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Obama Announces Proposed Rule Changes for Gun Background Checks

The White House today announced two actions pertaining to gun purchases. One is a rule change that expands the definition of a mentally defective person prohibited from possessing a gun. The second is an HHS regulation that expands the information HIPPA-covered entities can provide to NICS, the federal background checking system.

The Department of Justice (DOJ) is proposing a regulation to clarify who is prohibited from possessing a firearm under federal law for reasons related to mental health, and the Department of Health and Human Services (HHS) is issuing a proposed regulation to address barriers preventing states from submitting limited information on those persons to the federal background check system.

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The DOJ proposal is a proposed change in ATF regulations that amends the definitions of a person “Adjudicated as a Mental Defective” and “Committed to a Mental Institution.”

The revised definition clarifies that the statutory terms “adjudicated as a mental defective” and “committed to a mental institution” include persons who are found incompetent to stand trial or not guilty by reason of mental disease or defect; persons lacking mental responsibility or deemed insane; and persons found guilty but mentally ill, regardless of whether these determinations are made by a state, local, federal or military court. The proposed regulation also clarifies that the statutory term includes a person committed to involuntary inpatient or outpatient treatment (my emphasis.)

You can read the proposal at the Federal Register here.

The HHS proposed rule change is a modification to HIPAA. You can read it here. It would:

modify the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a Federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving a firearm.

...Among the persons subject to the Federal mental health prohibitor are individuals who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.

Under this proposal, only covered entities with lawful authority to make adjudication or commitment decisions that make individuals subject to the Federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, would be permitted to disclose the information needed for these purposes. This disclosure would be restricted to limited demographic and certain other information and would not include medical records, or any mental health information beyond the indication that the individual is subject to the Federal mental health prohibitor.

The DOJ change seems to me to be more like an amendment of the Gun Control Act than a clarification. The notice in the federal register is titled "Amended Definition of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution.” The Notice also includes this statement:

The Department recognizes that the term “mental defective” is outdated, but it is included in the statute and cannot be amended by regulation.

In other words, while the Attorney General can authorize ATF, a DOJ agency, to enforce the Gun Conrol Act of 1968, he can't authorize ATF to change what it says.

18 USC 922(g) is the section of the Gun Control Act that lists the classes of persons who are prohibited from possessing, selling, shipping or transporting guns. It includes a person who:

"(4) Has been adjudicated as a mental defective or committed to a mental institution;

I don't think a person involuntarily committed to outpatient treatment is a person "committed to a mental institution."

(In addition to the mentally defective and committed, the statute's prohibitions include (among others) a person who is "an unlawful user of or addicted to any controlled substance"; undocumented aliens and those admitted under a nonimmigrant visa; anyone with dishonorable discharges from the military' and anyone with a misdemeanor domestic violence conviction.)

DOJ is inviting public comments on two additional issues:

  • whether the statutory term “adjudicated as a mental defective” includes an adjudication that occurred when the person was under the age of 18.
  • whether the statutory term “committed to a mental institution” includes an involuntary commitment that occurred when the person was under the age of 18.
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  • Display: Sort:
    If I may add my 2 cents...... (5.00 / 2) (#10)
    by NYShooter on Sun Jan 05, 2014 at 06:37:40 PM EST
    People diagnosed with mental health problems have no more propensity for violence than those considered, so-called, "normal." Mental illness is not a "one size fits all" ailment. There are many, many types of MH problems. The great majority of afflicted folks are peaceful, non-violent, and, go about their daily business just like everybody else. Obviously, someone diagnosed as a paranoid schizophrenic, and prone to violence, shouldn't own a gun. But, then, many "normal" people who have no problem getting a gun license, also may be clinically anti-social, intellectually, barely functional, narcissistic, and, maybe even sociopathic. Should they be allowed to walk around "packing heat?"

    The problem is, we want easy answers to difficult problems. Ostracizing a single group, especially one that has been unfairly stigmatized for way too long, will not solve anything. A person who abuses certain drugs and/or alcohol, even if he/she has never been cited for DUI/DWI, is way, way more apt to commit a violent act than the huge majority of mentally troubled folks.

    It all comes down to what sort of investigation should be required in order to be granted a license to own, and carry, even surreptitiously, a lethal weapon such as a handgun?

