Senate Passes NICS Improvement Act

[Robert Hairless]

I think that it's perfectly reasonable to fear that the Congress might repeal or revise any section of this bill at any time. The bill should have contained a provision that it could never be altered in any way.

 

[ConstitutionCowboy]

The bill should have contained a provision that it could never be altered in any way.

On the "practical" side, Congress won't hamstring itself. Even the entitlements like Social Security can dissapear with a one sentence bill and approval of the president.

Woody

 

[alan]

gc70 wrote:

The bill was passed by a voice vote in the House and by unanimous consent in the Senate. Those votes would suggest that a veto would be senseless and an override nearly assured.

----------------

What you offered is partially correct, legislation passed via voice vote in House and unanimous consent in the Senate, which might make a veto look like a useless gesture, except for the following. Over ride votes are ROLL CALL aren't they. It's one thing to hide behind a voice vote, or unanimous consent. A recorded vote could be a different thing.

 

[Phil Lee]

The bill HR2640, NICS Improvement, was sponsored in the House by Rep. Carolyn McCarthy with the following co-sponsors (links supplied to reveal the orientation of the legislator):
Rep Timothy H. Bishop [NY-1] - http://www.nysrpa.org/nyagv-bradycampaign.pdf
Rep Rick Boucher [VA-9] - NRA A+ rated: http://www.nraila.org/News/Read/Releases.aspx?ID=4083
Rep Lois Capps [CA-23] - http://www.nraila.org//News/Read/NewsReleases.aspx?ID=8358
Rep Michael N. Castle, [DE] - http://www.nraila.org/NEWS/read/InTheNews.aspx?ID=4045
Rep Donna M. Christensen [Virgin Islands]
Rep John D. Dingell [MI-15] - http://www.nraila.org//News/Read/InTheNews.aspx?ID=1862
Rep Rahm Emanuel [IL-5] - http://www.nraila.org/Issues/Articles/Read.aspx?id=205&issue=010
Rep Nita M. Lowey [NY-18] - http://query.nytimes.com/gst/fullpage.html?res=9504E7DF143BF93BA25755C0A96F958260&sec=&spon=
Rep Dennis Moore [KS-3] - http://www.issues2000.org/house/Dennis_Moore_Gun_Control.htm
Rep James P. Moran [VA-8] - http://www.nraila.org/Legislation/Read.aspx?ID=3163
Rep Bill Pascrell, Jr. [NJ-8] - http://www.nraila.org/CurrentLegislation/Read.aspx?ITNDrop=614-L
Rep Mike Ross [AR-4] - http://www.nraila.org/Legislation/Federal/Read.aspx?id=2724
Rep Janice D. Schakowsky [IL-9] - http://www.nrablacklist.com/dcball/sponsor.html
Rep Christopher Shays [CT-4] - http://www.nraila.org/NEWS/read/InTheNews.aspx?ID=4045
Rep Brad Sherman [CA-27] - http://quiz.ontheissues.org/AVA/House/Brad_Sherman.htm
Rep Lamar Smith [TX-21] - http://www.issues2000.org/TX/Lamar_Smith.htm
Rep Debbie Wasserman-Schultz [FL-20] - http://thefiringline.com/forums/archive/index.php?t-24356.html
The supplied links indicate the leanings of these co-sponsors on gun control and most of these co-sponsors are about as anti-freedom as you can find in Congress. Of course everyone should know Rep. McCarthy's leanings.

You can pretty much understand the motivation for HR2640 as passed by reading the findings in Sec. 2. of the bill (see
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2640eas.txt.pdf ). There you will see findings about records of disqualified people being incomplete, but nothing about people being improperly disqualified, as might be the case if they've been treated for mental illness and have recovered, and nothing in the findings mentions people being improperly disqualified because the government didn't follow the proper due process with an adversary hearing before a judge. The closest the findings come to expressing a concern for injustice for people being placed on the NICS list is to mention that some arrest dispositions might not have been forwarded to NICS and so some innocent people might actually be delayed improperly.

The findings address two acts of violence that motivate the bill -- the Our Lady of Peace and Virginia Tech shooting crimes -- both committed by mentally disturbed people. From the statement of findings it is clear the bill is motivated by those wishing to control access to firearms, but findings are not given for the need to provide justice to those improperly disqualified or to insure that rights are protected by due process.

