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NICS improvement compromise
Word is the bill will be introduced as HR 2640. It's not online at Thomas yet, but I managed to get hold of the relevant language. Most of the bill is 20+ pages of verbiage about grants to states to improve input of mental health records. For me, the critical language is a couple of sections that essentially let a person who was committed at some point in their lives escape the lifetime bar that now exists. The wording is a trifle awkward at times, but as I read it, if the court that committed them makes a finding that they are not a danger any more, or the state creates an entity that can make a similar finding, they're not a prohibited person and their name comes off the NICS list. The relevant text is in extended remarks below.
[Update in light of comments: I can't find anything in it about relief from disabilities for minor infractions. Those would be handled under state law now, and I don't see the bill as changing it. But I do note that its definitions of the mental situation clarify that a vet who got a pension based on mental disability is not a prohibited person. I recall the VA turned over tens of thousands of records of that, and I suppose there was some controversy over whether that qualified as a disabling factor to own a gun.]
{for some reason the line numbers appear on right rather than left. 922(d)(4) and (g)(4) are the sections that make a person committed a prohiited person).
(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
(A) PROGRAM FOR RELIEF FROM DISABIL -1
ITIES.—
Each department or agency of the 2
United States that makes any adjudication or 3
determination related to the mental health of a 4
person or imposes any commitment to a mental 5
institution, as described in subsection (d)(4) 6
and (g)(4) of section 922 of title 18, United 7
States Code, shall establish a program that per-8
mits such a person to apply for relief from the 9
disabilities imposed by such subsections. Relief 10
and judicial review shall be available according 11
to the standards prescribed in section 925(c) of 12
title 18, United States Code. 13
(B) RELIEF FROM DISABILITIES.—In the 14
case of an adjudication or determination related 15
to the mental health of a person or a commit-16
ment of a person to a mental institution, a 17
record of which may not be provided to the At-18
torney General under paragraph (1), including 19
because of the absence of a finding described in 20
subparagraph (C) of such paragraph, or from 21
which a person has been granted relief under a 22
program established under subparagraph (A), 23
the adjudication, determination, or commit-24
ment, respectively, shall be deemed not to have 25
occurred for purposes of subsections (d)(4) and 1
(g)(4) of section 922 of title 18, United States 2
Code. 3
SEC. 105. RELIEF FROM DISABILITIES PROGRAM REQUIRED 20
AS CONDITION FOR PARTICIPATION IN 21
GRANT PROGRAMS. 22
(a) PROGRAMDESCRIBED.—A relief from disabilities 23
program is implemented by a State in accordance with this 24
section if the program—25
(1) permits a person who, pursuant to State 1
law, has been adjudicated as described in subsection 2
(g)(4) of section 922 of title 18, United States Code, 3
or has been committed to a mental institution, to 4
apply to the State for relief from the disabilities im-5
posed by subsections (d)(4) and (g)(4) of such sec-6
tion by reason of the adjudication or commitment; 7
(2) provides that a State court, board, commis-8
sion, or other lawful authority shall grant the relief, 9
pursuant to State law and in accordance with the 10
principles of due process, if the circumstances re-11
garding the disabilities referred to in paragraph (1), 12
and the person’s record and reputation, are such 13
that the person will not be likely to act in a manner 14
dangerous to public safety and that the granting of 15
the relief would not be contrary to the public inter-16
est; and 17
(3) permits a person whose application for the 18
relief is denied to file a petition with the State court 19
of appropriate jurisdiction for a de novo judicial re-20
view of the denial. 21
(b) AUTHORITYTOPROVIDERELIEFFROMCERTAIN 22
DISABILITIESWITHRESPECTTOFIREARMS.—If, under 23
a State relief from disabilities program implemented in ac-24
cordance with this section, an application for relief -25
ferred to in subsection (a)(1) of this section is granted 1
with respect to an adjudication or a commitment to a men-2
tal institution, the adjudication or commitment, as the 3
case may be, is deemed not to have occurred for purposes 4
of subsections (d)(4) and (g)(4) of section 922 of title 18, 5
United States Code. 6
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Here is what the GAO has to say about the "compromise."
Tuesday, June 12, 2007
While the entire nation was focused on the immigration bill the past couple of weeks, the gremlins on Capitol Hill were finalizing a "compromise" on gun control legislation.
The good news is that your tremendous outpouring of opposition to Rep. Carolyn McCarthy's Brady enhancement (HR 297) has sent a strong signal to Capitol Hill that this bill is unacceptable as written.
The bad news is that there are some seemingly pro-gun Congressmen who are driven to get anything passed, just so they can say they did something about Virginia Tech.
So what's going on?
On Saturday, The Washington Post reported [ see http://tinyurl.com/23cgqn ] that both the Democrats and the NRA leadership had reached a "deal" on legislation similar to the McCarthy bill. This "deal" involves a new bill that has been introduced by Rep. McCarthy (HR 2640) -- a bill that has not yet been posted on the Thomas legislative service. While all the legislative particulars are not yet available, one thing is clear: it is, as reported by the Post, a deal with Democrats. And it involves legislation introduced by the most anti-gun member of the House, Rep.
Carolyn McCarthy (D-NY).
The Post says that, under the new language, the federal government would pay (that is, spend taxpayers' money) to help the states send more names of individual Americans to the FBI for inclusion in the background check system. If a state fails to do this, then the feds could cut various law enforcement grants to that state. In essence, this is a restatement of what the original McCarthy bill does. The states will be bribed (again, with your money) to send more names, many of them innocent gun owners, to the FBI in West Virginia -- and perhaps lots of other personal information on you as well.
