Brady Bill Improvement Act, Good or Bad?

[Spatch66]

Thursday, December 20, 2007

Gun Owners of America and its supporters took a knife in the back
yesterday, as Senator Chuck Schumer (D-NY) out-smarted his
congressional opposition into agreeing on a so-called
"compromise" on
HR 2640 -- a bill which now goes to the President's desk.

The bill -- known as the Veterans Disarmament Act to its opponents --
is being praised by the National Rifle Association and the Brady
Campaign.

The Brady Bunch crowed "Victory! U.S. Congress Strengthens Brady
Background Check System." The NRA stated that last minute changes to
the McCarthy bill made a "good bill even better [and that] the end
product is a win for American gun owners."

But Gun Owners of America has issued public statements decrying this
legislation.

The core of the bill's problems is section 101(c)(1)(C), which makes
you a "prohibited person" on the basis of a "medical
finding of
disability," so long as a veteran had an "opportunity"
for some sort
of "hearing" before some "lawful authority" (other
than a court).
Presumably, this "lawful authority" could even be the psychiatrist
himself.

Note that unlike with an accused murderer, the hearing doesn't have
to occur. The "lawful authority" doesn't have to be unbiased. The
veteran is not necessarily entitled to an attorney -- much less an
attorney financed by the government.

So what do the proponents have to say about this?

ARGUMENT: The Veterans Disarmament Act creates new avenues for
prohibited persons to seek restoration of their gun rights.

ANSWER: What the bill does is to lock in -- statutorily -- huge
numbers of additional law-abiding Americans who will now be denied
the right to own a firearm.

And then it "graciously" allows these newly disarmed Americans to
spend tens of thousands of dollars for a long-shot chance to regain
the gun rights this very bill takes away from them.

More to the point, what minimal gains were granted by the "right
hand" are taken away by the "left." Section 105 provides
a process
for some Americans diagnosed with so-called mental disabilities to
get their rights restored in the state where they live. But then, in
subsection (a)(2), the bill stipulates that such relief may occur
only if "the person will not be likely to act in a manner dangerous
to public safety and that the GRANTING OF THE RELIEF WOULD NOT BE
CONTRARY TO THE PUBLIC INTEREST." (Emphasis added.)

Um, doesn't this language sound similar to those state codes (like
California's) that have "may issue" concealed carry laws -- where
citizens "technically" have the right to carry, but state law only
says that sheriffs MAY ISSUE them a permit to carry? When given such
leeway, those sheriffs usually don't grant the permits!

Prediction: liberal states -- the same states that took these
people's rights away -- will treat almost every person who has been
illegitimately denied as a danger to society and claim that granting
relief would be "contrary to the public interest."

Let's make one thing clear: the efforts begun during the Clinton
Presidency to disarm battle-scarred veterans -- promoted by the Brady
Anti-Gun Campaign -- is illegal and morally reprehensible.

But section 101(c)(1)(C) of HR 2640 would rubber-stamp those illegal
actions. Over 140,000 law-abiding veterans would be statutorily
barred from possessing firearms.

True, they can hire a lawyer and beg the agency that took their
rights away to voluntarily give them back. But the agency doesn't
have to do anything but sit on its hands. And, after 365 days of
inaction, guess what happens? The newly disarmed veteran can spend
thousands of additional dollars to sue. And, as the plaintiff, the
wrongly disarmed veteran has the burden of proof.

Language proposed by GOA would have automatically restored a
veteran's gun rights if the agency sat on its hands for a year.
Unfortunately, the GOA amendment was not included.

The Veterans Disarmament Act passed the Senate and the House
yesterday -- both times WITHOUT A RECORDED VOTE. That is, the bill
passed by Unanimous Consent, and was then transmitted to the White
House.

Long-time GOA activists will remember that a similar "compromise"
deal helped the original Brady Law get passed. In 1993, there were
only two or three senators on the floor of that chamber who used a
Unanimous Consent agreement (with no recorded vote) to send the Brady
bill to President Clinton -- at a time when most legislators had
already left town for their Thanksgiving Break.

Gun owners can go to http://www.gunowners.org/news/nws9402.htm to
read about how this betrayal occurred 14 years ago.

With your help, Gun Owners of America has done a yeoman's job of
fighting gun control over the years, considering the limited
resources that we have. Together, we were able to buck the Brady
Campaign/NRA coalition in 1999 (after the Columbine massacre) and
were able to defeat the gun control that was proposed in the wake of
that shooting.

Yesterday, we were not so lucky. But we are not going to go away.
GOA wants to repeal the gun-free zones that disarm law-abiding
Americans and repeal the other gun restrictions that are on the
books. That is the answer to Virginia Tech. Unfortunately, the
House and Senate chose the path of imposing more gun control.

So our appeal to you is this -- please help us to grow this coming
year. Please help us to get more members and activists. If you add
$10 to your membership renewal this year, we can reach new gun owners
in the mail and tell them about GOA.

Please urge your friends to join GOA... and, at the very least, make
sure they sign up for our free e-mail alerts so that we can mobilize
more gun owners than ever before!