The NRA claims a significant victory in passing this bill (see http://www.nraila.org/News/Read/NewsReleases.aspx?ID=10407 ) and similar claims are made by the anti-RKBA Brady organization (see http://bradycampaign.org/media/release.php?release=954 ). The NRA made similar victory claims for the benefits of the earlier June 13 version of the bill (see http://www.nraila.org/Legislation/Read.aspx?ID=3112 ) when it passed the House.

Both the NRA and Brady organizations can't be correct to claim victory for/against gun control by the passing of this bill.

The anti-RKBA Violence Policy Center (VPC) claims defeat for controlling guns ("more harm than good" in http://www.vpc.org/press/0712nics.htm ) and the pro-RKBA GOA claims defeat for gun owners ("stab in the back" in http://www.gunowners.org/a122007.htm ). They both can’t be correct in the claim of a defeat either.

Certainly, some of these organizations are correct and others are wrong -- there are winners and losers in this legislation – gun control has been increased or decreased by this legislation. Running around in the background are shills for various organizations whose job is to spin the situation to win the propaganda war for their organization even if their organization has suffered a defeat. They have an agency perspective and will never admit facts that contradict that perspective.

All these disagreements have the effect of making it difficult for us average citizens (e.g., those of us not employed by these organizations) to evaluate the impact of HR2640 becoming law. It is my intent to reduce confusion by examining the bill section by section and writing in simple English what the bill does -- as best my understanding of the law will permit.

Beginning with the definitions presented in HR2640 Section 3 (see link above), "adjudicated as a mental defective" is defined in this bill by referencing law previously passed by Congress (section 922(g)(4) of title 18, United States Code) and that law is vague. This vagueness has allowed bureaucrats to write regulations (27 C.F.R. § 478.11) defining these terms and these regulations are described in a letter dated May 9, 2007 (http://www.atf.gov/press/2007press/050907open-letter-to-states-attourneys-general.htm ) from Director Michael J. Sullivan to the various states attorneys general. According to Director Sullivan, "adjudicated as a mental defective" means
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.​

Nothing in the definition of "adjudicated as a mental defective" requires an adversary hearing before a judge and jury of peers with a person's rights protected by having his own council. As I've previously mentioned (e.g. http://www.thehighroad.org/showthread.php?t=307220&page=5 ) the lawful authority in some states can be a couple of doctors.

According to BATFE Director Michael Sullivan's reading of the regulations, "committed to a mental institution" means a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term also includes a commitment for mental defectiveness or mental illness, and commitments for other reasons such as for drug use. The term does not include a person in a mental institution for observation or any voluntary admission to a mental institution." To the BATFE a "commitment" means a formal commitment involving adjudication by a lawful authority, not a voluntary stay and not a stay for observation only. It is important to note that the BATFE states "a stay that began as a voluntary stay may be subsequently transformed into a disqualifying stay if a court, board, or other lawful authority makes a determination that the person is a danger to self or others."

Again we see the term "lawful authority" and in some circumstances this "authority" is a couple of doctors.

Michael Sullivan also states "ATF historically has required that traditional protections of due process be present, including adequate notice, an opportunity to respond, and a right to counsel. Such protections are important because whether a person has been adjudicated a mental defective or committed to a mental institution, the firearms disability is permanent." Yet, there have been recent cases where firearm disabilities have been imposed on people denied a right to counsel.

HR2640 Title I — Transmittal Of Records, Section 101 requires at least quarterly updates of electronic records (to the US attorney general) of information required for NICS and concerning people known to Federal agencies or departments to be disqualified according to section 922 of title 18, United States Code. If the Federal agency or department knows that the basis for disqualification is no longer valid, that agency shall corrects its database and make known to the US attorney general that the basis of disqualification is no longer valid. The US attorney general has 30 days to correct the NICS database after notification. The attorney general is to make a report to Congress annually of the compliance of each Federal agency or department.

The attorney general is made responsible for ensuring the accuracy and confidentiality of NICS information and is instructed to work with the states to construct computer systems that would allow electronic notification when information is to be deleted because it is in error, or is obsolete, or when a court order is issued, lifted or otherwise removed, or when a person has been adjudicated as a mental defective or committed to a mental institution.

