Sen. Graham Offers Alternative Background Check Bill Backed by NRA

[Bartholomew Roberts]

Involuntary committed as a life-long standard for being denied 2nd Amendment rights is a very dangerous precedent.

If you have been involuntarily committed to a mental institution, you are already a prohibited person and have been since 1968. All the bill does is clarify the definition... There are a couple of discrepancies between how the different circuit courts deal with this question. In some circuits, a 3-day commitment to be evaluated is not disqualifying. In other circuits it may be. Additionally, there has been some questions about the VA disqualifying vets who are having difficulty paying their bills and functioning socially due to PTSD; but have not been declared to be a danger to themselves or others.

Since the text of S. 480 is not yet available; we don't know exactly what it addresses beyond the report above.

 

[Safetychain]

To start off, Graham is one of my senators. In the distant past, he has represented my wishes very well. Just lately, with his work on the immigration bill, has me scratching my head. But I'll hold my judgement on this until I actually read what they come up with. And I do not agree at all with his words toward Senator Paul's recent filibuster.

The OP's subject bill is a result of significant constituent push because of a recent event in Charleston, SC where a young woman threatened President Bush 10 or so years ago. She was determined to be psychotic and put in a mental hospital. Medication "fixed" her and she was released. She quit with the meds and went bad again, passed the NICS check and legally purchased a 22 pistol and ammo, went to a local prestigious private girls school and tried to kill the principal. She went up to the principal and pulled the trigger but had failed to put a shell in the chamber. This bill is to make it where people like her cannot legally buy a gun. SC as well as several other states does a poor job of reporting such red flags to the NICS system.

Link to local story: http://www.live5news.com/story/20962368/woman-arrested-for-pointing-gun-gun-at-school-official

 

[Safetychain]

I didn't make my statement: I agree with Graham on this one.

 

[Akita1]

Here's something I haven't seen yet (sorry all was traveling so have a been a bit slow on news) - a consumption tax on firearms and ammunition:

http://www.foxnews.com/politics/2013/03/11/lawmakers-eye-new-taxes-for-guns-ammo/

 

[316SS]

See Post #8.

Read it again. And quit hunting boogers and dragging irrelevant "what ifs" into this.

So ... we shouldn't consider the consequences of proposed legislation? Irrelevant: I do not think that word means what you think it means.

If you have been involuntarily committed to a mental institution, you are already a prohibited person and have been since 1968.

This bill, if it becomes law, would make it double-illegal to possess a gun. Useful.

 

[RPRNY]

The taxes are a smart move by the gun owner discrimination advocates. Taxes aren't unconstitutional per se. Stealing money from the people is always popular with both sides of the aisle in Congress. And it helps their long term agenda of diminishing access to the shooting sports and the social acceptability of gun ownership. That it will diminish Pittman - Robertson funding for wildlife conservation, they care not at all.

Very dangerous.

Sent from my Kindle Fire using Tapatalk 2

 

[paradox998]

If you are forced into a hospital under the Baker Act (at least in Florida) you are held for a 3 day psychiatric evaluation. Often this is done if you are considered a threat to yourself or others. Wouldn't this be considered an "involuntary commitment" under the legal definition?

 

[Bartholomew Roberts]

Wouldn't this be considered an "involuntary commitment" under the legal definition?

Currently there is a split in how the circuit courts view this, I believe it is the First Circuit which takes the view that a 3-day evaluation is not an involuntary commitment but IS "adjudicated mentally ill" and makes you a prohibited person. The Fifth Circuit has said that such a detention does not make you a prohibited person. The Baker Act question has come up 3 or 4 times now; but I still don't know how it is handled in Florida.

There is a more detailed discussion of that issue in this thread:
http://www.thehighroad.org/showthread.php?t=578051

Hopefully, S. 480 can clarify this issue.

