In February 2004, then Attorney General Alberto Gonzales directed the Department of Justice (DOJ) Office of Legal Policy (OLP) to form a working group to review federal firearms and explosives laws*particularly in regard to NICS background checks*to determine whether additional authority should be sought from Congress to prevent firearms and explosives transfers to known and suspected terrorists. In the 111th Congress, Senator Frank Lautenberg and Representative Peter King have reintroduced a bill (S. 1317/H.R. 2159) that would authorize the Attorney General to deny the transfer of firearms or the issuance of firearms and explosives licenses to known or suspected terrorists. This bill reportedly reflects a legislative proposal developed by DOJ.
In general, this bill would amend the Gun Control Act (GCA) to grant the Attorney General the discretionary authority to deny a firearm transfer or state-issued firearms permit to any prospective transferee or permittee through Brady background checks, if the Attorney General determines that the prospective transferee is known (or appropriately suspected) to be or to have been engaged in conduct constituting, preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism, and has a reasonable belief that the prospective transferee may use the firearm in connection with terrorism (proposed 18 U.S.C. §§ 922A and B). The bill would make similar amendments to the provisions of the GCA governing the processes by which federal firearms dealer licenses are issued and revoked (18 U.S.C. §§ 923(d) and (e)).
The bill would also amend the GCA provision (18 U.S.C. § 922(g)) that enumerates several classes of persons who are prohibited from shipping, transporting, possessing, or receiving a firearm or ammunition, so that it would include persons who were the subject of terrorism-related determinations (described above). The bill would amend the GCA provision (18 U.S.C. § 922(d)) that prohibits any person from transferring a firearm to any prohibited person to include any person who was the subject of a terrorism-related determination as well. In addition, the bill would amend the NICS background check provisions (18 U.S.C. § 922(t)) to reflect that the Attorney General would have this new discretionary authority under the proposed 18 U.S.C. §§ 922A and B.
With regard to NICS denials of firearms transfers or state-issued firearms permits based upon terrorist watch list hits and subsequent determinations by the Attorney General, the bill would amend the Brady Act (P.L. 103-159) to allow a denied prospective transferee to request from the Attorney General the reasons for the denial, but it would also give the Attorney General the authority to withhold those reasons if he determines that such a disclosure would compromise national security. The bill would make a similar amendment to the Brady Act in regard to correction of erroneous information.
Furthermore, the bill would amend the GCA provision that addresses erroneous denials (18 U.S.C. § 925A), to allow any person denied a firearms-related transfer or permit to challenge that determination in U.S. court within 60 days of that determination. This proposed amendment would require the court to sustain the Attorney General’s determination upon a showing by the U.S. Government a preponderance of evidence standard that the determination satisfied the proposed provisions described above (18 U.S.C. §§ 922A and B). The proposed amendment would also allow the court to rely upon summaries or redacted versions of documents underlying those determinations, if those documents contained information that could compromise national security, but it would also allow a court to review the full, undisclosed documents ex parte and in camera at the court’s option or on the motion of the petitioner (denied person). The proposed amendment would also allow the court to determine whether the summaries or redacted versions of the documents were fair and accurate representations of the underlying documents; however, it would not allow the court to overturn the Attorney General’s determination based on the full and un-redacted documents.