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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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To: c-b 1

Dude they just want your money, these bills are good because people get upset and pledge money for the legal fund against x, y, z...

Go to the link and click on the 5th vid. Watch the whole thing!

http://www.klru.org/texasmonthlytalks/archives/jackson/jackson.asp

This guy is a ranking member of the NRA...


21 posted on 08/14/2007 2:15:56 PM PDT by MD_Willington_1976
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To: tpaine

Yeah, the ideal would be to have nearly everyone armed. Here in California they basically can’t commit anyone against their will, so our streets are our loony bins.


22 posted on 08/14/2007 2:46:03 PM PDT by RedStateRocker (Plane loads of pork for Mecca, Deport all illegals, abolish the IRS, ATF and DEA)
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To: harpseal; TexasCowboy; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; SLB; ...
Click the Gadsden flag for pro-gun resources!
23 posted on 08/14/2007 3:04:09 PM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: Disambiguator

He’s from around here? That’s great...I’ll ping everybody once I get a break here at work.


24 posted on 08/14/2007 3:21:09 PM PDT by GOP_Raider (Your one stop shop for all your useless information needs.)
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To: GOP_Raider

I believe he lives in or around Horseshoe Bend.


25 posted on 08/14/2007 3:23:38 PM PDT by Disambiguator
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To: RedStateRocker

If they can’t own a gun, they shouldn’t be walking the streets, because if they are out on the streets, no law will keep them from getting a gun, or a brick, or a knife, or a gallon of gas and a match...


26 posted on 08/14/2007 3:25:05 PM PDT by coloradan (Failing to protect the liberties of your enemies establishes precedents that will reach to yourself.)
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To: Chief Engineer; Delphinium; EternalVigilance; Keyes2000mt; Sir_Ed; Knitting A Conundrum; ...
Masonic Hall, Idaho City
The FR Idaho Ping List
FReepmail GOP_Raider to be on or off this list

27 posted on 08/14/2007 3:32:19 PM PDT by GOP_Raider (Your one stop shop for all your useless information needs.)
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To: TChris

So what does this do to vets and others who are diagnosed with PTSD, is it included in mental illness, I know a lot of Viet Vets with PTSD who I would rather see with guns than some of our police officers.


28 posted on 08/14/2007 3:35:19 PM PDT by DaiHuy (I think owning a gun doesn't make you a killer, it makes you a smart American. (George Carlin)
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To: tpaine
Okay, the folks down at MY VA Center explained that after Clinton ordered his goons in DOJ to have the names of over 98,000 vets taken from the VA and entered into the federal NCIC data base so as to prevent gun ownership CONGRESS got mad and passed a series of bills aimed JUST at the Veterans Administration and making it a serious offense for any VA center to turn over the medical and psychiatric records of any vet to any law enforcement entity local, state or federal. The bill was signed into law by GW early in his first term.

There IS a catch: It doesn't affect any civilian insurance program and that is the potential for significant data mining. However, the VA folks said that is the reason THEY themselves aren't very specific in what they put into online notes or insurance claims requiring a specific mental health diagnosis.

29 posted on 08/14/2007 4:07:02 PM PDT by ExSoldier (Democracy is 2 wolves and a lamb voting on dinner. Liberty is a well armed lamb contesting the vote.)
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To: coloradan
*I* know that.
And *YOU* Know that.
But un unHoly combination of psuedo-Libertarians, the ACLU so-called fiscal conservatives (REAL conservatives and even real Libertarians know that there are some costs that society as a whole must bear) closed down all the loony bins here.
30 posted on 08/14/2007 4:15:27 PM PDT by RedStateRocker (Plane loads of pork for Mecca, Deport all illegals, abolish the IRS, ATF and DEA)
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To: B4Ranch

Armed chair criminal in my case .......without doubt they will create the evil me via unconstitutional gun control laws.

They do not want to see the evil side of veterans who took and oath to defend against foreign and “domestic’ enemies.

This congress is just getting warmed up as to their sh*t’n shineola show ! Doom on em .......

Wait for it !...........Stay safe !


31 posted on 08/14/2007 4:26:50 PM PDT by Squantos (Be polite. Be professional. But, have a plan to kill everyone you meet. ©)
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To: coloradan; RedStateRocker
If they can?t own a gun, they shouldn?t be walking the streets, because if they are out on the streets, no law will keep them from getting a gun, or a brick, or a knife, or a gallon of gas and a match...