 

[316SS]

Text of the bill is up:

http://thomas.loc.gov/cgi-bin/query/z?c113:S.480:

`(36)(A) Subject to subparagraph (B), the term `has been adjudicated mentally incompetent or has been committed to a psychiatric hospital', with respect to a person--

`(i) means the person is the subject of an order or finding by a judicial officer, court, board, commission, or other adjudicative body--

`(I) that was issued after a hearing--

`(aa) of which the person received actual notice; and

`(bb) at which the person had an opportunity to participate with counsel; and

`(II) that found that the person, as a result of marked subnormal intelligence, mental impairment, or mental illness--

`(aa) was an imminent danger to himself or to others;

`(bb) was guilty but mentally ill in a criminal case;

`(cc) was not guilty in a criminal case by reason of insanity or mental disease or defect;

`(dd) was incompetent to stand trial in a criminal case;

`(ee) was not guilty only by reason of lack of mental responsibility under section 850a of title 10 (article 50a of the Uniform Code of Military Justice);

`(ff) required involuntary inpatient treatment by a psychiatric hospital;

`(gg) required involuntary outpatient treatment by a psychiatric hospital based on a finding that the person is an imminent danger to himself or to others; or

`(hh) required involuntary commitment to a psychiatric hospital for any reason, including drug use; and

`(ii) does not include--

`(I) a person who is in a psychiatric hospital for observation; or

`(II) a voluntary admission to a psychiatric hospital.

`(B) In this paragraph, the term `order or finding' does not include--

`(i) an order or finding that--

`(I) has expired or has been set aside or expunged; or

`(II) requires treatment, supervision, or monitoring of a person, from which treatment, supervision, or monitoring the person has been fully released or discharged;

`(ii) an order or finding that is no longer applicable because a judicial officer, court, board, commission, or other adjudicative body has found that the person who is the subject of the order or finding--

`(I) does not present a danger to himself or to others;

`(II) has been restored to sanity or cured of mental disease or defect;

`(III) has been restored to competency; or

`(IV) no longer requires involuntary inpatient or outpatient treatment by, or involuntary commitment to, a psychiatric hospital; or

`(iii) an order or finding with respect to which the person who is subject to the order or finding has been found to be rehabilitated or has been granted relief from disabilities through any procedure available under the law of the jurisdiction in which the order or finding was issued.

Lots of folks were up in arms over the letters sent out by the VA claiming that they could unilaterally declare vets incompetent and they would thereby be prohibited from owning firearms. As I read it, this bill would empower the VA to do just that, until and unless the individual could get it reversed by a court, and that would just be the beginning. We've all heard the old chestnut about a psychological screening in order to buy a gun: you can't own a gun if you are insane, and the desire to own a gun is evidence of insanity. This bill is utter and complete garbage.

 

[Bartholomew Roberts]

As I read it, this bill would empower the VA to do just that, until and unless the individual could get it reversed by a court, and that would just be the beginning.

I'm confused as to the threat you see in this bill. The VA is declaring vets incompetent in a way that threatens their Second Amendment rights. This bill clarifies the split between the First Circuit and Fifth Circuit in a fashion that most favors gun owners. Additionally, while it doesn't prevent the VA from making those determinations, it does require that the VA give a hearing, provide actual notice of the hearing and allow the person to be represented by counsel before they can make a determination that affects their Second Amendment rights.

So how is this proposal worse than what we currently have?

 

[k_dawg]

As far as I am aware, the VA does not 'Adjudicate'.

 

[316SS]

I'm confused as to the threat you see in this bill. The VA is declaring vets incompetent in a way that threatens their Second Amendment rights. This bill clarifies the split between the First Circuit and Fifth Circuit in a fashion that most favors gun owners. Additionally, while it doesn't prevent the VA from making those determinations, it does require that the VA give a hearing, provide actual notice of the hearing and allow the person to be represented by counsel before they can make a determination that affects their Second Amendment rights.

So how is this proposal worse than what we currently have?

