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NRA petition to the District Court.
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http://www.potowmack.org/nrareno3.html

Dept. of Justice brief to the Appeals Court. THIS FILE

NRA reply brief to the Appeals Court.
http://www.potowmack.org/nrareno4.html

DC Court of Appeals opinion
http//pacer.cadc.uscourts.gov/common/opinions/200007/99-5270a.txt
The NRA lost this one. The dissenting opinion is by David Sentell, a Jesse Helms crony, who played a role in getting Kenneth Starr into the Office of Independent Coucil to pursue sexual McCathryism against President Clinton.


The background for NRA v. Reno is Stephen Halbrook's "Congressional Interpretations," Tenn. Law Review, Spring, 1995. There is no secret about what the NRA and Stephen Halbrook want. They want to maintain a balance of power between a privately armed populace and any and all government. This is the essence of the armed populace fantasy. The armed populace fantasy denies the legitimacy of public authority and the viability of political community. The Constitution is reduced from a frame of government with "just powers" (public authority) derived from the consent of the governed to a treaty among sovereign individuals who give no more than word honor and promise of good faith. See Potowmack Institute amicus in Emerson.

The NRA has lobbied Congress since the 1930s to have its minions write into law that there is no intent to register guns. It then goes to court to argue that the courts have to respect the will of Congress which is presumably the will of the people when it is only the will of NRA lobbyists. Registration means accountability to public authority. It means the consent to be governed and the accommodation to public authority. Other expositions on this strategy are in Halbrook's petitition for Sheriff Printz in Printz and Mack and in the Citizens Committee on the Right to Keep and Bear Arms's amicus brief in Emerson, .../ccrkba.html.

The problem with the armed populace fantasy is that it has no roots in the consciousness and practices of the militia and the early republic. It is a strictly mid and late twentieth century invention. The Militia Act of 1792, enacted by the same people who ratified the Second Amendment, required the states to "enroll"--that is, register--militiamen for militia duty. It also required the state militia officers to maintain inventories, called "Return of Militia," including privately owned weapons and report these to the state governor and the president of the United States. The militia returns included rifles, muskets, side arms, pistols, pounds of powder, flints, etc.

What is remarkable about the armed populace fantasy is that there is no public enlightenment or opposition political leadership that exposes the fraud and the strategy and defines the issue in any other terms.
http://www.potowmack.org/cong5.html
http://www.potowmack.org/196rehm.html
http://www.potowmack.org/bcabcnra.html
http://www.potowmack.org/news.html
http://www.potowmack.org/washpost.html
http://www.potowmack.org/emerappi.html


NRA v. RENO

ORAL ARGUMENT SCHEDULED FOR MARCH 17, 2000

No. 99-5270

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATIONAL RIFLE ASSOCIATION OF AMERICA, INC. et al.,
Plaintiffs -Appellants,

v.

JANET RENO, UNITED STATES ATTORNEY GENERAL,
Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIAM
BRIEF FOR APPELLEE

DAVID W. OGDEN
Acting Assistant Attorney General

WILMA A. LEWIS
United States Attorney

MARK B. STERN
SUSAN L. PACHOLSKI
Attorneys, Appellate Staff
Civil Division
Department of Justice


CERTIFICATE OF COUNSEL AS TO
PARTIES, RULINGS, AND RELATED CASES

A. Parties And Amici: Appellants in this appeal are the National Rifle Association of America, Inc., Law Enforcement Alliance of America, Inc., and natural persons denominated Jane Doe I, Jane Doe II, John Doe I, John Doe III, and John Doe IV. Appellee in this appeal is Janet Reno, United States Attorney General. No amici participated in the district court proceedings, and none have participated thus far in this appeal.

B. Rulings Under Review: Appellants seek review of the final judgment entered in this action on July 7, 1999 by Judge James Robertson, United States District Court for the District of Columbia, in Civ. No. 98-02916. The district court’s ruling is unpublished, and is reprinted in the Joint Appendix beginning at page 34. The final judgment incorporates the district court’s ruling dated January 26, 1999, denying plaintiffs’ motion for a preliminary injunction. No appeal was taken from that unpublished ruling, which is reprinted in the Joint Appendix beginning at page 24.

C. Related Cases: This case has not previously been before this Court or any other federal court of appeals. Counsel is not aware of any related cases.

Susan L. Pacholski
Attorney for Appellee


TABLE OF CONTENTS

CERTIFICATE OF COUNSEL AS TO PARTIES, RULINGS, AND RELATED CASES

GLOSSARY

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION. . . . .1

STATEMENT OF THE ISSUES. . . . 2

PERTINENT STATUTORY AND REGULATORY PROVISIONS. . . . 2

STATEMENT OF THE CASE. . . . .2 A. Statutory and Regulatory Framework. . . . 2

1. The Gun Control Act. . . . .2

2. Regulatory Framework. . . . .5 a. The National Instant Criminal

Background Check System. . . . .5

b. The Audit Log Regulation. . . . .7

3. Subsequent Legislation. . . . . 9

B. Prior Proceedings. . . . . .10 SUMMARY OF ARGUMENT. . . . . 11

ARGUMENT. . . . . 14

STANDARD OF REVIEW. . . . .14

I. THE AUDIT LOG REGULATION IS A REASONABLE
INTERPRETATION OF THE REQUIREMENTS OF THE
BRADY ACT. . . . . 14

A. Records Of Allowed Transfers Are Kept
For A Limited Time Solely To Ensure the
Privacy And Security Of The Information
Of The System. . . . . 14

B. The Attorney General Reasonably Determined That Retaining Records

For A Limited Time Is Consistent With
The Brady Act. . . . . 18

C. The Audit Log Does Not Constitute
A Federal Firearms Registry. . . . .23 I I. STATE RETENTION OF RECORDS OF FIREARMS
TRANSACTIONS DOES NOT VIOLATE THE BRADY ACT. . . . .31

III. THIS COURT SHOULD NOT ENTERTAIN THE
NRA’ S FOURTH AMENDMENT CLAIM. . . . . 34

CONCLUSION 36

CERTIFICATE OF SERVICE

CERTIFICATE REQUIRED BY CIRCUIT RULE 28(d)(1) $$

Glossary

ATF. . . . .Bureau of Alcohol, Tobacco, and Firearms

FBI. . . . . Federal Bureau of Investigation

NRA. . . . . National Rifle Association

NICS. . . .National Instant Criminal Background Check System


TABLE OF AUTHORITIES
(OMITTED)


IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 99-5270
NATIONAL RIFLE ASSOCIATION OF AMERICA INC., et al.
Plaintiffs-Appellants,

v.

