HR 2640: Sensible Solution or Trojan Horse?

SHOTGUN NEWS ^ | August 14, 2007 | Clayton E. Cramer

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Clayton E. Cramer's

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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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[looscnnn]

While psychosis may be more prevelent today, they did have people that were violent felons by today’s standards. Would the founding fathers supported allowing them to walk around in public with their rights stripped of them?

[looscnnn]

It isn’t once in a while that a madman beats our system. It is almost continuously.

It isn't once in a while that a violent felon uses a firearm, it is almost continuously, and yet we have laws that forbid them from doing such. So we should pass more, or expand, feel good laws?

[looscnnn]

The fact is that guns are dangerous

Ah yes and yet cars, even more dangerous, are not restricted from the same people that would be on this database. Seems to me that it is not about safety for the public.

[looscnnn]

The government has always had the power to disarm people who were a danger to others. Convicted violent felons. Do they have that power? Of course.

I have never seen that in the Constitution, in fact I would say that they don't other than during imprisonment (and possibly parole/probation).

Can the government prohibit sales of handguns to 10 year olds? Of course.

Again, don't see that in the Constitution.

Can the government prohibit sales of guns to people who have a history of violent mental illness? Of course

Ditto, my previous statements.

[looscnnn]

Except HR 2640 doesn't change who is allowed to own a gun

Can you guarantee that? Maybe right now it doesn't, but it could down the road in a few years time.

--except that it provides a way to undo a firearms disability for those who were committed long ago, and undoes the Clinton Administration's administrative decision that PTSD sufferers shouldn't have a gun.

How about just passing a law that does that instead of expanding an unconstitutional law?

[supercat]

So there's no authority to disarm convicted murderers? On what basis do they disarm people who are in jail or prison?

The Thirteenth Amendment provides that people convicted of crimes may be made slaves of the state. The Second Amendment was written to apply to all free people, but never applied to slaves.

[tpaine]

Should We Have Gun Control for Psychotics?
Radical solutions in the wake of Virginia Tech
Steve Chapman | May 3, 2007

In the aftermath of the Virginia Tech massacre, there was the usual debate between supporters and opponents of gun control. On one thing, though, everyone seemed to be in agreement: Cho Seung-Hui, whom a judge had found a danger to himself, should never have been allowed to buy a gun. But now that legislation has been introduced in Congress to keep deranged people from getting firearms, we find not quite everyone is on board.

Under the Gun Control Act of 1968, Cho was legally barred from gun possession. The law disqualifies people in several categories, including anyone convicted of a felony or of domestic violence, anyone in the country illegally, anyone dishonorably discharged from the military, and anyone who "has been adjudicated as a mental defective or has been committed to any mental institution."

Cho fit the last category. But because he was never committed, the state didn't include his name on the list it submitted for the federal database used to check the eligibility of gun buyers. This week, the governor of Virginia signed legislation to change the state's reporting process.

Better still, Rep. Carolyn McCarthy (D-N.Y.) has introduced a bill to require states to provide the FBI with all the records needed for background checks, including those dealing with mental health adjudications. It also provides funds to the states to upgrade their reporting systems. McCarthy is a fervent supporter of stricter gun laws who has often clashed with the National Rifle Association. So how did the NRA react? Executive Vice President Wayne LaPierre said the organization supports measures to assure that mental health records get into the federal database. "Our position on this is crystal clear: If you are adjudicated by a court to be mentally defective, suicidal, a danger to yourself or to others, you should be prohibited from buying a firearm," he told Newsweek.

You might think that if you can persuade the NRA to endorse a restriction on gun ownership, you can persuade anyone. But the McCarthy bill drew fierce opposition from another group: those claiming to advocate for the mentally ill.

"It is unconscionable to restrict people's civil rights because they have a medical illness," said Nada Stotland, vice president of the American Psychiatric Association (though APA says it doesn't take a position). David Shern, president of Mental Health America, denounced the measure as "an extremely ill-informed, regressive social policy that further stigmatizes people and will do nothing to reduce gun violence." The critics say the ban discriminates against people with mental illness, based on the erroneous assumption that they are more violent than other people.

