HR 2640: Sensible Solution or Trojan Horse? by cramer

[nra-life-member]

http://www.shotgunnews.com/cramer/

HR 2640: Sensible Solution or Trojan Horse?

My last two columns addressed the problem of psychosis, violence and gun control. This column is about HR 2640, a mental illness and gun control bill currently before Congress that has split the gun rights community more than I can ever recall seeing.

What does HR 2640 purport to do? (Remember that I am talking about the HR 2640 as of the day that I wrote this column, July 21. Bills change as they work their way thorough Congress.) At least 28 states either intentionally, because of a shortage of money, or by bureaucratic incompetence, fail to turn over mental illness commitment information to the FBI's National Instant Criminal Background Check system.1

HR 2640 tries to improve the level of compliance by a combination of carrot and stick. The states that are failing to turn over the information can get additional money to upgrade their computer systems and hire more staff to solve this problem. States that still won't turn over the information will have their federal funding under the Omnibus Crime Control and Safe Streets Act of 1968 reduced.2

One very poorly thought out provision of the Gun Control Act of 1968 specified that if a person was found to be mentally incompetent, he lost the right to own a forever.3 What about people who have a mental illness episode in their teens or 20s, and never have another problem? Even 20 years later-no matter how many judges or doctors have declared you competent and safe to own a gun-you still can't legally own one under federal law. At the insistence of the NRA, HR 2640 adds a new provision to federal law that allows the federal government or states to relieve you from this disability.4

Now, a lot of gun rights organizations whose commitment to the cause I do not question have broken with NRA on HR 2640. Gun Owners of America and Jews for the Preservation of Firearms Ownership are notable examples of groups that are very concerned that HR 2640 is going to open a Pandora's Box of new gun restrictions, and they have managed to get this concern expressed to a large part of the gun rights community.

Partly, I think this is because NRA has worked with Rep. Carolyn McCarthy (D-N.Y.), one of our archenemies, to get this bill through the House. There is a grave suspicion that anything that McCarthy supports must be intended to harm gun owners.

I have spent a lot of time reading their concerns, and those of my many readers, trying to see if they are correct about the dangers of HR 2640. As much as I respect these organizations and their zeal, I'm just not finding anything in the bill that gives me reason to oppose it.

One of the concerns that lawyer Alan Korwin, author of Gun Laws of America expressed in a widely distributed email was that the language of the bill refers to "adjudications, determinations and commitments," and that it wasn't clear what "determinations" means. Korwin was concerned that any doctor could decide, quite arbitrarily, that you couldn't be trusted with a gun.

But federal regulations define this: "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."5

This is a pretty high standard. The due process requirements for this are pretty darn high, at least partly because the ACLU in the late 1960s and 1970s made a very serious effort to end involuntary mental illness commitment.

They did not achieve their entire goal, but the courts put up many substantial barriers. Contrary to the claims that some have made, a doctor can't get you adjudicated insane, and the fact that you were given Ritalin as a kid won't qualify as "adjudicated as a mental defective."

Korwin was concerned that the language of HR 2640 refers to commitment, but not "involuntary commitment." It turns out that the legal language is a bit confusing on this. A person who enters a mental hospital and asks for help isn't, contrary to what you might logically think, "voluntarily committed." This is either "informal admission" or "conditional voluntary admission." A "voluntary commitment" means that you have voluntarily given over to the hospital substantial authority to decide when you are well enough to leave-and this is not all that common.6

Another concern was that Congress might not fund the appeal process for those who were involuntarily committed or adjudicated mentally incompetent. This is certainly a legitimate concern. There is a very similar appeal process by which those who have been convicted of felonies can request federal relief from this disability-and Congress has refused to provide any funds for this process since 1992. Two points, however.

1. If you were declared incompetent by a state agency or court, HR 2640 allows you to request relief from the body that declared you incompetent. For states to receive any funding for improving their records under this act, they are required to offer such a disability relief appeal process. They are not required to do so now.