JANET RENO, UNITED STATES ATTORNEY GENERAL,
Defendant-Appellee.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


BRIEF FOR APPELLEE


STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION

Plaintiffs-appellants the National Rifle Association of America, Inc., Law Enforcement Alliance of America, Inc., Jane Does I and II, and John Does I, III, and IV (collectively, "the NRA"), invoked the district court’s jurisdiction pursuant to 28 U.S.C. § § 1331, 2201, and under the Administrative Procedure Act, 5 U.S.C. § 701. Joint Appendix ("JA") 8. The district court entered final judgment in favor of the defendant on July 7, 1999. JA 34-39. Plaintiffs filed a notice of appeal to this Court on July 16, 1999. JA 5. The notice of appeal was filed within the G days permitted by Fed. R. App. P. 4(a)(1)(B). This Court has

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jurisdiction over this appeal from a final order of the district court pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

The Attorney General has established a National Instant Criminal Background Check System, known as the NICS, to inform federally licensed firearms dealers whether the transfer of a firearm would be a violation of federal law. The Attorney General has directed the Federal Bureau of Investigation to maintain records from all NICS checks in an audit log for 180 days. If a NICS check does not reveal any disqualifying information, records from such a check may only be used for the limited purpose of ensuring the proper use and functioning of the NICS.

1. Whether the Attorney General reasonably determined that keeping records of firearms transfers that are allowed to proceed in an audit log, for the limited purpose of ensuring the proper use and functioning of the system, is consistent with the Brady Act.

2. Whether the Attorney General reasonably determined that states that voluntarily participate in the federal background check system may, if required by state law, retain information regarding the NICS check.

3. Whether the NRA lacks standing to raise a Fourth Amendment challenge on behalf of Federal Firearms Licensees or prospective gun purchasers who are not parties to this suit, and whether the NRA’s claim is ripe.

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PERTINENT STATUTORY AND REGULATORY PROVISIONS

The pertinent statutory and regulatory provisions are set forth in an addendum to this brief.
STATEMENT OF THE CASE

A. Statutory and Regulatory Framework.

1. The Gun Control Act

The Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968), codified at, 18 U.S.C. § § 921-930, prohibits convicted felons and certain other categories of individuals from possessing firearms and ammunition. 18 U.S.C. § § 922(g), (n). The Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, p. 107 Stat. 1536, codified at 18 U.S.C. § 922 & note (Supp. 1998) (the "Brady Act"),amended the Gun Control Act to provide for mandatory background checks before firearms purchases, to prevent purchases by those barred by the Gun Control Act and state law from possessing firearms. H.R. Rep. No. 103-344 at 7 (1993), reprinted in 1993 U.S.C.C.A.N. 1984.

The Brady Act directed the Attorney General to establish and operate a nationwide background check system that licensed firearms dealers could contact, by phone or electronically, to be informed instantly whether information in the system indicates that transfer of a firearm to a particular individual would be prohibited. Brady Act § 103(b); 18 U.S.C. § § 922(t)(1) and (t)(2). While the Attorney General was developing the nationwide

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system, state law enforcement officers conducted background checks . 1

The Brady Act directs the Attorney General to issue regulations "to ensure the privacy and security of the information" in the national criminal background check, system. Id. § 103(h). The Brady Act also restricts the federal government’s use and retention of records of firearms transfers which, after a background check, are allowed to proceed. The Brady Act directs that if a firearms transfer would not violate state or federal law, the system must assign a transaction number to the call, provide that number to the dealer, and "destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer." 18 U.S.C. § 922(t)(2). The Act does not specify when the records destruction must take place. Although the House version of the Brady bill provided that the system must "immediately destroy" records of transactions allowed to proceed, the House acceded to the Senate version of the destruction requirement which did not contain the term "immediately," and the final version of the Act simply states that such records must be destroyed. See H.R. Conf. Rep. 103-412, P.L. 103-159, 1993 WL 485535 (Nov. 22, 1993); 1993 CQ US HR 1025 lO3d Cong., 1st Sess. (Nov. 24, 1993); 18 U.S.C. § 922(t)(2).

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The records destruction requirement is in keeping with the Brady Act’s prohibition on the establishment of a federal "system of registration" for firearms, firearm owners or firearm transfers. The Act prohibits federal departments, agencies, officials or employees from creating a central repository of records of firearms dealers by "requir[ing) that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof." The Act also prohibits use of the federal system to "establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm." Brady Act § 103(i)(2), 18 U.S.C. § 922 note.

2. Regulatory Framework.

a. The National Instant Criminal background Check System.

In accordance with the Brady Act, the Attorney General issued regulations to establish and implement the National Instant Criminal Background Check System, the "NICS," which took effect on November 30, 1998. See 28 C.F.R. § 25.1 et seq. To implement the NICS, the Attorney General created the NICS Index, a database that contains information on persons prohibited by law from possessing firearms that was not already contained in existing federal criminal records databases. The regulations

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direct the FBI to manage the NICS Index and handle background check inquiries, which are run through the NICS Index and other federal criminal records databases. The regulations also permit states to serve as "Points of Contact," or intermediaries between the FBI and licensed dealers. 28 C.F.R. § 25.6(d). States that serve as points of contact field inquiries from dealers rather than the FBI. The state agency performs a background check pursuant to state law, if state law so provides, and also contacts the NICS. The state then determines whether matching records indicate that a transfer should not proceed. 28 C.F.R. § 25.2.

NICS inquiries work as follows: Federally licensed firearms dealers 2 must collect information from each potential purchaser including name, sex, race, date of birth and state of residence. This information does not contain the make, model, amount or serial number of weapon(s) sought to be purchased, nor does it require listing the prospective purchaser’s street address, phone number or social security number. 28 C.F.R. § 25.7(a) . Before transferring a gun, the dealer must provide the information, by phone or electronically, to the NICS operation center at the FBI, or to the state agency if the state serves as a point of contact. The FBI or the state agency compares that information to matching records, if any, found in the NICS Index and other federal databases maintained by the FBI, and, where a state serves as a

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point of contact, in any databases maintained independently as a matter of state law. JA 84.

