The GOA issues a release today (or yesterday by now I suppose), detailing their opposition to HR2640. I understand why GOA wants to oppose this, but I don’t think most of their concerns really persuade me, and I think they are even getting some things wrong:
The reason is that Section 101(c)(1)(C) of the bill provides explicitly that a psychiatrist or psychologist diagnosis is enough to ban a person for ever owning a gun as long as it’s predicated on a microscopic risk that a person could be a danger to himself or others. (Please be sure to read the NOTE below for more details on this.)
The note below says:
NOTE: Please realize that a cursory reading of this bill is not sufficient to grasp the full threat that it poses. To read this bill properly, you have to not only read it thoroughly, but look at federal regulations and BATF interpretations as well. For example, where we cite Section 101(c)(1)(C) above as making it explicitly clear that the diagnosis from a psychologist or psychiatrist is enough to ban a person from owning a gun, realize that you have to look at Section 101, while also going to federal regulations via Section 3 of the bill.
Section 3(2) of the bill states that every interpretation that the BATFE has made in respect to mental capacity would become statutory law. And so what does the federal code say? Well, at 27 CFR 478.11, it explicitly states that a person can be deemed to be “adjudicated as a mental defective” by a court or by any “OTHER LAWFUL AUTHORITY” (like a shrink), as long as the individual poses a risk to self or others (or can’t manage his own affairs). And in its open letter of May 9, 2007, BATFE makes it clear that this “danger” doesn’t have to be “imminent” or “substantial,” but can include “any danger” at all. How many shrinks are going to say that a veteran suffering from PTS doesn’t pose at least an infinitesimal risk of hurting someone else?
Section 101(c)(1)(C) is actually an explicit limitation on the power of federal agencies to enter data into NICS that was added specifically to address Clinton’s thank you to 83,000 veterans in 2000. It reads:
(1) IN GENERAL- No department or agency of 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–
(C) the adjudication, determination, or commitment, respectively, is based solely on a medical finding of disability, without a finding that the person is a danger to himself or to others or that the person lacks the mental capacity to manage his own affairs.
27 C.F.R. 478.11:
Adjudicated as a mental defective. (a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.
(b) The term shall include–
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
I will admit I’m not a legal expert, but I think this language is a far cry from having a psychologist say, “You’re Crazy Man!”, and calling up the feds to add you to NICS. To the extent that some states use boards, or commissions to adjudicate mental health cases, that’s an issue with the mental health laws, which can remove other freedoms too, rather than an issue with this particular bill. My interpretation of the ATF’s language is that it was meant to cover any other lawful body in a state that may hear mental health cases but is not a court, board or commission. Is there any state where a psychologist has universal power to commit someone or make a danger finding?
And trying to scare folks into thinking ADD’s going to get you a disability seems to be reaching pretty far. There are plenty of good reasons to worry about this bill, but GOA isn’t coming up with any that are convincing me. This bill doesn’t change who is and who isn’t a prohibited person under current law. There’s no real getting around that.