That's a lot of new records that will be added to this system --- and I strongly believe that people who have not been affected before by a NICS check will be if indeed 21,000,000 new records are added to the NICS database. Even if only 0.1% of those are erroneous, that would still be 21,000 erroneous records added to the system.
1. MISSTATEMENT: "... these bills [H.R. 2640 and any counterparts] would only enforce current prohibitions [on gun ownership]...." THE TRUTH: BATFE has long tried to nudge the law to the point where a simple psychiatric diagnosis would put your name on the FBI's "list' and impose a lifetime gun ban on you. But this bill goes even farther in that direction than BATFE could have hoped.
First, a little history: 18 U.S.C. 922(d) & (g) make you a prohibited person if you are "adjudicated as a mental defective...." But the question of what "adjudicated" means and who has to do the "adjudication" is a battle which has been raging for decades.
When I was working in the Senate (1975-93), the view was that this provision barred gun sales to people who had been judged not guilty by reason of insanity -- or at least had come before a court, in a context where due process was afforded them. But, there has been an effort to extend this not just to the actions of courts, magistrates, etc., but also to any diagnosis by a federal-(or state)-sanctioned psychologist or psychiatrist.
Hence, if a person were --
a. A vet found by a VA doctor to be suffering from post traumatic stress disorder [PTS],
b. A kid put on Ritalin under the Individuals with Disabilities Education Act (IDEA), in part because of the increased danger of playground fights;
c. A senior with Alzheimer's receiving home health care under the Medicare program --
then, under the new interpretation being pushed by anti-gun advocates, that person would be subject to a lifetime gun ban IF the term "adjudication" included a diagnosis, as opposed to just a court order.
The efforts of BATFE to expand its jurisdiction are most fully contained in C.F.R. 478.11, where BATFE regulations provide that adjudication can be made by any "lawful authority." The same regulations also expand the ambit of "mental defective" to include a person who is "a danger to himself or to others; or [who] [l]acks the mental capacity to contract or manage his own affairs...."
Furthermore, in a letter dated May 9, 2007, BATFE writes that "danger" means any danger, not simply "imminent" or "substantial" danger...." [Emphasis added]
Hence, BATFE takes the position that something short of adjudication by a court -- and that alone -- is enough to make an individual a "prohibited person."
In line with this interpretation, the Department of Veterans Affairs, in the final year of the Clinton administration, sent the names of 83,000 veterans to the Instantcheck system, based generally on findings of post-traumatic stress disorder. However, that action caused so much controversy that, to my knowledge, few if any, additional names have been sent, notwithstanding reports that as many as one-quarter to one-third of Iraq veterans suffer from this problem.
So, we have this very broad definition ("diagnosis" = "adjudication") which we have been battling over for more than a decade. And we have BATFE regulations which BATFE has been loathe to enforce, and which don't go quite so far as to say explicitly that a diagnosis is the same as court order, but could be interpreted to do so.
This bill would definitively resolve that debate on the side of anti-gun interpretation even broader than BATFE's, and would make it clear that a psychiatrist's diagnosis would be tantamount to a court order!
It would do this first in section 3(2), which provides BATFE's regulations concerning mental health issues now have the force of statutory law -- and cannot be changed, except by statute.
In addition, section 101(c) (1) (C) is a Trojan Horse which makes this even clearer -- and goes even further. It provides that a person can be made a prohibited person, based "solely on a medical finding of disability" if that finding is (presumably, explicitly or implicitly) based on a finding that the person is a danger to himself or others or is unable to manage his own affairs.
Hence, a VA-, IDEA-, or Medicare-related diagnosis of a veteran, kid or senior, based on a psychiatrist's finding of even microscopic amount of danger (or inability to manage one's own affairs) is enough to put the vet, kid, or senior on the FBI's "list."
Remember:
* According to the May 9 letter, the "danger" can be microscopic in magnitude.
* In addition, cases of post-traumatic stress disorder, ADD, or Alzheimer's inherently involve at least some amount of "danger" or incapacity.
