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Must I sue the FBI to resolve my NICS appeal and exercise my Second Amendment right to keep and bear firearms?

Suppose the government somehow prohibited you from speaking or writing on a vital topic. The economy, for example, or foreign policy, or even the designated-hitter rule. Or suppose the government prohibited you and others from gathering in a private home for religious study.

And suppose you objected to the government, and explained that the First Amendment protected your right to speak, to write, to assemble as a group, and to freely exercise your religious belief.

And suppose the government responded to your objection by telling you that it would give your complaint thorough and thoughtful consideration and give you a response in about 20 months.

You probably would feel that your rights, protected by the First Amendment, were being violated by the government, yes? I would.

How would you feel if the FBI’s National Instant Criminal Background Check System (NICS) denied permission for you to purchase a firearm, even though you are a law-abiding citizen with no restrictions on your firearm rights, which, after all, are protected by the Second Amendment? You probably would want to file an appeal with NICS, and demand to know the reason for the denial.

If you did that today, in April 2017, NICS would tell you:

“The NICS Section’s Appeal Services Team is currently processing appeal cases and Voluntary Appeal File (VAF) cases received in August 2015.”

You read that correctly: August 2015. That text is copied and pasted directly from the NICS Appeals webpage, and it is the same information NICS will send you in a letter if you write and ask the agency to give you an update on the status of your appeal . . . if the agency replies at all. Here is what the FAQ section of the NICS Appeals web page has to say about follow-up inquiries:

Is there a way to find out the current status of my appeal request?

The FBI is no longer performing status checks on NICS appeals. You will receive written notification when your appeal has been processed. Appeal cases are worked in the order in which they are received.

In plain English: “Sit down and shut up. We’ll get to you when we get to you.”

You may search the United States Code and the Code of Federal Regulations in vain for some passage imposing a deadline on NICS to process an appeal. The agency is required to respond within five business days after receiving the initial appeal “with the reasons for the denial.” (28 CFR §25.10(b)) Sometimes NICS complies with this requirement. But NICS also has failed to acknowledge appeals submitted by our office. When NICS provides a reply, it usually is so general or vague that the reply conveys no meaningful information.

In the absence of some deadline for considering the appeal NICS apparently has slowed, if not stopped, its consideration of appeals.

About the only lever available to appellants seems to be a statute (18 U.S.C. § 925A) which authorizes a lawsuit against the government to seek a federal court order directing NICS to approve the transfer.

In my view, a citizen should not be put to the trouble of suing his own government in order to exercise a constitutionally protected right which is in no way impaired. Yet there have been many thousands of civil-rights cases filed against the government for various invasions of citizens’ rights, so perhaps we should not be surprised.

At least one lawyer has achieved success for his clients using this strategy.  In his cases, after he filed the lawsuit in federal court, the NICS appeals filed by his clients magically received approval from NICS. The lawsuits became moot. It makes sense: the government would have lost the cases, setting a poor precedent for NICS.

Other such lawsuits are in preparation. Stay tuned.

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