By: José Niño

Americans are being added to the National Instant Criminal Background Check System (NICS)’s “prohibited” list without due process.

According to John Crump of AmmoLand, the unthinkable is already taking place based on leaked documents the pro-Second Amendment website received. The document AmmoLandreceived is titled, “Guidance for Requesting a Submission of the NICS Indices Unlawful User/Addicted of a Controlled Substance Files.”

Crump alleges that this document gives law enforcement the power to “add suspects to the prohibited list even if the subject hasn’t been convicted of a drug charge.” Unbeknownst to most gun owners, they can be stripped of their Second Amendment rights without a court convicting them of a drug-related offense.

With this expanded prohibition on the people barred from owning firearms in mind, new questions on due process rights have naturally arisen. A new drug offense category could potentially add hundreds of thousands of gun owners to the NICS Incides, which lists off the people the FBI bans from buying a firearm.

Crump outlined what happens when the NICS background check system picks up a prohibited buyer:

When a Federal Firearms License holder (FFL) runs a NICS background check on a gun buyer, the system runs the purchaser’s name against the NICS Indices. If the system comes back with a positive hit, the FBI’s system will deny the sale of the firearm. No other information is supplied to the FFL about the denial.

Under the aforementioned form, law enforcement has the ability to add individuals to the NICS Indices in the event they fail a drug test. Strikingly, the reporting officer doesn’t have to press charges against the individual who tests positive for drug use. We must remember that many drug tests are false. To make matters worse, the individual does not receive any notification from the FBI that he was added to the NICS Indices.

Crump explains how even with marijuana legalization taking place at the state level, otherwise lawful gun owners could still be deprived of their right to bear arms:

The form also allows Law Enforcement to add a suspect to the NICS Indices if they claim they have found the person in possession of drugs regardless of state law. That means that a police officer finds someone in possession of a drug legal in a state, the officer can fill out the form and have the person added to the NICS Indices. More and more states have legalized marijuana, but the drug remains illegal on the federal level. An officer could find a person with marijuana and let them go because they are prohibited by state law from arresting them. The officer still could report them to the FBI and have their firearms rights revoked.

What Crump mentions in his recent piece illustrates the many pitfalls of NICS. Prior to the issuance of this form, NICS was already notorious for its false positives, in which many lawful Americans would end up being mixed and match with criminals who share similar names. This is the danger of having NICS in place.

Sadly, many Republicans have supported NICS and have done little to defund it, let alone abolish it. As long as NICS exists, there will always be the potential for the federal government to infringe on lawful Americans’ right to bear arms.

No-compromise Republicans can expose NICS’s flaws and make gutting that system a major campaign priority.

José Niño is a freelance writer based in Austin, Texas. Sign up for his mailing list here. Contact him via Facebook, Twitter, or email him at Get his e-book, The 10 Myths of Gun Control, here.