SSA proposed NICS rule

gc70 · May 7, 2016

BSA1 said:
Once we agree that folks with arbitrary mental illness as determined by a agency of the Government should be stripped of their 2A rights then we are only discussing how many Americans we want to disarm at a time and when to add more mental illnesses to the list to disarm more of them.

Your objection -other than a 'slippery slope' argument- is not clear.

Do you object to a particular aspect of the due process involved in the proposed rule? Or possibly an Administrative Law Judge making an adjudication rather than a judge in a civil or criminal court? Or are you arguing that nobody receiving mental disability benefits should be disarmed?

Please address any deficiencies in the specifics of the proposed rule rather than expressing generalities.

Frank Ettin · May 7, 2016

yugorpk said:
BSA1 said:

Yugoprk supports banning everyone with a mental illness from owning a gun. Do we really expect the politicians and bureaucrats in Washington, D.C. to be any better informed?

Click to expand...

Is that what I said? I said I support a ban on firearms ownership for people who have mental illnesses so severe that they are disabled by them. They are disabled by their mental illness. They do not have full command of their faculties. They should not be operating heavy machinery. They should not be driving. They should not own firearms. I don't want them flying airplanes either.

Cut this nonsense out!

It already is the law (18 USC 922(g)(4)) that someone:

who has been adjudicated as a mental defective or who has been committed to a mental institution;

may not lawfully possess guns or ammunition. And applicable regulations (27 CFR 478.11) define "adjudicated as a mental defective" to mean:

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.

That is current law -- a baseline. This is not the time to argue about whether that's good or right. That's another matter entirely.

gc70 said:
...Please address any deficiencies in the specifics of the proposed rule rather than expressing generalities.

Yes. The topic of this thread is certain regulations proposed by the SSA. Those need to be understood and discussed in the context of existing law.

jr45 · May 7, 2016

SSA’s process makes no provision whatsoever for the individual to attend a formal hearing before an adjudicative authority, to put forth their own experts, or to cross-examining adverse witnesses. It only involves anonymous bureaucrats reviewing documents in a government-compiled.
https://www.nraila.org/articles/20160429/social-security-administration-releases-proposed-rulemaking-on-disability-related-gun-ban

Slipery slope. What is next, anyone needing mental health treatment will be banned? What about those who can't handle their finances, anyone with bad credit will be banned? Sounds far fetched? So did this proposed rule not long ago.

danez71 · May 7, 2016

jr45 said:
SSA’s process makes no provision whatsoever for the individual to attend a formal hearing before an adjudicative authority, to put forth their own experts, or to cross-examining adverse witnesses. It only involves anonymous bureaucrats reviewing documents in a government-compiled.
https://www.nraila.org/articles/20160429/social-security-administration-releases-proposed-rulemaking-on-disability-related-gun-ban

This is not due process. What is next, anyone needing mental health treatment will be banned? What about those who can't handle their finances, anyone with bad credit will be banned? Sounds far fetched? So did this proposed rule not long ago.

That's false.

It's spelled out I the document and I've quoted it as to how they can appeal and put forth their own evidence. They can take it to circuit court level.

Quit relying on the NRA to argue your point for you.

How about if they have in the past worked or have been working and paying into the Social Security System why shouldn’t they be eligible for S.S. Disability without forfeiting their rights?

Yes they should. And that in there and I've quoted that section too. They can appeal to have their 2A Rights restored if they feel they shouldn't have it restricted.... and take that to the circuit court level too.

How many people have actually read the document?

jr45 · May 7, 2016

They are not given the opportunity to what I just mentioned prior to losing their rights.

Frank Ettin · May 7, 2016

jr45 said:
...This is not due process....

What is "due process" in this context. The SSA has for many years been making determinations on applications for benefits. Surely there have been challenges on due process grounds to those determinations, and surely courts have made rulings on those challenges providing guidance on what sort of procedures are necessary to satisfy due process. So some understanding of those ruling, and the due process standards which have been formulated, would be useful.

And it might be material whether those past rulings on SSA due process issues considered whether SSA benefit determinations had consequences beyond just entitlement to benefits.

And while it's nice to cite NRA-ILA materials, proper research should be primary source based -- not merely relying on third party, agenda based statements.

jr45 · May 7, 2016

Then, does the ssa have ajudication authority to meet the batf definitions?

yugorpk · May 7, 2016

jr45 said:
Then, does the ssa have ajudication authority to meet the batf definitions?