[bartonmd]

I've actually read (or at least skimmed) the actual bill, and did not find anything all that concerning in it... Much like the NRA's summation of it in their member e-mails. When I read some of the conflicting stories from competing gun rights groups (with competing being the operative word), I read the bill for myself, instead of relying on the few words here and couple words there, taken out of context in the article you posted. Other than my yearly (meaning I do NOT have a life membership) NRA membership and my shooter classifications, I have no real ties to the NRA. Having said that, I say that these "competing" gun groups are trying to get more money by taking members from the NRA, by throwing them under the bus.

It would seem, from the wording in the actual bill, that it's just keeping NCIC up to date (like it has not been), and is saying that the government still does not have access to your medical records, but has access to whether or not you ARE CURRENTLY in a mental institution, or ARE CURRENTLY MEDICALLY considered to be a danger to yourself or others. When and if YOUR DOCTOR releases you, and says that you no longer pose a threat to yourself or others, as far as the NCIC is concerned, you are good to go.

This is strikingly similar to what the GOA called the "thoughtcrime bill" awhile back, the domestic terrorism bill, that the article took bits and pieces from, and skewed them all around, and convienently left out the paragraph stating that no matter what happens, US citizens can not have their constitutional rights violated in any way while we try and stop domestic terrorism.

Now, I'm as anti-fedgovco as anybody else, but I just don't see a real problem with this.




13

HEALTH.—

14

(1) IN GENERAL.—No department or agency of

15

the Federal Government may provide to the Attorney General any record of an adjudication or determination related to the mental health of a person, or any commitment of a person to a mental institution if—

20

(A) the adjudication, determination, or

21

commitment, respectively, has been set aside or

22

expunged, or the person has otherwise been

23

fully released or discharged from all mandatory

24

treatment, supervision, or monitoring;
10

HR 2640 RFS

1

(B) the person has been found by a court,

2

board, commission, or other lawful authority to

3

no longer suffer from the mental health condition that was the basis of the adjudication, determination, or commitment, respectively, or

6

has otherwise been found to be rehabilitated

7

through any procedure available under law; or

8

(C) the adjudication, determination, or

9

commitment, respectively, is based solely on a

10

medical finding of disability, without a finding

11

that the person is a danger to himself or to others or that the person lacks the mental capacity

13 to manage his own affairs.

(B) R

ELIEF FROM DISABILITIES.—In the

5

case of an adjudication or determination related

6

to the mental health of a person or a commitment of a person to a mental institution, a

8

record of which may not be provided to the Attorney General under paragraph (1), including

10

because of the absence of a finding described in

11

subparagraph (C) of such paragraph, or from

12

which a person has been granted relief under a

13

program established under subparagraph (A),

14

the adjudication, determination, or commitment, respectively, shall be deemed not to have

16

occurred for purposes of subsections (d)(4) and

17

(g)(4) of section 922 of title 18, United States

18 Code.

[Judge]

The GOA is building up a pretty impressive record of twisting legislation....

[bartonmd]

Sorry, forgot to add the link to the actual bill on the .gov site...

http://frwebgate.access.gpo.gov/cgi-...640rfs.txt.pdf

Mike

[bartonmd]

Originally Posted by Judge

The GOA is building up a pretty impressive record of twisting legislation....

AH CRAP! I AGREE WITH JUDGE!

[Spatch66]

I didn't see anything ominous in it. I got this in an email from GOA, not a member just on their list, and an email from NRA as well. Sounds like they were talking about two completelly different pieces of legislation. It would seem that there is now at least a mechanism for appeal for impacted persons.

[NC Dave]

Originally Posted by Spatch66

I didn't see anything ominous in it. I got this in an email from GOA, not a member just on their list, and an email from NRA as well. Sounds like they were talking about two completelly different pieces of legislation. It would seem that there is now at least a mechanism for appeal for impacted persons.

I get both as well. The GOA seems to play more on fear and emotion. Just my opinion. Your milage may vary.

[NC Dave]

Below are some more recent "Myths vs. Reality" items from the NRA:

MYTH: “As many as a quarter to a third of returning Iraq veterans could be prohibited from owning firearms—based solely on a diagnosis of post-traumatic stress disorder.”

FACT: The only veterans who would be reported to NICS under this bill due to mental health issues are—as with civilians—those who are adjudicated as incompetent or involuntarily committed to a mental institution.

A diagnosis alone is never enough; the person must be “adjudicated as a mental defective,” which is a legal term that implies a fair hearing process. The Veterans’ Administration has regulations that provide veterans with an opportunity for a hearing on those decisions, and an opportunity for multiple appeals—just as a civilian does in state court. Any records that don’t meet this standard could not be reported to NICS, and any deficient records that have already been provided would have to be removed.
Veteran and journalist Larry Scott (operator of the website www.vawatchdog.org) calls the allegation about veterans a “huge campaign of misinformation and scare tactics.” Scott points out that thousands of veterans who receive mental health care through the VA—but have not been found incompetent or involuntarily committed—are not currently reported to NICS, and wouldn’t be reported under H.R. 2640. (Scott’s analysis is available online at http://www.military.com/opinion/0,15202,151321_1,00.html?wh=wh.)

