Thursday, June 28, 2007

How Many Times Do I Have To Check These Claims?

Alan Korwin, author of Gun Laws of America, has sent out an email continuing to raise the alarm about HR 2640. One of his claims is:
1. Not Just Adjudications

Bill supporters have expressed that "adjudicated" mental incompetence, which implies action by a proper court of law, is a fair standard for gun denial, and with an appeals process in place is a reasonable line in the sand. I generally agree. But the bill says "adjudications" can come from any federal "department or agency," not just courts.

And HB 2640 isn't limited to adjudications. It speaks throughout of people with "adjudications, determinations and commitments," and not even "involuntary commitments." The word "determination" scares me most -- it isn't even defined. Who can make "a determination"? The law doesn't say. An agency with even a narrow view could read that to mean almost anything. You're comfortable with that? Does it subject people's rights to a bureaucrat's whim? Where are the controls on "a determination"? There aren't any apparent.
So I went back through the bill, and I tried to find out what is causing all this concern. There are a number of places where the bill uses the words adjudications, determinations, and commitments, but I am still not seeing a problem. The term "adjudication" is defined in 27 CFR 478.11:

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.

In some states, courts determine that someone is incompetent; in some states, what is called a mental health commission or board (which operates like a court, with the same due process requirements) makes the determination. I can't see that this "determination" is anything other than another way of handling the fact that different states have different mechanisms for determining that a person is incompetent.

Korwin's concern about "commitment"? Relatively few people engage in voluntary commitment; as late as 1974, Alexander D. Brook's comprehensive Law, Psychiatry and the Mental Health System , 736-9 points out that what is commonly called "voluntary commitment" is actually two very different procedures: "informal admission" and "conditional voluntary admission."

My impression is that informal admission is by far the more common situation where someone checks himself into a hospital, because you are free to check yourself in, and then back out again--as seems to have been the case with Cho Seung-Hui, the Virginia Tech shooter. I see no reason to believe that the term "commitment" as used in HR 2640 means anything exception involuntary commitment.

2. Funding Denied for Restorations

Restoration of rights is subjected to 18 USC 925(c). I don't know how I missed this the first time around. That's the statute Congress has refused to fund since 1992. No one can get rights restored under that statute. We know that. Why would gun-rights supporters place faith in that as a valid appeals route? More than anything else, that item makes me wonder what's going on. It's a legitimate worry. Either the NRA missed that and must fix it, or their critics' worst fears have merit.
I agree, this does seem to be a problem. The bill does say, however:
Each department or agency of the United States that makes any adjudication or determination related to the mental health of a person or imposes any commitment to a mental institution, as described in subsection (d)(4)21 and (g)(4) of section 922 of title 18, United States Code, shall establish a program that permits such a person to apply for relief from the disabilities imposed by such subsections. [emphasis added]
Maybe I'm missing something, but shall, as I read it, requires them to provide such a process. This is an improvement over the system we currently have where Congress has refused to fund the process. At some point, an attorney is going to use shall as a way to force this process to happen.

3. Arbitrary Control by Attorney General

Even if 18 USC 925 were valid (i.e., funded), as currently written it gives the U.S. Attorney General absolute and arbitrary control over restoring gun rights to a person who applies. It doesn't require any action by the AG. It says, "the Attorney General may grant such relief if it is established to his satisfaction that... the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." A politician (unelected in this case) who doesn't think the public should have guns in the first place would never restore rights under that language. Does that seem like a fair and reasonable approach to you? Do you trust that as a baseline standard?
Guess what? This doesn't change anything in current law. If you have been adjudicated mentally defective, or declared incompetent, you have already lost your right to own a gun. This law improves the reporting of this information, but imposes no new restrictions. It does, however, provide a way to fix these firearms disabilities. An anti-gun Attorney-General could indeed be arbitrary and unreasonable on this. But right now, even a pro-gun Attorney-General can't do anything about a 40 year old involuntary commitment. This isn't perfect, but it is better than what we have now.

4. Doctors Issuing Gun Rights?

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).
Where did Korwin find that? I can't find any reference to a doctor, psychiatrist, physician, or similar term anywhere in the bill.

5. Illegal Aliens Exempt

Another giant one I missed: Under 18 USC 922 it's clear that illegal aliens cannot legally have guns in this country (and most can't have guns in their native Mexico or elsewhere). But they're not in the NICS denial files because, as newspapers put it, they're "undocumented," so there's no way to get the 20 million of them in there. So here's another blockbuster hidden in HB 2640 -- anyone who loses their "illegal alien" status is exempt from NICS (under Sec. 101 (b)(1)(B)). 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! Did I read that wrong? It is deliberately convoluted, but it does single out 18 USC 925(g)(5), the illegal-alien gun ban.
Very true. And guess what? If HR 2640 fails, and the idiots pass an illegal alien amnesty, they will all be allowed to buy guns. That's a problem with an illegal alien amnesty, not with HR 2640.

6. Legislation by Database Management

Getting a person on or off the NICS list depends on "laws, regulations, policies or procedures governing the applicable record systems." That applies to every database and set of records everywhere that NICS draws from. Are those database "procedures" and "policies" a) known, b) available for review, c) open to public comment, d) subject to challenge, e) fair, f) subject to time frames, g) subject to change at whim, and h) are the people who make those rules known or subject to any jurisdiction we can identify? What about database "rules" mentioned in the bill? Curious minds want to know -- before this bill becomes law and grants that much power to data geeks in some deep dark isolated windowless data processing center somewhere.
And this is different from the current system that applies to convicted felons, those convicted of domestic violence misdemeanors, those with involuntary commitments in what way? This isn't new. You may not be happy about it, but the only difference from the current scheme is that the 28 states that aren't reporting the mental patients who have been committed will now have to report them. That's it. Oh, and we get an appeals process that may get people off this list who right now have no way to get off the list.

I must confess, I think it is good that everyone is being really, really careful about this. But I keep looking up these concerns, and I scratch my head. The gun control crazies have poisoned the well--to the point where well meaning gun rights activists are looking for trouble in the wrong place.

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