They will have the authority once the proposed rules go into place.

jr45 · May 7, 2016

Then I hope that this proposed senate bill gains steam. Last thing we need another bureaucratic nightmare making determinations who can keep their rights.
http://www.hatch.senate.gov/public/index.cfm/2016/2/senate-bill-would-protect-second-amendment-rights-of-social-security-beneficiaries

Frank Ettin · May 7, 2016

jr45 said:
Then, does the ssa have ajudication authority to meet the batf definitions?

Beats me. Trying to figure that out, and finding ways to effectively argue based on established legal principles that it does, or that it does not, is why one does research.

Some of the things which one might need to look at:

What are the criteria for being entitled to benefits for certain conditions?
How would the question of whether one is entitled to such benefits be made?
Under what circumstances, if any, would a favorable determination on the entitlement to benefits question necessarily mean that the applicant is "mentally defective" as defined at 27 CFR 478.11? And if so, would the benefit determination constitute "a determination by a court, board, commission, or other lawful authority" for the purposes of 27 CFR 478.11?
Are there bases upon which to argue, based on applicable judicial precedent, that under such circumstances such determination does, or does not, have "due process" infirmities?
These proposed regulations seem to present a difficult conundrum. And applicant for benefits might have an incentive to demonstrate to the satisfaction of the SSA that he is "mentally defective" in order to secure the benefits he wants. But in successfully doing so, he may disqualify himself from lawfully possessing guns or ammunition. What, if anything, have the courts said about such "scylla and charybdis" situations?

BSA1 · May 7, 2016

I am slowly wading through the language of portions of the bill. However the key portion of the bill is in their summary.

"Action

Notice of proposed rulemaking.

Summary

We propose to implement provisions of the NICS Improvement Amendments Act of 2007 (NIAA) that require Federal agencies to provide relevant records to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS). Under the proposed rule, we would identify, on a prospective basis, individuals who receive Disability Insurance benefits under title II of the Social Security Act (Act) or Supplemental Security Income (SSI) payments under title XVI of the Act and also meet certain other criteria, including an award of benefits based on a finding that the individual's mental impairment meets or medically equals the requirements of section 12.00 of the Listing of Impairments (Listings) and receipt of benefits through a representative payee. We propose to provide pertinent information about these individuals to the Attorney General on not less than a quarterly basis. As required by the NIAA, at the commencement of the adjudication process we would also notify individuals, both orally and in writing, of their possible Federal prohibition on possessing or receiving firearms, the consequences of such inclusion, the criminal penalties for violating the Gun Control Act, and the availability of relief from the prohibitions imposed by Federal law. Finally, we also propose to establish a program that permits individuals to request relief from the Federal firearms prohibitions based on our adjudication. The proposed rule would allow us to fulfill responsibilities that we have under the NIAA."

In simple layman's English the SSA wants to apply criminal sanctions based on a what is a medically defined illness.

Furthermore justice in America comes only for those that can best afford it. Is it reasonable to expect that someone that is appealing the SSA ruling can afford a lawyer that specializes in these type of cases, can afford hiring expert witnesses to testify on his/her behalf and the legal process for appealing SSA decision.

Most importantly where is the cause and effect relationship in all of this? That is, what is the evidence that persons with the types of mental illness the SSA defines causes crimes using a firearm?

gc70 · May 7, 2016

jr45 said:
Then, does the ssa have ajudication authority to meet the batf definitions?

It appears the SSA does have the necessary adjudication authority. As Frank noted, 27 CFR 478.11 defines "Adjudicated as a mental defective" to include "A determination by ... lawful authority that a person ... Lacks the mental capacity to contract or manage his own affairs." Federal law gives the SSA power to make decisions on benefits payments, including determining whether there will be a representative payee because a person cannot manage their own affairs.

42 U.S. Code § 405 - Evidence, procedure, and certification for payments

(b)(1) The Commissioner of Social Security is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this subchapter.

A representative payee is a mandatory factor in the proposed rule. Existing law provides due process around the determination to use a representative payee.

42 U.S. Code § 405 - Evidence, procedure, and certification for payments

(j) Representative Payees

(2)(E)(i) Any individual who is dissatisfied with a determination by the Commissioner of Social Security to certify payment of such individual’s benefit to a representative payee under paragraph (1) or with the designation of a particular person to serve as representative payee shall be entitled to a hearing by the Commissioner of Social Security to the same extent as is provided in subsection (b) of this section, and to judicial review of the Commissioner’s final decision as is provided in subsection (g) of this section.

