As the COVID-19 pandemic makes its way across the country, Americans are getting an important lesson in the dangers of a placing a prior restraint on the exercise of a constitutional right. The vast increase in those seeking protection in the Second Amendment during this period of uncertainty has caused the FBI's National Instant Criminal Background Check System (NICS) and Point of Contact State background check systems to buckle. Worse, some jurisdictions that have criminalized the private transfer of firearms have also shut down access to guns stores or their state criminal background check system. This lethal combination of misguided policies has made it impossible for millions of Americans to acquire, or even borrow or lend, firearms during this moment of crisis.

In peddling so-called "universal" background checks, anti-gun activists and politicians claim such checks are instant, and therefore don't encumber Second Amendment rights. For instance, according to Sen. Chris Murphy (D-Conn.) firearm background checks take about 90 seconds. [https://www.wamc.org/post/senators-murphy-blumenthal-detail-background-check-bill​]

Gun owners know that for many law-abiding individuals NICS checks, let alone point of contact state checks, have never been instant. In the 2018 NICS Operations Report, [https://www.fbi.gov/file-repository/2018-nics-operations-report.pdf/view] ​the FBI noted that 30 percent of all NICS checks were not "instant determinations." The document explained that 20 percent of all checks required some additional analysis to complete, while 10 percent were delayed for further research. The problem overwhelmingly burdened law-abiding gun buyers, as only 1.21 percent of all checks resulted in a denial.

The simple facts outlined in the annual NICS Operations Report have not been enough to shame gun control advocates into dropping their "background checks are instant" talking point. However, the recent experience with firearms background checks during the COVID-19 outbreak should be enough to put their false claim to rest for good.

On March 17, the National Shooting Sports Foundation summarized the state of NICS in a message to federal firearms licensees (gun dealers). [http://www2.nssf.org/l/127421/2020-03-17/3x5bzm] NSSF explained,

According to NICS, there are delays in the system due to an astronomical volume of transactions over the last several days. While much of the NICS System is automated and yields an immediate “proceed” or “deny” determination, transactions that result in a delayed status require the work of NICS examiners to investigate whether the transaction should be approved or not. With daily volumes roughly double that of last year, the NICS team is unable to begin investigations on all delays within three business days, creating a backlog in the delayed checks.

Colorado, a state that criminalized private firearm transfers in 2013, is a Point of Contact State where the Colorado Bureau of Investigation is tasked with performing firearms background checks. According to the CBI, as of March 24, background checks were taking four days. [https://www.thedenverchannel.com/news/local-news/gun-background-checks-surging-in-colorado-amid-coronavirus-pandemic​] According to a report from the Reno Gazette, [https://www.rgj.com/story/news/2020/03/18/nevada-gun-sales-spike-during-coronavirus-pandemic/2870320001/] in Nevada, a state that criminalized private firearm transfers in 2019, "the onslaught of background check requests has made it virtually impossible to get through on the state’s Point of Contact Firearms Unit phone line.​"​ Due to these states' prohibitions on private firearms transfers, the Second Amendment rights of law-abiding residents are at the mercy of an overwhelmed government bureaucracy.

The situation is even graver in jurisdictions that, through a combination of laws that criminalize the private transfer of firearms and virus induced shutdowns, have foreclosed the Second Amendment right to acquire a firearm.

On March 21, the New Jersey State Police issued the following message to Federal Firearms Licensees.

On Saturday March 21, 2020, Governor Phil Murphy announced he is putting New Jersey in lockdown to combat the spread of coronavirus. Per Executive Order 107, he is ordering the residents of New Jersey to stay home, directing all non-essential retail businesses closed to the public. At this time, the order includes New Jersey Firearms State Licensed Dealers. The New Jersey State Police NICS Unit is directing the vendor of the NICS Online Application (NICUSA) to turn off the NICS Online Services for submitting NICS transactions by eliminating the “Request Form” button, effective 9:00pm EST, Saturday, March 21, 2020. You will still have the ability to view the message board and the status of previously submitted transactions. This “Request Form” feature will remain off until further order by Governor Murphy.

New Jersey is a Point of Contact state where the New Jersey State Police are tasked with performing all firearm background checks.

In order to acquire a rifle or a shotgun in New Jersey a prospective owner must obtain a Firearms Purchase Identification Card. N.J.S.A. 2C:58-3d. requires that a background check be conducted before an FPIC is issued.

Likewise, in order to acquire a handgun, a prospective owner must obtain a Permit to Purchase a Handgun (PPH). The PPH is also issued pursuant to a background check.

Up until 2018, an FPIC or PPH holder could acquire a firearm from another private individual without further government interference. The logic being that the FPIC or PPH holder had already been thoroughly vetted by the government.

However, on June 13, 2018, Gov. Murphy signed A2757.[https://www.nj.gov/governor/news/news/562018/approved/20180613b_gun_laws.shtml] This legislation added background check requirement for every firearm transfer on top of the existing licensing requirements.

Therefore, with the March 21 change in state police procedure, New Jerseyans are not be able to acquire firearms.

The situation is similar in Washington. In 2014, the state has criminalized the private transfer of firearms. RCWA 9.41.113​ requires that parties to a firearms transfer "shall complete the sale or transfer through a licensed dealer" pursuant to a background check.

On March 23, Washington Gov. Jay Inslee (D) issued an order closing all "non-essential" businesses due to the threat of the Wuhan virus. The shutdown included firearms dealers.[https://mynorthwest.com/1785577/rantz-gun-rights-restricted-coronavirus-shutdown-washington/] The governor's closure order, coupled with existing Washington background check law has made it so Washingtonians cannot acquire or transfer firearms during this crisis.

It should be noted that New Jersey and Washington's laws do not just require background checks on all firearm sales, but also on other types of firearm transfers. Under both state's laws, a gun owner could not lend their friend or neighbor a firearm for protection during this time of crisis without first conducting a background check.

The COVID-19 pandemic has exposed the dangers inherent in laws that require government permission in order to exercise a constitutional right. Such laws make law-abiding Americans dependent upon government's ability and willingness to grant such permission - something many governments have been unable to ensure. This crisis has shown that Americans cannot trust government to act as a gatekeeper on their fundamental rights. Therefore, Americans must jealously guard their right to privately transfer firearms without government interference.​