After these checks, the FBI or the state agency provides the dealer with one of three responses: (1) proceed, if none of the information in the system indicates that a firearms transfer would be in violation of law; (2) denied, if a matching record is found showing that the individual is barred by law from purchasing a gun; or (3) delayed, if further research is needed to determine whether a prospective transferee is barred by law from possessing a firearm, in which case the firearms dealer must await the receipt of a following "proceed" response or the passage of three business days before transferring the firearm, whichever comes first. 28 C.F.R. § 25.6(c)(1)(iv).

b. The Audit Log Regulation.

At the heart of this lawsuit is the Attorney General’s regulation requiring that all NICS transactions, including information on allowed transfers, be recorded in an "audit log." 28 C.F.R. § 25.9(b). Among other information, the audit log records the personal identifying information provided to dealer by the prospective firearms purchaser. Id. § 25.9(b)(1). The FBI may only use information on allowed transfers in the audit log for purposes of ensuring that the NICS is not being misused and that it is functioning properly. Id. § 25.9(b)(2) . The regulations direct the FBI to analyze the information in the audit log to determine whether the NICS is being used correctly and only for authorized purposes by dealers, states serving as points of contact, and FBI employees and contractors; to review

Page 7

the accuracy of responses given by NICS record examiners to dealers; to determine whether convicted felons or others are using false identities to obtain firearms; and to make sure that the NICS is working correctly from a technical standpoint. 28 C.F.R. § 25.9(b) (2); JA 92-93.

The regulations explicitly prohibit the use of the audit log to establish a federal firearms registry. 28 C.F.R. § 25.9(b)(1). The audit log retains records pertaining to allowed transfers for only 180 days, after which all information except the NICS transaction number and the date it was assigned is destroyed. 3 Ibid.; see18 U.S.C. § 922(t) (2). In keeping with a pledge to "reducte) the retention period to the shortest practicable period of time * * * that will allow basic security audits of the NICS," JA 93, the Attorney General has proposed to shorten the retention period for records of allowed transfers to 90 days, a period of time determined to be the absolute minimum to allow a useful audit. 64 Fed. Reg. 10262, 10263 (March 3, 1999)

The Attorney General’s regulations require states that serve as points of contact to destroy information pertaining to the NICS background check if a transfer is allowed, unless the state is required to keep such records as a matter of state law. 28 C.F.R. § 25.9(d). The Attorney General explained that the regulations permit states to retain information pursuant to state

Page 8

law in order to avoid interference with state firearms regulations. The Attorney General noted that where a state performs background checks pursuant to state law and retains that information, information from a concurrent NICS background check will not add to the information the state has on firearms ownership. JA 93.

3. Subsequent Legislation.

As noted, the House version of the Brady bill included a requirement of immediate destruction of records of allowed transfers, but the final version of the statute simply states that such records shall be destroyed. After the Attorney General issued proposed audit log regulations in June 1998, Congress rejected several new attempts to impose a requirement for the immediate or near-immediate destruction of records of allowed firearms transfers. Congress refused to impose criminal and monetary penalties for any government employee or contractor who knowingly retained for more than 24 hours NICS information concerning an allowed transfer. See No Gun Tax Act of 1998, H.R. 3949, 105th Cong. (1998); Firearms Owner Privacy Act of 1998, S. 2175, 105th Cong. (1998) (same) . Congress also rejected a proposed appropriations rider that would have prohibited the use of funds to run any system to implement the Brady Act’s background check requirement if records of allowed transactions were not immediately destroyed. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, § 621 Pub. L. No. 105-277 (Oct. 21, 1998)(requiring that records be destroyed, not specifying when such destruction must take place). In

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recent year-2000 appropriations legislation, Congress again rejected a proposal identical to the one it rejected in 1998. See S. 1217, 106th Cong. 1st Sess. (1999) ; An Act Making Consolidated Appropriations For the Fiscal Year Ending September 30, 2000, and For Other Purposes, § 619 Pub. L. 106-113 (Nov. 29, 1999)

B. Prior Proceedings.

The National Rifle Association, the Law Enforcement Alliance of America, and individual members of both groups who claim to have provided information to a firearms dealer for the purpose of a NICS background check brought suit in district court seeking declaratory and injunctive relief directing that records of allowed transfers must be destroyed immediately by both federal and state officials, pursuant to the Brady Act, 18 U.S.C. § 922(t)(2), § 103(1), 18 U.S.C. § 922 (note), and the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, Title VI, § 621. JA 6-21.

The district court denied the plaintiffs’ motion for a preliminary injunction on January 27, 1999. The court held that the statute on its face was silent as to the time within which the NICS records must be destroyed, and that the Attorney General’s interpretation of the statute, to permit retention of records of allowed transfers for a brief period of time in order to ensure the proper use and functioning of the system, was reasonable. JA 26-27.

The Attorney General moved to dismiss the complaint, and the d:s:rict court granted that motion on July 7, 1999. JA 34-36.

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The court rejected plaintiffs’ claim that NICS records must be destroyed immediately, because "Congress had not spoken directly to the question at issue and because defendant’s construction of the Brady law was permissible." JA 35. Because the plaintiffs "ha[d] not offered any basis for departing from vron U.S.A. Inc. v. Natural Resources Defense Council. Inc.467 U.S. 837 (1984)]" the trial court dismissed the complaint. JA 38.

SUMMARY OF ARGUMENT

The Brady Act vests the Attorney General with responsibility for administering the National Instant Criminal Background Check system, and charges the Attorney General with maintaining the security and privacy of the information of the system. To that end, after notice and comment rulemaking, the Attorney General determined that data on allowed firearms transfers must be kept for a limited period of not more than 180 days, for the limited purpose of auditing the system for possible misuse and ensuring that the system is functioning properly. The Attorney General directed the FBI to use the audit log to determine whether firearms dealers, states serving as points of contact, and FBI employees and contractors are using the system properly and only for authorized purposes; to ensure that dealers submit accurate data to the FBI, and that the FBI provides accurate responses to dealers; and to detect and correct technical errors in the system.

1. In promulgating the audit log regulations, the Attorney General addressed the Brady Act’s requirement that records of allowed transfers be destroyed, as well as the Act’s prohibition

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on the establishment of a federal firearms registry. The Attorney General determined that Congress had not required the immediate destruction of records of allowed transfers, and that the destruction requirement should be interpreted consistent with the need to ensure the security and integrity of the system. The Attorney General thus determined that retention of records for a limited time, only to achieve the goals of the Brady Act, is permissible under the Act. That determination is wholly reasonable and consistent with the requirements of the Act.

The reasonableness of the Attorney General’s interpretation is underscored by the fact that Congress considered and rejected language, both before and after passage of the Brady Act, that would have required the immediate destruction of information on allowed transfers. The NRA would insert the word "immediate" into the statute’s destruction requirement: Congress refused to do so.

2. The NRA seeks to preclude the limited retention of records of allowed transactions on the basis of the general statutory provision prohibiting the establishment of a federal firearms registry. The Act’s prohibition on the creation of a registry does not bar a listing of allowed transfers that routinely purges information after six months and that may be used only to ensure that the NICS is not being misused and that it is functioning properly.

Nor does the provision of the Act which precludes the Attorney General from requiring that third parties record or trar.sfer information to a federal facility prohibit the

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maintenance of the audit log. This section of the Act, 103(i)(1), does not implicate the Attorney General’s retention of NICS records; that subject is covered by the Act’s destruction requirement. See 18 U.S.C. § 922(t) (2). Rather, section 103(i)(1) prohibits the’ federal government from requiring third parties, such as firearms dealers, to transfer any information to federal or state facilities that is not already required by the Act. The provision prevents the creation of a central federal repository of information on firearms transactions, which could be used to establish a federal firearms registry.

3. The Attorney General reasonably interpreted the Act to permit states that serve as points of contact to retain information on allowed transfers if required by independent state law. The Gun Control Act explicitly states that it does not intend to occupy the field of firearms regulation. The Brady Act clearly prohibits the establishment of a federal firearms registry, but suggests no intent to interfere with state recordkeeping requirements. Some states that serve as points of contact have independent systems in place for conducting background checks and keeping information on firearms transactions, including allowed transfers. Regardless of whether a NICS check is performed, the state would retain the personal identifying information provided to the dealer for purposes of a state background check, so information from the NICS check will not add to the information the state retains on firearms transactions. The Attorney General therefore reasonably determined that the Brady Act did not preempt state firearms

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regulations that require the maintenance of records on allowed transfers.

4. The NRA’s argument that the FBI will violate the Fourth Amendment rights of firearms dealers and unlawful firearms transferees by conducting warrantless searches and intimidating interviews is baseless for a host of reasons. The plaintiffs in this suit lack standing to assert the Fourth Amendment rights of firearms dealers and unlawful firearms transferees who are not parties to this lawsuit. Moreover, this claim is based on the NRA’s unfounded speculation about how audits of dealers will be conducted, and is not ripe for review, since the NRA has not alleged that any such audits or interviews have taken place.

ARGUMENT

STANDARD OF REVIEW

This Court reviews the grant of a motion to dismiss de novo. Brown v. Plaut, 131 F.3d 163, 167 (D.C. Cir. 1997), cert. denied, 118 S.Ct. 2346 (1998)

I. THE AUDIT LOG REGULATION IS A REASONABLE INTERPRETATION OF THE REQUIREMENTS OF THE BRADY ACT.

Congress enacted the Brady Handgun Violence Prevention Act to keep firearms out of the hands of those, such as convicted felons, who are barred by federal or state law from possessing guns. H.R. Rep. 100-344, reprinted in 1993 U.S.C.C.A.N. 1984. The Act directs the Attorney General to establish a nationwide instant criminal background check system to inform licensed firearms dealers, prior to a gun transfer, whether information in the system indicates that a potential purchaser is barred by law

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from possessing a firearm. Brady Act § 103(b), 18 U.S.C. § 922 note. The Brady Act also charges the Attorney General to issue regulations to ensure the privacy and security of the information of the background check system, Id. § 103(h), and to destroy, at some unspecified time, records of allowed transactions, other than the transaction number assigned to the transaction and the date it was assigned. 18 U.S.C. § 922(t)(2).

Pursuant to these directives, after notice and comment rulemaking, the Attorney General established the National Instant Criminal Background Check System, the "NICS," to inform federally licensed firearms dealers, in most cases instantly, whether information in the system indicates that the transfer of a firearm would be unlawful. The Attorney General has directed the FBI to develop and operate the NICS, and has tasked the FBI with ensuring the security and privacy of the information in the system. 28 C.F.R. § 25.3.

The Attorney General balanced two competing considerations in implementing the Brady Act: the requirement to ensure the privacy and security of the information in the system, and the Act’s requirement to destroy records of allowed transfers. The audit log regulation was an attempt to "comply with both statutory requirements by retaining such records in the NICS Audit Log for a limited, but sufficient, period of time to conduct audits of the NICS." JA 92.

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The Attorney General directed the FBI to maintain records of all NICS transactions in an audit log for the minimum period necessary to perform audits of the system. JA 93. Current regulations provide that records of allowed transfers will be maintained in the audit log for six months; the Attorney General has proposed to shorten that period to three months. 28 C.F.R. § 25.9(b)(1); see 64 Fed. Reg. 10264. Use of records of allowed transfers is strictly limited, the Attorney General explained, to "satisfy[ing] the statutory requirement of ensuring the privacy and security of the NICS and the proper operation of the system." JA 92.

The Attorney General determined that an audit log that temporarily retains information relating to every background check is essential to ensuring that the system is not being misused and that it is functioning properly. The audit log enables the FBI to monitor the use of the NICS by firearms dealers, states serving as points of contact, and FBI personnel. The FBI also examines whether the FBI employees and contractors are making correct determinations as to whether potential transferees are disqualified, JA 92-93, to ensure that "proceed" responses are not being supplied with regard to persons who are disqualified. Decisions to allow a firearm purchase are not fully automated, and thus officials must review and evaluate records before making a decision. JA 110. Review of decisions made by NICS examiners is necessary to ensure that responsible individuals make correct decisions on whether a transfer is

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permissible, and to enable supervisors to provide additional training where necessary. JA 110-111.