To: coloradan
*I* know that. And *YOU* Know that.
But un unHoly combination of psuedo-Libertarians, the ACLU so-called fiscal conservatives (REAL conservatives and even real Libertarians know that there are some costs that society as a whole must bear) closed down all the loony bins here.

Socialistic 'Loony bins' are a waste of taxpayers money. If you are dangerous on the streets, you belong in jail.

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".

32 posted on 08/14/2007 4:45:10 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: neverdem
No department or agency of the Federal Government may provide to the Attorney General any record of an adjudication or determination related to the mental health of a person, or any commitment of a person to a mental institution if

If someone's RKBA is denied for a mental-health condition and is later found to no longer suffer from it, could the above be twisted to prevent the fact that they're cured from being entered into the database (since the latter finding would be a 'determination related to the mental health of a person')?

33 posted on 08/14/2007 5:05:19 PM PDT by supercat (Sony delenda est.)
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To: tpaine
Socialistic 'Loony bins' are a waste of taxpayers money. If you are dangerous on the streets, you belong in jail.

Different people are dangerous in different ways. Throwing all such people into one type of confinement facility would not constitute effective inmate management.

34 posted on 08/14/2007 5:08:46 PM PDT by supercat (Sony delenda est.)
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To: Squantos
They do not want to see the evil side of veterans who took and oath to defend against foreign and “domestic’ enemies.

IMO, a veteran, sitting quietly in his armed chair, who has your encyclopedia of knowledge and experience is much more of a threat to enemies of our Republic than a fully equipped and trained team of terrorists.

"In the beginning of a change, the patriot is a brave and scarce man, hated and scorned.
"When the cause succeeds, however, the timid join him .... ".... for then it costs nothing to be a patriot."
-- Mark Twain

35 posted on 08/14/2007 5:21:22 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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To: supercat
If someone's RKBA is denied for a mental-health condition and is later found to no longer suffer from it, could the above be twisted to prevent the fact that they're cured from being entered into the database (since the latter finding would be a 'determination related to the mental health of a person')?

I don't know. I don't like it. I don't trust them.

36 posted on 08/14/2007 6:32:52 PM PDT by neverdem (Call talk radio. We need a Constitutional Amendment for Congressional term limits. Let's Roll!)
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To: tpaine
Where do you live, and can I move there:-)
The FACT is that there are a whole lot of people in this and other cities who are NOT going to be put in jail anytime soon (Especially with Moonbeams Brown as AG) and are freaking unstable, barely to be trusted with a cardboard box.
Your opinion of “if dangerous on the streets you belong in jail” sure would be nice, but ain’t going to happen in my lifetime, at least not in California.
And, yes, there are a few people who are just not able to take care of themselves, not able to function, no one to care for them but have not been proven to commit a crime; what do YOU propose we do? Cops *CAN’T and WON’T throw them in jail, there just non compis mentis. As much as I hate taxes we have to do something with these people; not that I have any answers, but my doctrinaire Libertarianism breaks down after enough dodging street people passed out.
37 posted on 08/14/2007 9:09:41 PM PDT by RedStateRocker (Plane loads of pork for Mecca, Deport all illegals, abolish the IRS, ATF and DEA)
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To: supercat

To be honest, I think the *REAL* goal of the libs is to create the perfect ‘Catch 22”.
“If you WANT a gun it’s proof positive that you are crazy, and crazy people can’t have guns”.


38 posted on 08/14/2007 9:12:20 PM PDT by RedStateRocker (Plane loads of pork for Mecca, Deport all illegals, abolish the IRS, ATF and DEA)
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To: RedStateRocker; supercat
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].

Your opinion of "if dangerous on the streets you belong in jail" sure would be nice, ---
--- yes, there are a few people who are just not able to take care of themselves, not able to function, no one to care for them but have not been proven to commit a crime; what do YOU propose we do?

As I said above, constitutionally speaking we can do nothing. Unless adjudicated 'dangerous', they have a right to arms, to self defense.

When, -and if-, these people become dangerous, - using arms criminally, -- they will be taken out by the rest of us.

39 posted on 08/14/2007 10:26:46 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: c-b 1

Except that the point of my article was that a doctor doesn’t have the power to decide if you are mentally incompetent. The entire process of involuntary commitment has become extremely hard since the 1970s. As much as I disapprove of what the ACLU has done to commitment law, the net effect is that it takes a due process conformant hearing to lose your right to own a gun now because of supposed mental defect.


40 posted on 08/14/2007 10:26:58 PM PDT by claytoncramer
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