New Bill Shifts Gun Background Check Burden: Government Must Prove Ineligibility with 'Clear and Convincing Evidence'

The “Firearm Due Process Protection Act of 2025” tackles a very specific but frustrating problem: what happens when the federal background check system—the National Instant Criminal Background Check System (NICS)—gets your record wrong and wrongly blocks you from buying a firearm. This bill doesn’t change who is prohibited from owning a gun, but it radically changes the legal process for fixing NICS errors and fighting denials.

The NICS Error Fast Track

Imagine you try to buy a firearm, but the NICS system flags you as ineligible because of an old, expunged charge or a mix-up with someone else’s name. Right now, fixing that can feel like navigating a bureaucratic black hole. Section 2 of this Act aims to clear that up by mandating speed. If you sue the government to fix your record, the court must schedule a hearing within just 30 days of the lawsuit being filed. For anyone who has dealt with the slow grind of federal litigation, a 30-day clock is a massive change designed to force quick action and resolution.

Flipping the Burden of Proof

This is the biggest change in the bill and the part that carries the most weight. In most legal disputes, the person bringing the lawsuit (the plaintiff) has to prove their case. However, Section 2 flips this standard entirely for NICS denial lawsuits. The government agency being sued must now prove, using “clear and convincing evidence,” that you are actually ineligible to own or possess a firearm. This is a high bar for the government to clear. Essentially, if the government can’t quickly and decisively prove you’re prohibited, you win and get your record corrected. This procedural shift significantly favors the individual challenging the denial, making it much easier and quicker to reverse erroneous prohibitions.

Getting the Government to Pay Your Legal Bills

Fighting the government in court is expensive, which often makes it impossible for regular people to challenge NICS errors, even when they know they are right. Section 2 addresses this by requiring the government to pay your reasonable attorney fees and court costs if you “substantially prevailed” in your lawsuit. You don’t even have to win a final judgment; if the government changes its position or agrees to fix your record because your claim was legitimate, they still have to cover your legal expenses. This provision is designed to remove the financial barrier to challenging the system, but it also creates a major new cost exposure for federal agencies.

More Transparency, Less Guesswork

To keep the FBI accountable for the accuracy of the NICS system, Section 3 requires the Director of the FBI to submit a detailed annual report to Congress. This report must break down exactly how many people challenged their NICS records, how many challenges were processed, and, most importantly, the specific reasons why initial denials were overturned or upheld. For the public, this means we should finally get real data on how often the NICS system makes mistakes and how long it takes the government to fix them. This increased transparency is crucial for understanding the true error rate of the background check system.

The Real-World Impact

For the average person, this bill means that if a clerical error or outdated record incorrectly blocks you from exercising your Second Amendment rights, you have a powerful, fast-tracked, and potentially free way to fight back. The government now has to do the heavy lifting to prove you’re a prohibited person. However, this change creates significant pressure on the agencies responsible for maintaining NICS records. If the government fails to meet that high evidentiary bar of “clear and convincing evidence” in court, it could result in individuals who are legitimately prohibited from owning firearms getting their rights restored simply because the government couldn't present its case perfectly within the tight 30-day window. This is the trade-off: stronger due process protections versus the risk of ineligible persons slipping through the cracks due to procedural difficulties.