2. Under the current law, once you have been "adjudicated mentally defective," there is no appeal process under federal law. Yes, if Congress refuses to fund a federal disability appeals process, you will not be able to get your firearms rights back. But that's no worse than today-where there is no appeals process at all.

HR 2640 does not change the requirements for determining who can a gun. If you were adjudicated mentally incompetent in say, 1980, but your state did not pass the information to the National Instant Criminal Background Check system, you might still be able to pass a firearms background check-but if you are in possession of a gun, you have committed a federal felony. If for any reason the authorities discover that you have a gun, you are in serious trouble.

HR 2640 does not change this-but at least it reduces the risk that a person might unintentionally or unknowingly break the law by buying a gun from a dealer.

Alan Korwin also expressed concern that: "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)." I've looked through the bill and the current laws and regulations, and I just can't find anything that fits this. The decision as to whether someone is fit is not made by a doctor.

Indeed, one of the defining characteristics of the last 40 years has been the increasing unwillingness of the courts to trust that psychiatrists know anything at all. The ACLU has taken the position (and the courts have to a large extent bought it) that psychiatric opinion is like flipping a coin in its accuracy, and not taken very seriously.

Korwin is concerned that HR 2640 would allow illegal aliens to legally own guns if the amnesty bill that was under consideration in early July had passed. "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!" Very true. But if the amnesty bill had passed, and HR 2640 did not-illegal aliens would doubtless have been allowed to own guns, anyway. That's a problem of the amnesty bill-not HR 2640.

Gun Owners of America put out an alert on July 10 that warned about a Horatio Miller in Pennsylvania who "said that it could be worse than Virginia Tech" if someone broke into his car, because there were guns there." Miller was arrested, but not charged.

Nonetheless, the district attorney instructed the sheriff to revoke Miller's concealed carry permit, and according to GOA's press release, the district attorney "asked police to commit him under Section 302 of the mental health procedures act and that was done. He is now ineligible to possess firearms [for life] because he was committed involuntarily."7

The district attorney might want to consult a lawyer (or someone who knows how to read). Section 302 of the Pennsylvania Mental Health Procedures Act is not an involuntary commitment under federal law at all. The title is "Involuntary emergency examination and treatment authorized by a physician." It is limited to 120 hours, and does not involve the due process requirements necessary for adjudication under federal law.8

I suppose that I should point out that Miller's problems may be a bit larger than a thoughtless remark. I wouldn't bet the farm on this guy being right, but one gun rights activist in the area where Miller was arrested has been following the case, and reports that local newspaper coverage indicates that the police have been called to Miller's apartment building 22 times in the previous year.9 Maybe the district attorney completely overreacted. But maybe there's some history of inappropriate behavior. Without more data, I would not make too many assumptions.

I appreciate the concerns that gun rights groups have about HR 2640. Anytime that Carolyn McCarthy wants a bill passed, we should definitely read it carefully, and consider if there might be something nasty hiding in the woodwork. But so far, all of the objections that I have seen raised to HR 2640-at least as it is written today-seem to be erroneous. Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores. His web site is http://www.claytoncramer.com.

1Tom Breen, Associated Press, "Gun database omits many mental health†records," Lawrence [Kansas] Journal-World and News, April 26, 2007, http://www2.ljworld.com/news/2007/ap...ealth_records/, last accessed May 20, 2007.

2 H.R. 2640 (Referred to Senate Committee after being Received from House), ßß 103-104, as of July 21, 2007.

3 18 USC 922(g)(4) (2007).

4 H.R. 2640, ß105, July 21, 2007.

5 27 CFR 478.11 (2007).

6 Alexander D. Brooks, Law, Psychiatry and the Mental Health System (Boston: Little, Brown & Co., 1974), 736-9.

7 "Pennsylvania Case Reveals How McCarthy Bill Could Threaten All Gun Owners -- Troubling questions in HR 2640 still go unanswered," Gun Owners of America, July 10, 2007, http://www.gunowners.org/a071007.htm, last accessed July 21, 2007.

8 Penn. Stats. Ann., Title 50, ß 7302 (1997), available at http://www.psychlaws.org/LegalResour...niastatute.htm, last accessed July 21, 2007.

