[Update December 19, 2016: The SSA published its Final Rule, which is essentially the same as its Proposed Rule. The Rule will be effective on January 18, 2017, but compliance isn’t required until December 19, 2017.]
[Update October 21, 2016: The comment period closed on July 5, 2016. Nearly 4,000 comments were received and the agency must address every concern in every comment when it publishes its final rule.]
On April 28, 2016, the SSA officially proposed a Rule change that, according to the White House, could take away the natural and constitutional rights to self-defense of as many as 75,000 persons per year.
I first wrote about this back in September 2015, when the SSA was still hammering out its new Rule. Now we have the details regarding exactly who the SSA plans to report to the FBI’s National Instant Criminal Background Check System (NICS) as a “mental defective.” Persons listed in NICS cannot legally possess, buy, sell, or gift firearms or ammunition.
What is a Mental Defective?
Federal law defines a mental defective as a person who has been determined by a “court, board, commission, or other lawful authority” who “(1) Is a danger to himself or others; OR [emphasis mine] (2) Lacks the mental capacity to contract or manage his own affairs” as a result of “marked subnormal intelligence, or mental illness, incompetency, condition, or disease.”
Did you catch that? Any “lawful authority” (such as the SSA) can determine that a person it deems incapable of handling his own financial affairs isn’t entitled to his natural and Second Amendment rights to self-defense. He doesn’t have to be a danger to himself or others.
Who Will the SSA Report to NICS?
So, the SSA will deem an individual a “mental defective” if all the following criteria are met:
- the individual is between the ages of 18 and full retirement age, and
- the individual filed a claim for disability (SSI or SSDI), and
- the SSA determines the individual is disabled under one of the Mental Disorders Listing of Impairments (which includes eating disorders, intellectual disorders, autism disorders, anxiety-related disorders, etc.) such that the person cannot do any gainful employment activity, and
- the SSA requires that the individual’s benefit payments be made to a representative payee (appointed by the SSA) because the SSA determined that the individual is incapable of handling his finances.
The SSA also proposes a procedure for notifying the “mental defective” that his gun rights may be taken away, as well as a procedure for appealing the SSA’s decision to put the individual on the NICS list. Anyone who has appealed any SSA or VA denial knows how futile that can be. Even when it works, it can take years…while you’re still prohibited from possessing guns.
Why Shouldn’t We Keep Guns Out of the Hands of Crazy People?
No one – no matter how pro-gun – wants psychotic people having access to guns. And certainly, the caretakers for people who suffer from advanced dementia and other mental illnesses who are incapable of caring for themselves have an obligation to ensure that guns are inaccessible and/or distributed per the incapacitated person’s instructions as expressed in his gun trust or other estate planning documents.
But should a government bureaucrat have the power to take away a constitutional right because an individual with an intellectual disability or an anxiety-related disorder can’t handle his finances? I say NO!
Apparently, so does the NRA:
“Financial acumen, even if related to an underlying issue with sleep disturbances or inflated self-esteem, has no necessary relationship to a propensity for violence, and it’s not a sufficient basis to strip persons of their inalienable right to self-defense.”
Personally, I think the law should be changed so that only adjudications of incapacity by civil courts (such as during a guardianship proceeding) can be reported to NICS because at least those people had access to the justice system, with the rights to due process and the right to be heard, before their personal rights were taken away.
The Proposed Rule, as written, would affect only the most severely disabled people – those who the SSA deems incapable of any employment. However, the SSA states in the proposal that they’re open to widening the net to also include those people who aren’t as severely disabled, such as those who live in areas where jobs are scarce or who lack vocational training for available jobs.
What Can I Do?
The Proposed Rule is open for public comments for 60 days from the April 28th publication. Comments may be submitted on the SSA rulemaking in several ways:
•Via the online Federal eRulemaking portal at http://www.regulations.gov (use the “Search” function to find docket number SSA–2016–0011);
•Via fax at (410) 966-2830; or
•Via mail to NICS Comments, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235–6401.
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