Section 101 prohibits any Federal department or agency from providing any record to the US attorney general concerning an adjudication or commitment if the adjudication or commitment has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring, or if the person has been found by a court, board, commission, or other lawful authority to no longer suffer from the mental health condition that was the basis of the adjudication or commitment, respectively, or has otherwise been found to be rehabilitated through any procedure available under law, or the adjudication or commitment, respectively, is based solely on a medical finding of disability, without an opportunity for a hearing by a court, board, commission, or other lawful authority, and the person has not been adjudicated as a mental defective consistent with section 922(g)(4) of title 18, United States Code.

This section requires a hearing before a lawful authority in cases from Federal departments or agencies and where such a hearing hasn't been provided, these agencies or departments are prohibited from transmitting records. Not specified in the wording of this section is what is to happen to records previously transmitted to NICS for prior cases where a hearing has not been held. Nor are basic requirements for the hearing defined (e.g., legal council, independent experts, right of presumption of sanity, proof to a reasonable certainty, transcripts kept, appeals to courts, hearing by a jury, . . . ).

Each agency or department of the United States making adjudications relative to mental health or making commitments to a mental institution is required to establish a program to permit a person to apply for relief from disabilities imposed and the program is to be established within 120 days of the enactment of this legislation. These programs are required to process applications within 365 days of the application or the department or agency will have been deemed to have denied the request for relief without cause even if the agency or department fails to act because of failure to appropriate funds (for a discussion of the federal appropriation process see http://www.fdrconferences.org/presentations/57/Fiscal Law FDR - 2007.pdf ).

Judicial reviews will be de novo (trial de novo means 'new trial').

[side remarks: An appellate court usually orders a trial de novo when the original trial failed to make a determination in a manner dictated by law (see http://en.wikipedia.org/wiki/Trial_de_novo ). Relief and judicial reviews are to be according to the standards prescribed in section 925(c) of title 18, United States Code (see http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000925----000-.html ) which reads in part "A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if . . . ." This is the same provision blocked by appropriation language such as appearing in http://www.dsca.mil/programs/LPA/2004/getdoc.cgi_dbname=108_cong_public_laws&docid=f_publ199.108.pdf
— in that document search for section 925(c) to find "Provided further, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c)"

These standards are the same Congress has blocked by denying money for their execution and the same called for in Senator Lautenberg's bill "S. 1237: Denying Firearms and Explosives to Dangerous Terrorists Act of 2007" granting the attorney general authority to deny firearm transfers to "suspected terrorists" (see http://www.govtrack.us/congress/billtext.xpd?bill=s110-1237 and the memo http://lautenberg.senate.gov/assets...ted_Bill_Re_Dangerous_Terrorists_Act_2007.pdf ) if the attorney general has a "a reasonable belief that the applicant may use a firearm in connection with terrorism."

In the specific case of HR2640 a denial of funds should trigger the judicial review provision, but these standards are for administrative relief, not for courts. So, at the minimum, the wording in HR2640 appears sloppy and it isn’t clear to me what might happen if relief is denied administratively and an appellant tries to have a court review.]

If the appeal succeeds, HR2640 Section 101 states "the court shall award the prevailing party, other than the United States, a reasonable attorney’s fee" and the United States shall be liable for the fee.

Under the paragraph entitled "RELIEF FROM DISABILITIES" in Section 101 the language denies use in NICS those records that cannot be provided to the attorney general because the adjudication or commitment process didn't follow the regulations (i.e., a medical only determination) and denies use of records for a person granted relief and requires the commitment or adjudication to be treated as if it never happened. So, a person granted relief may legally sign background check forms with the claim of never having been committed for example. It also requires the federal agency or department to notify the person of this relief from disability.

Also, this paragraph requires formal oral and written notification -- a Miranda like warning -- at the beginning of any adjudication process that a finding against the person could result in a firearm disability and notification of the penalities for violating these disabilities.

The Section 101 ends with language requiring the provisions of HR2640 (except for the Miranda like warnings) to apply to names and other information provided before, on, or after the date of enactment of this HR2640. Any name or information provided in violation of this subsection before, on, or after such date shall be removed from the National Instant Criminal Background Check System.

[To Be Continued]

 

[JohnBT]

Interesting reading. I see where info CANNOT be forwarded to NICS if...

