The Federal Bureau of Investigation responded Thursday with what it characterizes as its “final” release regarding a Freedom of Information Act request filed by this correspondent in March for documents and records to clarify authority and determine decision-making authorizing the use of the National Instant Background Check System (NICS) for New York State ammunition background checks. Instead of producing what was asked for, the FBI returned copies of two nonresponsive Code of Federal Regulations (CFR) sections anyone can pull off the internet, 28 CFR § 25.6 Accessing Records in the System, and 28 CFR § 25.11 Prohibited Activities and Penalties.

Neither even remotely address the scope of the request:

• All communication regarding New York’s usage of NICS for ammunition background checks, including all correspondence between FBI and New York for utilization of NICS for ammunition background checks;
• All records, including memoranda of understanding, user agreements or contracts for New York to be allowed access to the NICS system;
• All records regarding consequences for a state misusing the NICS system for non-approved uses, including communication/correspondence to that state warning about non-approved uses of the NICS system and resolution of any issue FBI raised with the state;
• All records regarding any authority for the FBI to conduct ammunition background checks;
• All records that discuss or describe permissible usage of the NICS system; and
• All records, including communication/correspondence from other states and the FBI limited to ammunition background checks and the NICS system.

At the heart of this effort is to determine how NICS can be used for purposes for which it is not federally authorized, and to make public internal documents that FBI relies on to proceed regardless. It’s especially perplexing because there is no mention of ammunition in the Department of Justice’s NICS rules for FFLs and POCs. (New York is now a “Point of Contact” state, and per the National Shooting Sports Foundation, “FBI will disconnect all connections with FFLs once NY becomes a POC.”) Nor can it be found in Public Law 110–180, “An Act To improve the National Instant Criminal Background Check System,” or the “Fix NICS Act.”

Further, a reliable source tells me that during an FBI/ATF Townhall at the 2024 SHOT Show, NICS Section Chief Trudy Ford explained that using the NICS system for ammunition background checks was not an approved use of the NICS system.

It’s clear that the FBI has no intention of responding, which makes fair another question: Why?

And it calls to mind another bit of Justice Department stonewalling, this time regarding the Hunter Biden case and my complaint after its failure to respond to another FOIA request submitted to determine where it gets the authority to create a new class of “prohibited person” without Congress amending its statutory definition. The law as written does not recognize “permanent entry” to NICS as part of a plea deal without a conviction obtained with full due process.

Per correspondence from a U.S. Attorney in May responding to my complaint, “The agency has conducted additional searches and has found potentially responsive records that it is reviewing.”

“Potentially responsive records”– they either have authority or they don’t…

Stonewalling is nothing new. It was SOP for DOJ during the Fast and Furious investigation days, not just to efforts by me and investigative colleague, the late Mike Vanderboegh, but to the Senate Judiciary Committee, and to the House Committee on Oversight and Government Reform, all the time with Democrats running interference. Anybody see Eric Holder pay a price for Contempt of Congress…?

And DOJ’s tradition of above-the-law arrogance continues, as we see “conservative” political strategist and Donald Trump advisor Steve Bannon, with a legitimate executive privilege claim, ordered to jail for refusing to testify to Nancy Pelosi’s hand-picked J6 witchhunt committee, while Attorney General Merrick Garland has pledged to “defy subpoenas from Congressional Republicans that he does not agree with.”

So, it remains, as we happy few who won’t give up continue to be either ignored or disparaged by arrogant government functionaries who consider themselves the masters of the law, and contemptuously dismiss our efforts to report on their machinations as:

“[A] tangled web of connections between a small cadre of firearms activists and their efforts to recover fees through largely unsuccessful FOIA litigation.”

So why keep beating our heads against the wall? Isn’t doing something repeatedly that doesn’t work the definition of insanity?

Maybe because the truth is out there and if someone isn’t trying to find it the lies will prevail. Possibly because of a quote attributed to Edmund Burke that is true regardless of who said it. Perhaps because some of us realize that the forces that would disarm us are an existential threat to life, liberty, and the pursuit of happiness.

We might as well be asked “Why won’t you give up your guns? Why don’t you surrender?”

“Why don’t you just give up and let those who demand it all have it?”

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.