Congress to challenge gun ban for some mentally impaired

Nicole Gaudiano | USA TODAY

WASHINGTON — As part of an effort to roll back Obama-era regulations, Congress is expected to take up legislation as early as next week that would prevent the government from declaring some Social Security recipients unfit to own guns after they’ve been deemed mentally incapable of managing their financial affairs.

At the urging of the National Rifle Association, a rule requiring the Social Security Administration to send records of such individuals to the federal background check system for firearms is among a host of regulations the group says is being targeted by the Republican Congress for repeal under the Congressional Review Act, which allows Congress to dismiss actions an outgoing administration initiated in the last six months.

The rule, issued in December in response to the 2012 Sandy Hook Elementary School shooting, applies to recipients of disability insurance and supplemental security income who require a representative to manage their benefits because of a disabling mental disorder, ranging from anxiety to schizophrenia. The Obama administration estimated in January 2016 that about 75,000 people would have their records submitted for background checks each year under the rule, which applies to those between age 18 and full retirement age.

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The rule was hard fought by gun-rights advocates who feared it would impinge on Second Amendment rights. The NRA lobbied for its reversal, arguing it stripped the right to keep and bear arms without due process from “some of the most vulnerable Americans.” They say it is the result of a political agenda, and it would keep those in distress from seeking mental health assistance for fear of losing their rights.

“Congress' decision to review the Obama administration's back-door gun grab is a significant step forward in restoring the fundamental constitutional rights of many law-abiding gun owners,” said Chris W. Cox, executive director of the NRA’s Institute for Legislative Action. "The NRA has been fighting this unconstitutional government overreach since it was first discussed and we look forward to swift congressional action to overturn it."

The Brady Campaign to Prevent Gun Violence, however, applauded efforts to submit information about "dangerously mentally ill individuals" for firearms background checks in a July comment on the rule, and encouraged the Social Security Administration to expand the rule to include beneficiaries who are dangerous, regardless of whether their payments are made to a third-party representative. The campaign said Wednesday it opposes Congressional action to repeal the rule.

"Ninety-three percent of Americans support Brady background checks that keep guns out of the dangerous hands," said Kris Brown, the campaign's policy director, in a Wednesday statement. "Repealing this rule undermines that consensus and undermines laws already on the books."

The Department of Veterans Affairs already reports the names of “incompetent beneficiaries” to the FBI, which then adds the names to the federal background check system. The Obama administration sought to boost reporting to the background check system after Congress declined to take action on gun control legislation in the wake of the Sandy Hook mass shootings.

The Social Security Administration says its rule was adopted to implement a 2007 law requiring federal agencies to provide records for inclusion in the National Instant Criminal Background Check System, which prevents gun sales to convicted criminals, fugitives, people adjudicated with mental health disorders and others prohibited from owning a gun. The rule, which took effect Jan. 18 and sets a December compliance date, requires the agency to notify individuals of their possible prohibition from possessing or receiving firearms and their rights to appeal.

The Gun Control Act of 1968 prohibits the sale of firearms to those “adjudicated as a mental defective.” Federal regulations say that bans people who a court, board, commission or other lawful authority determines are dangerous or can’t manage their own affairs because of “marked subnormal intelligence, or mental illness, incompetency, condition or disease.”

The NRA argues that the Social Security Administration’s process for determining disability payments is a bureaucratic process and not an adjudication that should end in someone losing the right to bear arms. Restoration of those rights requires a person to affirmatively prove that they’re not a danger to public safety, they say.

“From a due process standpoint, the government never established those facts in the first place” said Jennifer Baker, spokesperson for NRA. “You can’t take away a constitutional right without providing due process.”

The National Council on Disability also opposed the rule in a Jan. 24 letter to Republican leaders, calling for its repeal under the Congressional Review Act. They say restrictions on gun ownership based on psychiatric or intellectual disability must be based on a verifiable concern as to whether the individual is dangerous.

“It is critically important that any restriction on gun possession or ownership on this basis is imposed only after the individual has been afforded due process and given an opportunity to respond to allegations that they are not able to safely possess or own a firearm due to his or her disability,” Clyde E. Terry, the council’s chair, wrote.

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