(C) the adjudication or commitment, respec-
tively, is based solely on a medical finding of
disability, without an opportunity for a hearing
by a court, board, commission, or other lawful
authority, and the person has not been adju-
dicated as a mental defective consistent with sec-
tion 922(g)(4) of title 18, United States Code

This appears to be another improvement.

"(i) IN GENERAL.—Each department or
agency of the United States that makes any
adjudication related to the mental health of
a person or imposes any commitment to a
mental institution, as described in sub-
section (d)(4) and (g)(4) of section 922 of
title 18, United States Code, shall establish,
not later than 120 days after the date of en-
actment of this Act, a program that permits
such a person to apply for relief from the
disabilities imposed by such subsections.
(ii) PROCESS.—Each application for
relief submitted under the program required..."

I can see why some folks are confused by the entire act - they have only read bits and pieces and not the complete document. Either that or they've been listening to the GOA.

John

 

[TexasRifleman]

Both the NRA and Brady organizations can't be correct to claim victory for/against gun control by the passing of this bill.

Well, each side claims victory when:
1) Things they wanted in the bill stayed and
2) things their opponents wanted to stay in but didn't.

That happened here. Both sides got parts they wanted, both sides lost parts they wanted.

Compromise can be an ugly thing sometimes, but holding your ground and offering no compromise at all while the world moves by you doesn't work too well either.

 

[Phil Lee]

In my previous posting, I explained the effect of HR2640, Sec. 101 in the context of the regulations and relevant law pertaining as I understood it. Section 101 deals with the actions of federal agencies and departments.

A key concern of mine was whether the relief portions of the bill represented real or illusory benefits to those treated unjustly. This concern was based in the actions of Congress through appropriation bills to prevent action by the BATFE to grant relief under 18 U.S.C. § 925(c) (see Judicial Review Under 18 U.S.C. § 925(C): Abrogation Through Appropriations?, Gregory J. Pals, Washington University Law Quarterly, Vol. 76#3, Fall 1998; 1095-1119 for a discussion of the problem).

The problem created by withholding fund for the BATFE to act in relief programs is that the denial prevents administrative action and some courts have interpreted the lack of administrative action for an individual as not exhausting administrative relief (I'm reporting my understanding, not justifying this interpretation -- for a better legal discussion see the article by Gregory Pals linked above). These courts (with a few exceptions) have then hidden behind the doctrine that exhaustion administrative action is required, but no action does not mean exhaustion and they require exhaustion before they consider an application for relief.

I'm no lawyer, but it appears that this bill attempts to fix that problem should appropriations deny funds for relief processes by making as default that the relief is denied if no decision is given within 365 days of the application. Such a decision exhausts administrative remedies and opens the path to an appeal to the courts.

Only time will tell whether the operation of the relief process will be rendered another illusion by devious grabbers such as Sen. Schumer, but it appears the HR2640 drafters made an effort to protect relief programs in federal agencies and departments against the appropriation denials used to stop the BATFE relief program. It may be that Congress denies money for these new relief programs, but the courts should no longer be able to evade responsibility to act.

 

[Jayb]

........ I think there has been a terrific knee-jerk reaction to this bill just because of who authored it. I have no affection for Schumer, Pelosi, Bloomberg, Kennedy, or any of the anti's we're all so familiar with. Please read the whole bill. I have and there are reasonable (to me ) portions of it. To be sure, by legislative action, ANY part/s of this bill can be changed down the road. But what if..... IF the anti's toned things down to prevent the NRA from instigating a real uproar........... Don't just react, think first.

I work for the VA ......... at a psych facility ........ that also treats/houses physical rehab patients. Every patient that is ADMITTED, is routinely given a psych consult.... WITH THE PATIENTS CONSENT. IT CANNOT BE FORCED ON ANY PATIENT WITHOUT AN EMERGENCY DETENTION ORDER, AND THAT REQUIRES A JUDGE. Just because you have been treated at a VA, does NOT mean you have a formal psych profile, unless you have agreed to a consult, or had an EDO invoked.

A diagnosis of PTSD (which I have by the way) cannot be construed as adjudication. Just for the record, "adjudication" per Webster's means "a judges' decision" The VA does not employ any judges. (to my knowledge)

I'm not qualified to say this bill is good, bad, or indifferent. Just try to have a safe place to throw the grenade, BEFORE you pull the pin.

