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HR 2640: Sensible Solution or Trojan Horse?
SHOTGUN NEWS ^ | August 14, 2007 | Clayton E. Cramer

Posted on 08/14/2007 12:10:54 PM PDT by neverdem

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Clayton E. Cramer's
Column



HR 2640: Sensible Solution or Trojan Horse?

My last two columns addressed the problem of psychosis, violence and gun control. This column is about HR 2640, a mental illness and gun control bill currently before Congress that has split the gun rights community more than I can ever recall seeing.

What does HR 2640 purport to do? (Remember that I am talking about the HR 2640 as of the day that I wrote this column, July 21. Bills change as they work their way thorough Congress.) At least 28 states either intentionally, because of a shortage of money, or by bureaucratic incompetence, fail to turn over mental illness commitment information to the FBI's National Instant Criminal Background Check system.1

HR 2640 tries to improve the level of compliance by a combination of carrot and stick. The states that are failing to turn over the information can get additional money to upgrade their computer systems and hire more staff to solve this problem. States that still won't turn over the information will have their federal funding under the Omnibus Crime Control and Safe Streets Act of 1968 reduced.2

One very poorly thought out provision of the Gun Control Act of 1968 specified that if a person was found to be mentally incompetent, he lost the right to own a forever.3 What about people who have a mental illness episode in their teens or 20s, and never have another problem? Even 20 years later-no matter how many judges or doctors have declared you competent and safe to own a gun-you still can't legally own one under federal law. At the insistence of the NRA, HR 2640 adds a new provision to federal law that allows the federal government or states to relieve you from this disability.4

Now, a lot of gun rights organizations whose commitment to the cause I do not question have broken with NRA on HR 2640. Gun Owners of America and Jews for the Preservation of Firearms Ownership are notable examples of groups that are very concerned that HR 2640 is going to open a Pandora's Box of new gun restrictions, and they have managed to get this concern expressed to a large part of the gun rights community.

Partly, I think this is because NRA has worked with Rep. Carolyn McCarthy (D-N.Y.), one of our archenemies, to get this bill through the House. There is a grave suspicion that anything that McCarthy supports must be intended to harm gun owners.

I have spent a lot of time reading their concerns, and those of my many readers, trying to see if they are correct about the dangers of HR 2640. As much as I respect these organizations and their zeal, I'm just not finding anything in the bill that gives me reason to oppose it.

One of the concerns that lawyer Alan Korwin, author of Gun Laws of America expressed in a widely distributed email was that the language of the bill refers to "adjudications, determinations and commitments," and that it wasn't clear what "determinations" means. Korwin was concerned that any doctor could decide, quite arbitrarily, that you couldn't be trusted with a gun.

But federal regulations define this: "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."5

This is a pretty high standard. The due process requirements for this are pretty darn high, at least partly because the ACLU in the late 1960s and 1970s made a very serious effort to end involuntary mental illness commitment.

They did not achieve their entire goal, but the courts put up many substantial barriers. Contrary to the claims that some have made, a doctor can't get you adjudicated insane, and the fact that you were given Ritalin as a kid won't qualify as "adjudicated as a mental defective."

Korwin was concerned that the language of HR 2640 refers to commitment, but not "involuntary commitment." It turns out that the legal language is a bit confusing on this. A person who enters a mental hospital and asks for help isn't, contrary to what you might logically think, "voluntarily committed." This is either "informal admission" or "conditional voluntary admission." A "voluntary commitment" means that you have voluntarily given over to the hospital substantial authority to decide when you are well enough to leave-and this is not all that common.6

Another concern was that Congress might not fund the appeal process for those who were involuntarily committed or adjudicated mentally incompetent. This is certainly a legitimate concern. There is a very similar appeal process by which those who have been convicted of felonies can request federal relief from this disability-and Congress has refused to provide any funds for this process since 1992. Two points, however.

1. If you were declared incompetent by a state agency or court, HR 2640 allows you to request relief from the body that declared you incompetent. For states to receive any funding for improving their records under this act, they are required to offer such a disability relief appeal process. They are not required to do so now.

2. Under the current law, once you have been "adjudicated mentally defective," there is no appeal process under federal law. Yes, if Congress refuses to fund a federal disability appeals process, you will not be able to get your firearms rights back. But that's no worse than today-where there is no appeals process at all.

HR 2640 does not change the requirements for determining who can a gun. If you were adjudicated mentally incompetent in say, 1980, but your state did not pass the information to the National Instant Criminal Background Check system, you might still be able to pass a firearms background check-but if you are in possession of a gun, you have committed a federal felony. If for any reason the authorities discover that you have a gun, you are in serious trouble.

