May 3, 2016

Social Security Releases Advance Copy Of Proposed Regulations On Gun Control

     The proposed regulations which would provide a role for the Social Security Administration in determining eligibility to purchase firearms have not yet been published in the Federal Register. However, the agency has posted the proposed regulations on its website. They say that the Acting Commissioner signed them on April 28. I don't understand why they haven't yet been sent over for publication.
     Below are some excerpts from the proposal. Note that this proposal does not provide a right to an evidentiary hearing specifically on the issue of competency to purchase firearms. However, a claimant can appeal a determination that a representative payee should be appointed. Without a representative payee appointment the claimant's name cannot go on the list.  Hearings on representative payee appointments have been extremely rare. I've been representing Social Security claimants for 37 years and I've never done one. I've never heard of another attorney doing one. Also note that this is only a proposal. The public can comment on the proposal. Social Security must consider the comments and then obtain the approval of the Office of Management and Budget (OMB) before publishing this as final regulations. That will likely take many months. If a Republican is elected President in November these proposed regulations will probably die. Finally, note that that the proposal would only apply to some individuals drawing benefits due to disability. A person drawing retirement benefits who needs a representative payee because he or she suffers from severe dementia would not be excluded from purchasing firearms. In fact, it appears to me that an individual excluded from purchasing firearms under this proposal who ages off disability benefits and onto retirement benefits would suddenly be able to purchase firearms again even those his or her mental abilities would not have changed.
Affected individual means an individual:
 (1) Who has been found disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments... and
(2) For whom we need to make a capability finding under the rules in part 404, subpart U of this chapter, or under the rules in part 416, subpart F of this chapter, and that finding is the result of marked subnormal intelligence, or mental illness, incompetency, condition or disease ...
If we report an individual to the NICS [database used to exclude certain individuals from purchasing firearms] based on a finding that he or she meets the criteria in § 421.110(b)(1) – (5), the individual may apply for relief from the Federal firearms prohibitions imposed by Federal law as a result of our adjudication...
(a) When we decide whether to grant an application for relief, we will consider:
(1) The circumstances regarding the firearms prohibitions imposed;
(2) The applicant’s record, which must include the applicant’s mental health records and a criminal history report; and
(3) The applicant’s reputation, developed through witness statements or other evidence.
(b) Evidence. The applicant must provide the following evidence to us in support of a request for relief:
(1) A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief ; and
(2) Written statements and any other evidence regarding the applicant’s reputation. ...
An applicant who requests relief under § 421.150 must prove that he or she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)( 4) will not be contrary to the public interest....
Judicial review of our action denying an applicant’s request for review is available according to the standards contained in 18 U.S.C. 925(c). An individual for whom we have denied an application for relief may file a petition for judicial review with the United States district court for the district in which he or she resides .

5 comments:

Anonymous said...

The proposal would only report beneficiaries who have been found to meet/equal one of the Listings in 12.05, on the basis that those folks are disabled due to medical criteria. It asks for comments on extending that to step 5 approvals, and how that might work because step 5 considers vocational factors also.

Anonymous said...

Federal Register generally needs 5 days lead time before publishing.

Bujang Dara said...

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Anonymous said...

The agency can't do its job now! So now we are going to give them another function to do on top of the mess they have already and we are not supposed to be alarmed. Why are we giving them the ability to decide and adjudicate a decision on gun matters when they can't even adjudicate disability cases properly?

Anonymous said...

Spot on.