Regards, Jay

 

[Deavis]

Clearly if that was actually the case, we would all be drinking free bubble-up and eating rainbow stew as we discussed our new machineguns. You seem to be confusing what you want with the way things actually work.

Hey, stop right there. You are being rational and you know that is strictly forbidden to those who are covered in the tinfoil of true democracy. They reflect all that is good in the world, quit trying to spoil it with reality.

 

[Phil Lee]

Title I, Section 102 of HR2640 - analysis continued

My previous analysis of HR2640, NICS Improvement was primarily of Title I, Section 101 covering actions by Federal departments or agencies.

Title I, Section 102 of HR2640 concerns the bribes paid by Congress (us through federal taxes) to the states to purchase their cooperation in maintain the NICS list and the criteria for receiving these bribes.

The first bribe to a state is that it can get a waiver for 10% of matching funds it must supply for National Criminal History Improvement Grants under the Crime Identification Technology Act of 1988 (42 U.S.C. 14601) if the State provides at least 90 percent of required records for submission to NICS. If a state meets the 90% threshold, it can get that waiver for two years. A state has 3 years after enactment before it may receive its bribe.

A state must initially estimate, in a way specified by the US attorney general, the number of its required records within 180 days of the enactment of HR2640 or it won’t qualify to receive the bribe. This section defines the required records to include the usual: persons convicted of a crime punishable by imprisonment for a term exceeding 1 year, persons under certain indictments, certain drug users, certain mental defectives or mentally ill people who have been committed, certain persons subject to court protection orders, and persons convicted of a misdemeanor crime of domestic violence.

The evaluation of state performance in earning its bribe (by the US attorney general) is measured against records of prohibiting events that occurred within the past 20 years, but the states are admonished to attempt to supply all records concerning persons who are prohibited from possessing or receiving a firearm regardless of elapsed time since the disqualifying event.

State submission of records are to be made electronically. States are required to update, correct, modify, or remove the record from any database that the Federal or State government maintains upon being made aware that the basis under which a record was made available does not apply, or no longer applies and the state is also required to notify the US attorney general of the change. The state is required to act as soon as practicable, but there appears to be no penalty for inaction. The US attorney general is required to act within 30 days of being notified to correct or remove the relevant NICS record.

There does not appear to be a penalty associated with the state supplying records that shouldn’t be supplied (i.e., indictments that are no longer in force, court protection orders that are no longer in force, crimes that have been pardoned, mentally ill people who have been cured, . . . ). This section breaches state privacy protections for the mentally ill by requiring states to supply information on those disqualified under 922(g)(4) of title 18, United States Code. Again, there does not seem to be protections (such as we see in the previously discussed Title I, Section 101) to protect against submission of records that shouldn’t be submitted (e.g., mentally ill people who have been cured).

It isn’t clear to me whether the Section 101 requirements for federal agencies or departments to correct records would apply here to protect against state submission of records that no longer apply such as mental health commitments for a person who has subsequently been released from treatment as cured (or no longer a danger).


[To Be Continued]

 

[Phil Lee]

Title I, Sections 103, 104 & 105 of HR2640 - analysis continued

Continuing the analysis of HR2640, NICS Improvement, Title I, Section 103 gives the US attorney general the power to make bribes (grants) to states and Indian tribal governments from the money appropriated by Congress. These bribes are to establish or upgrade information and identification technologies for NICS determinations.

This section specifies that not less than 3% nor more than 10% of each bribe shall be used to maintain the relief from disabilities program and grants can only be given to states if they certify they have implemented a relief from disability program. It isn’t clear that Indian governments are similarly obliged. Of course, what Congress gives, they can take away (see Judicial Review Under 18 U.S.C. § 925(C): Abrogation Through Appropriations?, Gregory J. Pals, Washington University Law Quarterly, Vol. 76#3, Fall 1998; 1095-1119 for a discussion of the problem) and so there remains a significant concern whether each state relief from disability program is protected against denial of funds by Congress.

Indian Tribal governments are allowed to use 5% of their bribe (grant) for Tribal government. There are other differences in treatment of Indian Tribal governments and state governments in these sections.

In this section, money is authorized (not appropriated) for 2009 through 2013 totaling $875 million). The states who aggressively supply at least 50% of the required NICS records in the first two years will get 50% of the bribe money actually appropriated for 2009 and 2010. For the remaining years the attorney general is instructed to endeavor to allocate at least 50% of the money to bribe those states which provide at least 70% of the required NICS records in 2011, 2012 and 2013.

