~Basil

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Newsletter:

A gun owner in eastern Montana contacted me to say that a corporate chain store in his area that also sells firearms refused to transfer a new firearm to him until the background check cleared, even though he has a CWP and the backgrounds checks are being WAY slow.

I checked and other corporate FFLs are applying the same policy.

I thought you might be interested in my response to this guy (below).

BTW, this problem is just one reason it is so important not to let the anti-gunners "close the gun show loophole" by invoking a "universal background check" that would make the Brady Law apply to private transfers of used firearms, in addition to the now effective government monopoly over new firearms.

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Jim,

So, here's the deal.

The FBI runs the NICS "instant" check system. They have been slammed with workload and cannot keep up. They are running 30 days and longer on NICS checks.

The Second Amendment and its equivalent in the Montana Constitution, Article II, Section 12, are restrictions on government entities and government activities, but not on private parties. The Brady Law, the federal law that restricts sales of new firearms by federally licensed dealers (FFLs), says that if the FBI doesn't issue a denial via the NICS of a purchase within three days, then the vendor MAY transfer a firearm to a purchaser.

However, neither the Second Amendment or the Brady Law prevent a vendor from being more restrictive, as Runnings and other corporate FFLs (such as Cabellas, Sportsmans Warehouse, etc.) have chosen to be. It's like a private merchant's prerogative to enforce "No shirt, no shoes, no
service. The only exceptions to this broad prerogative for private merchants would be for certain types of discrimination, such as a policy not to sell to women or Asians (although a merchant's policy to not sell Bowie knives or gunpowder to ten-year-old boys would probably be allowed as a class of discrimination).

I understand that the BATFE, which regulates FFLs, has recommended to FFLs that they wait to transfer affected firearms until the FBI catches up and clears a NICS check for that firearm. Because of this, especially corporate FFLs believe they might have some liability exposure if they transfer a firearm without NICS approval and that firearms is subsequently used for something illegal. Corporate FFLs have watched the destructive lawsuits by the anti-gunners against FFLs that transferred firearms that they allegedly shouldn't have transferred.

Despite that concern, a person would think that transferring firearms to customers who have a CWP (effectively a standing NICS check) would avoid that liability for FFLs, so the FFL would feel legally comfortable with the no-more-than-three-day-delay built into the Brady law. There may be an opportunity for education of FFLs concerning the NICS delays, liability avoidance, and transfers to people with CWPs.

Having said all of that, it should be an item of interest to actual and prospective customers if a vendor has a policy that will delay the consummation of a sale for a month or more. I'm working on getting some media attention to this issue so that customers will be better informed about where to shop, or not. Buyer beware.

Thanks for reporting this to me. Let me know if there's any more info I can provide.

Best wishes,

--
Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, /Gun Laws of Montana/
http://www.mtpublish.com