The Firearm-Related Challenge: Fighting for Your Rights

February 02, 2022

By Keffer Hirschauer LLP

The Firearm-Related Challenge: Fighting for Your Rights

You have a Second Amendment right to keep and bear arms, but federal and Indiana laws affect how you may enjoy that right. When your attempt to purchase a firearm is thwarted, you can fight for that right through a firearm-related challenge. You may seek review of a gun purchase marred by a background check delay or denial, but help from an experienced Indiana gun purchase lawyer is highly advisable to ensure you quickly and efficiently determine the cause for the denial and take advantage of all arguments in your favor.

The Indianapolis gun purchase lawyers at Keffer Hirschauer LLP are dedicated to fighting for client rights, including the protection of clients’ Second Amendment rights restricted in the gun buying process. With years of experience helping clients fully realize their constitutional right to gun ownership, our legal team is ideally suited to helping turn around adverse decisions in the gun buying process.

Tools for a Successful Firearm-Related Challenge

The right to gun ownership and possession is almost as old as the United States. Passed in 1791, the Second Amendment allows citizens to keep and bear arms, but Congress and the Indiana General Assembly have enacted laws regulating the purchase of firearms. Understanding how these laws impact your firearm rights and purchasing can help you tailor your efforts to avoid having your purchase delayed or blocked and to fight adverse decisions by authorities overseeing the gun buying process.

The first step to seeking review of a gun purchase denial is understanding the requirements placed on purchasers by federal and state laws, the overall gun purchase process in Indiana, the reasons a firearm purchase may be denied, and how to seek review of a denial through a firearm-related challenge or application to the voluntary appeal file. Experienced counsel can help streamline both the educational element and the process seeking review of a firearm purchase denial.

Overview of Federal and Indiana Gun Laws

Several federal laws affect gun purchase and ownership rights. Two significant federal laws are summarized here:

The following Indiana laws also limit gun possession and ownership:

  • Indiana Code 35-47-2-1 defines when licensure is required to carry a handgun and prohibits a person convicted of domestic violence from possessing or carrying a handgun
  • Indiana Code 35-47-1-7 defines a “proper person” in the context of Indiana’s gun laws (e.g., who may possess a firearm or be licensed to carry a handgun)
  • Indiana Code 35-47-2-3 defines the procedure to apply for a license to carry a handgun

Indiana law prohibits firearm ownership or possession by individuals meeting any of the following:

  • Record includes a serious violent felony conviction or an adjudication for delinquency if committed by an adult of having committed a serious violent felony
  • Record includes a domestic battery conviction
  • Individual who is the subject (respondent) of a protective order
  • Individual determined by a court to be a danger to self or others
  • Individual in the US illegally
  • Individual who abuses alcohol or drugs
  • Individual who is a minor (unless a parent or guardian)
  • Individual who has been convicted of a crime regarding the unsafe handling of a handgun

Together, these and related federal and state legislation dictate the gun buying process and limitations on gun possession and ownership.

The Gun Buying Process in Indiana

Neither federal nor Indiana law requires a license to purchase a firearm. However, under federal law, a background check of a proposed purchaser is required when the purchase is from anyone licensed to sell firearms. The FLL asks the purchaser to complete ATF Form 4473, which the FLL must transmit electronically or by phone to the FBI. The FBI then performs a background check by running the proposed purchaser’s information through the National Instant Criminal Background Check System (NICS). The NICS background check generally verifies that the proposed purchaser is not ineligible to own or possess a firearm.

Federal law prohibits gun possession or ownership by the following:

  • A person convicted of a crime punishable by incarceration for more than one year or convicted of a misdemeanor under state law that is punishable by incarceration for more than two years
  • A person who is a fugitive from justice
  • A person who illegally uses or is addicted to any controlled substance
  • A person committed to a mental institution or ruled mentally incompetent by a court
  • An illegal alien living unlawfully in this country
  • A person with a dishonorable discharge from any branch of the US Armed Forces
  • A former US citizen who has renounced US citizenship
  • Any subject of a restraining order involving an intimate partner, a partner’s child, or children
  • A person convicted of misdemeanor domestic violence

The office performing NICS background checks operates 17 hours per day and seven days per week. However, they can get backlogged. If NICS staff cannot complete a background check in three days, the FLL may transfer the firearm being purchased to the proposed buyer.

Reasons for a Denied Gun Purchase

In some cases, a background check through the NICS may disclose a potential bar to gun possession or ownership. In such cases, the FBI may mark the application as either delayed or denied.

A delayed result means NICS staff requires additional time to complete the background check. This could be caused by a backlog of background checks to be run, or it could be because the applicant’s information closely matches that of an individual prohibited from possessing or owning a firearm, but the FBI needs additional time and information to verify that information.

A denied result means the background check disclosed a federal or state prohibition to firearm possession or ownership by the applicant.

How to File a Firearm-Related Challenge

If your background check application filed incident to the purchase of a firearm is denied, you may seek review of that determination through a firearm-related challenge. This type of appeal is available only if an applicant receives a denial after the background check.

You will need the following information to prepare a firearm-related challenge:

  • The NIC Transaction Number (NTN) from your application
  • The reason for the denial

The reason for the denial will help you gather documentation to support its reversal. For example, if your application was denied because someone with your same name is ineligible to possess or own a firearm, a successful appeal requires gathering and submitting sufficient documentation to show that you are not the person with whom your background check associated. Alternatively, if the background check denied your application on a ground that is incorrect, you need to gather and submit documentation to show that the basis for the denial is in error.

Resolution of a firearm-related challenge may take as little as a couple of months or as long as several. Working with experienced counsel to prepare and submit the challenge can help streamline the process and avoid unnecessary delays.

Understanding the Next Step: Applying for the Voluntary Appeal File

The voluntary appeal file (VAF) is an alternative to the firearm-related challenge although it was created for persons whose applications were denied multiple times and who believe the denials were in error. NICS personnel assign a Unique Personal Identification Number (UPIN) to each VAF request. If the research demonstrates that your denial was in error, then you can use your UPIN for future background checks to avoid duplication of the error.

You can apply to the VAF electronically or by mailing the necessary forms. Electronic VAF applications are submitted to the FBI’s online portal. Mailed submissions must include the following completed forms:

  • A VAF application
  • A standard fingerprint form properly completed by the agency collecting your fingerprints
  • An attorney release form
  • The documentation necessary to support your appeal based on the reason for the denial

As with a firearm-related challenge, a VAF application can take months to resolve, but help from a knowledgeable gun purchase lawyer is essential to avoid preventable problems.

Call Keffer Hirschauer LLP for Your Firearm-Related Challenge

Sometimes exercising your right to possess and own a firearm in Indiana requires you to deal with bureaucratic red tape. When your NICS background check resulted in a denial, self-help websites and online articles are no substitute for the assistance of experienced legal counsel. The Indianapolis gun purchase lawyers at Keffer Hirschauer LLP help cut the red tape by zeroing in on the relevant documentation to support your firearm-related challenge or VAF. For a free consultation to learn more about how we can help, call (317) 857-0160 today or complete our online contact form.

Categories: