New Executive Orders on Background Checks

So far it’s not looking like anything worth getting upset about:

One proposal would formally give permission to states to submit “the limited information necessary to help keep guns out of potentially dangerous hands,” without having to worry about the privacy provisions in a law known as HIPAA.

I believe it’s already the case that HIPPA doesn’t apply to records reported for the purposes of NICS compliance.

The other proposal would clarify that those who are involuntarily committed to a mental institution — both inpatient and outpatient — count under the law as “committed to a mental institution.”

I believe most states are already counting OITs and reporting them to NICS. Outpatient Involuntary Treatment is still an adjudication, it’s just that instead of institutionalizing the person so adjudicated, they are put on medication and supervised on an outpatient basis. So far I don’t think either of these EOs does anything that wasn’t already existing practice. It basically only makes the existing practice “official.”

Still, it’s worth keeping an eye on. The Clinton Administration did quite a lot of damage in this area by reporting a lot of veterans records to NICS, with those individuals having no further recourse, and many of whom were not any danger to themselves or anyone else.

18 Responses to “New Executive Orders on Background Checks”

  1. I wonder if involuntary treatment such as court ordered marriage counseling (sometimes part of divorce proceedings) or court ordered substance abuse treatment (for example, following a DUI) would qualify.

    Forgive me for assuming the worst, but with this administration, little things like “the law” are but mere inconveniences. I think they will go as far as they can. The DC Circuit Court of Appeals (which would hear challenges to this sort of thing, I believe) is now stuffed 7:4 in favor of Dem appointees so unless SCOTUS intervenes the administration can literally do anything.

    • Sebastian says:

      That’s not considered an adjudication for the purposes of the gun control act, but it’s something to keep an eye on. A lot of states, however, including mine, go further than the feds when it comes to mental health issues. Some states, like New Jersey, prohibit people who are “habitual drunkards,” whatever the hell that means legally. For the most part, the feds have actually been somewhat reasonable on what constitutes an adjudication.

    • Sebastian says:

      A big question I have is whether the feds will start taking 302 commitments from PA to the federal system. In the past, the feds haven’t considered 302 commitments disabling for federal purposes (even though they are for state purposes). Whether that changes is another thing to watch.

      • It would not surprise me in the least if the DOJ started considering 72 hour emergency holds (I think that is what a 302 is, right?) as disabling offenses for life, despite the reduced “due process” that goes along with them.

        The DC circuit would uphold it under intermediate scrutiny, too, BECAUSE GUN!

        • Sebastian says:

          They can’t consider them life disabling now by law, so they open themselves up to a lawsuit if they do that without Congress acting. And yes, a 302 commitment is a temporary commitment for observation. If anyone in Pennsylvania ever gets taken in for observation, make clear you’re going voluntarily. As soon as it’s involuntary, you’ve got problem if you own firearms.

          • We’re talking about a POTUS who made “recess appointments” while congress was still in session just down the street…

            The Dems own the DC Circuit Court of Appeals 7:4. Why would they be concerned about something so minor as a lawsuit? They will win through at least the Appeals Court level BECAUSE GUN regardless of the facts or law unless the SCOTUS gets involved, and that will take years and millions of dollars to fix. They have nothing to lose by being aggressive; if nothing else it drains resources from the NRA/SAF to fight.

            I’ll be very interested to see the details of the proposal. I’d be surprised if they are going to settle for some minor fiddling. Maybe I am being too pessimistic; I just don’t see the administration as being terribly concerned about lawsuits.

  2. Actually, most states are not even reporting involuntary inpatient commitments to NICS. Some of them in the Northeast are at least beginning to work on doing so since Newtown, but as of 2007, 28 states had not submitted a single involuntary commitment record to NICS. Some of the 22 that did had submitted such a small number of records that they might as well not have bothered, like California, which submitted 27 records over a ten year period, and Massachusetts, which had submitted 1.

  3. SayUncle says:

    Well, since the article came out, “those who are involuntarily” has shown up where “those who are voluntarily” used to be.

  4. stephana says:

    Since when does the executive branch get to change a law? I thought that all laws would have to be initiated through congress.

    • Zermoid says:

      Executive is only supposed to enforce the laws that Congress makes, but who cares about those technicalities anymore?
      And better yet, since Executive in in the business of enforcing laws, who is going to enforce the laws when it’s the executive branch that breaks the laws???

    • Sebastian says:

      The Supreme Courts loosening of the non-delegation doctrine to allow for rule of bureaucrats is one of the great overlooked sins of the New Deal. Far more, in my opinion, than the great expansion of interstate commerce power, the death of the idea that if something is to be made illegal, Congress should have to pass a law is the worst thing the progressive left ever did to this country.

  5. Ronnie says:

    This is OT, but last night I overheard somebody say that a federal judge has overturned the seven-round maximum rule in the SAFE act for New York state. Did anybody else see this yet?

  6. Granny Grunch says:

    Watch em start checking to see who has had “nerve pills” prescribed.

  7. NotClauswitz says:

    The irony is the fact that for Obamacare to function, something like a thousand points of HIPPA regulation(s) must be violated?
    What’s one more?

  8. marq yance says:

    Perhaps an involuntary commitment is an adjudication in some states but certainly not all. Nevada law requires a judicial order fir an individual to be “adjudicated mentally incompetent” for purposes if firearms possession.

  9. Arnie says:

    Dear Compatriots, I just received this from one of my Senators. It sounds positive, but only 53 out of 100 Senators favoring protecting our Constitution from foreign nullification is just a bit unsettling to me. An excerpt:

    “January 06, 2014

    Last month, I was proud to vote in favor of the National Defense Authorization Act (NDAA), which funds our country’s military.

    I was particularly encouraged to see a provision in the legislation that will prohibit funds to implement the U.N. Arms Trade Treaty.

    You may recall that Secretary of State John Kerry signed the Arms Trade Treaty a few months ago. However, I joined 52 of my senate colleagues in standing firm against ratification of this treaty that undermines American sovereignty by regulating firearms in our country.

    I will continue to do everything in my power to defend the second amendment from being compromised by the federal government.


    Deb Fischer
    U.S. Senator”

    47 Senators did not vote to protect our Constitution. Groan!