HR 2640 does not change this-but at least it reduces the risk that a person might unintentionally or unknowingly break the law by buying a gun from a dealer.

Alan Korwin also expressed concern that: "The mental health community is entrusted with the ability to restore a person's rights by declaring them fit (I'm paraphrasing a lot of legalese here). Doctors are by-and-large among the most anti-gun-rights groups in society (check the med journals, AMA, CDC, etc., but I know you know that)." I've looked through the bill and the current laws and regulations, and I just can't find anything that fits this. The decision as to whether someone is fit is not made by a doctor.

Indeed, one of the defining characteristics of the last 40 years has been the increasing unwillingness of the courts to trust that psychiatrists know anything at all. The ACLU has taken the position (and the courts have to a large extent bought it) that psychiatric opinion is like flipping a coin in its accuracy, and not taken very seriously.

Korwin is concerned that HR 2640 would allow illegal aliens to legally own guns if the amnesty bill that was under consideration in early July had passed. "In other words, if the Amnesty Bill removes the illegal status from the people here illegally, they cannot be put in the NICS denial list!" Very true. But if the amnesty bill had passed, and HR 2640 did not-illegal aliens would doubtless have been allowed to own guns, anyway. That's a problem of the amnesty bill-not HR 2640.

Gun Owners of America put out an alert on July 10 that warned about a Horatio Miller in Pennsylvania who "said that it could be worse than Virginia Tech" if someone broke into his car, because there were guns there." Miller was arrested, but not charged.

Nonetheless, the district attorney instructed the sheriff to revoke Miller's concealed carry permit, and according to GOA's press release, the district attorney "asked police to commit him under Section 302 of the mental health procedures act and that was done. He is now ineligible to possess firearms [for life] because he was committed involuntarily."7

The district attorney might want to consult a lawyer (or someone who knows how to read). Section 302 of the Pennsylvania Mental Health Procedures Act is not an involuntary commitment under federal law at all. The title is "Involuntary emergency examination and treatment authorized by a physician." It is limited to 120 hours, and does not involve the due process requirements necessary for adjudication under federal law.8

I suppose that I should point out that Miller's problems may be a bit larger than a thoughtless remark. I wouldn't bet the farm on this guy being right, but one gun rights activist in the area where Miller was arrested has been following the case, and reports that local newspaper coverage indicates that the police have been called to Miller's apartment building 22 times in the previous year.9 Maybe the district attorney completely overreacted. But maybe there's some history of inappropriate behavior. Without more data, I would not make too many assumptions.

I appreciate the concerns that gun rights groups have about HR 2640. Anytime that Carolyn McCarthy wants a bill passed, we should definitely read it carefully, and consider if there might be something nasty hiding in the woodwork. But so far, all of the objections that I have seen raised to HR 2640-at least as it is written today-seem to be erroneous. Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores. His web site is http://www.claytoncramer.com.

1Tom Breen, Associated Press, "Gun database omits many mental health†records," Lawrence [Kansas] Journal-World and News, April 26, 2007, http://www2.ljworld.com/news/2007/apr/26/gun_database_omits_many_mental_health_records/, last accessed May 20, 2007.

2 H.R. 2640 (Referred to Senate Committee after being Received from House), ßß 103-104, as of July 21, 2007.

3 18 USC 922(g)(4) (2007).

4 H.R. 2640, ß105, July 21, 2007.

5 27 CFR 478.11 (2007).

6 Alexander D. Brooks, Law, Psychiatry and the Mental Health System (Boston: Little, Brown & Co., 1974), 736-9.

7 "Pennsylvania Case Reveals How McCarthy Bill Could Threaten All Gun Owners -- Troubling questions in HR 2640 still go unanswered," Gun Owners of America, July 10, 2007, http://www.gunowners.org/a071007.htm, last accessed July 21, 2007.

8 Penn. Stats. Ann., Title 50, ß 7302 (1997), available at http://www.psychlaws.org/LegalResources/StateLaws/Pennsylvaniastatute.htm, last accessed July 21, 2007.

9 http://www.thehighroad.org/showthread.php?p=3535430, last accessed July 21, 2007.

 

 

 

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TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: banglist; hr2640
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I'm afraid of the final draft.
1 posted on 08/14/2007 12:10:56 PM PDT by neverdem
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To: neverdem
Rep. Carolyn McCarthy (D-N.Y.), <----If her name is on it, it's bad.

NRA<---If they are supporting it, they are stupid.

2 posted on 08/14/2007 12:15:38 PM PDT by Pistolshot (Every woman, who can, should learn to shoot, and carry a gun.)
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To: neverdem
Mr. Cramer may not see any problems with the bill, but I see the potential for many problems, like an anti-gun Doctor deciding of someone can buy a gun.

