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NICS Update for
KY
July 12, 2006 has been etched in stone regarding the NICS exception
By James R. Hall
2nd VP, KC3
As we reported several months ago, a recent change in
Kentucky law allows CCDW licenses issued by the Commonwealth after
July 12, 2006 to substitute for the purchaser having to submit to
the National Instant Criminal Background Check System (NICS). This
exception to the background check requirement has been available
since the inception of the Brady Law and
KY
licensees actually qualified for it for the latter part of 1998
until the federal language was re-interpreted that year following
the implementation of the current NICS system.
Kentucky House Bill 40, our concealed carry licensing law passed in
1996, was drafted with the knowledge that the United States Attorney
General had in place a system that would eventually become the
permanent NICS once it was deemed to be an instant check and that
requiring CCDW license applicants to submit to this particular
background check would qualify them for the exception. The language
of HB 40 required that “The Department of State Police or the
Administrative Office of the Courts shall conduct a record check...
in the manner provided by 18 U.S.C. sec. 922(s)" on each license
applicant. That passage of federal law mandated “research in
whatever State and local recordkeeping systems are available and in
a national system designated by the [US] Attorney General”.
Correspondence from the US AG in February of 2004 confirmed that
NICS was the “system designated by the Attorney General”.
The Kentucky State Police (KSP) were charged with enforcing the
background check provision of our licensing law and they decided
that the department would apply “a more comprehensive approach”
using many other databases and simply disregard the obvious intent
of the statutes that a NICS check be completed regardless. KC3
contacted the KSP and the KY Attorney General attempting to have the
law followed so that a NICS check would be completed on all
applicants but the KSP wouldn’t budge from their position.
Eventually, language was inserted in the Omnibus Gun Bill of 2006,
HB 290, that mandated a check in the NICS specifically, in
addition to any other databases they wished to query.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE)
issued an
open letter to all federally licensed firearms dealers in KY
advising of the new development in the law and the availability of
the exception for KY licenses issued after the new law went into
effect on July 12. Around this same time, KC3 learned that the KSP
was performing NICS checks on every licensee every thirty days in
order to determine if the licensee remained qualified to possess a
license under the terms of the licensing law.
We found this information to be rather interesting in light of the
terms of the exception. The federal exception to the NICS
requirement is granted if three conditions are met:
1. The purchaser holds a license that allows him to
possess, acquire or carry a firearm.
2. The license was issued not more than five years
earlier by the state in which the transfer is to take place.
3. The law of the state must mandate that a NICS
check be completed on each applicant prior to issuance of the
license.
We made a logical assumption based on the facts at
hand. If a licensee would qualify for the exception four years and
eleven months after he submitted to a NICS check as an applicant,
then certainly any KY licensee should qualify after he was
initiated into a program that subjected him to a NICS check every
thirty days. Unfortunately, logic simply does not apply when dealing
with government bureaucracy. Regardless that the language of the
statute in question made no mention of such circumstances, we
thought we would give it a shot anyway. KC3 wrote to the BATFE with
the following question:
If the Bureau can establish as fact the procedure
of the KY State Police that uses the NICS system on each current
licensee to regularly verify the eligibility of the licensee to
possess a firearm, is it possible to extend the exception
identified in 27 CFR § 478.102 to all KY licensees after the KY
State Police has completed the check at least once on all
licensees?
The answer we got from the BATFE was pretty straight
forward:
“...a determination was made that the permits
issued prior to July 12, 2006 did not qualify for the exception,
as the process for their issuance did not meet the requirements.
Permits issued prior to July 12, 2006, will not be further
considered for the exception.”
If you lose your license and have it replaced, it
will have the original issue date so that is not a means of getting
around the requirement. We haven’t taken the time to find out just
how far in advance of your expiration date you can apply for a
renewal but, we are assuming that as long as you are willing to drop
the sixty bucks to get a new license, the state will gladly take
your money! If anyone out there is willing to give this a try and
pay for the privilege of skipping the NICS, please let us know how
you fared.
Believe me, I feel your pain. I personally spent a lot of time and
effort to re-secure the opportunity for Kentuckians to take
advantage of this exception. With a name as common as mine, I have
had to wait as much as two days and never less than twenty minutes
to get a NICS confirmation. When will I get to exercise the
exception? My license expires in March of 2011. So, if in the next
four years or so you see a guy at the gun shop cooling his heels
waiting for the phone to ring, saunter on over and say hey, there’s
a good chance it will be me!
29 Dec 2006 |
