Detailed Federal Gun Law Info & Sen. DeMint's Position

[Pat McGarrity]

New U.S. Senator opposing HR2640, and a detailed refutation of the NRA's defense of gun control


U.S. Senator Jim DeMint (R-SC) is now publicly telling constituents he is opposed to HR2640, which means steam is gathering against this gun control scheme.



This is terrible news for the anti-gun forces in Congress -- including House Sponsor Carolyn McCarthy (D-NY) -- and good news for the NRA, as they are now starting to realize that this gun control bill will be seen largely as their creation.



----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------



One of the problems with trying to understand what H.R. 2640 really means is that the whole truth is not always being told. So, here are some important points to consider.



The NRA claims:



H.R. 2640 does not create any new classes of "prohibited persons."



What Section 3 Definitions of H.R. 2640 states:



"(2) Mental health terms.--The terms ``adjudicated as a mental defective'', ``committed to a mental institution'', and related terms have the meanings given those terms in regulations implementing section 922(g)(4) of title 18, United States Code, as in effect on the date of the enactment of this Act."



The Truth:



Existing law states a prohibited person has to be "adjudicated as a mental defective" or "committed to a mental institution". These terms have not yet been defined by the Supreme Court of the United States (SCOTUS). But, pro-gun forces and most lower court precedents say "adjudicated" means a ruling by a court of law where due process rights are protected. However, the BATFE has written regulations defining "adjudicated" to be a ruling by "a court, board, or other lawful authority", not just a court of law where due process rights must be protected. The BATFE regulations include more people than does the plain wording of the law because the words "board or other lawful authority" could include school psychologists who determine your child has ADD, VA psychiatrists who diagnose returning veterans with PTSD (Post Traumatic Stress Disorder, which almost invariably includes some element of possible danger to ones self or others), or a psychologist appointed by the court to evaluate a child custody dispute. The validity of the BATFE regulations have not yet been decided by the SCOTUS. H.R. 2640 would turn the BATFE regulations into law, which is a loss for the pro-gun side. Thus, more people would be prohibited from possessing firearms under H.R. 2640 than would be prohibited under existing law if the BATFE regulations were found to be an improper interpretation of the law - which is likely. So, who do you think is telling the truth on this point?



Also, Section 102(b)(3) of H.R. 2640 states:



"(3) Clarification.--Notwithstanding paragraph (2), States shall endeavor to provide the National Instant Criminal Background Check System with all records concerning persons who are prohibited from possessing or receiving a firearm under subsection (g) or (n) of section 922 of title 18, United States Code, regardless of the elapsed time since the disqualifying event."



As it currently stands, most of the records for misdemeanor criminal domestic violence from many years ago are not in the system. Many years ago, "no fault" divorces could not be gotten. So, many times a husband and wife who wanted a quicker divorce would claim there was spousal abuse just to qualify for a divorce. Then, years or decades later, the Lautenburg amendment was passed that imposed a lifetime firearms disability retroactively to include these people. H.R. 2640 will catch these people when they go to apply for a hunter's license or to buy a gun, and it will turn them into felons. Thus, the practical effect is that more people will be denied the right to keep and bear arms because of H.R. 2640 than were being denied the right before. So, who do you think is telling the truth on this point?



The NRA claims:



"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."



The Truth:



Under the law, reports are to be made upon conviction. Expungement is a process that occurs long after conviction. So, this claim from the NRA rings hollow because most people would still need to seek a relief from disabilities determination since the expungement comes at a much later date than the adjudication.



Also, the NRA is not being accurate when it infers the ability to get relief from the adjudication is something that is new to H.R. 2640. Such relief has been available since 1986, as described by Joseph R. Simpson, MD, PhD in the J Am Acad Psychiatry Law 35:3:330-338 (2007).



Dr. Simpson is a Staff Psychiatrist at the VA Long Beach Healthcare System, Long Beach, CA, and a Clinical Assistant Professor of Psychiatry and Behavioral Sciences at the University of Southern California (USC) Keck School of Medicine, Los Angeles, CA. Dr. Simpson wrote:



"In contrast to provisions for other prohibited categories such as felons, the 1968 laws made no provision for an individual who is prohibited from owning a firearm based on a history of mental illness to regain the privilege. The discrepancy was eliminated by a section of the Firearm Owner's Protection Act (FOPA) of 1986, which granted the same right to petition for relief that had been afforded convicted felons."



