1/08 Q&A On The Veterans Disarmament Act
— How the new law will affect your constituents
(January 10, 2008)
President Bush signed the Veterans Disarmament Act (HR 2640) into law this week, a bill that would disarm hundreds of thousands of law-abiding Americans — not to mention military veterans!
The bill passed Congress last month as most Americans were preparing for the Christmas holidays. It was December 19. Most Congressmen had left town and were either at the airport or in the air returning home. They weren’t in Washington, DC, because their party leadership had told them that all the major votes were over… that the only legislative business left related to non-controversial issues, such as when Congress would return from Christmas break, etc.
But it was then, with most of the Congress gone, that the House and Senate passed the Veterans Disarmament Act without a recorded vote. It was a huge deja vu, as this was the method that a previous Democratic Congress used — together with compliant Republicans — to pass the original Brady Law in 1993.
WHAT DOES THE LAW DO IN GENERAL?
It would be a mistake to under-react — or over-react — to the passage of the Veterans Disarmament Act. On the bad side, this law statutorily validates BATFE regulations which could potentially disarm millions of Americans. This is a VERY DANGEROUS turn of events which will have huge ramifications over the next several decades.
The extent to which its unconstitutional potential will be realized will be clear only over time — and perhaps a long time — and will depend on whether pro-gunners or anti-gunners are in power. For example, it took a full thirty years for language in the 1968 Gun Control Act to be used to disarm veterans.
On the other hand, a few modest concessions were obtained which should provide some protection to gun owners — though NOT NEARLY ENOUGH PROTECTION TO JUSTIFY SUPPORT of this law.
So having said that, what are the implications of this legislation for Americans with psychiatric diagnoses?
Although we succeeded in forcing the deletion of the ratification of the BATF regulations, per se, section 101 (c) (1) (C) contains new language which could make someone a “prohibited person” (unable to own a gun) based solely on a medical finding (by a psychiatrist or psychologist), provided:
* That he or she had “an opportunity for a hearing by a court, board, commission or other lawful authority”; and
* In the future, that one had notice that he or she would be made a “prohibited person” as a result of the agency action (section 101 (c) (3)).
However, even these modest gains have severe limitations. Up to 140,000 veterans had their gun rights taken away as a result of a diagnosis of a mental disorder such as Post Traumatic Stress Disorder (PTSD). But this new law does not require two important things for those 140,000 people:
1. The new law does not require that a veteran needed to have any knowledge of the ramifications of the “diagnosis” in the past — and the fact that this diagnosis could disarm him or her for life. How many veterans suffering from PTSD simply went to Veterans Affairs, hoping to get treatment, but now face a lifetime gun ban because of the new law?
2. Also, the act does not require that the disarmed vets even knew they had a right to appeal their diagnosis. Many of the 140,000 Americans who have now lost their Second Amendment rights first received a letter from Veterans Affairs telling them that, due to their diagnosis, a “guardian” was being appointed for them to handle their affairs. As stated above, how many vets realized that this action would deem them as “mental defective” under the 1968 Gun Control Act and strip them of their gun rights?
Moreover, how many vets realized they could challenge this action by appealing the diagnosis? If they didn’t realize the significance of this VA letter, most likely, the vets did nothing, as they were more concerned with getting the monetary benefits that such a diagnosis would bring. But, whether they knew these things or not, this new law would still validate the removal of their Second Amendment rights.
HOW WILL THE LAW AFFECT YOUR CONSTITUENTS?
If a person has been subject to a psychological or psychiatric diagnosis, the following may be helpful:
* A diagnosis by a private doctor — with no government involvement — will probably cause one no problems.
* The biggest danger remains the danger for veterans, as mentioned above. And even though the language of this law could conceivably disarm adults who were diagnosed as kids with ADHD in connection with the IDEA program, seniors on Medicare with Alzheimer’s, etc., we know of no active efforts to disarm persons in these cases — yet.
* The likelihood that new classes of people will be disarmed will be directly related to the ease of accomplishing this though a computer keyboard. If a person’s file exists only on microfiche in a dusty basement cabinet, one is relatively safe for now — although, keep in mind, the new law calls for monies to be spent on collecting and updating records like this.
* Obviously, the question of whether a gun hater or Second Amendment supporter is in the White House on January 20, 2009, will have a lot to do with how vigorously this new statute is enforced.
WHAT CAN PEOPLE DO IF THEY’RE ILLEGITIMATELY DENIED A GUN?
In the unlikely event that a person can get their diagnosis “set aside,” “expunged,” or found to no longer exist, one can regain their rights. [See section 101 (c) (1) (A) & (B).]
The McClure-Volkmer “relief from disabilities” provisions which have been blocked by Congress for 15 years have been reinstated and expanded — so that they will now exist in the broader range of state and federal agencies which this law will allow to make one a prohibited person. Pursuant to negotiations over GOA’s objections, we were able to secure very modest improvements which:
* Would allow individuals to sue to get their rights restored if the agency sat on their appeal for 365 days;
* Would allow people to get their legal fees if they prevail against the agency in court;
* Would prevent Congress from defunding these efforts in the same way it defunded McClure-Volkmer — by requiring the 3% of state funds under this law be used for these “relief from disabilities” programs.
But here’s the major loophole in all of this. What minimal gains were granted by the “right hand” was taken away by the “left.” Section 105 provides a process for some Americans diagnosed with so-called mental disabilities to get their rights restored in the state where they live. But then, in subsection (a)(2), the law stipulates that such relief may occur only if “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.” (Emphasis added.)
This language sounds similar to those state codes (like California’s) that have “may issue” concealed carry laws — where citizens “technically” have the right to carry, but state law only says that sheriffs MAY ISSUE them a permit to carry. When given such leeway, those sheriffs usually don’t grant the permits!
As we have predicted before: liberal states — the same states that took these people’s rights away — will treat almost every person who has been illegitimately denied as a danger to society and claim that granting relief would be “contrary to the public interest.”