NRA-ILA - The Nics Improvement Bill: Myth And Reality
This is a discussion on NRA-ILA - The Nics Improvement Bill: Myth And Reality within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Some opponents of the "NICS Improvement Amendments Act" (H.R. 2640) have spent the last several months painting a picture of the bill that would rightly ...
October 6th, 2007 10:23 AM
NRA-ILA - The Nics Improvement Bill: Myth And Reality
Some opponents of the "NICS Improvement Amendments Act" (H.R. 2640) have spent the last several months painting a picture of the bill that would rightly terrify gun owners-if it was true.
The opponents' motive seems to be a totally unrealistic hope of undercutting or repealing the National Instant Criminal Background Check System (NICS) by ensuring that its records are inaccurate and incomplete. But make no mistake-an inaccurate and incomplete system only serves to delay and burden lawful gun buyers, while failing to screen those who are prohibited from possessing firearms under existing law.
Nonetheless, opponents of H.R. 2640 continue to spread misconceptions about the bill. The following are some of the common myths.
MYTH: "Millions of Americans will awake one day and find that they are suddenly barred from buying guns based upon decades old convictions of 'misdemeanor crimes of domestic violence,' or mental health adjudications that were later rescinded or expired."
FACT: H.R. 2640 does not create any new classes of "prohibited persons." The NRA does not, and will not, support the creation of new classes of prohibited persons. H.R. 2640 only requires reporting of available records on people who are prohibited from possessing firearms under existing law.
Also, H.R. 2640-for the first time-specifies that mental health adjudications may not be reported if they've been expunged, or if the person has received relief from the adjudication under the procedures required by the bill. In those cases, the mental adjudication or commitment "shall be deemed not to have occurred," and therefore would not prohibit the person from possessing firearms.
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/0,15...,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/Popular.../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.
October 6th, 2007 10:25 AM
LOL You beat me to it by two minutes.
October 6th, 2007 10:36 AM
It's a New York thing we move fast, lol!
Originally Posted by jualdeaux
October 6th, 2007 11:11 AM
This is only one bill being looked at and called "Veterans Disarmament Act". Please look at HR 4757, "Our Lady Of Peace Act" which has already passed the house. Look closely at the following clause:
"(3) APPLICATION TO PERSONS WHO HAVE BEEN ADJUDICATED AS A MENTAL DEFECTIVE OR COMMITTED TO A MENTAL INSTITUTION-
(A) For purposes of paragraph (1), an adjudication as a mental defective occurs when a court, board, commission, or other government entity determines that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease--
(i) is a danger to himself or to others; or
(ii) lacks the mental capacity to contract or manage his own affairs."
Please note the various ways a person can be called mentally "defective". I'm not an alarmist, however, there are bills being looked at that need to be watched very closely. More info at the following:
October 6th, 2007 02:50 PM
I have to admit that once the anti's have the wording to stop someone from reciving a firearm all they have to do is change the definition of the word in question to deny our rights. When will we all get together and march on the Capitol for a protest to stop this from happening with every damn bill and law?
October 6th, 2007 05:38 PM
The USA needs "no" more gun laws. PERIOD.
The USA needs to trash all gun laws except the SECOND AMENDMENT. PERIOD.
October 6th, 2007 08:07 PM
I'll drink to that !!
Originally Posted by DOGOFWAR01
Oopps ! Supposed to be "+1" on the forum
October 6th, 2007 08:12 PM
I'm a child of the 60's, but I got over it.
October 8th, 2007 12:06 AM
That's bunk and the NRA knows it. Section 101(c)(2)(A), entitled "PROGRAM FOR RELIEF FROM DISABILITIES", of H.R. 2640 says, in part: "Relief and judicial review shall be available according to the standards prescribed in section 925(c) of title 18, United States Code."
Originally Posted by mrreynolds
The method for getting your name removed from NICS is spelled out in the above-referenced section, which I've quoted at the end of this post. Guess what? Since 1992, Congress, at Charles Shumer's initiative, has blocked the BATFE from spending any funds to do the necessary review for such a request.
It's the same-old same-old "relief" that is a mere figment of your imagination at this point, as the BATFE still can't spend any funds to review appeals.
Don't believe me? Read the following from United States v. Bean, a case that hinged on the very question of the expenditure block and was decided by the Supreme Court in 2002:
Bean was barred under Title 18 section 922 of the United States Code who applied to the then-ATF for an exception as provided by Title 18 Section 925(c) (yes, that same Section 925(c) that is referenced as the way to obtain relief in H.R. 2640)
Instead of this bill, the NRA should be demanding that Congress remove the block on the BATFE expending funds to perform the reviews.
ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon such applications.
Invoking ß925(c)ís judicial review provision, he filed suit, asking the District Court to conduct its own inquiry into his fitness to possess a gun and to issue a judicial order granting relief. The court granted the requested relief, and the Fifth Circuit affirmed.
Held: The absence of an actual denial by ATF of a felonís petition pre-cludes judicial review under ß925(c).
The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain pre-conditions are met, and an applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investi-gate or act upon the applications. Section 925(c)ís text and the proce-dure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with inde-pendent jurisdiction.
Section 925(c) of Title 18, United States Code says:
(c) A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant 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. Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Attorney General grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.
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