[ ... ]
4. MISLEADING STATEMENT: "H.R. 2640 would prevent use of federal 'adjudications' that consist only of medical diagnosis without findings that the people involved are dangerous or mentally incompetent."
THE TRUTH: First of all, up until now there has been no statutory basis for making a person a prohibited person on the basis of a diagnosis. So McCarthy isn't doing gun owners any favor by establishing this principle -- and then "generously" carving a small loophole in it.
Second, in the case of veterans with post-traumatic stress disorder, kids with attention deficit disorder, or seniors with Alzheimer's, de minimis levels of "danger" or incompetence are almost always an underlying issue (and, hence, an implicit finding). And the statement conveniently fails to mention the standard in the BATFE's May 9 letter, starting that "any" danger, no matter how de minimis, is sufficient.
Third, note the use of the word "federal." State diagnosis in connection with IDEA, Medicare or the state National Guard would be enough to make veterans, kids, and seniors prohibited persons -- even without meeting the de minimis "danger" standard in 101(c) (1) (C), which is applicable only to federal diagnosis, not state diagnosis.
5. MISLEADING STATEMENET: “H.R. 2640 would require all federal agencies that impose mental health adjudications... to provide a process for 'relief from disabilities'...."
THE TRUTH: As we have seen, McClure-Volkmer created a path for restoring the Second Amendment rights of prohibited persons like Iraq veterans. Given that Chuck Schumer has successfully pushed appropriations language which has defunded this procedure since 1992 (without significant opposition), what is it to prevent him from doing the same thing with respect to the new (redundant) procedures? This is like stealing our money and then using it to bargain with us. And, incidentally, why should we reward Schumer for his bad faith in blocking relief from disabilities under McClure-Volkmer by passing his bill in exchange for a restoration-of-rights "chit" which is more limited than the law currently on the books -- and which he has consistently blocked?
6. MISLEADING STATEMENT: "As a practical matter, the mental health disability is the only firearm disqualifier that can never be removed."
THE TRUTH: As a practical matter, this is just not true. States vary widely on the ability to expunge felonies and "Lautenberg misdemeanors," even for crimes which are very old, relatively minor, or regulatory in nature.
7. MISLEADING STATEMENT: "H.R. 2640 would prohibit reporting of mental health adjudications or commitments by federal agencies when those adjudications or commitments have been removed.... H.R. 2640 would also make clear that if a federal adjudication or commitment has expired or been removed, it would no longer bar a person from possessing or receiving firearms...."
THE TRUTH: This is not exactly true.
First, it's not entirely clear how a diagnosis gets "removed" -- or what incentive any psychologist would have for issuing a written finding that there is not "any danger" whatsoever that a battle-scarred veteran or an ADD kid will never get into even a minor scrape as a result of the condition. Even if that were possible, the process of proving that to a government agency and getting the agency to tell the FBI to take a name off its "list" is certainly something 83,000 veterans currently wrongly classified as prohibited persons are not going to be able to do.
Second, there is language in the bill which could arguably restore the rights of the most dangerous -- but not those who were simply "diagnosed" with PTS, ADD, Alzheimer's, etc. Hence, while someone who was actually intended to be covered by 922(d) & ) (g) and is dangerous and locked up might actually be able to get his rights back by proving that he had been "released and discharged" under 101(c) (1) (C) (A), someone who is just subject to a diagnosis -- and hence can't be "released or discharged" from an institution which never restrained him -- cannot benefit from this provision.
Third, again, note the use of the word "federal." State diagnosis in connection with IDEA, Medicare, or the State National Guard would be enough to make veterans, kids and seniors prohibited person -- but these victims would not be able to restore their rights under sections 101(c) (1) (A), even if a thousand psychologists testified that they were wholly "normal."
If even one medical finding of "danger to himself" or "lack of capacity" is made --- no matter how fallacious --- then 101(c)1(C) does kick in with no need to involve a court order --- you are not automatically given the right to defend yourself from arbitrary declarations that can and will put your name in the NICS system.