Last, but not least, H.R. 2640 also provides veterans and others their first opportunity in 15 years to seek “relief from disabilities” through either state or federal programs. Currently, no matter how successfully a person responds to treatment, there is no way for a person “adjudicated” incompetent or involuntarily committed to an institution to seek restoration of the right to possess a firearm.

MYTH: A child who has been diagnosed with attention deficit and hyperactivity disorder “can be banned for life from ever owning a gun as an adult.” “Your ailing grandfather could have his entire gun collection seized, based only on a diagnosis of Alzheimer`s (and there goes the family inheritance).”

FACT: Again, a psychiatric or medical diagnosis alone is not an “adjudication” or “commitment.”
Critics base their concern on BATFE regulations that define an “adjudication” to include a decision by a “court, board, commission, or other lawful authority.” They claim any doctor could potentially be a “lawful authority.” They are wrong. Not even the Clinton Administration took such an extreme position. In fact, the term “lawful authority” was apparently intended to cover various types of government panels that are similar to “courts, boards, or commissions.” Basic principles of legal interpretation require reading it that way. The term also doesn’t override the basic constitutional protections that come into play in decisions about a person’s mental health.

Finally, records of voluntary treatment also would not be available under federal and state health privacy laws, which H.R. 2640 also does not override.

MYTH: People who get voluntary drug or alcohol treatment would be prohibited from possessing guns.

FACT: Again, current BATFE regulations make clear that voluntary commitments do not affect a person’s right to arms. NRA (and, surely, the medical community) would vehemently oppose any proposal that would punish or deter a person getting needed voluntary treatment.

MYTH: A Pennsylvania man lost his right to possess firearms due to an “offhanded, tongue-in-cheek remark.”

FACT: This case does not hold up to close investigation. The person made comments on a college campus that were interpreted as threatening in the wake of the Virginia Tech tragedy; he was then briefly sent to a mental institution. Opponents, however, have failed to mention that the man had been the subject of chronic complaints from his neighbors. (The “filth, mold, [and] mildew” in his apartment were so bad that the town declared it unfit for human habitation.) After his brief hospital stay, he was arrested for previously pointing a gun at his landlord and wiretapping his neighbors. Despite these facts, it also appears he was only committed for a brief period of observation. Current BATFE regulations say that the term “committed to a mental institution” “does not include a person in a mental institution for observation.” Therefore, even in this extreme case, the person may not ultimately be prohibited from possessing firearms. Second Amendment scholar Clayton Cramer describes this case in a recent Shotgun News column (available online at http://www.claytoncramer.com/PopularMagazines/HR%202640.htm) and reaches the same conclusion.

MYTH: “Relief from disability” provisions would require gun owners to spend a fortune in legal fees to win restoration of rights.

FACT: Relief programs are not that complicated. When BATFE (then just BATF) operated the relief from disabilities program, the application was a simple two-page form that a person could submit on his own behalf. The bureau approved about 60% of valid applications from 1981-91.
Pro-gun attorney Evan Nappen points out that the most extreme anti-gun groups now oppose H.R. 2640 simply because of the relief provisions. Nappen includes a sampling of their comments in his article on the bill (“Enough NRA Bashing”), available online at http://www.pgnh.org/enough_nra_bashing.

MYTH: The bill’s “relief from disability” provisions are useless because Congress has defunded the “relief” program.

FACT: The current ban on processing relief applications wouldn’t affect this bill. The appropriations rider (promoted in 1992 by Sen. Frank Lautenberg (D-N.J.)) only restricts expenditures by the Bureau of Alcohol, Tobacco, Firearms and Explosives. H.R. 2640 requires relief programs to be set up and operated by agencies that make adjudications or commitments related to people’s mental health. BATFE doesn’t do that, but other agencies—especially the Veterans’ Administration—do. Naturally, NRA would strongly oppose any effort to remove funding from new “relief” programs set up under this widely supported bill.

MYTH: The bill must be anti-gun, because it was co-sponsored by anti-gun Members of Congress.

FACT: By this unreasonable standard, any bill with broad support in Congress must be a bad idea. NRA believes in working with legislators of all political persuasions if the end result will benefit lawful gun owners. Anti-gun Senator Barbara Boxer (D-Calif.) supported arming airline pilots against terrorists, but that program was (and is) a good idea nonetheless.

MYTH: The bill “was hatched in secret …and passed out of the House without even a roll call.”

FACT: No one asked for a roll call vote. This is not unusual. The House voted on H.R. 2640 under “suspension of the rules,” which allows passing widely supported bills by a two-thirds vote. (This procedure also helps prevent amendments—which in this case helped prevent anti-gun legislators from turning the bill into a “Christmas tree” for their agenda.)

After a debate in which only one House member opposed the bill, the House passed the bill by a voice vote. There is never a recorded vote in the House without a request from a House member. No one asked for one on H.R. 2640, again showing the widespread support for the bill.