NICS Improvement bill
I've glanced at HR 297, the "NICS Improvement Act." I must say it's mostly evidence of how lazy Congress has grown. It redefines domestic violence misdemeanors, with the biggest change being the statement that if a person is acquitted, it doesn't count as a conviction. Now, that's a surprise! It keeps in the rather strange language that a conviction doesn't count if a person wasn't represented by an attorney and didn't waive that right, or if a person was entitled to a jury under state law, didn't get a jury, and didn't waive the jury. In other words, if the state trial judge completely fouled up. (I knew a city court judge who did things like that 20+ years ago, until a prosecutor sat him down with photocopies of the case law, but hopefully this is rare. I suspected the drafters of the original meant to guarantee jury trial, which is often not applicable to misdemeanors, and got sidetracked.
Probably the best evidence of the drafters' laziness here is the definition of "adjudicated a mental defective." As I noted earlier, this term was an antique when the 1968 Gun Control Act was drafted, and is even more of a legal/psychiatric dinosaur today. It really could use a more modern and precise definition. HR 297 provides a definition: "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 ATF regulations are pretty reasonable, essentially taking the Black's Law Dictionary approach: found a danger to self or others, or found incompetent to manage one's own affairs, or found not guilty by reason of insanity or guilty but insane or not competent to stand trial. But simply saying, in statute, that the definition is whatever a given regulation says on the date of enactment is quite sloppy, to my mind. How do the folks codifying the US Code handle that? As I recall, 18 US Code has been enacted into law (see extended remarks below for what this means), so they can't rewrite the bill if it passed. I suppose they could drop a big footnote to say what the regulations provided on the effective date.
I do wish that, if they were revisiting the definition, they'd put in a provision for when it ends. E.g., the court finds that the person no longer requires court ordered treatment, or ATF can find that the person is no danger, or something like that. As it is, it's a lifetime bar. A person can be convicted of a felony and get firearm rights restored by the court, but a person briefly committed to an institution 20 years ago cannot. I've had people come to me with exactly that problem.
[Update in light of comments: a temporary committment for observation doesn't count as a committment, nor does a voluntary hospitalization].
"Enacted into law" is a bit complex. If a title of the US Code has not been enacted, then the US Code is technically *evidence* of the law, but not the law itself. The "law" is the individual Acts that created or modified each section, reflected in the Statutes at Large, spread over many years. The codifiers in turn can make little changes, such as changing "after the effective date of this Act" to "after Feb. 25, 2005." Sometimes they do make mistakes (I encountered one in Title 16). And amendments generally have to relate back to the Statutes at Large, rather than refer to the US Code. If there is a difference between the US Code and the Statutes at Large, the latter govern.
Every now and then Congress cleans up a Title, as I believe was done with Title 18, the criminal statutes. It just passes a bill that says Title 18, as now codified, is the law. Then the US Code title is not just evidence of the law, but is the law, and amendments can thereafter refer to the US Code section numbers.
Mere commitment to an institution's enough?
Aren't commitments for 72 hour of observation handed out like candy, with very little burden on the state?
Posted by: geekWithA.45 at May 14, 2007 02:35 PM
What GWa.45 said, and, as I noted on 4-22 in my blog, this is how Stalin controlled the USSR. He didn't bother with trying and jailing dissenters, he simply had them diagnosed as mental cases, and they were sent to various institutions to live out their lives, usually not very long lives.
In Oregon, two members of your family can go to Probate Court, get a 15-minute hearing and take over your affairs because of your "incompetence". Two doctors may do the same thing, or a combination of one family member and one doctor.
So, Uncle Al collects guns and supports the Second Amendment, but all his neices and nephews are GFWs, so they trump up some behavior and have him declared "incompetent", and whoosh, away go his guns and away goes his money to a conservator.
Don't tell me that no ethical lawyer would take the case of the neices and nephews, because, in Oregon, NO ATTORNEY IS REQUIRED IN THESE CASES.
This abuse is already doable here, the "NICS Improvement" law would just make it doable everywhere.
The only solution is to get ahead of this situation, and disperse your weaponry, leaving some of it with trusted friends, friends who know the meaning of this sort of legal abuse.
Posted by: Rivrdog at May 14, 2007 03:15 PM