Monday, 09 April 2018

Infringing on Gun Rights Again

Written by 

Hidden in the new omnibus spending bill is an amendment that will take away the right to buy a gun for more than four million elderly Americans.

From the print edition of The New American

The 27 words of the Second Amendment to the U.S. Constitution are again under attack by a federal government that despises that brief sentence in our Bill of Rights. The newest assault on gun rights is a poison pill slipped into the recently enacted “omnibus” budget bill. It restricts the gun-ownership rights of up to 10 percent of persons over age 65, or more than four million elders, using a pretext that “financial incompetence” should curtail a person’s right to carry a firearm.

Credit anti-liberty strategists for this coup. They organized the recent and very visible “March for Our Lives,” which used children as props to generate emotionally wrought pleas to ban guns. At the same time, they also quietly effected the inclusion of a measure to take away guns from the elderly in the massive “omnibus” appropriations bill.

Are Older Gun Owners Dangerous?

According to a National Firearms Survey, more than 25 percent of Americans age 65 and older own guns, which translates to more than 17 million people. But does advancing age or onset of dementia require the government to step in and deprive these elders of their right to own a firearm?

When was the last time you heard of a mass-murderer over the age of 65? None of the notorious public-shooting events of the last few years were done by elderly persons. The median age of a mass shooter, according to one report, is 34, with very few over 50. So why would our enlightened lawmakers focus their anti-gun power against those who are least likely to criminally misuse a gun?

Duke University published a study of approximately 82,000 people diagnosed with serious mental illnesses in Florida between 2002 and 2011. It found that persons with serious mental-health disorders did not misuse guns any more than the general adult population. Thus, people with mental illnesses are no more dangerous to others when they have equal access to guns.

The Background-check System

Congress established the FBI’s National Instant Criminal Background Check System (NICS) as part of the Brady Handgun Violence Prevention Act of 1993. Whenever a person wants to buy a gun from a federally licensed firearm dealer, that dealer has to run a background check to determine if the customer shows up in a federal database as a felon or with some other disqualifying characteristic. Private sellers do not have to run background checks, a source of endless irritation for gun-control advocates.

Any information that could disqualify a citizen from purchasing a firearm ends up in the FBI’s NICS database via reporting by the 37 states that have laws requiring such reporting, and from several federal agencies such as the Department of Defense, the Veterans Administration, and the Social Security Administration.

When a gun dealer submits a prospective gun buyer’s name to the NICS system, it will spew out one of three results:

Proceed: The customer may buy the firearm.

Delayed: The bureaucracy cannot make a clear conclusion about the customer, owing to a common last name or a garbled Social Security number that matches one of a known bad guy.

Denied: The FBI will not allow the person to buy a gun. About five percent of applicants are denied.

Ten categories of people automatically earn a “denied” designation when the dealer runs a check. The list includes felons, fugitives from justice, convicted drug users, mentally ill persons, illegal immigrants, persons dishonorably discharged from the U.S. Armed Forces, those who have renounced U.S. citizenship, domestic abusers and persons with domestic-abuse restraining orders, and anyone charged with a crime with a potential prison sentence of a year or more, regardless if there has been a conviction.

While many people are fine with gun-ownership limitations put in place by the list, especially those affecting convicted felons or domestic abusers, some of the disqualifying criteria are not what they seem to be on the surface. For example, the “mentally ill persons” category is the one used to exclude many of the elderly from buying guns under the new omnibus spending bill, that may be applied simply because the person needs help working out personal finances. Most persons with domestic restraining orders have never actually committed a violent act, but have been found civilly liable under a low standard of proof after a person claims “fear.” And “fugitives from justice” can literally mean persons who have not paid speeding tickets. And many crimes that can carry a sentence of a year have no connection to violence whatsoever, such as writing a bad check. In many instances, the people deprived of having guns have done nothing wrong, let alone something violent.

The criteria to make the list shows one reason why a national background check of potential gun purchasers does not stop crime in any significant numbers. Law-abiding persons do not use guns to commit crimes, so background checks are unneeded for them. Criminals could not care less whether they get weapons legally, so background checks do nothing meaningful to stop them from obtaining guns. Further, since murderers already get the death penalty or life in prison without parole, an additional year for the gun violation is likely no deterrent.