As mentioned above, subsection (b) refers to SSA administrative hearings and subsection (g) refers to federal District Courts.

Frank Ettin · May 7, 2016

BSA1 said:
...As required by the NIAA, at the commencement of the adjudication process we would also notify individuals, both orally and in writing, of their possible Federal prohibition on possessing or receiving firearms, the consequences of such inclusion, the criminal penalties for violating the Gun Control Act, and the availability of relief from the prohibitions imposed by Federal law. Finally, we also propose to establish a program that permits individuals to request relief from the Federal firearms prohibitions based on our adjudication. The proposed rule would allow us to fulfill responsibilities that we have under the NIAA."

In simple layman's English the SSA wants to apply criminal sanctions based on a what is a medically defined illness. ....

Balderdash! In simple English, you don't understand English.

The criminal penalties would arise from possession of a gun or ammunition by a person prohibited under the Gun Control Act from possessing a gun or ammunition. The disqualification might be related to a medical condition, but no criminal sanction is imposed simply for having the medical condition. The criminal sanction would be imposed for possessing a gun or ammunition in violation of existing law.

jr45 · May 7, 2016

The key word being the legal authority. SSA (including the alj assigned) maybe the legal authority for determining who will receive benefits but, no were in 42 U.S. Code § 405, do I see were SSA has adjudicative authority as it relates to defining someone as prohibited IAW the Brady act. If it was that clear, I am sure Obama would not have waited this long to push it. There is a very good chance that this will be settled in the courts since this move is likely the largest gun grab in history.

danez71 · May 7, 2016

jr45 said:
They are not given the opportunity to what I just mentioned prior to losing their rights.

Yes they can and it was cited from the link several times in this thread in the following posts:

In post #2 I cited it from the text .

Referenced / cited twice in post # 29 (in which I even referenced the page #s in the text so you can read it for yourself)

Stated again in post# 31

And again in post #62

The information referenced and or cited 5 times in this thread.

I even tried to spoon feed you by referencing the page #'s in the documents.

All they have to do is not have some one else manage their affairs and the prohibition doesn't even come into play.

You can pretend its not there and keep repeating blatantly false statements if you want.

But it only proves that you're not reading and/or comprehending and/or just want to argue with out validity or merit to your statements.

jr45 · May 7, 2016

Sigh. Show me where the beneficiaries are offered relief "prior" to losing their rights? The program of relief is offered after the ajudication has occured that barred them IAW 18 USC 922. I really hope there is a method for these folks to seek relief "prior" to being reported to NICS.

In the meantime, I brought this issue to this board as the current admin is trying to sneak this under the radar. We had a great discussion here and I also made my comments to the proposed rule on the .gov site. Based on the vast majority of the respondents on the .gov, it appear they also see this as nothing more than a huge gun grab.

alsaqr · May 7, 2016

The authority for reporting of mental cases by federal agencies is the NICS Improvements Amendments Act of 2008. From the Act.

‘‘(C) QUARTERLY SUBMISSION TO ATTORNEY GENERAL.—
If a Federal department or agency under subparagraph
(A) has any record of any person demonstrating that the
person falls within one of the categories described in subsection
(g) or (n) of section 922 of title 18, United States
Code, the head of such department or agency shall, not
less frequently than quarterly, provide the pertinent
information contained in such record to the Attorney General

The NRA backed The NICS Improvements Act. The NRA made this announcement at the time of the acts passage:

After months of careful negotiation, pro-gun legislation was passed through Congress on Wednesday, December 19, 2007. The National Rifle Association (NRA) worked closely with Senator Tom Coburn (R-Okla.) to address his concerns regarding H.R. 2640, the National Instant Check System (NICS) Improvement Act. These changes make a good bill even better. The end product is a win for American gun owners.

https://www.nraila.org/articles/20080108/hr-2640

BTW: The federal government is pretty good at notifying folks that a decision on their part may have consequences. The VA tells folks right up front that a request for the appointment of a fiduciary will lead to a loss of gun rights.