9 http://www.thehighroad.org/showthread.php?p=3535430, last accessed July 21, 2007.

[General Geoff]

Neither. It would more accurately be called "feel good legislation" which won't prevent any crimes, and in fact will further encroach on law abiding citizens' ability to obtain firearms on the up-and-up.

[GunLawyer001]

"The district attorney might want to consult a lawyer (or someone who knows how to read). Section 302 of the Pennsylvania Mental Health Procedures Act is not an involuntary commitment under federal law at all. The title is "Involuntary emergency examination and treatment authorized by a physician." It is limited to 120 hours, and does not involve the due process requirements necessary for adjudication under federal law."

I find this statement, and several other statements in this piece, troubling and erroneous. I handle people who were denied by PICS because of commitments under Section 302, 303, & 304 on a regular basis.

I'm less than thrilled by this, as well: ""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.""

This is too broad, and the rules of legal interpretation mean that "The term shall include" is NOT a limiting phrase, it just means that criminal insanity and UCMJ findings are specifically included. There are a lot of other "lawful authorities" out there, and a huge number of "courts, boards, & commissions".

I'm not happy about the insane having access to firearms, or for that matter lurking around school yards and the municipal water treatment facility. However, the current law is overly broad, and includes people who were very depressed one weekend 10 years ago. A lot of people get roped into involuntary commitments when they lose a job, get sick, have their car breakdown and their dog dies, then a well-meaning relative calls the cops with a report that "he seems very depressed and he owns a lot of guns."

If someone is unstable, then his records should go to PICS. If someone claims that he is mentally unable to hold a job and is collecting disability benefits based on a mental problem, then he is most likely unable to be a responsible gun owner as well. Drug users and alcoholics shouldn't have ready access to guns, nor should anyone else who has a ready-made excuse as to why he couldn't control his self. But allowing any "lawful authority" to judge the internal mental state of a citizen and deprive him of civil rights is far too broad, and violates Due Process requirements.

Just imagine the burden that would be placed on the government before it could deny someone his 1st Amendment rights. Read about the Pentagon Papers case, where prior restraint was denied for documents that sabotaged our war efforts, based on the holiness of the 1st Amendment. There's no way that a reporter or editorial writer could be denied access to the media based on any finding by some "lawful authority" that he was likely to libel someone. Make it a Court of Common Pleas if you want to preserve Due Process, but this eagerness to extend the ability to deny someone guns to a broad and unspecified group of bureaucrats is troubling.

In other words, if I want something to happen, I will be very liberal in defining the ways that it can happen, but if I'm reluctant for it to happen, then I'll be very demanding about the requirements. Ask any parent about the rules they lay down about their daughter going to the mall with girlfriends, compared to the rules for visiting boys overnight. The mall trip is fine no matter who's driving, which mall they go to, how long they stay; but visiting with boys will be rigidly governed by curfews and restrictions, because the parent is justifiably concerned about abuse of the process. Same with the government, which seems happy to delegate the ability to terminate gun rights to miscellaneous people who the legislators can't even be bothered to list. That's hardly Due Process.

[NineseveN]

Section 302 commitments, based on the lack of due process, currently do not meet the requirements of a disqualifier under Federal Law, so the author was correct, but he failed to take into account that it will indeed revoke the 2A rights of the person in Pennsylvania. Miller could move to a different state and go buy a gun (provided that he has no other disqualifying conditions on his record).

[theshadow]

to further travel on what GunLawyer pointed out, in the article, he starts talking about "Determinations":

"One of the concerns that lawyer Alan Korwin, author of Gun Laws of America expressed in a widely distributed email was that the language of the bill refers to "adjudications, determinations and commitments," and that it wasn't clear what "determinations" means. Korwin was concerned that any doctor could decide, quite arbitrarily, that you couldn't be trusted with a gun."

Yet in the definitions that follow he ignores the Determinations and concentrates on what the definition by the bill is of Adjudications, never mentioning what the definition of determinations is.

He's all over the place, and does not have a clear cut argument supporting the bill.

