Monday, June 25, 2007

H.R. 2640: I Still Don't See It

I mentioned a few days ago a WorldNetDaily article, largely relying on a Gun Owners of America alert, that claims that H.R. 2640 would allow all sorts of people to be prohibited from owning a gun. Larry Pratt at Gun Owners of America has expanded on his explanation:
"The critics do not seem to have read our alerts. Please go to which gives an overview. It contains a link which takes one to the supporting documentation: . In that documentation are the BATFE regulations that would be codified by HR 2640. The "adjudication" can be done by any court (at least that should have due process), commission, committee or other authority. The other authority is spelled out in Section 3 where the regs are codified. That's where the psychiatrist is lurking.

You can indeed have your 2nd Amendment rights taken away with the stroke of a pen on a prescription pad.

We hope to have an alert out Monday to show how this lawless approach deprived a gun owner of his rights in Pennsylvania. The DA called the police to have a fellow involuntarily committed so his gun rights would be taken away. The DA and the police acted as an "other authority" of HR 2640.

I wish the critics were right. This is THE WORST gun control bill."

Larry Pratt
Executive Director
Gun Owners of America
I'm still not seeing it. GOA has reproduced a letter from BATF concerning this matter, and it quotes the appropriate federal regulations:


1. 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.
2. 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.

Here's what GOA says:

Anti-gun advocates have tried to create the impression in the media that "other lawful authority" means some judicial or quasi-judicial forum. But nothing in either the regulations or in BATFE's letter of May 9 says or implies this. "Authority" could be:

* A school psychologist to whom "behaviorally challenged" kids are referred;

* A psychiatrist commissioned by Medicare to evaluate seniors for Alzheimer's (an interpretation which is reinforced by the fact that such a finding by such a person is legally effectual for qualifying such a person for Alzheimer's grants);

* A Veteran's Administration psychiatrist who evaluates returning soldiers for post-traumatic stress disorder (large numbers of these names have already been turned over to the FBI by the Clinton administration);

* A psychologist who, under provisions of law, involuntarily commits a patient with no due process at all.

A fortiori, the same person whose findings are enough to "adjudicate" a person as a "mental defective" are equally capable of being able to legally "commit" the person under the second disqualifying clause, within the terms of the statute.

There's nothing in the BATF letter that even hints at these, and as GOA admits, the BATF letter is quite clear on this:

For purposes of a Federal firearms disability, ATF interprets “adjudicated mental defective” to include anyone adjudicated to be a “danger to him or herself,” “a danger to others,” or lacking “the mental capacity to contract or manage their own affairs.” For purposes of Federal law, “danger” means any danger, not simply “imminent” or “substantial” danger as is often required to sustain an involuntary commitment under State law. Thus, for example, adjudication that a person was mentally ill and a danger to himself or others would result in Federal firearms disability, whether the court-ordered treatment was on an inpatient or outpatient basis. This is because the adjudication itself (a finding of danger due to mental illness) is sufficient to trigger the disability.

It should be emphasized that whatever adjudication procedure a State employs, the Constitution requires certain guarantees of due process. In order for a particular commitment order to qualify as a prohibiting commitment, ATF historically has required that traditional protections of due process be present, including adequate notice, an opportunity to respond, and a right to counsel. Such protections are important because whether a person has been adjudicated a mental defective or committed to a mental institution, the firearms disability is permanent.
The BATF letter also is quite clear that voluntary hospitalization or being held for observation is not a commitment, and neither is "a stay in a mental institution that never involved any form of adjudication by a lawful authority."

Yes, if a court went ahead and declared that a person was mentally defective because of Alzheimer's, he could be disarmed. But relatively few people are adjudicated as mentally defective because of Alzheimer's--and I would guess that when this happens, it is probably with good reason. The example that Gun Owners of America gives, a psychiatrist evaluating patients--is clearly not a due process adjudication.

The returning veterans concern is something that H.R. 2640 specifically deals with, and corrects--so this is actually a gain for this group.

The school psychologist? What? That's not a due process adjudication--not even close.

I am not aware of ANY state where a psychologist has authority to involuntarily commit a patient "with no due process at all." In general, state laws give substantially more authority to psychiatrists on this count than psychologists, but even psychiatrists don't have this kind of power in any state, to my knowledge.

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