Gun Rights

The House Passes a Gun Measure Supported by the ACLU and Mental Health Advocates. Media Hysteria Ensues.

Bad reporting, and bad attitudes, make a sensible move to prevent the government from discriminating against certain Social Security recipients seem like sheer madness.


The Associated Press would have you believe yesterday that "House votes to roll back Obama rule on background checks for gun ownership." Discussing the same incident, National Public Radio informed its sober, serious listeners who want real news and not all that cable network noise that "House Votes to Overturn Obama Rule Restricting Gun Sales to Mentally Ill."

CNN tweet

Charles Cooke at National Review has an excellent post with visuals of many idiotic news tweets and a great explanation of the controversy.

The impression one would get from those headlines, and others that you can see in Cooke's article linked above, is that background checks for gun ownership maybe weren't going to exist anymore? That before Obama, you could sell guns to the mentally ill, and now that he's gone the GOP says you can again?

Getting across every nuance of a convoluted procedural change in a headline is tough, sure. But one should err on the side of avoiding strongly implying something serious and panic-inducing to many of your readers that just isn't true. (Unless your goal is to seriously panic your readers.)

What actually did happen? The Obama administration had proposed and passed a rule via what he called at the time "executive actions to reduce gun violence" (that is, somewhat like the "executive orders" you hear so much about these days, something the executive branch wanted to do and just went ahead and did) to arbitrarily deprive an entire class of innocent American—a certain class of Social Security recipients who are not yet at full retirement age and who get their money sent through a "representative payee" and not directly to themselves—of a constitutional right that could be vital to their safety and security.

I critiqued that awful idea here when it was still just a trial balloon in 2015, and Jacob Sullum also explained the injustice of it in January 2016.

This week the House of Representatives voted 235-180 to abolish that Obama rule.

Federal law since 1968 has prohibited those who have "been adjudicated as a mental defective or…been committed to any mental institution" from having a gun. And 1993's Brady Law mandated a national background check system to find out whether those disqualifying events have occurred for all sales from licensed firearm dealers.

Nothing about this House vote has anything at all to do with either of those things changing, despite misleading headline implications.

A wide variety of groups dedicated to the rights of the disabled or mentally impaired or ill, and the American Civil Liberties Union (ACLU), were very much in favor of the House's move to eliminate this rule.

See the ACLU's letter to Congress advising them to do the thing that A.P. and NPR wanted their readers to be so scared of, giving an account of the regulation and what was wrong with it:

the SSA [Social Security Administration] promulgated a final rule that would require the names of all Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) benefit recipients – who, because of a mental impairment, use a representative payee to help manage their benefits – be submitted to the National Instant Criminal Background Check System (NICS), which is used during gun purchases.

We oppose this rule because it advances and reinforces the harmful stereotype that people with mental disabilities, a vast and diverse group of citizens, are violent. There is no data to support a connection between the need for a representative payee to manage one's Social Security disability benefits and a propensity toward gun violence… the rule automatically conflates one disability-related characteristic, that is, difficulty managing money, with the inability to safely possess a firearm.

The rule includes no meaningful due process protections prior to the SSA's transmittal of names to the NICS database. The determination by SSA line staff that a beneficiary needs a representative payee to manage their money benefit is simply not an "adjudication" in any ordinary meaning of the word. Nor is it a determination that the person "[l]acks the mental capacity to contract or manage his own affairs" as required by the NICS. Indeed, the law and the SSA clearly state that representative payees are appointed for many individuals who are legally competent.

Very specifically, the SSA claimed that under the rule they would only report to NICS people who have filed a disability claim, been determined by SSA to have an impairment that meets one of their "Mental Disorders Listings," are over 18 but under full retirement age, and have a designated payee. They also said they wouldn't blow the whistle on existing people in this sad state, just new ones moving forward.

That order has not yet gone into real effect, and by law didn't have to until December 19 of this year.

The supposed change that so alarmed headline writers and, if my social networking world is any indication, generated waves of exasperated fear across the nation is in fact no change at all in existing practice.

Obama wanted it to happen, but it hasn't gone into enforcement yet. The House has voted to make it not happen at all, and according to the Congressional Review Act now just a bare majority of the Senate needs to agree (explained in this decent bit of reporting from Bloomberg) and this rule that never previously existed will continue to not exist.

The SSA's long, long excuses for themselves at the Federal Register are worth reading to understand the bureaucratic mentality,including their sops to medical privacy such as:

we will not include medical information in our reports to the NICS—we will report only the beneficiary's name, full date of birth, sex, and Social Security number. In addition, we will only inform the FBI of the fact that the individual meets the criteria for inclusion in the NICS under the NIAA due to a mental health prohibitor, but we will not provide any details on the individual's specific diagnosis.

And if it feels like an arbitrary act without due process on the part of the SSA to deprive you of a core constitutional right, well, SSA rebuts:

Affected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions…at any time after our adjudication has become final.

We let you try to get your rights back after we take them away from you without any court or review body, so, there's that.

The National Rifle Association, naturally, opposed the rule. But so, as Cooke in National Review explains in detail and with long lists, did a wide swath of organization concerned with the rights of the disabled, from the American Association of People with Disabilities to the National Alliance on Mental Illness with many in-between

There is no necessary connection between needing or wanting a designated payee for your benefits and being unable to safely use a gun. Nor is there a strong connection between being "mentally ill" or with some cognitive disability and being dangerous to self or others with guns. In a bitter irony, the people this proposed action would disarm are more likely to be victims of the sort of violence that people want guns to protect themselves from.

SSA itself admits that "We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence."

They just claim they should be among the official authorities who get to "adjudicate as a mental defective" according to the language of U.S. Code 922(G)(1) and one of the authorities who, via Bureau of Alcohol Tobacco and Firearms regulatory policy, qualify as "a court, board, commission or other lawful authority" with power to declare someone to "lack the mental capacity to contract or manage his or her own affairs as a result of marked subnormal intelligence, or mental illness, incompetency…"

And having taken and used that power, there goes Second Amendment rights.

As I've explained before about the anti-gun mentality, those who want stricter gun laws don't think they need to be sure any strong benefit would come from an attempt to take away anyone's guns. It just doesn't matter that they know full well the people whose rights they are trying to take away are not known to be likely to use the right in a harmful way.

The taking away of the gun is a benefit in and of itself. They certainly don't think about any legitimate benefit the person prohibited from gun ownership might be losing.

With that mentality, benefits such as, oh, the ability to save or protect your life and property or loved ones against a violent criminal, don't matter. It's an especially cruel legal and rhetorical move when you can point at the people whose rights you are violating as the easily stigmatized and disrespected "mentally ill" and assume that does all the work you need to do to prove it's a public benefit.

Government sells itself, when questioned about its legitimacy, as necessary to keep us safe. It patently is unable to ever keep us safe from any given person meaning to do us harm in real time. When it pursues policies that disarm the innocent, especially the stigmatized innocent, with no reason to believe any larger good would arise from it, it's perfectly appropriate that Congress make the executive stop.

Unfortunately, the media reaction to this story shows that too many Americans are ready to cheer the imposition of, and fear the removal of, policies that take away the core human right of self-defense for the most cliched or prejudiced reasons.