The NRA claims:



"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."



The Truth:



The McClure-Volkmer Act of 1986 has provided veterans a way to have their rights restored for almost twenty years. The procedure for doing so is contained in 18 USC 925(c). The problem is that Congress has refused to fund the department responsible for processing restoration of rights applications since 1992, which - not coincidentally - is the 15 year time period that the NRA refers to in their claim above. So, the problem is Congress' failure to fund the restoration of rights, not the non existence of a procedure to have rights restored.



The NRA claims:



"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."



The Truth:



In U.S. v. Waters, U.S. v. Waters, 786 F.Supp. 1111 (N.D. N.Y. 1992), a federal district court ruled that under New York law a two-physician certification procedure constitutes a formal commitment. Judicial review of the commitment was not a requirement.



If the proponents of H.R. 2640 were not trying to expand the scope of the law, then why not simply amend the bill to limit "adjudication" to a court proceeding and thus put to rest this issue of concern?



Since at least one court has already ruled to validate the concerns of opponents of H.R. 2640, and the proponents of H.R. 2640 refuse to amend H.R. 2640 to specifically state what they tell us the bill "really" means, then how could any reasonable person believe that the words "other lawful authority" in H.R. 2640 will not be interpreted to include psychologists, psychiatrists, and review boards that do not provide the same due process that a court of law would provide.



Remember, the best predictor of future actions is to look at past actions.



There has been a restoration of rights procedure available for many years. It is found in Section 925(c) of the United States Code of Laws. But, Congress has refused to fund the process since 1992. In an attempt to have his rights restored, Thomas Bean submitted an application to have his rights restored. The BATFE returned his application without processing it. Bean then went to court to have his rights restored. The trial court ruled in Bean's favor. The US government appealed. The appeals court ruled in Bean's favor. The US government appealed again. The United States Supreme Court ruled against Bean on the grounds that Bean's application for restoration of rights must first be processed by the BATFE before Bean had a right to resort to the courts. The fact that Congress refused to fund the restoration of rights process and thus denied Bean the opportunity to ever have his application processed did not matter. United States v. Bean, 537 U.S. 71 (2002).



Interestingly, Section 101(c)(2)(A) of H.R. 2640 states that "relief and judicial review shall be available according to the standards prescribed in section 925(c) of title 18, United States Code." So, what makes the NRA think that Sen. Schumer and his ilk won't deny funding to any other restoration of rights process in H.R. 2640 just as they have done for the last 15 years? Is this empty promise worth adding tens of thousands of people to the prohibited list?



Last, but not least, look at who is on each side of this issue.



Those known to oppose H.R. 2640:



The American Legion

The Order of the Purple Heart (opposed to H.R. 2640 because it will harm veterans)



Gun Owners of America

National Association for Gun Rights

Jews for the Preservation of Firearms Ownership

National Association for Gun Rights

Rocky Mountain Gun Owners

GrassRoots North Carolina

GrassRoots South Carolina

Oregon Firearms Federation

Wisconsin Gun Owners

Virginia Citizens Defense League

Virginia Gun Owners Coalition

New Hampshire Firearms Coalition

Alan Korwin (author of Gun Laws of America)

Jeff Knox of The Firearms Coalition



Those actively pushing for H.R. 2640:



U.S. Senator Charles Schumer (D-NY),

U.S. Senator Patrick Leahy (D-Vermont)

U.S. Rep. Carolyn McCarthy (D-NY)

...and the NRA.



One might want to ask why virtually every pro-gun rights organization in America opposes H.R. 2640, while the NRA is siding with Sen. Charles Schumer and Rep. Carolyn McCarthy.





+++++++++++++++++++++++++++

National Association for Gun Rights

P.O. Box 7002

Fredericksburg, VA 22404



Website: www.NationalGunRights.org

Email: contact@nationalgunrights.org

Phone: (888) 874-3006 Toll-Free

Fax: (202) 351-0578