    The Supreme Court didn't do us any favors in their Heller decision. As Veronica Rose, Connecticut's Chief Analyst, wrote in the OLR BACKGROUNDER: STATE GUN LAWS AFTER HELLER AND MCDONALD:

    "Whether any Connecticut gun laws are likely to be struck down on 2nd Amendment grounds in light of Heller and McDonald is a matter for the courts to decide. We cannot provide a definitive answer to the question because the U.S. Supreme Court did not provide clear guidance in either case and left unresolved significant questions about the U.S. Constitution 2nd Amendment's scope and application to firearm regulation."
    (bold mine)

    This is what we get when we elect Presidents who will appoint political, corporate toadies to the highest court in the land.

    "Let's not let crazy people have guns." Yeah, that's the ticket.

    So anyone who ever had a DUI? (none / 0) (#1)
    by unitron on Fri Jan 03, 2014 at 08:55:49 PM EST
    No matter how long in the past?

    Is there a problem with that? (5.00 / 2) (#2)
    by jtaylorr on Fri Jan 03, 2014 at 10:17:37 PM EST
    Are you really saying we shouldn't have more incentives to keep people from drunk driving? Drivers are a privileged class in the United States, and that's reflected in our disgustingly lax drunk driving laws. Anything to change that is a step forward imo.
    Want to own a gun? Don't drink alcohol and drive. It's very simple really.

    Parent
    I don't have any burning desire... (none / 0) (#3)
    by unitron on Sat Jan 04, 2014 at 06:47:33 AM EST
    ...for a weapons permit myself, but I can easily envision a situation where someone got a DUI at 21 or 22, and is now 50+, and a solid citizen, and has a valid reason for wanting a permit.

    Which is why I put in the part about "No matter how long in the past?".

    Parent

    Perhaps I'm missing something (none / 0) (#4)
    by Coral Gables on Sat Jan 04, 2014 at 07:22:28 AM EST
    Could you tell me where anything related to a DUI is in the above proposal.

    Parent
    The way I see it... (none / 0) (#5)
    by unitron on Sat Jan 04, 2014 at 10:57:39 AM EST
    "the statute's prohibitions include (among others) a person who is "an unlawful user of or addicted to any controlled substance";"

    ...could be interpreted that way, if certain jurisdictions had a mind to.

    Parent

    The DUI laws are not so lax (none / 0) (#6)
    by MKS on Sat Jan 04, 2014 at 05:15:54 PM EST
    Jail time for first offenses, and upwards of 60 days in jail for second offenses....That type of sentence means you generally lose your job.

    First time offenders are booked into County Jail and usually released without bail--if they have not hurt anyone.  But the process of booking and release can take 6 hours or more.  So, in the meantime, jail for first time offenders. In a jail cell.  And suspended license.  And fines.  And classes.  And attorneys fees. All for first time offenders.

    Lax laws existed decades ago.  Not so anymore.

    Parent

    New DUI law in Washington: (none / 0) (#9)
    by Mr Natural on Sun Jan 05, 2014 at 01:22:49 PM EST
    A pilot program has been initiated in four Washington counties and two municipalities. Essentially the program requires those convicted of a second DUI offense are required to 24/7 daily monitoring consisting of a twice daily visit to a jail for a breath test or an ankle monitor capable of reading breath samples. Both options are mandated at cost to the offender.



    Parent
    To be sure (none / 0) (#7)
    by Mikado Cat on Sun Jan 05, 2014 at 02:23:26 AM EST
    This will end up in the courts, but until decided should have the desired chilling effect.

    The "desired chilling effect" ... (5.00 / 2) (#8)
    by Yman on Sun Jan 05, 2014 at 10:43:15 AM EST
    ... of making it more difficult for people with mental health issues from getting a gun?

    Let's hope so ...

    Parent

    By chilling effect (none / 0) (#11)
    by Mikado Cat on Mon Jan 06, 2014 at 06:47:47 AM EST
    I mean trampling on constitutionally guaranteed rights by fiat until overturned by a court. The old standard garden variety of chilling effect.

    Felony voting rights seems to be getting a fresh look, but how the public takes to actions against "others" tends to vary.

    Parent

    Trampling" - heh (none / 0) (#12)
    by Yman on Mon Jan 06, 2014 at 08:27:59 PM EST
    Do tell ... what "constitutionally guaranteed rights" are being "trampled by fiat"?  What is your basis for the conclusion that these actions are unconstitutional?

    Parent