88 Day NICS Denials and the Biden Pistol Ban

BACKGROUND: ATF Forms must always be filed, completed, and approved and a unique federal tax stamp must always be issued prior to the manufacture or transfer of a “firearm” under the National Firearms Act (NFA). This includes Short-barreled Rifles (SBR), Short-barreled Shotguns (SBS), and Any Other Weapons (AOW). In the case of the Biden Pistol Ban,(i) the ATF purports that everyone’s braced pistols are instead illegal and unregistered SBRs or similar. Therefore, ATF is offering 120 days of enforcement discretion” and free registration for these already made unregistered so-called NFA firearms.(ii)

Existing 88 Day Timer Resulted in over 1.1 Million Background Check Denials

During the NFA approval process, ATF runs a background check through the FBI’s National Instant Criminal Background Check System (NICS). However, ATF bureaucrats often run out the clock and fail to process paperwork in a timely manner. Sometimes, certain background records may be incomplete or old investigations were never closed or otherwise lack a disposition, and FBI may not be able to determine whether an individual is prohibited in 88 days.

If the bureaucrat fails to complete the background check within 88 days after initiation, ATF’s system automatically denies the applicant. Because the gun owner is now treated as having failed a background check, the application is “return[ed] without action,” and the gun owner is forced to re-apply at the back of the queue.(iii) The gun owner may not make or transfer the NFA firearm. A report discovered that this happened 1.1 million times from 2014 through July 2019.(iv)

Background Check Errors Will Put Hundreds of Thousands in Legal Gray Area, ATF Declines to Help

ATF specifies in the Biden Pistol Ban Q&A that gun owners will not be able to re-apply with amnesty if they receive a denial based on a failed background check(v) and ATF “will not” help them correct the record.(vi) When a GOA attorney at SHOT Show asked an agent what would happen after a so-called “open” denial, he was informed that the ATF would take enforcement action.(vii) Perhaps hundreds of thousands of gun owners will submit photo and written documentation directly to ATF that they possess now unregistered and therefore illegal Short-barreled firearms. Then, because of the broken background check system, they will be denied permission from the federal government to keep their firearm and ATF will treat it as a regulated NFA firearm pursuant to the final rule, despite the owner’s attempt at compliance with the Biden Pistol Ban. ATF has gone on to “clarify” this response, albeit in an unsatisfactory way.

ATF’s “Solution” is Non-Binding, Worthless, and Contradicts Statue

ATF has attempted to clarify and reassure gun owners that compliance with the Biden Pistol Ban’s registration process will not result in criminal prosecution, but its agents appear to be contradicting each other and their clarifications are non-binding at best. ATF’s Public Affairs Division told AmmoLand News(viii) that:

If an application is disapproved due to the FBI not being able to provide a proceed for the background check (after 88-days),the applicant can resolve issues with the FBI and resubmit their application to ATF (See items 21-23 in the questions and answers), even if that resubmission is after the initial 120-day period.

That is not good enough. If ATF wants to clarify that it will use appropriate discretion and not prosecute gun owners who have received a denied amnesty application because of an open background check but continue to possess the illegal firearm, it should have been mentioned in the final rule and further binding clarification should be issued.

This rogue agency has a history of flippantly changing rules to make felons of everyday Americans. This was seen only a week before the Biden Pistol Ban was published in the Federal Register, when ATF made significant changes to the NFA FAQs that made a commonplace occurrence a criminal violation.(ix) The agency then deleted the change within 24 hours without official comment.(x)

ATF is not a legislative body, and they are playing with people’s lives and livelihoods with their thoughtless and draconian rules.” GOA is especially disturbed that ATF anticipated this problem with the Biden Pistol Ban but did not include enforceable protections for gun owners in the final rule, but rather only included a confusing and non-binding “protection” in a fungible Q&A document supporting the final rule. This is one of many reasons the final rule should be reversed, the NFA should be repealed, and the rogue ATF should be reined in.

(i) Bureau of Alcohol, Tobacco, Firearms, and Explosives. “Factoring Criteria For Firearms With Attached Stabilizing Braces”. 2023.
(ii) Ibid.
(iii) Stetly. National Firearms Act Division Letter in Response to Form 4 Application for Tax Paid Transfer and Registration of a Firearm. Bureau of Alcohol, Tobacco, Firearms, and Explosives.
(iv) Eaton. “FBI never completes hundreds of thousands of gun checks”. Roll Call. December 3rd, 2019.
(v) Bureau of Alcohol, Tobacco, Firearms, and Explosives. NFA Form 1 Submission External Guidance with Q&A Guidance is Specific to ATF Final Rule 2021R-08F”. 2023. Answer to Question 21.
(vi) Ibid. Answer to Question 23.
(vii) Stamboulieh on Guns & Gadgets. “BREAKING ATF NEWS! Gun Owners of America Uncovers Fatal Flaw In Pistol Brace Rule…IT’S A TRAP!!!”. YouTube. January 19th, 2023.
(viii) Crump. “ATF Comments on 88-Day Automatic Denial of Pistol Brace Tax Stamps”. AmmoLand News. January 29th, 2023.
(ix) Gun Owners of America. Twitter. 3:31 PM January 25th, 2023.
(x) Gun Owners of America. Twitter. 4:39 PM January 26th, 2023