Are We Reading the Same Law?

I continue to be baffled by GOA’s claims about HR2640. I can understand why some people are skeptical of any bill sponsored by Carolyn McCarthy, but some of this stuff just isn’t true:

How? The Veterans Disarmament Act — which has already passed the House — would place any veteran who has ever been diagnosed with Post Traumatic Stress Disorder (PTSD) on the federal gun ban list.

Except it won’t. This is simply not true, and I can’t think of any plausible reading of the language of HR2640 that would make this true. The bill sets out standards for being added to NICS by a federal agency, and suffering from PTSD does not meet that standard.

One term relates to who is classified a “mental defective.” Forty years ago that term meant one was adjudicated “not guilty” in a court of law by reason of insanity. But under the Veterans Disarmament Act, “mental defective” has been stretched to include anyone whom a psychiatrist determines might be a tiny danger to self or others.

Again, this is simply not the federal standard. A proper adjudication under federal law takes more than a mere psychologist saying you’re a danger to yourself or others. It must be a lawfully comprised court or board. You can’t end up prohibited because your shrink decides he doesn’t want you having guns.

In the past, one could only lose one’s gun rights through an adjudication by a judge, magistrate or court — meaning conviction after a trial. Adjudication could only occur in a court with all the protections of due process, including the right to face one’s accuser. Now, adjudication in HR 2640 would include a finding by “a court, commission, committee or other authorized person” (namely, a psychiatrist).

Larry is misunderstanding the standard here. Let’s review again what the actual regulation is:

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.

A psychiatrist is not a lawful authority under this regulation. They have no power, on their own, to make determinations. Other lawful authority is meant to cover bodies entrusted under state law with adjudications that are not courts, boards, or commissions. In no state, nor in the federal system, that I am aware of, do psychologists or psychiatrists have the sole power to declare someone mentally incompetent.

As I said, there are many good reasons I’ve heard from folks about why HR2640 is a bad idea, but I don’t think Larry Pratt’s concerns are among those.

14 thoughts on “Are We Reading the Same Law?”

  1. I think there is some confusion… You are right that “A psychiatrist is not a lawful authority under this regulation.” But that’s now. The wording is not strong enough to exclude that from ever happening… of course, it would have to happen in court. I think the GOA is worried that an activist judge may decide a psychiatrist appointed by the state == an “other lawful authority”.

    As of right now and given the way things are currently done, I don’t have a problem with the law. But when you leave things like this to court interpretation, you are taking a risk. I’d hope

  2. Although I’d be happier if this were a bit clearer, I have the understanding that the key word here, “adjudicated,” is what keeps this out of the hands of a psychiatrist, for example.

    I’m further disappointed when other folks whom I’d always thought were rational, critical thinkers jump on the GOA bandwagon and repeat this nonsense, especially when they’re in leadership positions in the gun rights community. For example, I’ve tried to discuss this with the President of the VCDL, and even Philip fails to respond directly to my specific statements and assertions and jumps on the GOA-inspired emotional bandwagon.

    We can’t sink to the depths of the anti-rights folks. To the degree we let ourselves be governed by unthinking emotion, we undermine our own cause.

  3. It’s a bit too open ended for me too. No one should lose their civil rights without a trial/hearing before a judge with the right to counsel and to call witnesses and to cross examine the persecutions witnesses. Any law that doesn’t guarantee that minimum standard is unacceptable. It’s also probably unconstitutional.

  4. I don’t disagree with you guys that the definition is weak. I would have liked to get a more definitive and narrow definition out of HR2640, but one thing to consider is that, HR2640 or no, that’s the definition under current law. HR2640 doesn’t change that.

    Really, my complaint here is with GCA 68. HR2640 does some things to moderate GCA 68, not enough in my opinion, but it’s a start.

  5. No one should lose their civil rights without a trial/hearing before a judge with the right to counsel and to call witnesses and to cross examine the persecutions witnesses. Any law that doesn’t guarantee that minimum standard is unacceptable. It’s also probably unconstitutional.