Key, to the NRA at least, is the prohibition on the part of the FBI to charge a user fee for NICS checks contained in this section.

The title of Section 104 seems to address penalties for noncompliance with HR2640. The US attorney general is to report to Congress each year a report on the progress of the States in automating the databases containing information. Additionally, the attorney general is to determine how much to withhold from the bribe to each state for failure to meet goals for providing records. He may withhold up to 13% of the bribe that would otherwise be paid in the two year period beginning 3 years after enactment for a failure to provide 50% of the required records. If a state hasn’t provided at least 70% of the required records by the end of the five year period after enactment, the US attorney general may withhold up to 4% of the federal bribe to the states.

Bribes withheld from a non-compliant state will be re-allocated to compliant states.

If 10% of the $875 million over 5 years is used for relief from disability programs for the states and if the average cost to the state to act on a petition for relief is $5,000 (just a wild guess at the cost by me), then over 5 years 17,500 (= 875,000,000 * 0.1/5000) people might have their petitions addressed for an average of 3,500 per year. Estimates I’ve provide elsewhere on THR are that more than 130,000 people are committed annually. If states use less than 10%, say 5% the number of people able to be processed for relief will be less.

A reasonable question may be raised about whether adequate resources have been supplied for state relief programs. In addition to mistakes (names supplied contrary to the requirement for adjudications being more than medical decision or names supplied for people cured and released from treatment) made each year (some part of the 130,000+ commitments), there should be concerns for all the people undergoing mental health adjudications over the past 20+ years (those records are especially desired according to HR2640 provisions). If mistakes are even 1% of 20*130,000, and all want relief of disabilities, the 26,000 people desiring relief could swamp the relief program resources provided.

States are accorded a different treatment under Sections 102, 103 and 104 than federal agencies and departments in Section 101 by the requirement to correct erroneous records. It appears people seeking to correct errors in state records can do so only through the state relief program and that the states are not obliged to correct errors pointed out to them as are federal agencies and departments. So, if a person was committed 20 years ago as mentally ill and a danger and so disqualified from possessing firearms, but was release after 60 days of treatment and has peacefully functioned in life without treatment ever since, the state might supply the record of commitment, but where is record that the person was discharged from treatment and no longer a danger. It appears that HR2640 contains no obligation for the state to protect the right of the individual.

Even if, for example, a state provides records for commitments on the basis of single doctor’s opinions (not valid adjudications according to HR2640?), what penalty applies to the state? Also, what provision of HR2640 penalizes the state if its relief program continues to uphold medical only disqualifications? In fact, the only penalties that the US attorney general may apply to states for noncompliance with HR2640 are for failures to supply records of disqualifications and there are no penalties specified for sloppy state work contrary to federal law or contrary to due process or the demand for justice.

Title I, Section 105 prescribes the elements of a state relief program for firearm disability to grant the relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the firearm disabilities, and the person's record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. This wording allows the possibility that a person might be committed for mental illness and as a danger to self or other, be treated, released, life peaceably for 10 years or more functioning well in society and not be granted relief despite no adjudication would find today that he was mentally ill and a danger. That is, the restoration of rights under HR2640 will be an act of sufferance on behalf of the state and that sufferance may or may not be granted. And there is no penalty for acting contrary to due process.

Title I, Section 105 does require the state relief program to permit a de novo review in state court of any denial of relief. But, there is no period specified in HR2640 for the state relief program to decide unlike the 365 days specified in Section 101 for federal agencies or departments. So, Congress denying funds for state relief programs in an appropriation bill will place relief-supplicants in the same limbo enjoyed by those currently seeking relief of disability through the BATFE (see Judicial Review Under 18 U.S.C. § 925(C): Abrogation Through Appropriations?, Gregory J. Pals, Washington University Law Quarterly, Vol. 76#3, Fall 1998; 1095-1119). Worse yet, a state might delay relief actions on its own and there is no penalty for these bad acts specified in HR2640.


[To Be Continued]

 

[gc70]

Section 103 gives the US attorney general the power to make bribes (grants) to states

Sorry, Phil, but your prejudice is showing, which damages the credibility of your "analysis."