But it's fair to assume that people who have been evaluated and ruled by a court to be dangerous are indeed more dangerous than those who have not. And it's ridiculous to claim that barring them from getting guns punishes them for having a medical illness.

The point, keep in mind, is to exclude anyone who's dangerous, regardless of whether they're sick or well, sane or not. The categories in the law are a reasonable attempt to define the sort of people who should not be trusted with lethal firepower. Those Americans who merely suffer from mental illness, whether it's depression or a phobia or obsessive-compulsive disorder, are free to buy guns -- unless a court has ruled them dangerous or they've been committed to a psychiatric facility. Shern warned CQ Weekly that the bill will discourage people from seeking treatment. But no one is going to lose his shooting privileges for going to a psychiatrist. Most people needing help are not dangerous. Only a tiny minority of patients falls under the ban, and among the factors that might keep them from requesting help, losing their gun rights is probably low on the list.

Perhaps some people will indeed go without treatment if the law is enforced. And perhaps some people will be unfairly deprived of firearms when they are actually harmless. But those criticisms prove only that no policy is perfect. Some minor side effects are a small price to pay for reducing the threat posed by the likes of Cho Seung-Hui.

The obvious alternative to upgrading enforcement of the existing law is to repeal it and let people known to suffer from dangerous mental illnesses enjoy free access to firearms. And that, pardon the expression, would be lunacy.

[El Gato]

but I KNOW nutcases who just should NOT have a gun; and they are walking around in public.

Yea, and what *law* is going to stop them from getting a gun if they really want one? Other than a law that keeps them off the street in the first place.

Or perhaps a "law" that takes the vast majority of firearms and locks them up in government armories. Even then crooked cops, and supply sergeants, would see to it that at least some criminals and crazies got them.

[El Gato]

If Patrick Purdy had gone into a schoolyard to murder kids with a hammer, you wouldn't know his name, and there would have been no California assault weapons ban passed because of his actions.

While true, the kids would be just as dead. And there wouldn't be bans on hammers either. The "Save The Children" cry has always been a smokescreen for doing what politicians and would be saviors have always desired, a disarmed populace. Although for now, they'll settle for an ineffectively armed populace.

[El Gato]

So there's no authority to disarm convicted murderers? On what basis do they disarm people who are in jail or prison?

Individual due process, with a Jury determining who is to lose their liberty for crimes committed. Not blanket rules created by legislators and bureaucrats. (With the later being much worse). I very much doubt that juries are going to be involved with declaring anyone mentally incompetent to posses a firearm. Most of the people so declared by a judge or bureaucrat will of course be harmless. The ones who aren't will still be walking around, free to do their thing, probably still with firearms, but if they can't get those with gasoline or claw hammers, depending on their degree of "anger".

[El Gato]

The point, keep in mind, is to exclude anyone who's dangerous,

Hmm, Yes that is indeed the point. But dangerous to whom? I suspect there are a lot of "Dangerous" folks around here (both FR and Texas!) that the government, at all levels, would agree are dangerous.

In fact I suspect their British forbearers thought TPaine, TJefferson, BFranklin (especially him!), and GWashington, along with a bunch of other "Gun Nuts" were pretty dangerous too.

[ConnieDodson]

Governor Reagan put the mentally ill on the streets. President Reagan turned them out of welfare. Now they are on SSI and “on the street” because the payee-businesses are not doing their job: pay rent, pay for medication, give a little cash. If the payee-businesses did their job, the mentally ill would be in the SRO’s and on their medication, proven by lab testing for blood levels.

Now, we are supposed to have the “mentally ill problem” determine gun laws?

I don’t think so!

Put the mentally ill back in Napa State Mental Hospital, if necessary and keep them.

Do not put them in Patton State Mental Hospital prison. That, is what is happening, because the state mental hospitals have directives not to keep the mentally ill.

The mentally ill do not belong in prison for petty alledged “crimes”. It is cruel and inhumane to put a marginally mentally ill person in with psychotic murderers.

The “behavioral courts” are a fraud, benefitting only the drug-addicts that know how to “play the system” because symptoms of drug-addiction mimic mental illness.