The audit log also enables the FBI to check for use of the system for unauthorized purposes, "such as running checks of people other than actual gun transferees, and protect against the invasions of privacy that would result from such misuse." 4 JA 92. The FBI can also determine whether firearms dealers or prospective transferees are using false identities to thwart the NICS’ name check system. 5 Ibid. Audits are also vital to ensuring that the system (including its software) is working properly from a technical standpoint. See 28 C.F.R. § § 25.9(b)(2), JA 107-108. The FBI estimates that 98 percent of system inquiries will result in approval of firearms transactions. JA 112. If the vast majority of transactions were never recorded in the audit log, there would not be enough data in the log to enable the FBI to detect and remedy system malfunctions, data inaccuracies and keying errors. JA 118, 109. Without an audit log, the FBI would simply be incapable of achieving the level of oversight deemed essential by the Attorney General.

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The Attorney General reasonably determined that the maintenance of records of allowed transfers in the audit log for a limited period of time is entirely consistent with the Act’s requirement that records be destroyed. As the Attorney General noted in the final rule, the Act is silent as to when records of allowed transfers must be destroyed. JA 92. The Brady Act states:

18 U.S.C. § 922(t)(2).

While nothing in the Brady Act requires immediate destruction of records of firearms transactions allowed to proceed, the Brady Act speaks directly to the Attorney General’s obligation to safeguard information on the NICS, commanding the Attorney General to "prescribe regulations to ensure the privacy and security of the information of the [NICS] system * * * ." Brady Act § 103(h). The Attorney General reasonably concluded that Congress would not have ordered her to establish the NICS without being able to ensure that the system was working and being used properly. The Attorney General therefore balanced the countervailing commands of the Act by providing for the creation of ani audit log, while specifying that the retention period for

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records of allowed transfers shall be "the minimum reasonable period for performing audits [of) the system." Indeed, while the initial retention period was set at 180 days, the Attorney General pledged in the final rule to examine whether the retention period could be shortened without compromising the FBI’s ability to audit the system. JA 93. In a proposed rule issued in March 1999, the Attorney General proposed to cut the retention period to 90 days. 64 Fed. Reg. 10263.

The Attorney General’s interpretation of the Brady Act to permit temporary retention of NICS records of allowed transfers in order to comply with the requirement to ensure the privacy and security of the system is consistent with the Brady Act, is entirely reasonable, and is entitled to deference. See, e.g., Holly Farms Corp. v. NLRB, 517 U.S. 392, 409 (1996); Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 403 (1987) . The Attorney General’s interpretation "need not be the only [permissible) one in order to gain judicial approval." Connecticut Dep’t of Income Maintenance v. Heckler, 471 U.S. 524, 532 (1985); Chevron U.S.A. Inc. v. Natural Resources Defense Council. Inc., 467 U.S. 837, 843 n.h (1984)

The reasonableness of the Attorney General’s interpretation is underscored by the fact that Congress has repeatedly, both before and after passage of the Brady Act, rejected the requirement that records of allowed transfers be destroyed immediately. Although the House version of the Brady bill provided that the system shall "immediately destroy" records of transactions allowed to proceed, See 139 Cong. Rec. H9123 (daily

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ed. Nov. 10, 1993), 1993 CQ US HR 1025, 103rd Cong., 1st Sess. (Nov. 20, 1993), the House acceded to the Senate version of the destruction requirement which did not contain the term "immediately," and the final version as adopted by the full Congress simply provided that such records shall be destroyed. See H.R. Conf. Rep. No. 103-412, P.L. No 103-159, 1993 WL 485535 (Nov. 22, 1993), 1993 CQ US HR 1025 103d Cong., 1st Sess. (Nov. 24, 1993), 18 U.S.C. § 922(t)(2) . Congress’s failure to retain the immediate destruction requirement strongly supports the Attorney General’s interpretation that immediate destruction of records of allowed transfers is not required. See R.J.Reynolds Tobacco Company v. Durham County. N.C., 479 U.S. 130, 147 n.16 (1986) (rejection of proposed amendments to place certain requirements on importers suggests Congress’s intent was not to impose such requirements) ; Hutto v. Finney, 437 U.S. 678, 694 (1978)(congressional intent to allow award of attorneys’ fees against state found in Congress’s rejection of attempts to amend attorneys’ fees act and immunize state and local governments from awards) ; Autolog Corp. v. Regan, 731 F.2d 25, 32 (D.C. Cir. 1984) (Congress’s rejection of attempt to amend statute to prohibit foreign-flag vessels from providing particular type of service is indicia of intent not to prohibit such service).

Since the audit log regulation went into effect, Congress has continued to reject attempts to insert a requirement of immediate or near-immediate destruction of records of allowed transfers. Twice in 1998 Congress refused to impose criminal penalties on government employees or contractors who retained for

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more than 24 hours NICS information concerning a firearm transaction allowed to proceed. See No Gun Tax Act of 1998, }LR. 3949, 105th Cong. (1998); Firearms Owner Privacy Act of 1998, S. 2175, 105th Cong. (1998)(same) . And in both 1998 and 1999, Congress rejected riders to appropriations measures that would have withheld funding for the NICS unless records of allowed transfers were immediately destroyed. 144 Cong. Rec. S8625 (daily ed. July 21, 1998)(proposed amendment no. 3233); Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, § 621 Pub. L. 105-277 (Oct. 21, 1998); S. 1217, 106th Cong. 1st Sess. (July 22, 1999); An Act Making Consolidated Appropriations For the Fiscal Year Ending September 30, 2000, and For Other Purposes, § 619 Pub. L. 106-113 (Nov. 29, 1999) . In light of Congress’s repeated rejection of attempts to require immediate destruction of NICS records of allowed transfers, the Attorney General’s interpretation of the Brady Act to permit the retention of such records for a limited time is unquestionably reasonable.

In arguing that the Brady Act unequivocally requires the immediate destruction of records of allowed transfers, NRA Brief ("NBr.") 20, the NRA effectively attempts to insert the term "immediately" into the statute’s destruction requirement. Contrary to the NRA’s suggestion, there is no canon of statutory construction providing that when Congress does not estab.lish a precise timetable, the agency must act immediately. That is especially the case here, where Congress has declined to impose a requirement of immediate action.