 

[Phil Lee]

gc70 says

Sorry, Phil, but your prejudice is showing, which damages the credibility of your "analysis."

Ah, the old "I'm too lazy to point to errors in what you say, so I'll attack you personally" gambit.

Perhaps you might enlighten all of us (especially me) what prejudice have I shown.

By the way Merriam-Webster gives one definition of bribe as "something that serves to induce or influence." If the grants aren't for that purpose, please say so. I need the laugh.

 

[gc70]

Phil, you have already proven yourself too sharp to feign ignorance about the implications of the pejorative words you chose to use.

And I did not attack you personally. I only pointed out that the bias of your own words reduced the credibility of your arguments.

 

[Phil Lee]

I won't even bother to quote what you've said, gc70, since you now accuse me of giving a false appearance of ignorance. And I'm not supposed to take it personally that you accuse me of faking, being prejudice and, gasp, using pejorative words, rather than discuss the points where I've shown an adverse opinion or leaning formed without just grounds or before sufficient knowledge (i.e. prejudice).

You ought to share with others, even if you think I know my prejudice.

Who knows, you might actually find out that my prejudice is really your prejudice and I have just grounds and sufficient knowledge, but you don't.

But we won't find that out. You aren't one to get specific in justifying your personal accusations -- I recognize the style of muckraking.

 

[JohnBT]

The feds typically offer inducements to states. I've been a state employee since '74 and the agency I work for is roughly 80% federally funded. The word is inducement, not bribe.

"inducement - definition of inducement - A reward for a specific behavior, designed to encourage that behavior. also called incentive."

"Bribery is a crime implying a sum or gift given that alters the behavior of the person in ways not consistent with the duties of that person."

Now, I know parents can bribe their little children with a piece of candy or a trip to the zoo, but we're not talking about children here.

John

 

[Phil Lee]

Title I, Sections 106 of HR2640 - analysis continued

Continuing the analysis of HR2640, NICS Improvement, Title I, Section 106 simply authorizes release to U.S. Immigration and Customs Enforcement of the data collected for NICS which is relevant to whether an individual is an illegal alien "Notwithstanding any other provision of law or of this Act". This wording shows how easily laws written by Congress can be negated by other laws written by Congress if the will exists. The section also authorized the US attorney general to write the regulations covering what NICS data will be released.

Section 201 authorizes an evaluation program, the creation of reports and authorizes the money necessary to do the necessary studies and reports. This section is of interest for two impacts on gunnies. The reports generated are most likely to be a basis for justifying additional legislation to address "loopholes" and other deficiencies revealed and no study is required on whether the NICS improvement really improved public safety or other performance measures that would interest real people as opposed to those in the law manufacturing business.

Section 301 gives guidance to the US attorney general to how he is to divide the bribes to State and Indian governments to automate the transmission of records for NICS. Indian government are authorized here to take up to 5% of their grant for their government to support their courts. State governments may only spend the money in assessing, planning and implementing automation systems for obtaining, maintaining and transmitting NICS records.

In order for a state to qualify for these bribes, it must implement a relief program and certify it has. Of course, once implemented, Congress can later deny funds to that program as mentioned earlier.

Section 301 authorizes $437.5 million to the US attorney general for the purposes of issuing bribes to state and Indian governments for the 5 years FY09 through FY13.

Section 401 authorizes the GAO to audit the expenditure of funds appropriated to see these funds were spent for their intended purposes.

This essentially completes the analysis in my words of what HR2640 does as opposed to what various interest parties have said it does. I started this effort and promised "to reduce confusion by examining the bill section by section and writing in simple English what the bill does."

The next step will be controversial, I can tell, since it is to simplify the writings in to some conclusions about net effects for the bill.

[To Be Continued]

 

[Al Norris]

Mr. Lee, your "analysis" hinges upon your usage of terms used by the Congress to fund programs that it wishes the States to participate in. Without these grants of funds, the States could simply refuse because of the unfunded mandate.

Yet your use of the term, "bribe(s)," throughout your "analysis" shows the leanings of your prejudice towards the legislation itself.

Another factor in showing your prejudice is your failure to address the actual regulations, as they pertain to 18 U.S.C. §922(g)(4). Specifically, 27 C.F.R. § 478.11 which states:

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.​

...
Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

That is the regulation by which §101 incorporates to all federal agencies. It is also the regulation by which §102(b)(1)(C)(iv) incorporates into all records to be transmitted by the States to the NICS.

