By Jeff Knox
(December 29, 2016) In the final days of the Obama administration, several agencies have finalized new rules and regulations that Mr. Obama had been pushing for. Among those, the Social Security Administration, or SSA, has announced that they have finalized rules under which they will be reporting – possibly many thousands of – Social Security benefit recipients to the FBI’s National Instant Check System as “prohibited persons” for firearm possession purposes. Inclusion in NICS means complete loss of all Second Amendment rights, and makes it a felony for the person to possess or have access to any firearm or ammunition – ever. It also makes a felon of anyone who provides a “prohibited person” with access to firearms or ammunition. So parents of developmentally disabled children who receive SSI, and have used shooting and hunting as a family bonding activity, can continue doing that until the child turns 18, at which time, they would be committing a felony if they allowed their ward to touch a gun or ammunition.
The basis of this “final rule” is a bureaucratic finding that the person is “unable to manage their own affairs.” Just as we’ve seen from the Veterans Administration since the mid-1990s, the SSA is going to submit to NICS the name and identifying information of anyone whom they say is “adjudicated mentally defective” under the wording of the 1968 Gun Control Act. The primary criteria for that determination is that they be an adult who, rather than handling SSA benefits themselves, has a “designated payee” who acts as a fiduciary to manage the person’s benefits. For instance, a person might have sustained a head injury and, as a result, has trouble dealing with numbers, so they have a parent or spouse named as their “designated payee.” Under the new SSA rules, that person would be labeled as “adjudicated mentally defective” and would be barred from ever holding a gun or ammunition for the rest of their life. It doesn’t matter to the SSA if the person is fully functional in every other way, if they “can’t manage their own affairs” with SSA, they are considered a “mental defective,” and their name is submitted to NICS.
In some cases, someone who requested a “designated payee” as a matter of convenience, might be able to appeal the NICS submission, but they can only appeal after the submission has been made, and they could be looking at significant time and legal expense. They would also have to remove their guns and ammunition from their home until the matter was resolved. That could be a problem in states like Washington, where any firearm transfer, even just temporarily while sorting out a SSA mistake, must be processed through a licensed dealer, with a per-gun fee, and a required background check. Assuming the person won their appeal, legally transferring the guns back to their possession would require processing again, including the per-gun fee, and a background check on the person getting his guns back.
The thing that is the most frustrating about this new rule, is that SSA says they are merely obeying a law which received broad bipartisan support, and which was supported by the NRA. The law is called the NICS Improvement Amendment Act of 2007. It was passed in response to the horrible attack at Virginia Tech. One of the provisions of the act requires that government agencies share with NICS the names of people who are prohibited from firearm possession for mental health reasons. Even more frustrating, the law which forbids possession of firearms by “mental defectives” does not say anything about people who can’t manage their own financial affairs.
What the law says is that “prohibited persons” includes anyone: “who has been adjudicated as a mental defective or who has been committed to a mental institution.” That’s it. Nothing about managing financial affairs, etc. But several years ago, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or BATFE, promulgated regulations for enforcing that line of the law, and in their definition of terms, they stated that “adjudicated as a mental defective” means: “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:
- Is a danger to himself or to others; or
- Lacks the mental capacity to contract or manage his own affairs.”
Out of the blue, the BATFE simply added the part about the “capacity to contract or manage his own affairs.” They also stretched the term “adjudicated” to now include rulings by boards, commissions, and “other lawful authority,” which they say includes the bureaucrats at the VA and the SSA.
Where was Congress when this agency took it upon itself to overreach so dramatically. And where have they been in the subsequent two decades as this unfounded regulation has been used to strip Second Amendment rights from countless, innocent veterans?
Let’s hope that this ruling from the SSA will be the wake-up call Congress needs to finally take action to correct this travesty. Realistically, we are talking about a pretty small minority here. The majority of people whose names will be submitted to NICS as of January 18, probably won’t be too bothered by it. But for those who do care, and are bothered, this is a huge deal, and it is completely unfounded and unfair. There is no public benefit to this policy, and it will hurt real people who deserve to have their rights protected.
Please let your senators and representative know that you want this travesty corrected. The number for the Capitol Switchboard is (202)224-3121, or you can find their local office number online.