[claytoncramer]

"The district attorney might want to consult a lawyer (or someone who knows how to read). Section 302 of the Pennsylvania Mental Health Procedures Act is not an involuntary commitment under federal law at all. The title is "Involuntary emergency examination and treatment authorized by a physician." It is limited to 120 hours, and does not involve the due process requirements necessary for adjudication under federal law."

I find this statement, and several other statements in this piece, troubling and erroneous. I handle people who were denied by PICS because of commitments under Section 302, 303, & 304 on a regular basis.

PICS is the Pennsylvania Instant Check System--not the federal background check. I assume from what you are saying that Pennsylvania law prohibits purchase for those locked up under Section 302. This does not surprise me; California Welfare & Institutions Code sec. 5150 is a similar observation period statute, and disables firearms ownership for five years (although there is a provision for getting your rights back sooner, with the burden of proof on the applicant). Neither sec. 302 or 5150 is a disability under federal law, because neither is an involuntary commitment with due process hearings. My point stands: this sec. 302 commitment is not something that can be reported to the national background check system as a firearms disability under either current law, or under HR 2640.

[claytoncramer]

Section 302 commitments, based on the lack of due process, currently do not meet the requirements of a disqualifier under Federal Law, so the author was correct, but he failed to take into account that it will indeed revoke the 2A rights of the person in Pennsylvania. Miller could move to a different state and go buy a gun (provided that he has no other disqualifying conditions on his record).

My point was that using this particular case as an argument against HR 2640 is incorrect. Sec. 302 lockup is used by Pennsylvania, apparently, as a firearms disability under Pennsylvania law. This is quite similar to Cal. Welfare & Institutions Code sec. 5150, which is also a firearms disability (for five years) under California law, but not federal law.

It might be wise to have Pennsylvania's legislators revise Pennsylvania law to provide that a sec. 302 lockup does not automatically produce a firearms disability.

Again: this doesn't argue against HR 2640.

[claytoncramer]

to further travel on what GunLawyer pointed out, in the article, he starts talking about "Determinations":

"One of the concerns that lawyer Alan Korwin, author of Gun Laws of America expressed in a widely distributed email was that the language of the bill refers to "adjudications, determinations and commitments," and that it wasn't clear what "determinations" means. Korwin was concerned that any doctor could decide, quite arbitrarily, that you couldn't be trusted with a gun."

Yet in the definitions that follow he ignores the Determinations and concentrates on what the definition by the bill is of Adjudications, never mentioning what the definition of determinations is.

He's all over the place, and does not have a clear cut argument supporting the bill.

You might want to go back and re-read my article. I do actually point out what "determinations" means, and that there are federal regulations that define what that means.

[claytoncramer]

Same with the government, which seems happy to delegate the ability to terminate gun rights to miscellaneous people who the legislators can't even be bothered to list. That's hardly Due Process.

Except that as my article pointed out, the list of what constitutes a determination is defined by federal regulations, including court rulings of incompetence to stand trial, not guilty by reason of insanity, and a few other clearly specified statements.

[claytoncramer]

Neither. It would more accurately be called "feel good legislation" which won't prevent any crimes, and in fact will further encroach on law abiding citizens' ability to obtain firearms on the up-and-up.

To claim that it won't prevent "any crimes" is rather strong. There are lots of mentally ill people who commit violent crimes with guns. I won't claim that HR 2640 is going to disarm all of them, or even most of them. But to claim that it won't prevent or delay any mental patients from obtaining guns--that's pretty powerful.

How will HR 2640 prevent law-abiding citizens from obtaining a firearm? This doesn't change the legal definition of mentally ill (except to undo the Clinton Administration's unlawful addition of PTSD suffering veterans to the background check system) at all. It only strongly encourages the states that are not passing involuntary commitment, incompetent to stand trial, and not guilty by reason of insanity (NGRI) records to hand these over to the federal background check system.

Are you suggesting that people who have been found NGRI, or incompetent to stand trial (which is a much more severe mental problem than NGRI) are "law-abiding citizens" who should not be disarmed?