    I agree with you completely. There needs to be due process. For the most part, there has to be in order to commit or adjudicate someone. I know under PA law, there are groups claiming that firearms disabilities can be declared under state law without sufficient due process, but I haven’t researched this enough to know for sure. If there’s one thing I’ve learned in this issue, it’s be careful what people claim is true. Not because everyone is necessarily trying to lie or deceive, but just because legislation is difficult to read sometimes, and without knowing all the case law that surrounds it, hard to understand in its application.

  6. It all depends on how the hearings are held. Imagine a hearing with a judge, a medical representative (a psychiatrist, though not the examining doctor) and a defense attorney (court-appointed, and having possibly a 10 minute interview before the hearing) for a determination as to whether the defendant/patient needs to be involuntarily committed for a mental health evaluation. There are two results: one is the patient is not committed, or that the patient is, for a period of time of six months, or whenever the doctors feel that the patient is no longer a danger to himself, a danger to others, or is able to take care of himself – whichever comes first.

    With those kinds of hearings, you may get your “adjudication” – but how secure would it be?

  7. That’s a legitimate concern, but a concern within the mental health laws of the various states; that perhaps there isn’t enough due process. These kind of adjudications take away any number of freedoms from people subject to them. Locking someone up in a mental institution is a pretty significant consequence of these types of proceedings. I agree it’s something to be concerned about, but I think it’s a different issue than gun control.

    Also, under current law, these folks are barred from firearms possession for life, with no possibility at all of removing that disability at a later date when they’ve gotten over their mental health crisis. HR2640 at least provides something to people who are looking to have their rights restored.

  8. There’s no misunderstanding. They know what they’re saying about this bill isn’t true. GOA makes money when they bash NRA. That’s why they’re doing this.

  9. Boyd, I really wouldn’t hold much for the phrase “adjudicated” — since that specific part of the statute is set up for definitions, it really means whatever the lawmakers want it to mean.

    I dunno. The GCA of 68 alone would probably result in what the GOA’s claiming (and, as they pointed out, did already under Clinton). On the other hand, it doesn’t tend to do so in practice; while psychologists, psychiatrists, and social workers have to be counted as being able to determine if an individual is “able to manage his or her own affairs” for the VA to be able to provide care (anything further than a diagnosis and a cup of coffee requires a % disabled), they overwhelmingly do not report these numbers to NICS or the FBI, and there aren’t many judges outside of “Reversable Jack” that would hold such a conviction.

    On the other hand, HR 2640 seems to set aside a lot of funds specifically for this purpose; I can think of no better incentive to end up with places like the VA system simply dropping every record onto the FBI. The Department of Veteran’s Affairs already claims this ability, and does so without judges or trials. While you could already have had a sufficiently antigun attorney and judge get you for having guns against the GCA, this change would make it impossible to get new ones without exploiting the ‘gunshow loophole’ or other private sales.

    Challenging false NICS returns is a pain in the backside.

    I think the GOA’s blowing the threat out of proportion, and presenting it very poorly, but there is one. I just don’t think we can afford to oppose it.

  10. Jacob,

    I will have to disagree about the GOA’s reasons for opposing H.R. 2640. They are not doing this in order to bash the NRA. They are doing it, well, because they oppose H.R. 2640. People within the gun community can have genuine disagreements about matters such as this.

    For example, I oppose H.R. 2640. Sabastian supports it generally. This in no way means that we are enemies or working against each other. We can disagree on single issues or individual bills while working together on the same goal to promote Second Amendment rights.

    There is a place for the GOA and its no-compromise stand on the Second Amendment. Heaven knows in a climate such as ours today, we need such a group. This is also true of Jews for the Preservation of Firearms Ownership. They fulfill a nitch.

    This in no way minimizes the importance of the NRA, which is even more important than ever, simply because people within the leftwing are actively courting the NRA’s input and opinions. This is worth more than its weight in gold.

    The Liberty Sphere

  11. They are making statements they know will become true.

    Look at your RICO prosecutions. Look at your Hate crimes prosecutions. “Or other” means whatever they say it means.

    You have too much proof of that from the abuse of other laws.

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