I recently got a call from the NRA, after spending several minutes explaining the dangers to the NRA caller, I said don't call me again.

3 posted on 08/14/2007 12:26:32 PM PDT by c-b 1 (Reporting from behind enemy lines, in occupied AZTLAN.)
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To: neverdem
I worry about this. Psychiatry isn't an exact science. That's why you see "experts: vehemently arguing both sides of an insanity defense. In the Soviet Union anyone who didn't support the government was considered crazy and sent to Gulags. It wouldn't take much to define "mentally ill" as anyone who uses sleeping pills, has ever had the police called to their home, wears sandals with socks, or who can name the last three losers on American Idle.
4 posted on 08/14/2007 12:28:52 PM PDT by mbynack (Retired USAF SMSgt)
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To: neverdem
One very poorly thought out provision of the Gun Control Act of 1968 specified that if a person was found to be mentally incompetent, he lost the right to own a forever.

I've always wanted a forever, but I hear they're pretty rare.

5 posted on 08/14/2007 12:31:10 PM PDT by TChris (The Republican Party is merely the Democrat Party's "away" jersey - Vox Day)
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To: TChris

forevers pack a heavy punch.. receiving-ends usually don’t get up again... forever!


6 posted on 08/14/2007 12:34:57 PM PDT by Ancient Drive
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To: Ancient Drive
forevers pack a heavy punch.. receiving-ends usually don’t get up again... forever!

I can feel some Dirty Harry one-liners coming on...

7 posted on 08/14/2007 12:36:21 PM PDT by TChris (The Republican Party is merely the Democrat Party's "away" jersey - Vox Day)
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To: neverdem
I don’t like this bill
But.. there *ARE* some people who just shouldn’t have guns, and I say that as a STRONG RKBA supporter. I wish we (freedom loving conservatives) were/had been a little more proactive.
I understand all about the ‘slippery slope, but I KNOW nutcases who just should NOT have a gun; and they are walking around in public.
8 posted on 08/14/2007 12:43:39 PM PDT by RedStateRocker (Plane loads of pork for Mecca, Deport all illegals, abolish the IRS, ATF and DEA)
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To: neverdem
I don’t like this bill
But.. there *ARE* some people who just shouldn’t have guns, and I say that as a STRONG RKBA supporter. I wish we (freedom loving conservatives) were/had been a little more proactive.
I understand all about the ‘slippery slope, but I KNOW nutcases who just should NOT have a gun; and they are walking around in public.
9 posted on 08/14/2007 12:43:43 PM PDT by RedStateRocker (Plane loads of pork for Mecca, Deport all illegals, abolish the IRS, ATF and DEA)
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To: neverdem; y'all
Point-by-Point Response To Proponents Of HR 2640
Address:http://www.gunowners.org/ne0702.htm

"-- You can dress up a pig, but you can't make it sing." Likewise, efforts to paint the McCarthy/ Schumer gun control bill as anything other than an anti-gun travesty are going to be just as unsuccessful

There are a lot of (intentional) tricks in this bill. But there are two important things to remember:

* First, for the first time, this bill would statutorily impose a lifetime gun ban on battle-scarred veterans, troubled teens, and ailing seniors -- based solely on the diagnosis of a psychologist, as opposed to a finding by a court.

* Second, at the sole discretion of BATFE and the FBI, this bill would compile the largest mega-list of personal information on Americans in existence -- particularly medical and psychological records. But information on the mega-list could not be used to battle terrorism and crime… only to bar Americans from owning guns. And, incidentally, it's the medical records themselves, not just a list of names, that would turned over under section 102 (b) (1) (C) (iv).

And while the worst aspects of a newly enacted law are not always immediately apparent -- it took 32 years for 922 (g) to be used against veterans -- they will eventually come back to haunt us. And, by then, it will be too late to do anything about it.

10 posted on 08/14/2007 12:43:53 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: GOP_Raider

Ping for an article written by a local. What’s his FR screen-name, anyway?


11 posted on 08/14/2007 12:44:39 PM PDT by Disambiguator
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To: neverdem

I guess if someone is ever feeling nuts, he may not see a doctor for medication lest he loose his gun rights.


12 posted on 08/14/2007 12:46:03 PM PDT by Age of Reason
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To: neverdem; Joe Brower; MileHi; hiredhand; Eaker; SLB; wardaddy; FreedomPoster; Jeff Head; ...

I’ll say it now..........every veteran will be forced to take a psychological exam and be denied the ability to purchase a firearm pretty much based on service and the potential for PTSD, regardless if they served in Combat or Peacetime.......this bill will disarm every person who ever served in the armed forces. Too many loops holes, too many “trust us” we know the meaning or the intent etc etc .......