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The NRA suggests that Congress’s intent in directing the Attorney General to ensure the privacy and security of the NICS system was solely to protect firearms transferees from having personal information recorded by the federal government. NBr. 24. Nothing in the statute affords a "privacy" interest unique to the individual plaintiffs. The Attorney General’s regulations therefore seek to provide for the privacy and security of the entire body of sensitive information used and created in the functioning of the NICS, and to ensure that this information is only used for the limited purposes set forth in the statute and by persons who have authority to do so.

Moreover, Brady Act does not create any additional privacy rights for individuals about whom the system maintains information. As the Act makes clear, the privacy rights of individuals about whom the NICS maintains information are defined in the Privacy Act, 5 U.S.C. § 552a, and the Brady Act does not "alter or impair any right or remedy" under that act. Brady Act § 105. Contrary to the NRA’s suggestion, those with privacy interests include not only individuals who apply to firearms dealers to acquire firearms, but also millions of individuals who have records maintained or accessed by the NICS.

The NRA argues that a rider to a 1999 appropriations measure, section 621 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. 105-277 (Oct. 21, 1998), requires immediate destruction of NICS records of allowed transfers. The NRA ignores the fact that Congress declined to include a requirement for immediate destruction of

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those records in the rider. The version of the rider offered by Senator Smith would have prohibited the use of appropriated funds for any background check system "that does not require and result in the immediate destruction of all information * * * submitted by or on behalf of any person who has been determined not to be prohibited from owning a firearm." 144 Cong. Rec. S8625 (daily ed. July 21, 1998) (proposed amendment no. 3233)(emphasis added). The word "immediate" was not included in the final version, however, which prohibits the use of funds for any system that does not "require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from owning a firearm." The history of the appropriations measure, like that of the Brady Act, makes clear that Congress did not intend to require the immediate destruction of records of allowed transfers.

As discussed, the Attorney General reasonably interpreted the Act’s records destruction requirement not to require immediate destruction of records of allowed firearms transactions, but to permit the retention of such records for a limited time and for a narrowly circumscribed purpose. The NRA argues that the audit log regulation is inconsistent with two other provisions, both contained in the section of the Act that forbids the creation of a federal registry. Congress spoke directly to the Attorney General’s retention of records in the

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records destruction provision, 18 U.S.C. § 922(t)(2), however, and the NRA’s reliance on the firearms registry provision is unavailing.

1. The Brady Act specifically prohibits the establishment of a federal firearms registry, stating that NICS records may not be used by federal departments, agencies, officers or employees to "establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm." Brady Act § 103(i)(2), 18 U.S.C. § 922 note. In keeping with this prohibition, the Attorney General’s regulations provide that "[t)he NICS, including the NICS Audit Log, may not be used by any department, agency, officer, or employee of the United States to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions." 28 C.F.R. § 25.9(b)(2) . 6 The audit log is not a federal registry of firearms owners. Records of allowed transfers are destroyed after six months, and such records may be used for the limited purpose of ensuring the proper use and functioning of the NICS.

Neither the Gun Control Act nor the Brady Act defines the term "system for registration" of firearms, firearm owners or firearms transactions. See 18 U.S.C. § 922(a); § 103(j)

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(definitions provisions). Congress clearly intended to prohibit the creation of a complete and permanent listing of firearms, firearms owners, or firearms transactions. But the prohibition on establishment of a registry does not bar a listing that would routinely purge any such information after a short period of time. Congress also clearly intended to prohibit the establishment of a registry that would be used for purposes other than ensuring the proper functioning of the NICS system that Congress directed be created. Consistent with its purpose of forbidding the creation of a permanent registry, Congress provided that records of firearms transactions allowed to proceed be, at some unspecified point, destroyed. 18 U.S.C. § 922(t)(2). As the Attorney General concluded, the maintenance of an audit log for a limited time and purpose is wholly consistent with the prohibition on the establishment of a firearms registry.

The reasonableness of the Attorney General’s conclusions is highlighted by reference to registries created under other statutory schemes, which have an aspect of permanence and completeness that is plainly lacking in the audit log. For example, Congress in the National Firearms Act provided for the creation of a "central registry" of machine guns and certain other firearms. 26 U.S.C. § 5841. This Act contains no provision for purging any information in this registry, which lists the firearm itself, the date of registration and the identification and address of the firearms owner. See id., § § (a) (1) - (3). The National Firearms Act also mandates the annual registration of certain firearms importers, manufacturers and

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dealers. 26 U.S.C. § 5802. This provision does not provide for the destruction of any records in the registry, and in fact requires annual re-registration, ensuring the continued accuracy of the information in the registry. These registries are clearly intended to be complete and permanently available collections of information. See also 42 U.S.C. § 274a (directing the Secretary of the United States Department of Health and Human Services to create a "registry of the recipients of organ transplants * * * [to facilitate] ongoing evaluation of the scientific and clinical status of organ transplantation"). The six-month snapshot of potential firearms transferees in the audit log reveals virtually nothing about the universe of firearms owners in the United States.

The NRA suggests that the purpose behind creating a registry of firearms, firearms owners or firearms transactions would be the "‘compil [ation] of lists of handgun buyers, ‘" with the ultimate goal of "‘confiscation of guns." NBr. 17 (citing 135 Cong. Rec. S8267 (June 20, 1991); see also Cong. Rec. S16328 (Nov. 19, 1993) (concern that government would "compil[e] a master list of guns and gunowners"). The audit log would be of no use in that regard. The audit log contains no information about actual gun ownership. It is only a listing of transactions that were allowed to proceed, and contains no information about whether the individual who submitted information for a NICS background check actually purchased a firearm. In addition, at any given time the audit log presents only a snapshot of trarsactions that were allowed to proceed in the previous six

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months, and by regulation, records of transactions allowed to proceed may be used only to audit the performance of the NICS system. 28 C.F.R. § 25.9(b)(2). The audit log thus poses no threat, despite the fears of certain legislators, to the purported "‘civil rights of American gun owners.’" NBr. 17.