That right there, should indicate that you either (1) did not thoroughly read the legislation or (2) that you do not understand what is to be done by this legislation.

Furthermore, your recital of a BATFE memo to FFL dealers is in error. 1) That memo was based upon a single court action decided upon within the 2nd Circuit Court of Appeals and is valid only within the 2nd Circuit. No other Circuit has ruled in a like manner. 2) That memo was issued before this legislation was passed and if it (the legislation) is signed into law, will become immediately challengeable, if it is not withdrawn by the BATFE. The memo is, in any case, challengeable outside of the jurisdiction of the 2nd Circuit, as the BATFE has no authority to make precedent nationally, a singular case in a singular jurisdiction. That power resides in the Supreme Court. Not some agency of the executive.

Your failure to account for these and other discrepancies calls into question the entirety of your analysis. Thus, I find your analysis is nuanced, if not outright prejudiced, towards a specific finding that is nowhere to be found within the legislation itself.

 

[AirForceShooter]

isn't it wonderful when laws are made based on the actions of a madman?

I know the vets are going to get screwed again.
AFS

 

[TexasRifleman]

isn't it wonderful when laws are made based on the actions of a madman?

That's how we got most of them...

1934 NFA was a kneejerk reaction to the gansters of Prohibition
1968 GCA was as kneejerk reaction to Oswald mail ordering the rifle to kill Kennedy.
TSA not allowing mothers to carry more than one or 2 bottles of baby milk on a plane.

We're all so much safer now.....

 

[VARifleman]

The 34 NFA was also instated because the jackbooted treasury agents like elliot ness didn't have anything to do after prohibition. Let's not forget that part.

 

[Phil Lee]

Mr. Norris,

Congress should pay for programs it wishes states to participate in. I have no problem with Congress giving money to states to pay for work it needs to be performed. You've missed the point -- sloppy reading.

You also missed the point of my quoting from the BATFE director and that the quote seems to be word for word the same as your quote of "Adjudicated as a mental defective." Although I didn't quote the director on "commitment", my paraphrase is in no way incorrect.

Yes, 27 C.F.R. § 478.11 is the regulation incorporated by Section 101 -- I agree. I said as much. You didn't read it. In fact, I'll bet you didn't read enough of the BATFE director's memorandum I linked to realize it was written as a comment on the earlier version of HR2640 issued back in May and he gave the same regulation.

I read the legislation. I understand what is done by the legislation. It appears you didn't really read what I wrote and you are responding to me with boiler-plate text.

If you are going to take pot-shots at what I've written, how about reading it and read the references I give. Otherwise, you look foolish.

 

[scout26]

Phil,

I also think that your "anaylsis" is flawed when you show your prejudice by using terms like "bribes".

I would expect an "anaylsist" to accept feedback that perhaps your prejudice is showing, but instead you simply annouce that your critics are wrong.

If in your anaylsis, you would say something like "the legislation says "x" that can be interpertted to mean 'y' like what the courts have said or 'z' which is what the CFR says, your anaylsis would carry more weight. As it stands, I'll read the legislation myself and make my own decisions.

I also encourage everyone else to read the acutal legislation and make up their own minds, rather than the spin from the NRA, GOA, VPC or Brady's.

 

[Al Norris]

Mr Lee,

I don't think I missed a thing. We disagree. Wonder how that happened?

 

[Robert Hairless]

VARifleman:

The 34 NFA was also instated because the jackbooted treasury agents like elliot ness didn't have anything to do after prohibition. Let's not forget that part.

I've read enough of your other messages to believe that the above is unworthy of you.

It's hard to imagine why you think Eliot Ness was a "jackbooted treasury agent," unless you categorize all law enforcement officers as jackbooted thugs. There's no reason to believe that Ness wore jackboots or that he did--or caused to be done--any violation of anyone's rights. Al Capone seems to have thought so but there's no reason to believe him.

In any case, Eliot P. Ness had quite a lot to do after Prohibition and didn't need the NFA of 1934. When prohibition ended in 1933, the year before the NFA, Ness left the Treasury Department to become Cleveland, Ohio's Director of Public Safety. His subsequent career included chairmanship of the Diebold Company (the safe company) in Ohio and a run for Mayor of Cleveland.