There has been a bit of an uproar regarding an amendment to the 2013 NDAA which would have changed the process for veterans’ rights to gun ownership being barred by a finding that they are unable to manage their own affairs rather than because they are found to be dangerous or violent.
First, let me begin with explaining the way things work now:
Federal law requires that persons found to have a ‘mental defect’ must be reported to the Attorney General so as to be placed on the NICS list. The NICS list, for those who aren’t aware, is the National Instant Criminal Background Check System. The finding of having a ‘mental defect’ is, in and of itself, sufficient to prevent someone from purchasing, owning or merely possessing a firearm. This is the same classification as those who are convicted felons and those who have committed certain acts of misdemeanor domestic violence.
How is someone determined to be ‘mentally defective?’ It is important to understand that there is no requirement that a person be found to be a danger to himself or to others. Someone, like a veteran, who needs help ‘managing his own affairs,’ is considered under the current law as being ‘mentally defective.’ There is no requirement that a judge make such a finding, it turns out that it can be done administratively, outside of the courts.
Federal law defines the terms of mental defect as follows:
18 U.S.C. Chapter 44.
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.
Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
Mental institution. Includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general hospital.
The 1968 Gun Control Act first criminalized the ownership or possession of firearms by those who have ‘been adjudicated as a mental defective or has been committed to any mental institution.’ Thus, from that point forward, any person who falls under those terms has been unable to legally possess or own a firearm, regardless of whether or not someone might not be considered dangerous or violent.
In 2007 Congress passed a bill that was signed into law by President George W. Bush on January 8, 2008. This law was entitled ‘The NICS Improvement Act of 2007.’ ( http://www.govtrack.us/congress/bills/110/hr2640/text ) This law requires government agencies, such as the Department of Veterans Affairs, to report those individuals who have had a finding of mental defect to the Attorney General’s office for inclusion into the NICS. In many cases, these findings are premised upon the basis of a veteran being unable to care for himself or herself, rather than any finding of an actual mental disorder or likelihood or propensity toward violence.
The 2007 NICS law also provides an opportunity for a veteran, or other individual, to request a ‘relief from disability.’ By this process a person can be found to be no longer under a disability and his or her name would be removed from the NICS along with the inability to purchase and/or own firearms. Here is document with more information on pursuing such relief: https://docs.google.com/document/d/11ETxpq4dJiiJYcSD8KYXtVTIOhKSqg5hAilxjNQ43OY/edit
However, the 2007 NICS law also states that a request for relief that is not acted upon by an agency within 365 days is deemed to be denied, rather than granted. We can thank the Brady folks for this lovely gem, namely that if the government doesn’t get off of its bureaucratic butt and do its job the person asking for the relief gets shafted. This isn’t the end of the story, though. A person denied relief can go to the court system to ask for such relief. Of course, this is expensive and time consuming, but it is possible.
Just to be clear: The mental defect provisions have been on the books since 1968, the requirement that states and government agencies provide information about those deemed to have mental defects was passed in 2007. Interestingly, it was passed by both the Republican-controlled House and Democrat-controlled Senate by voice vote, rather than by roll call so there are no lists of who voted in support of the measure. However, the Congressional Record does list remarks made by various Congressmen, and Representative Ron Paul of Texas was the only person to stand up and oppose the changes to the law. Here is his statement prior to the voice vote in the House:
Mr. Speaker, I rise in opposition to H.R. 2640, the National Instant Criminal Background Check System Improvements Amendments Act, and I urge caution. In my opinion, H.R. 2640 is a flagrantly unconstitutional expansion of restriction on the exercise of the right to bear arms protected under the second amendment. H.R.2640 also seriously undermines the privacy rights of all Americans, gun owners and non-gun owners alike, by creating and expanding massive Federal Government databases, including medical and other private records of every American. H.R. 2640 illustrates how placing restrictions on the exercise of one right, in this case, the right to bear arms, inevitably leads to expanded restriction on other rights as well. In an effort to make the Brady background check on gun purchases more efficient, H.R. 2640 pressures States and mandates Federal agencies to dump massive amounts of information about the private lives of all Americans into a central Federal Government database.
Among the information that must be submitted to the database are medical, psychological, and drug treatment records that have traditionally been considered protected from disclosure under the physician/patient relationship, as well as records related to misdemeanor domestic violence. While supporters of H.R. 2640 say that there are restrictions on the use of this personal information, such restrictions did not stop the well-publicized IRS and FBI files privacy abuses by both Democratic and Republican administrations. Neither have such restrictions prevented children from being barred from flights because their names appeared on the massive terrorist watch list. We should not trick ourselves into believing that we can pick and choose which part of the Bill of Rights we support.
I urge my colleagues to join me in opposing this bill.
Again, THIS IS HOW THE SYSTEM ALREADY WORKS! In other words, this has been happening since 2008 and there has been precious little controversy generated as a result. Americans, including veterans, have been getting screwed out of their gun rights for YEARS.
Here are two examples of how this law has been used in 2012 alone:
Now, to bring us up to the present and the Congressional fracas over amending the provisions of the 2007 NICS law.
Senator Tom Coburn, M.D., from Oklahoma, submitted an amendment to the 2013 NDAA bill which would require a judge of competent jurisdiction to find that a person is ‘a danger to himself or herself or others’ before the mentally defective provisions barring gun ownership could be applied. Here is the text of the proposed amendment: http://www.coburn.senate.gov/public//index.cfm?a=Files.Serve&File_id=7dd7211c-c2c7-483d-aaf2-1e065bfb06d8 And here is the statement Senator Coburn sent along with the proposed amendment: http://www.coburn.senate.gov/public//index.cfm?a=Files.Serve&File_id=4c02264f-d1db-4452-bb53-d7c0c7bbb86f
Unfortunately, Coburn’s amendment was not added to the bill, which has now passed both chambers of Congress. Therefore, the same laws apply and no judicial finding is required before a person can be stripped of their right to own firearms.
As an American, I strongly support our Second Amendment right to keep and bear arms. As a veteran, I find it disturbing that so many of my fellow veterans have been barred their Second Amendment right due to an overly-broad wording of what constitutes a ‘mental defect.’ As an attorney, it is deeply troubling that due process is not being met by having a finding by a judge as a requirement of the law, and that a board or case manager seems to have the authority to determine whether or not someone is ‘mentally defective.’ This is something that needs to be fixed, and fast. It may be too late to have it tacked onto the 2013 NDAA, but contacting your elected representatives and demanding that a judicial finding be required prior to a loss of a vital Constitutional right may get the ball rolling for the next session of Congress.