Redefining Mentally Ill and Who Can Own Guns

THE RUSS-CONNELLY REPORT-The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), a law enforcement organization within the United States Department of Justice (DOJ), has submitted for public comment to the Federal Register a “Notice of Proposed Rulemaking” which proposes to change the ATF definitions of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution.” These proposed changes will highly affect the placement of individuals on the National Instant Criminal Background Check System (NICS) database at the Federal Bureau of Investigation (FBI). Submission of comments ended the first week in April. 

The Gun Control Act of 1968 (GCA) is enforced by the ATF and under the provisions of Section 922(g) (amended in 1996) of the GCA, certain persons are expressly prohibited from shipping or transporting any firearm or ammunition in interstate or foreign commerce, possessing a firearm or ammunition in or affecting commerce, or receiving a firearm or ammunition that has traveled in interstate or foreign commerce.  Among those so prohibited is a person who “has been adjudicated as a mental defective or committed to a mental institution”. 

The GCA’s original intent was to prohibit persons who were convicted felons or persons adjudicated to be mentally ill or were a danger to themselves or others from legally purchasing firearms.

ATF’s proposed rule change attempts to significantly broaden the scope of those considered mentally defective and to redefine what entity or person has the authority to make such a declaration. 

Specifically, the summary of the proposed changes is stated in the Federal Register to be:  “The proposed rule would clarify that the statutory term ‘adjudicated as a mental defective’ includes persons who are found incompetent to stand trial or not guilty by reason of mental disease or defect, lack of mental responsibility, or insanity, and that the term includes persons found guilty but mentally ill.  The Department recognizes that the term ‘mental defective’ is outdated, but it is included in the statute and cannot be amended by regulation.  The proposed amendments would further clarify that federal, state, local and military courts are recognized lawful authorities that can find persons incompetent to stand trial or find them not guilty by reason of mental disease or defect, lack of mental responsibility or insanity.” 

What is left unstated is what constitutes a mental defect. Under the explanation for the proposed rule provided in the Federal registry, it is claimed that the intent of Congress in passing the GCA was so that “the prohibition against the receipt and possession of firearms would apply broadly to ‘mentally unstable’ or ‘irresponsible’ persons.” Even assuming that this interpretation of Congressional intent is correct, there is no definition of the term ‘irresponsible’ leaving it up to a variety Bureaucrats and institutions to add anyone to NICS. 

For the sake of argument, everyone knows an ‘irresponsible’ person. Should those irresponsible people be labeled as mentally unstable? Broadly painting persons as ‘mentally unstable’ because of depression, whether temporary or clinical, will open the door, as it has with veterans, for abuse and end up causing innocent Americans to spend untold thousands of dollars in legal fees to clear their names and regain their rights. 

A stunning example of this is the plight of hundreds of America’s military veterans who are being declared by the Veterans Administration (VA), at an alarming rate, to be incompetent to handle their own financial affairs. 

According to letters and other documents from the VA, the definition of  “incompetent” can include even minor PTSD, temporary depression or even allowing one’s spouse to handle the family finances. 

In most cases, the declaration of incompetence is being made- not because the veteran has been examined by a psychiatrist or a psychologist and found to be mentally ill, but simply because of some isolated comment made that ended up in their VA records, most often unbeknownst to the veteran. 

The burden of proof rests on the veteran to prove their competence- in other words “guilty before proven innocent.’ This is a clear violation of their rights to ‘due process’ under the Fifth Amendment of the Constitution. 

In the correspondence from the VA, veterans are also being told that once they are declared incompetent to handle their own financial affairs they are automatically added to NICS regardless of whether they pose a danger to themselves or others. There appears to be nothing in the actions of the VA that justifies a direct correlation between ability to handle finances and firearm ownership or possession. 

Many veterans are reporting that they are being encouraged and in some cases coerced to accept a diagnosis of PTSD in order to get benefits. The diagnosis will require them to take medications even if they feel they don’t need it. In fact, PTSD is not classified as a mental illness, but the VA is still using it to place veterans on NICS. The proposed new rules will not alleviate this problem, but likely, will exacerbate it. 

The summary of the proposed changes printed in the Federal Register also includes this statement: “This proposed rulemaking would also amend ATF regulations to clarify that the statutory term ‘committed to a mental institution’ applies to involuntary inpatient or outpatient treatment” opens the door to all kinds of abuses. 

Consider family courts where judges routinely issue orders for psychiatric or psychological evaluations of both parents and children. In some cases both parent and children are ordered into a course of treatment and/or counseling which is done on an outpatient basis. Because the treatment is a result of a court order, it would be considered involuntary. Under the proposed new rule, both parents and children are at risk of losing their second amendment rights. 

