KC3 Seeks To Restore NICS Exception for KY CCDW Licensees

According to Title 18 United States Code, Section 922(t)(3), the necessity to contact The National Instant Check System (NICS) "shall not apply to a firearm transfer between a licensee and another person if - such other person has presented to the licensee a permit that - allows such other person to possess or acquire a firearm; and was issued not more than 5 years earlier by the State in which the transfer is to take place; and the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law..."

Kentucky concealed carry deadly weapon licensees (CCDWL) were once granted this exception to the NICS requirements on a firearms purchase. The 1998 Regular Session of the General Assembly amended Kentucky Revised Statutes (KRS) Chapter 237 through passage of House Bill (HB) 318. One of the intents of this legislation was to provide for conducting a record check on license applicants in the manner necessary to exercise the exception to the NICS requirements under the “Brady Law” on the purchase of a firearm. HB 318 was signed into law in April, 1998 and took effect in July of the same year.

According to the amended KRS 237.110 (1), before a concealed carry license is issued "The Department of State Police or the Administrative Office of the Courts shall conduct a record check, covering all offenses and conditions which are required under 18 U.S.C. sec. 922(g) and this section, in the manner provided by 18 U.S.C. § 922(s)." The only passage found within 18 U.S.C. § 922(s) that provides for conducting a record check is subparagraph (2): "A chief law enforcement officer to whom a transferor has provided notice pursuant to paragraph (1)(A)(i)(III) shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General."

In order to comprehend the situation, one must first understand the Brady Law. Certain provisions of the Brady Law could not be implemented immediately because a central database of criminal history was not available. There were a number of compilations of this data but it would take a while to put it all in one place. In order to implement the Brady law as soon as possible, some provisions were temporary and the 1993 law provided a time frame of 5 years for the permanent system to be built and installed. The permanent NICS system went into effect on November 30, 1998.

The Kentucky State Police (KSP) used the "information available" to determine the legal fitness of CCDWL applicants and licenses issued after July 15, 1998 qualified for the exception. Because the permanent NICS system went into effect in November, the Bureau of Alcohol, Tobacco and Firearms (BATF) implemented new regulations to unify the system. According to Kent M. Cousins, Chief, Firearms Programs Division, BATF "The regulations provide that as of November 30, 1998, the "information available" to a government official issuing permits includes NICS. [Title 27of the Code of Federal Regulations] § 478.102 (d)(iii). Thus; in order for a permit issued on or after November 30, 1998 to qualify for the permit exception, a NICS check must have been done before the permit was issued."

So, the window opened July 15, 1998 and was then closed November 30, 1998. But the law did NOT change. Kentucky statutes basically provide that the check must be done in the manner required to claim the exemption. Going back to KRS 237 "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. § 922(s)." The key phrase to the puzzle can be found in 18 U.S.C. § 922(s). "...including research in ... a national system designated by the Attorney General".

The “national system” indicated would seem to be the NICS. According to the Federal Register, “NICS means the National Instant Criminal Background Check System” [Pg 58308, Vol. 63, No. 210 / Friday, October 30, 1998 / Rules and Regulations] Correspondence directed to The Office of the Attorney General of The United States (US AG) asked that he verify that NICS is indeed the “national system designated by the Attorney General” as referred to in 18 U.S.C. sec 922(s). A reply from the US AG, dated February 4, 2004, stated that “the ‘national system designated by the Attorney General’ is specifically the NICS” and that “any reference to a ‘check’ in the Gun Control Act does refer to the NICS.”

The logical conclusion, therefore, is that applicants for a Kentucky license permitting the concealed carry of deadly weapons shall have a NICS check performed prior to issuance of the license. However, according to the February 12, 2003 letter from Mr. Cousins, “Kentucky does not conduct NICS checks before issuing concealed carry licenses.” This was subsequently confirmed by Captain Alecia Webb-Edgington, Commander, KSP Criminal Identification and Records Branch:

"The Kentucky State Police conduct a more thorough criminal record check than that provided by NICS. The check conducted by our agency includes all files that are searched by NICS plus supplementary Administrative Office of the Courts files. These files include a listing of all mental health involuntary commitments, and Law Information Network of Kentucky (LINK) "hot files" which include, active and historical Emergency Protective Orders (EPO's) and Domestic Violence Orders (DVO's), as well as, the wanted files. We also examine the Kentucky Criminal History. The Kentucky State Police has designated the aforementioned process as a
more comprehensive approach as compared to the utilizationof NICS.

That's fine but the law demands that they shall do "research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General"

KC3 sent a request to the Kentucky Attorney General that he weigh in on this issue. KRS 15.025(4) provides that, if, in his discretion, a "question presented is of such public interest that an Attorney General's opinion on the subject is deemed desirable", he shall provide one. We asked of him the following three questions, each one qualified by the one before it:

Whereas Kentucky Revised Statute 237.110(1), provides that before a concealed carry license is issued, "The Department of State Police or the Administrative Office of the Courts shall conduct a record check, covering all offenses and conditions which are required under 18 U.S.C. sec. 922(g) and this section, in the manner provided by 18 U.S.C. sec. 922(s)"; And whereas the manner provided by 18 U.S.C. sec. 922(s) would include “research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General"; And whereas, according to the Office of the Attorney General of the United States, “the ‘national system designated by the Attorney General’ is specifically the NICS” and that “any reference to a ‘check’ in the Gun Control Act does refer to the NICS”; Therefore, does the law of this Commonwealth in fact require that a NICS check be conducted upon applicants for a Kentucky license to carry concealed deadly weapons?
If so, then: Regardless that the Kentucky State Police provides a “more comprehensive approach as compared to the utilization of NICS”, does this satisfy the specific requirement of KRS 237.110(1) to perform a NICS check in addition to “research in whatever State and local recordkeeping systems [that] are available“?
If so, then: Whereas KRS 237.110(1) has been in effect in its current codification since prior to the November 30, 1998 implementation of 27 C.F.R. § 478.102 (d)(iii) and the designation of NICS as the “national system designated by the Attorney General“, is the Kentucky State Police or the Administrative Office of the Courts required to perform a NICS check upon each concealed carry license application submitted since the November 30, 1998 implementation of the new interpretation?

Now we wait for an answer, if he will give us one. If he won't, we will try to find a legislator that will ask him. Then he will surely grant us an answer. If he agrees that a NICS must be done on all applicants, then we can go back to the BATF and ask if the exception will then be granted. There is no indication in prior correspondence that there are any other reasons for the denial. But, if so, we'll cross that bridge when we come to it.

Of course, if he doesn't see things the same way we do, we will go to the legislature and attempt to clarify the language of the law.

16 MAR 2004