2. Contrary to the NRA’s contention (NBr. 12), subsection 103(i)(1) of the Act, which effectuates the Act’s ban on the creation of a firearms registry, does not impose a categorical ban on the creation of any records of allowed transfers. That subsection of the Act provides that no federal department, agency, officer, or employee may:

Brady Act § 103(1)(i), 18 U.S.C. § 922 note. As discussed above, Congress dealt with the Attorney General’s retention of records of allowed transfers in the records destruction provision of the Act, section 922(t)(2) . In subsection 103(i)(1) , Congress addressed what the Attorney General, and other federal departments, agencies, officials and employees, may require third parties to do with records generated by the NICS system. That section prohibits the Attorney General from imposing additional reporting requirements on firearms dealers, in order to centralize the records of dealers and establish a federal firearms registry.

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The language of subsection 103(i)(1) is substantially similar to language in the Firearms Owners Protection Act that was intended to prevent the Bureau of Alcohol, Tobacco and Firearms ("ATF") from centralizing records of firearms dealers and creating a federal firearms registry. 7 See 18 U.S.C. § 926(a). Congress passed this measure in response to rules proposed by the ATF that would have imposed new reporting requirements on firearms dealers. Both ATF and the Government Accounting Office ("GAO"), which conducted an audit of ATF’s compliance with the Firearms Owners’ Protection Act provision, have interpreted the provision to forbid the ATF from prescribing rules and regulations to impose additional requirements on dealers, beyond those in existing law, to transfer records of firearms transactions to the ATF. ATF and the GAO agree that the Firearms Owners’ Protection Act provision does not place any restriction on what ATF may do internally with information it otherwise acquires from firearms dealers. Federal Firearms Licensee Data: ATF’s Compliance With Statutory Restrictions, Letter Report, Sept. 1]. 1996, GAO/GGD-96-174 at pp. 5, 15.

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The nearly identical language in the Brady Act likewise restricts the federal government from placing additional reporting requirements on firearms dealers as a means of compiling information to establish a firearms registry. Thus, for example, firearms dealers could not be required to provide the FBI with copies of the forms completed by potential firearms transferees, which would not be subject to the Act’s destruction requirement.

The NRA’s interpretation of subsection 103(i) (1), which would prohibit the federal government from making any record of an allowed transfer, is impossible to square with the rest of section 103(i), with the Brady Act as a whole, or with the legislative history of the Brady Act. Nothing in the legislative history of the Act indicates that Congress thought that section 103(i)(1) forbade the creation of any record pertaining to an allowed transfer. The House Committee Report section by section analysis of the Act states that § 103(i) "prohibits any Federal department, agency, officer, or employee from using the system or any part thereof to establish a registry of firearms, firearms owners, or firearms transactions." H.R. Rep. No. 103-344 at 20 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1997. If Congress had so intended, there would have been no need for the numerous attempts of various members of Congress, as discussed above, through amendments, appropriations restrictions or imposition of penalties, to impose a requirement of immediate or near-immediate destruction of records of allowed transfers. This legislative history makes clear that Congress intended to address the issue

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of the Attorney General’s retention of records of allowed transfers through the records destruction requirement of the statute, 18 U.S.C. § 922(t)(2), not through subsection 103(i)(1)

The NRA’s interpretation of subsection 103(i) (1) is also at odds with other sections of the Brady Act, which expressly contemplate that the government will retain NICS records. The Brady Act requires the retention of the NICS transaction number and the date it was assigned in instances where a transfer is allowed. 18 U.S.C. § 922(t)(2). Under the NRA’s reading of subsection 103(1)(1), however, such information may not be recorded at all. The Act also expressly contemplates that records of allowed transfers will be made, providing that when a firearms transaction is allowed, the "system shall * * * destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer." Ibid. If, as the NRA suggests, subsection 103(1)(1) prohibits the recordation of any information, there would be no record to destroy as required elsewhere in the statute. The Brady Act also contemplates that in some cases, responses to firearms dealers may take as long as three days. See 18 U.S.C. § 922(t)(1). If no record of an allowed transfer could ever be made, the FBI would not be able to keep information on the inquiry during that three day window, in order to determine what response to provide to the firearms dealer.

The NRA’s reading of subsection 103(1)(1) also renders the accompanying subsection, 103(i)(2), surplusage. That subsection

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prohibits the federal government from using the information it receives pursuant to the statute to establish a federal firearms registry, except with respect to disallowed transactions. If subsection 103(i)(1) were an absolute bar on the retention of any record pertaining to an allowed transfer, there would be no need to forbid the establishment of a federal firearms registry, since the government would under no circumstances have any information that would enable it to do so.

II. STATE RETENTION OF RECORDS OF FIREARMS TRANSACTIONS DOES NOT VIOLATE THE BRADY ACT.

The Attorney General’s regulations allow states to serve, on a voluntary basis, as Points of Contact for the NICS— that is, intermediaries between the FBI and licensed dealers. 28 C.F.R. § 25.6(d). Where the state serves as a point of contact, dealers will contact the designated state agency for a background check rather than the FBI. Some states serving as points of contact will have independent state law provisions that also require background checks prior to firearms transfers, and such states will perform background checks as required by state law in addition to contacting the NICS. 28 C.F.R. § 25.2. The law in some states requires retention of records of firearms background checks, including records on allowed transfers. The Attorney General determined that such independent state law requirements are not preempted by the Brady Act. 28 C.F.R. § 25.9(d)(state does not have to destroy records that are "part of a record systerm created and maintained pursuant to independent state law regarding firearms transactions") . Conversely, the Attorney

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General determined that Congress did not intend that states that require the retention of records on firearms transactions should be prohibited from participating in the cooperative effort to conduct background checks.

This conclusion is wholly reasonable. Congress has expressly stated in the Gun Control Act that it does not intend to occupy the field of firearms control. See 18 U.S.C. § 927. Nothing in the Brady Act or the 1999 Appropriations Act provides that states serving as points of contact must destroy information on allowed transfers. The Brady Act’s prohibition on the establishment of a federal firearms registry, Brady Act § 103(i), 19 U.S.C. § 922 note, restricts only federal government agencies and employees from creating or maintaining a registry of firearms, firearm transactions or firearm owners. This provision does not preempt state law requiring the maintenance of records of firearms transactions. The Brady Act also directs that if a transfer is allowed, "all records of the system" shall be destroyed. 18 U.S.C. § 922(t)(2). The "system" referred to in that provision is the NICS system, or any subsequent federal system established pursuant to the Act by the Attorney General; this directive does not apply to state systems or databases.

