From a fact sheet on the President's initiative to reduce gun violence issued by the White House yesterday:
... The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons. ...
Current law prohibits individuals from buying a gun if, because of a mental health issue, they are either a danger to themselves or others or are unable to manage their own affairs. The Social Security Administration (SSA) has indicated that it will begin the rulemaking process to ensure that appropriate information in its records is reported to NICS [National Instant Criminal Background Check System]. The reporting that SSA, in consultation with the Department of Justice, is expected to require will cover appropriate records of the approximately 75,000 people each year who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent. The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health. ...
To this point, the Office of Management and Budget (OMB) website doesn't show any proposed rulemaking pending review. OMB approval is required before Social Security can publish a Notice of Proposed Rule-Making (NPRM).
12 comments:
This is ludicrous. Determinations of incapability are so poorly done and so marginally documented that it opens up a huge avenue for appeals and class action lawsuits by anyone denied gun rights by this order. Obama once again demonstrates that he has no idea what is going on.
As someone who works with the worst of offenders, those facing Capital charges and also having a Masters in Psychology I think this type of tracking system is long over due. It is a start in the right direction.
@10:22 - The point is that Obama has precisely zero idea what a complete legal fiasco he is going to create by linking a *fundamental constitutional second amendment rights issue* to *SSA determinations of incapability*.
Good idea = Tracking system based on a pre-existing or new determination system incorporating sufficient legal and medical evidence and due process that can withstand judicial challenge.
Bad idea = Tracking system based on SSA determinations of incapability.
Somebody in the Obama administration does not realize that attacking this list will be like sandblasting a soup cracker.
Based on a reading of the above excerpt, it seems there would be three criteria to get referred to NICS -
1) have a documented mental health issue (presumably based on the medical evidence provided to SSA by an applicant for DIB),
2) receive disability benefits, and
3) are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent.
So, it's not just the fact one has a representative payee.
So, what you are saying, is that if one has a mental health impairment, receiving benefits, and has a rep payee, they would get referred to the NCIS? Well, that certainly explains that and makes it seem all the more legit....
"The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health. ..."
This seems like enough of a safeguard for the individual's 2nd Amendment rights. Obvious the devil is in the details in terms of what it would take to obtain relief. The bar shouldn't be set too high or it probably won't pass muster.
The language Charles posted isn't explicitly clear on whether those people who meet the three stated criteria (or are adjudicated incompetent by some state or other tribunal) would automatically fail the background check and be disqualified from purchasing a gun, though the last bit about an appeals process does seem to suggest that may be the case.
In any event, as long as that appeals process is transparent and timely/efficient, I don't see a problem. Even Heller contemplates restrictions on the right to own, possess, and use firearms for various reasons, it's main thrust was only that an outright prohibition of (hand)guns by a state actor is unconstitutional.
Seems like the gov't would have a really strong argument to limit second amendment rights here: the court would be weighing the right of an individual to own a gun versus the likely public harm that would come from one owning a gun who has mental impairments that are so limiting they contribute significantly to a finding of disability by SSA and require that person to have a rep payee.
All rights are limitable, even those enshrined in constitutional amendments. Let's not forget that.
"All rights are limitable, even those enshrined in constitutional amendments. Let's not forget that."
The problem here is that the rep payee process is an arbitrary, and somewhat random, black cardboard box of a process.
There was never any kid of organized well-funded politically intense group that ever wanted to wage total war on the rep payee experience for the sole purpose of defeating an Obama gun initiative. Because Obama. And guns.
Until some policy wonk genius decided to staple it to the Second Amendment and wave it like a red flag at the NRA and friends.
I am pleased to see such a polite and informed discussion. Thank you contributors.
The one thing that has not been explained here is the statutory context upon which this extension of existing regulations to SSA is based. There's a decent summary here: http://smartgunlaws.org/federal-law-on-mental-health-reporting/.
The question is whether an SSA adjudication of disability for purposes of the SS Act can be seen as an adjudication that someone is "mentally deficient" - it's a stretch, but probably legally defensible if the new SSA proposed rule limits the medical diagnoses required to those that fit the existing statutes.
It isn't just about whether someone has a rep payee, but whether they need a rep payee because of a condition that fits within the existing gun ownership restriction.
@5:18
you are correct, and perhaps because of that (your last graf, specifically) SSA will have to institute some changes to the rep payee process to ensure only those getting a rep payee for those reasons are referred on to assuage previous commenters' concerns.
I for one have a memory imparemebt- that doesnt quite qualify me as being "incompetent" however I was determined to have to have a payee for my SSD. I DIDNT have an issue with that at all. BUT, this is a VIOLATION of my rights due to the broad sweeping determination by the SS Administration simply because i have a payee. Im not violent, suicidal, no prior history, Served my country with a distinguished record and worked in Law Enforcement. Basically Im saying this is Bullshit! Have a happy new year folks!✌
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