Put drug-addicts in live-in programs for drug-addicts.

That’s my first-hand knowledge, falsely categorized mentally disordered. I have dysphasia.

[tpaine]

ConnieDodson wrote me:

I think you need more facts, especially so, from this voice from San Francisco California.
Please read

http://ptsd-exposed.blogspot.com/ or http://ptsd-exposed.blogspot.com/feeds/posts/default

There is a lot veterans are not allowed to say: if you can read I have said it all.

[El Gato]

Reread the 10th. - It clearly says that States are constitutionally prohibited [limited] in powers. - Then read the 14th. - Same thing.

The 14th limits state government powers, as do other provisions of the Constitution. The difference is that that the states powers are not enumerated, that is, as far as the federal Constitution is concerned, they have whatever powers they wish that are not prohibited to them by the Constitution. The federal government, OTOH, has only those powers specifically delegated to it, and no more. The 10th amendment clearly indicates that the state are left in possession of all powers not prohibited to them.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Which powers they have and which the people have (other than those prohibited to them) is left to their internal political processes. In reality, most states have gone to specific delegated powers as well. But they have many more than the federal government, and thus state constitutions tend to be a bit cluttered.

But the 14th, in combination with the history of its adoption and with the Second Amendment, would seem to prohibit the states from abridging the privileges of keeping and bearing Arms of citizens of the United States nor from abridging the immunity from having the right to do so infringed.

[El Gato]

Only a tiny minority of patients falls under the ban, and among the factors that might keep them from requesting help, losing their gun rights is probably low on the list.

Except for the truly dangerous paranoids of course.

[El Gato]

The "due process of law" provision does not prohibit the states from regulatory actions

It does forbid them from regulatory actions which violate the basic rights of individuals, due process or not, they cannot enforce unconstitutional laws.

For example, if the law said that all red heads may not own firearms. The due process of an hearing or even a trial to determine if a person was indeed a red head would not make the law itself pass Constitutional muster. Or more realistically, they couldn't pass a new Assault Weapons ban and have it pass Constitutional muster simply because you'd get a full due process trial, with evidence heard that you did indeed sell such a weapon, and evidence that the weapon did indeed fit the de jure definition du jour of an assault weapon.

[tpaine]

-- the 14th, in combination with the history of its adoption and with the Second Amendment, would seem to prohibit the states from abridging the privileges of keeping and bearing Arms

Not just "seem to prohibit". the 14th's due process clause makes it clear that States cannot deprive us of life, liberty or property, [guns are property] without due process..

You made that same point to Cramer at post #90:

Individual due process, with a Jury determining who is to lose their liberty for crimes committed. Not blanket rules created by legislators and bureaucrats. (With the later being much worse). I very much doubt that juries are going to be involved with declaring anyone mentally incompetent to posses a firearm. Most of the people so declared by a judge or bureaucrat will of course be harmless. The ones who aren't will still be walking around, free to do their thing, probably still with firearms, but if they can't get those with gasoline or claw hammers, depending on their degree of "anger".

Well put, but I think Cramer has given up and left the field..
-- It will be interesting to see if he defends his appeasement position in the Shotgun News.

[El Gato]

Well put, but I think Cramer has given up and left the field..

-- It will be interesting to see if he defends his appeasement position in the Shotgun News

I am wondering if the poster is the real Clayton Cramer. Sounds like his writing, but this Drive By Poster just signed up on the 15th. IF he has quit the field already, that doesn't sound like CC at all.

[ConnieDodson]

I think Clayton Cramer is “different” for anyone claiming to be a Libertarian. He places his trust in “lawful authority”. I read a Libertarian Party booklet explaining it is your right on jury duty to vote “not-guilty” no matter what the facts are.
I disagree with Clayton Cramer every time he “trusts” some “authority” to get it right. Whatever happened to “question authority”?
My position: believe in yourself and in your own ability to find out the facts to think things through and get it right.
My comment on his article: Trojan Horse - no doubt about it
For more particulars on this topic see my blog http://ptsd-exposed.blogspot.com/