Likewise, the 1999 Appropriations Act forbids the use of appropriated federal funds for "any system to implement 18 U.S.C. § 922(t)" that does not require the destruction of records of transfers allowed to proceed. Section 621, title VI, Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277. The "system to implement 18 U.S.C.

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§ 922(t)" referred to in that provision is the NICS, or any subsequent federal system developed by the Attorney General. State systems of firearms regulation are not covered by this provision. Even if a state receives federal funds for its service as a point of contact, it would not retain records of allowed transactions pursuant to "a system to implement 18 U.S.C. § 922(t)," as prohibited by the appropriations measure, because the state system is not such a system.

Moreover, the Attorney General determined that if a state performs background checks as a matter of state law, and state law requires retention of records of firearms transactions, then the records of the state background check will include the name and other identifying information on every person on whom a NICS check is also performed. The actual records from the NICS check, therefore, will not add any more information to what the state already retains under its own law. JA 93.

The Attorney General’s regulations permitting states that serve as points of contact to retain information on allowed transfers if state law so requires is in no way contrary to the mandates of the Brady Act and the 1999 Appropriations Act, and is wholly consistent with Congress’s determination that states should have firearms regulation programs unfettered by the federal government. The Attorney General’s regulation is therefore reasonable and entitled to deference.

The NRA claims that the states should not be permitted to serve as points of contact at all, because the Brady Act does not authorize the delegation of duties to states and localities.

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NBr. 28. This argument is flatly inconsistent with Congress’s instruction to the FBI in the conference report to the 1999 appropriations measure, to increase the involvement of states as points of contact. See 144 Cong. Rec. Hl1044, H11306 (Oct. 19, 1998) (stating that "the FBI is expected to pursue proposals to increase the number of states serving as points of contact for the NICS system"). Moreover, absolutely nothing in the Act suggests that the Attorney General is prohibited from allowing the states to serve such a function. The Act gives the Attorney General broad discretion to establish the NICS and determine how to maximize its efficient and effective operation. The Brady Act explicitly involved state officers in performing background checks in the interim period while the NICS system was being developed, and nothing in the Act suggests that the Attorney General may not permit states to voluntarily serve as intermediaries between the FBI and federal firearms licensees in the NICS system.

The NRA asserts that the FBI will utilize the audit log to conduct warrantless searches of firearms dealers at their places of business, and will conduct intimidating interviews of transferees who are suspected of using the names of others to procure a firearm, thereby violating the Fourth Amendment. NBr. 35-40. For a host of reasons, this Court should not entertain this argument.

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The plaintiffs in this lawsuit lack standing to assert the Fourth Amendment rights of federal firearms dealers. As this Court has recognized, "[o]rdinarily, one may not claim standing * * * to vindicate the constitutional rights of some third party." Hutchins v. District of Columbia, 144 F.3d 798, 802 (D.C. Cir. 1998) (internal citation omitted), rev’d on other grounds, Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999). The plaintiffs have made no showing that they satisfy the requirements for third party standing. See Hutchins, 144 F.3d at 802-803. Nor does either of the organizational plaintiffs, the NRA or the Law Enforcement Alliance of America, have organizational standing to assert the constitutional rights of any of their members, since neither has alleged that any of their members have been, or might be investigated for allegedly submitting false information to the NICS. See Committee for Full Employment v. Blumenthal, 606 F.2d 1062, 1067 (D.C. Cir. 1979)

This claim is not properly presented in this case, because the NRA set forth no Fourth Amendment claim in its complaint, nor did it allege that any searches of firearms dealers’ premises or interviews of suspected unlawful transferees had taken place. See JA 6-21. This claim is completely speculative: the NRA’s contentions that the FBI may at some time conduct searches and interviews that may violate the Fourth Amendment rights of firearms dealers or suspected unlawful firearms transferees are based on inferences it draws from commentary to the final rule. The commentary merely states, however, that audits of the system will permit discovery of misuse of the NICS by firearms dealers

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or by persons who are barred from purchasing guns. JA 93. Neither the commentary nor the final rule says anything about the methods by which such audits will be accomplished. The NRA’s unfounded speculation as to hbw such audits will be conducted does not set forth an actionable claim. Moreover, in a proposed rule issued in March 1999, the Attorney General proposed that audits of firearms dealers will be conducted in conjunction with the Bureau of Alcohol, Tobacco and Firearms’ audits of dealers, and the FBI will not enter firearms dealers’ premises. See 64 Fed. Reg. 10264. This proposed rule underscores the fact that the NRA’s challenge is entirely premature.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,

DAVID W. OGDEN
Acting Assistant Attorney General

WILMA A. LEWIS
United States Attorney

MARK B. STERN
SUSAN L. PACHOLSK
Attorneys. Appellate Staff
Civil Division
Department of Justice

JANUARY 2000


NOTES

1. State background checks were undertaken voluntarily after Supreme Court’s decision in Printz v. United States, 521 U.S. 898 (1997). text@note1

2. As referred to in the Brady Act, "federal firearms licensees" refers to firearms dealers, importers, or manufacturers who are :ice~sed to sell firearms. For ease of reference, in this brief we will refer to all federal firearms licensees as "dealers." text@note2

3. Information in the audit log concerning denials of transfers will be maintained for ten years and then will be transferred to a federal records center for storage. 28 C.F.R. § 25.9(b)(1). The NRA has not challenged this provision. text@note3

4. That abuse of the system may occur is illustrated by Eagle v. Morgan, 88 F.3d 620 (8th Cir. 1996), where local police department officials accessed a criminal records database, the NOIC, to obtain information to discredit a government employee. text@note4

5. In addition to the audit log, other aspects of the NICS regulation directly relate to maintaining the privacy and security of information on the NICS. See. e.g., 28 C.F.R. § 25.8 ("System safeguards")(setting forth regulations to ensure system security, personnel security and physical security of the NICS data. text@note5

6. Information in the audit log concerning denials of transfers will be maintained for ten years and then will be transferred to a federal records center for storage. 28 C.F.R. § 25.9(b)(1). This provision is not challenged by the NRA. text@note6

7. That provision states:

18 U.S.C. § 926(a)(emphasis added). text@note7


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