The Brady Handgun Violence Prevention Act prohibits you from purchasing, possessing, receiving or transporting a firearm or ammunition if you have “been adjudicated as a mental defective or been committed to a mental institution.” In compliance with this act, VA reports the names of incompetent beneficiaries to the Federal Bureau of Investigations (FBI), which then adds the names to a database called the National Instant Criminal Background Check System (NICS). Gun dealers must check NICS for the name of a potential buyer before selling him/her a firearm. You may be fined and/or imprisoned if you knowingly violate this law. You may apply to VA for relief of firearms prohibitions imposed by the law by submitting your request to the VA. The VA will determine whether such relief is warranted.

http://www.benefits.va.gov/fiduciary/beneficiary.asp

gc70 · May 7, 2016

jr45 said:
The key word being the legal authority. SSA (including the alj assigned) maybe the legal authority for determining who will receive benefits but, no were in 42 U.S. Code § 405, do I see were SSA has adjudicative authority as it relates to defining someone as prohibited IAW the Brady act. If it was that clear, I am sure Obama would not have waited this long to push it. There is a very good chance that this will be settled in the courts since this move is likely the largest gun grab in history.

Okay; I now see why you are confused.

Congress passed 18 USC 922 defining conditions which result in people being prohibited from owning firearms.

One condition for prohibition in 18 USC 922 is being "adjudicated as a mental defective."

42 USC 405 gives the SSA authority to determine whether a benefits recipient is incapable of managing their affairs, which is one of the definitions of "mental defective" in 27 CFR 478.11.

If the condition that SSA is empowered to judge exists, Congress long ago decided that any person with that condition would be prohibited from owning firearms.

The same situation exists with the State Department, which legally determines whether a person has formally renounced citizenship. Once that condition (renunciation of citizenship) exists, 18 USC 922 automatically applies and the person is prohibited from owning firearms.

Frank Ettin · May 7, 2016

jr45 said:
The key word being the legal authority. SSA (including the alj assigned) maybe the legal authority for determining who will receive benefits but, no were in 42 U.S. Code § 405, do I see were SSA has adjudicative authority as it relates to defining someone as prohibited IAW the Brady act.....

What make you think they need specific legal authority for that? The relevant disqualifying condition here is having "...been adjudicated as a mental defective...."; that's triggered (as defined at 27 CFR 478.11) by, "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...." So a finding by any "court, board, commission, or other lawful authority", not just the SSA, in the course of doing whatever it is doing, that a person meets the criteria set out in the 27 CFR 478.11 definition for being "a mental defective" triggers the 18 USC 922(g)(4) disqualification.

That doesn't mean that there might not be issues with the proposed SSA regulations, but without thoroughly understanding the underlying statutory and regulatory landscape, one can't really identify what those issues are. Tossing around "red herrings" won't help.

JohnBT · May 7, 2016

"If someone if receiving social security benefits for being "mentally defective" why would it be a stretch to say they could not own a firearm? "

Social Security only decides if a person is unable to work for 12 months or more. Not think. Not live. Not have rights. Work. Only work.

Is being unable to work the same as being mentally defective? Sounds like a court case to me.

John

gc70 · May 7, 2016

JohnBT said:
Social Security only decides if a person is unable to work for 12 months or more. Not think. Not live. Not have rights. Work. Only work.

The law does charge the SSA with determining whether a person is incapable of managing their affairs.

JohnBT · May 7, 2016

"(5) Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U of this chapter, or the rules in part 416, subpart F of this chapter, that he or she is incapable of managing benefit payments as a result of marked subnormal intelligence, or mental illness, incompetency, condition or disease."

It appears SSA is saying that they will not report anyone who WANTS a representative payee purely for convenience. We'll see. I've seen too many SSA errors since 1974. Of course, I retired in 2012, so maybe they've improved.

Snyper · May 7, 2016

If they are unable to work due to being "mentally defective", it's one and the same.

This proposal is nothing new. It's just being recycled in the news from 3 years ago.

yugorpk · May 7, 2016

JohnBT said:
"If someone if receiving social security benefits for being "mentally defective" why would it be a stretch to say they could not own a firearm? "

Social Security only decides if a person is unable to work for 12 months or more. Not think. Not live. Not have rights. Work. Only work.

Is being unable to work the same as being mentally defective? Sounds like a court case to me.

John

Try reading and comprehending the proposed action before you comment on it. Receiving SSI benefits for being "mentally defective" and having someone else manage your finances because the SSA has ruled you unable to manage your own finances because of mental illness and other qualifiers is what would disqualify a person from being able to buy and own firearms. We arent talking about "normal" disabilities or "normal" Social Security benefits.

bowhntr04 · May 7, 2016

I've worked in this field for 16 years. Most mental cases other than MR allowances are given a 3 year diary and reviewed again at that time. This could end sooner if a person improves and returns to work. It takes a severe impairment to get awarded benefits. I don't see a big negative with someone not being able to purchase a firearm while suffering a severe mental impairment. Perhaps some could manage but many could not. Just my opinion.

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