In both criminal and juvenile court, judges can order psychological evaluations and treatment. Even if the defendant is found mentally competent and ultimately exonerated of the criminal charges, they still fall under the definition of having been involuntarily committed to outpatient treatment.  Juveniles under the age of 18 will be particularly vulnerable- while their court records may be sealed, their medical records may not be. 

It is also necessary to consider children who are simply unruly and a problem to their parents and/or teachers. At a time when schools encourage having students diagnosed with ADD or ADHD and medicated, minors are in danger of having had treatment that would brand them for life, particularly if the diagnosis is incorrect or the problem disappears as they get older. How will these proposed new regulations affect these individuals? 

In addition to ATF propositions, the Department of Health and Human Services (HHS) has devised a scheme that not only jeopardizes privacy rights supposedly afforded to Americans under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule but appears to modify its regulations to facilitate ATF’s unauthorized, overreaching regulation. The intent of HHS’ proposed rule is to remove “unnecessary legal barriers” under the HIPAA Privacy Rule that may prevent states from reporting certain information to NICS. 

Certain covered entities, and that list is becoming inextricably long, would be permitted to disclose the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.  

In its regulations, the DOJ and ATF have unreasonably expanded that statutory definition, and now in a rulemaking concurrent with the instant HHS rulemaking, are seeking to expand it even further to include ALL psychological conditions, however minor or temporary. 

For every new rule or law, there are always intended and unintended consequences. Aside from stripping Americans of inalienable rights afforded by the US Constitution, all of the above rules, if enacted, would give Americans great pause about what they disclose to their doctors. A rule, such as the one HHS proposed, could cause those in need of psychiatric, psychological, medical and pharmacological help to defer seeking help or worse do harm to themselves or others. 

According to the text of HIPAA, it amended the Internal Revenue Code that requires the Secretary of HHS to publicize standards for the electronic exchange, privacy, and security of health information.  HIPAA specifically required the Secretary to issue privacy regulations governing individually identifiable health information, if Congress did not enact privacy legislation within three years of the passage of HIPAA.  Because Congress did not enact privacy legislation, HHS developed a proposed rule and released it for public comment on November 3, 1999.  After receipt of over 52,000 public comments, HHS promulgated the final rule that was published on December 28, 2000.  In 2002, HHS modified the rule by the same process. 

By delegating such powers to the Secretary, Congress unconstitutionally bypassed both the bicameral and presentment principles set forth in Article I, Section 7 of the United States Constitution that requires before a bill can become law, it be passed by both houses of Congress and signed by the President.  

Instead, the HIPAA Privacy Rule became law by the public notice and comment process provided by the Administrative Procedure Act.  The privacy standards embodied in the HIPAA Privacy Rule, then, are made out of whole cloth by an unelected, bureaucratic, fourth branch of government, in violation of the Separation of Powers of a tripartite federal government, as provided in Articles I, II, and III of the United States Constitution.  

Consistent with the Tenth Amendment, 45 C.F.R. §160.203 allows States to enact certain privacy rules that deviate from the HIPAA Privacy Rule, by offering their citizens greater protection of privacy.  Yet, if state privacy laws conflict with federal laws, state laws governing privacy in the health care arena will allegedly be preempted by the HHS-enacted rule.   

In January 2013 the White House identified 23 executive actions when President Obama unveiled his gun control push in response to the Newtown shooting that were taken immediately. In January 2014, the President pledged that he would advance measures to reduce gun violence "with or without Congress." 

The Second Amendment implications cannot be ignored.  The U.S. Supreme Court has twice ruled that the right to keep and bare arms is an individual right and that any limitations on that right must be carefully monitored to see that they do not violate the Constitution.  

Americans have the right to know and understand the “backroom” policies that are whittling away their rights and kept secret by a compliant mainstream media.  If checks and balances within the branches of government are continually breached with no repercussions, America will no longer be the land of the free and the home of the brave.

 

(Katharine Russ is an investigative reporter. She is a regular contributor to CityWatch. Katharine Russ can be reached at [email protected]

 

Michael Connelly is a Constitutional attorney, Executive Director of the United States Justice Foundation, a published author, freelance writer, and teacher. He is also President of the Constitutional Law Alliance (CLA). You can find Michael by visiting http://www.michaelconnelly.jigsy.com/) 

-cw

 

 

 

 

CityWatch

Vol 12 Issue 36

Pub: May 2, 2014