Under the terms of this compromise, the Post says, "individuals with minor infractions in their pasts could petition their states to have their names removed from the federal database, and about 83,000 military veterans, put into the system by the Department of Veterans Affairs in 2000 for alleged mental health reasons, would have a chance to clean their records."
Oh really? The Brady law already contains a procedure for cleaning up records. But it hasn't worked for the 83,000 veterans that are currently prohibited from buying guns. Gun Owners of America is aware of many people who have tried to invoke this procedure in the Brady Law, only to get the run around -- and a form letter -- from the FBI. The simple truth is that the FBI and the BATFE think the 83,000 veterans, and many other law-abiding Americans, should be in the NICS system.
After all, that's what federal regulations decree. Unless these regs are changed, Congress can create as many redundant procedures for cleaning up these records as it wants, but the bottom line is, there is nothing that will force the FBI to scrub gun owners' name from the NICS system.
Not only that, there is a Schumer amendment in federal law which prevents the BATFE from restoring the rights of individuals who are barred from purchasing firearms. If that amendment is not repealed, then it doesn't matter if your state stops sending your name for inclusion in the FBI's NICS system... you are still going to be a disqualified purchaser when you try to buy a gun.
Moreover, will gun owners who are currently being denied the ability to purchase firearms -- such as the military veterans who have suffered from post-traumatic stress -- be recompensed in any way for their efforts to "clean their records"? They will, no doubt, have to spend thousands of dollars going to a shrink for a positive recommendation, for hiring lawyers to take their case to court, etc.
And this is not to mention the fact that this procedure turns our whole legal system on its head. Americans are presumed innocent until PROVEN guilty. But these brave souls, who risked their lives defending our country, were denied the right to bear arms because of a mental illness "loophole" in the law. Their names were added to the prohibited purchasers' list in West Virginia without any due process, without any trial by jury... no, their names were just added by executive fiat. They were unilaterally, and unconstitutionally, added into the NICS system by the Clinton administration. And now the burden of proof is ON THEM to prove their innocence. Isn't that backwards?
One wonders if these military veterans will be any more successful in getting back their gun rights than the gun owners in New Orleans who tried to get back their firearms which were confiscated in the wake of Hurricane Katrina. (Gun owners in the Big Easy have found it very difficult to prove their case and get their guns back, even though the courts have ruled that the police acted improperly in confiscating their firearms.) But isn't that the problem when honest people are thrust into the position of PROVING their innocence to the government, rather than vice-versa.
The fact is, current federal law -- combined with BATFE's interpretations of that law -- will make it very unlikely that any court will restore the Second Amendment rights of those 83,000 veterans.
Finally, the Post article also says the "federal government would be permanently barred from charging gun buyers or sellers a fee for their background checks." Well, that sounds good, but GOA already won this battle in 1998 when we drafted and pushed the Smith amendment into law.
GOA had to overcome opposition from certain pro-gun groups to help Senator Bob Smith (R-NH) introduce and push his language as an amendment to an appropriations bill. The Smith amendment barred the FBI from taxing gun buyers, something which the Clinton administration was considering doing.
GOA won the vote in the Senate with a veto-proof majority and the Smith amendment has been law ever since. But now we're being told that we need to swallow McCarthy's poison pill so that the Smith amendment -- which is currently law -- will stay on the books. Huh?!
ACTION: Gun Owners of America is the only national pro-gun organization opposing the McCarthy bill, so it is imperative that you contact your representative immediately. Please take action today and spread the word about HR 2640! We need all the help we can get.
The language of the bill seems to rather directly address the concerns the GOA is raising here. I hate to say it, but I think the GOA is raising a boogeyman here. It's not a bad bill, and I don't think there's any way to spin it otherwise, to make the NRA look bad.
Sebastian and others: I say this is a bad bill for the same reasons that GOA raises. If being put on the list of prohibited people were to be more difficult and expensive for the government to prove than the efforts to get off it AND if in getting off it you prove that you should never had been on it makes the agency that put you on it responsible for the costs to get off the list, then I'd be more supportive of it.
Additionally Section 102c2 reenforces & strengthens the problems with the Lautenberg amendment in my mind.
I know that there are some people that are accusing people against this bill of not living in the real world of DC politics. I say hogwash. If the House wasn't afraid of a 2A backlash then why was this done on a voice vote instead of a role call? We should have gotten better from the NRA then we did.
... And what about privacy rights? Now your medical records can put you in the database of axe murders and rapists?
Hello, ACLU, defender of illegal immigrants and terrorists rights, oh I forgot, gun owners don't have rights. It's a LIBERAL thing.
And why was it a voice vote? Easy, so they can lie about it later.
Can leopards change their spots?
Can Rep. McCarthy sponsor a bill that is good for those of us who support the Second?
Two answers with one "NO"
Every time the Federal Government writes any sort of bill with money strings attached, it's a bad day for our Constitution.
Of course, the several States have gotten used to the Federal largesse, so they will all agree to be bound by it.
If there were only ONE state that would tell the Feds to keep their bucks, I would be there, bag and baggage, as soon as I could pack my house out and plant a "For Sale" sign.
This is called the Vetrans disarment act! It will take away rights that were fought for by vets.If you have PTSD, your on the list and many other things like yelling at your spouse!!!!Infractions that are misdemeners will put you on the list.Or worst of all if a VET says I have a problem after being at war he is on the list!!!! Come on people get a grip!!!!!
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It sounds acceptable to me. Is there any language in there about having disability removed for other "minor infractions" of the law that aren't related to mental illness? Or does this only address mental health disabilities?