Please correct me if I am wrong, but adjudication of mental incompetence under current law occurs within the court system. The text emphasized in my post #34 would appear to grant the power of declaring an individual mentally incompetent to a much wider group of entities. I used the VA as an example. I would consider them to fall within the vague definition of "a judicial officer, court, board, commission, or other adjudicative body" especially since they purport to be such (see below). If the VA's declaration of mental incompetence per se carries the weight of law, the presence of the "accused" with counsel at the hearing would offer little protection. Please enlighten me if I have misunderstood.

As far as I am aware, the VA does not 'Adjudicate'.

You should tell them that. See this discussion of letters sent to vets advising them that the VA is proposing to declare them incompetent to manage their own benefits, and that such a declaration would prohibit them from owning firearms.

 

[316SS]

OK, I read the language of S.480 to expand the scope of entities empowered to adjudicate mental incompetence over current law, and that is the basis for my objection to it. Feedback/corrections/dope-slaps welcomed.

27 CFR § 478.11
Meaning of terms.
When used in this part and in forms prescribed under this part, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, terms shall have the meanings ascribed in this section. Words in the plural form shall include the singular, and vice versa, and words importing the masculine gender shall include the feminine. The terms “includes” and “including” do not exclude other things not enumerated which are in the same general class or are otherwise within the scope thereof.
Act. 18 U.S.C. Chapter 44.
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.

 

[Bartholomew Roberts]

The language you bolded is the current law. As it stands any quasi-judicial authority that finds you a danger to yourself or others by reason of mental illness has made you a prohibited person. Involuntary commitment requires an adversarial hearing; but being adjudicated mentally ill does not.

This case does a good job of explaining some of the issues being covered and shows some of the problems with the process (apoelant lost his Second Amendment rights with no formal hearing): http://scholar.google.com/scholar_c...icated+mentally+ill"+922(g)&hl=en&as_sdt=3,44

 

[316SS]

The language you bolded is the current law.

Yes, I cited it for comparison.

The case you linked was interesting reading, thanks for that. It would appear that the current law has been interpreted in the way I initially feared this bill would be, in the sense of the authority under which an individual could be declared incompetent. I don't see how this bill makes that situation any better, though, since the entities authorized to declare someone mentally incompetent are no less, if not more, vaguely defined.

Thanks, Bartholomew, for helping me get my head around this.

 

[Arkansas Paul]

True. However, I'd wager the number of people who've ever plead not guilty by reason of insanity , had that plea rejected, and then gone on to be acquitted of the crime is somewhere between zero and a whole lot less than one. It tends to pretty much ruin your case when you say, "yes I murdered them but I was out of my mind at the time," even if the judge rejects the idea that you couldn't tell right from wrong in the moment of the crime you just admitted to.

Yeah, those affirmative defenses will bite you in the ass more times than not.
I remember our Criminal Law proffessor talking about them. People have this idea from watching too much "Law and Order" that you can just plead insanity and get off. They don't realize that you've just admitted to the act, and now the burden of proof has shifted to the Defendant to prove insanity.
It's a double edged sword that cuts the wrong way too.

 

[Bartholomew Roberts]

I don't see how this bill makes that situation any better, though, since the entities authorized to declare someone mentally incompetent are no less, if not more, vaguely defined.

Well, in the case I linked to, the person was involuntarily committed by two doctors and received no formal hearing of the type described in this bill. He was deprived of his rights even though the commitment was only for observation. Under the proposed bill above, he would have to be involuntary committed by some kind of judicial authority, which would have to give him notice and an adversarial hearing and his commitment would only be disqualifying if he was involuntarily committed (not just for observation) to a psychiatric institution (as defined in the bill above).

The above bill basically takes all the gray areas in mental health law and interprets them in the way that makes it more difficult to deprive someone of their Second Amendment rights.

 

[Tinker]

I agree with other members. You need to really check any offering from Sen. Graham. I liked him a lot back in his House days, but I think he might have sold his soul when he made the big league in the Senate.

Puts me in mind of a John McCain "Mini-me".