If the NRA/GOA etc agrees with anything that seditious POS McCarthy puts forth they betray every gun owner and member of their association.

If the NRA/GOA etc has done this I am officially done with em........I haven’t the time or money to fight against “and” fund unconstitutional efforts by socialist to promote gun control !

Damn !


13 posted on 08/14/2007 1:01:33 PM PDT by Squantos (Be polite. Be professional. But, have a plan to kill everyone you meet. ©)
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To: RedStateRocker
there *ARE* some people who just shouldn't have guns ---
--- I KNOW nutcases who just should NOT have a gun; and they are walking around in public.

Most people who shouldn't have guns eliminate themselves from "walking around in public" long before they use a gun to commit a crime. Our system manages to jail/institutionalize them for other more minor infractions.

Once in a while a madman like the Virgina Tech killer beats our system, -- making it obvious, -- that this is why everyone in system should be armed [as per the 2nd].

Being necessary for the security of a free state, the right of the people to own and carry arms shall not be infringed for "health and safety measures".

14 posted on 08/14/2007 1:15:43 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: Squantos; El Gato; Joe Brower; Travis McGee; All
I haven't finished yet. Here's part from Hardy:

NICS improvement compromise

(c) STANDARD FOR ADJUDICATIONS, COMMITMENTS, 21 AND DETERMINATIONS RELATED TO MENTAL 22 HEALTH.—23 (1) IN GENERAL.—No department or agency of 24
the Federal Government may provide to the Attor-25
ney General any record of an adjudication or deter-1
mination related to the mental health of a person, 2
or any commitment of a person to a mental institu-3
tion if—4
(A) the adjudication, determination, or 5
commitment, respectively, has been set aside or 6
expunged, or the person has otherwise been 7
fully released or discharged from all mandatory 8
treatment, supervision, or monitoring; 9
(B) the person has been found by a court, 10
board, commission, or other lawful authority to 11
no longer suffer from the mental health condi-12
tion that was the basis of the adjudication, de-13
termination, or commitment, respectively, or 14
has otherwise been found to be rehabilitated 15
through any procedure available under law; or 16
(C) the adjudication, determination, or 17
commitment, respectively, is based solely on a 18
medical finding of disability, without a finding 19
that the person is a danger to himself or to oth-20
ers or that the person lacks the mental capacity 21
to manage his own affairs. 22

15 posted on 08/14/2007 1:27:10 PM PDT by neverdem (Call talk radio. We need a Constitutional Amendment for Congressional term limits. Let's Roll!)
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To: Squantos

If that comes to pass, it’s time.


16 posted on 08/14/2007 1:27:51 PM PDT by FreedomPoster (Guns themselves are fairly robust; their chief enemies are rust and politicians) (NRA)
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To: All
One thing no one seems to have picked-up on is the problem of incrementalism -- a key component of nearly all "no reasonable person could object" gun control legislation.

I can almost guarantee that right after this travesty is signed into law, Schumer and McCarthy will jump in front of the cameras, BSEG from ear to ear, as they proclaim it "A Good First Step" (which has been said before about other laws, which, PRIOR to passage, were billed as something "no reasonable person could object to", and characterized as the be-all/end-all.

Funny, isn't it, how something presented as the end of the line, ends up being the point of departure.

When will we learn? When we're living like the poor bastards in Merrie England, instructed to obey the criminals (hell, we're ALREADY instructed to do that -- Fox "News" had a topcop on the other day, discussing, IIR< some situation in which an armed homeowner had successfully defended himself), insisting that the RIGHT thing do to was to meekly obey the criminal.

But that's just the foundation. The main thing will be that there'll be serious penalties for those who refuse to "obey the criminal."

Look at England, and think of it as a beta site for ultimate implementation of the program here. That seems to be the rule, for everything from health "care" to Total Surveilance Society.

17 posted on 08/14/2007 1:40:06 PM PDT by Don Joe (We've traded the Rule of Law for the Law of Rule.)
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To: Squantos

*ping*


18 posted on 08/14/2007 1:41:03 PM PDT by Don Joe (We've traded the Rule of Law for the Law of Rule.)
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To: Don Joe

Ditto that, good points.....I think Brady is back in committee already....I could be wrong on that but they are in full BS ger er done mode.......

Doom on em !!


19 posted on 08/14/2007 1:48:50 PM PDT by Squantos (Be polite. Be professional. But, have a plan to kill everyone you meet. ©)
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To: Squantos

Just go ahead and say it,”We will all become criminals, armed criminals at that.”


20 posted on 08/14/2007 2:12:46 PM PDT by B4Ranch ( "Freedom is not free, but don't worry the U.S. Marine Corps will pay most of your share.")
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