Submitted by Gun Owners of America,

When you go to a gun store to buy a new gun, you can expect a few things to happen.  First, some paperwork.  Second, you can expect to have to pass a background check before leaving with your gun.  And third, you can expect that the gun store will keep a record of your purchase for as long as the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") requires.  After all, that is how the government traces crime guns back to their original purchasers.

But what you might not expect is an FBI agent receiving a ping that you – yes, you – just successfully bought a gun.  And you might be surprised to learn that this agent has been receiving notifications of your purchases for months – or years.

Of course, such a surveillance scheme would be flatly unconstitutional – not to mention a violation of several safeguards already codified in federal law.  Yet slowly but surely, the government has been building a record of the private collections of thousands of American citizens, even though federal law expressly prohibits that "any system of registration of firearms, firearms owners, or firearms transactions or dispositions" be established.

Of course, even though they are being monitored, these victims remain law-abiding, meaning the government has no probable cause to justify seeking a warrant authorizing such a search in the first place.

Now, Gun Owners of America has discovered that the FBI has been using its Second Amendment surveillance program not only to enforce federal law, but also to help California target owners of newly banned "assault weapons."

FBI's NICS Monitoring Scheme

When news first broke of the FBI and ATF's joint "NICS Monitoring" surveillance scheme, the public was shocked.  As journalist John Crump reported in April of 2021, "monitoring of NICS isn't for prohibited people," but rather those who are eligible to purchase firearms but who law enforcement agents nevertheless suspect might commit a crime.

GOA learned that targets of NICS Monitoring – which exploits records in the National Instant Criminal Background Check System ("NICS") before they are deleted within 24 hours – never receive notice that their firearm transactions are being monitored.  Thus, there is no way to challenge the FBI's surveillance.

In fact, in order to enroll a target for NICS Monitoring, an agent only needs to complete an internal request form. At no point does an agent seeking NICS Monitoring have to convince a judge (or anyone other than himself, really) that this surveillance comports with the Fourth Amendment.  Entirely usurpingly, then, the FBI's abuse of NICS Monitoring is rampant.

Rampant Abuse of NICS Monitoring

After the NICS Monitoring scandal went public, GOA filed Freedom of Information Act ("FOIA") requests with the FBI and ATF seeking further records.  Naturally these agencies, the program's biggest abusers, were less than forthcoming with evidence of their clandestine activities, and GOA ultimately had to file suit to compel production of documents.

The subsequent document productions were illuminating.  They revealed a pattern of surveillance abuse so pervasive that federal agents could obtain NICS Monitoring based on anonymous tips.

As GOA reviewed more documents and public scrutiny increased, more and more abuses came to light.  For example, in one case an ATF agent requested NICS Monitoring of a man who had purchased a shotgun during the George Floyd riots, on the theory that he "may use a gun for rioting." 

In another case, an ATF agent requested NICS Monitoring of a man whose "reported wage earnings" did not "appear to supply the financial means to afford" firearms.  And in another case, ATF had a man monitored who merely "had a 'habit' of purchasing new guns, tinkering with them, losing interest, and subsequently selling them."

Thus, it would seem that self-defense, having a savings account, and a tinkering hobby – although perfectly lawful activities – are justification to have one's gun purchases surveilled indefinitely.

NICS Monitoring Is Unconstitutional and Unlawful

The FBI's surveillance scheme violates the Second and Fourth Amendment rights of gun owners. 

The Founders never sanctioned governmental monitoring of Americans' gun purchases.  Moreover, the Founders specifically required that all searches be reasonable, almost always meaning that they are based on warrants issued upon a finding of probable cause.  The FBI's NICS Monitoring program respects neither right.

NICS Monitoring also violates a number of provisions of federal law.  In anticipation that the NICS system would be abused to track gun owners, Congress has mandated that the FBI destroy all NICS records of "approved" firearm transactions within 24 hours. 

The FBI's copying and pasting of certain records out of the NICS system before they can be deleted clearly contravenes the 24-hour destruction requirement.

NICS Monitoring also violates the federal prohibition on the creation of registries of gun owners – a prohibition so important that Congress codified it twice: once generally, and once specifically with respect to NICS.

FBI Now Aiding State Gun Control Efforts

If the NICS Monitoring program's history thus far was not troubling enough, GOA has made a shocking new discovery – that, since at least 2023, the FBI has been surveilling gun owners on behalf of anti-gun states.  And to make matters worse, the FBI's surveillance involves firearm sales that are perfectly legal under federal law.

In one FBI NICS Monitoring submission, an FBI Special Agent from the agency's Chicago field office cited the following suspected violations of California law to justify a sixth-month monitoring period:

"MFG/SELL/TRANS/ETC ASSAULT WPN (30600(A) PC), STATE OFFENSE CODE 52509, FELONY 2; ILL POSS ANY ASSAULT WEAPON (30605(A) PC), STATE OFFENSE CODE 52510. FELONY."

Just how a federal background check approval would constitute evidence of unlawful state possession of an "assault weapon" within California, the agent did not say.  Nor did the agent seem to recognize that it is entirely possible to possess a firearm (or even have a residence) in a neighboring state and lawfully purchase and possess an "assault weapon" there without committing a California crime.

And regardless of California law, it is entirely unclear how it furthers the FBI's mission to prosecute violent crime by monitoring gun purchases that are completely legal under federal law.

Tellingly, the FBI refused to release further details of its investigation into the California gun owner, asserting a so-called "privacy Glomar" as to those details.  In other words, the FBI ridiculously refuses to acknowledge the existence of redacted information that it has already produced.

Thus, we are left with more questions than answers:

• What is the FBI doing worrying about violations of California's ban of pejoratively labeled "assault weapons"? 
• Is the enforcement of state gun control laws really an FBI priority, such that Second and Fourth Amendment rights are thrown by the wayside?

We hope FBI Director Kash Patel can answer these questions and dismantle this unlawful and unconstitutional program once and for all.