H. R. 1817
IN THE HOUSE OF REPRESENTATIVES
March 18, 2019
Mr. Emmer (for himself, Mr. Gosar, and Mr. Newhouse) introduced the following bill; which was referred to the Committee on the Judiciary
To enforce the requirement that the National Instant Criminal Background Check System make a final disposition of requests to correct its records within 60 days, and for other purposes.
This Act may be cited as the
Firearm Due Process Protection Act .
Enforcement of deadline for final disposition of requests to correct records of the National Instant Criminal Background Check System; due process protections
Section 925A of title 18, United States Code, is amended—
(a) In general.— before
or aggrieved by a violation of the penultimate sentence of section 103(g) of the Brady Handgun Violence Prevention Act after
(s) or (t) of section 922;
by striking the last sentence; and
by adding after and below the end the following:
The court shall hold a hearing on an action brought under subsection (a), within 30 days after the action is brought.
Burden of proof
At such a hearing, the respondent shall bear the burden of proving by clear and convincing evidence that the individual is ineligible to receive or possess a firearm.
The court shall assess against the respondent reasonable attorney fees and other litigation costs reasonably incurred in an action brought under subsection (a) in which the complainant has substantially prevailed.
For purposes of this section, a complainant has substantially prevailed if the complainant has obtained relief through—
a judicial order;
an enforceable written agreement or consent decree; or
a voluntary or unilateral change in position by the United States, if the complainant’s claim is not insubstantial.
Annual reports to the Congress on disposition of challenges to accuracy of records of the National Instant Criminal Background Check System
The Director of the Federal Bureau of Investigation shall submit annually to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a written report that specifies—
the total number of challenges to the accuracy of the records of the National Instant Criminal Background Check System (in this section referred to as the
NICS system) established under section 103 of the Brady Handgun Violence Prevention Act that were received by the NICS system during the year covered by the report;
the total number of the challenges that were processed to final disposition by the NICS system;
the total number of the challenges with respect to which the initial determination of the NICS system was reversed, and with respect to those challenges, the total number in which each reason for the initial determination was made;
the total number of the challenges with respect to which the initial determination of the NICS system was not reversed, and with respect to those challenges, the total number in which each reason for not doing so was made; and
the average length of time needed to complete the processing of the challenges referred to in paragraph (2).
Sense of the Congress
It is the sense of the Congress that—
the right of the people to keep and bear arms is a fundamental component of self-government, self-defense, and the preservation of individual liberty;
deprivation of the constitutional right to bear arms requires due process under the Fifth and Fourteenth Amendments to the Constitution of the United States;
ignoring appeals of determinations made by the National Instant Criminal Background Check System (NICS) violates due process; and
NICS should have the burden of showing a valid reason for the denial of this constitutional right.