judicially interpreted to apply to the federal government as part of the Fifth Amendment.” Weinstein v. Albright, 261 F.3d 127, 139 n.14 (2d Cir. 2001).
Plaintiffs’ claim fails for the additional reason that they have no reasonable expectation of privacy in the information provided as part of the application. See Soucie v. Cty. of Monroe, 736 F. Supp. 33, 36 (W.D.N.Y. 1990) (“Whether the Constitution in fact protects against the type of disclosure alleged to have occurred here depends upon whether the plaintiff had a reasonable expectation of privacy in the information.”). As discussed in Section B(4), Plaintiffs lack any expectation of privacy in information they voluntarily provide to a third party as part of their application to purchase a firearm.
Bottom line: Everything the NRA promised us has been violated by the Obama Administration's Dept of Justice. Even John Ascroft after Sept 11 said he could not access the 4473 info legally.