Photo:  AP Images

This article appears in the April 23, 2018, issue of The New American. To download the issue and continue reading this story, or to subscribe, click here.

Too, mass shootings are often motivated by revenge, anger, envy, a history of being abused, self-centeredness, and lack of compassion or empathy (sociopathy). No background check can pinpoint these pathologies or problems in an applicant. Nor does even a fraction of persons with some combination of these qualities ever decide to harm others. No one can predict who will kill.

The Omnibus Spending Bill — Et Tu NRA?

During Obama’s presidency, executive agencies worked aggressively to get Congress to ban Social Security recipients from buying guns if they had problems managing their finances. The rule was finalized near the end of Obama’s second term. Fortunately, near the beginning of the Trump presidency, Republicans used the Congressional Review Act to nullify that regulation and to ban its reinstatement without a vote by Congress.  

Enter the recent “omnibus” spending bill, which placed all appropriations into a massive 2,200-plus page spending extravaganza to cover most government operating expenses for one-half of a year. The bill, passed by Congress and signed into law by the president, reinstates the rule banning the purchase of guns by allegedly mentally ill elders.

Adding to the usual plethora of pork projects and unconstitutional spending, Senators John Cornyn (R-Texas) and Christopher Murphy (D-Conn.) introduced a package of gun-control measures into the omnibus bill. According to Gun Owners of America, their amendment will “strip millions of veterans, seniors, medical marijuana smokers, traffic ticket violators, and others of their constitutional rights, without due process.” Gun Owners of America, which describes itself as “the only no-compromise gun lobby in Washington,” fiercely opposed the amendment and the final vote on the bill.  

The National Rifle Association (NRA), by contrast, thinks that infringing on the right to bear arms in this case is acceptable. “We applaud Senator John Cornyn’s efforts to ensure that the records of prohibited individuals are entered into NICS,” said NRA spokesman Chris Cox. He added, “The National Rifle Association has long supported the inclusion of all legitimate records in the National Instant Criminal Background Check System.”

The supporters of this bill project a plausible pretext — even if it is totally false — that guns in the hands of elders with a touch of dementia are dangerous. Then they launch yet another infringement on a right that “shall not be infringed”: They make it almost impossible to challenge the government’s finding of unfitness to buy a gun by erecting an appeal system that only a bureaucrat could love.

Obstacles to Getting Your Guns Back

Denying a law-abiding citizen the right to own a firearm is a grave offense against the Constitution. Moreover, if that right has been denied, the government has made the process of regaining that right so difficult, daunting, and time-consuming that the process itself really becomes a constructive deprivation of the right.

Under the U.S. Constitution certain steps need to be followed before the government takes away a right. It is first obliged to provide a person what is known as “due process,” giving that person an opportunity to challenge any accusations in an unbiased forum.  

The Founders divided the legislative, executive, and judicial powers of government into separate entities to check the inevitable tendency for government to grow at the expense of the people. Yet due process has become an endangered species, as government has shifted more of its functions to agencies that operate outside the Constitution.

For the last several decades, most executive agencies at the federal and state levels exercise all three functions within their own walls. They legislate their own laws in the form of regulations, administer these laws by imposing unlawful burdens on the people, and enforce their own laws with an administrative judicial process. They sometimes even garb non-judges in black robes to give the appearance that their judicial processes are legitimate.

For example, when the Veterans Administration makes its reports to the NICS system about persons who may be “adjudicated as mentally defective,” any person on that list will be denied the right to buy a gun. The problem is how that determination is made. Regulations allow the decision to be made by a “court, board, commission or other lawful authority.” That means that unaccountable bureaucrats may make the decision about eligibility, rather than ostensibly unbiased courts. Clearly, this denies persons of their constitutionally protected rights without offering them due process.

What’s worse, when a citizen is aggrieved by the decision of an administrative agency, that person cannot just go to a court and challenge it. He must first go to the agency and request an administrative hearing, over which an employee of the agency — not an outside judge — presides. The administrative officer “finds the facts” of the case, and then applies the agency regulations to its hapless supplicant, usually ruling in favor of the agency, of course. Since this is carried out by unelected bureaucrats who are unaccountable to voters, decisions are often delayed for many years.

Only after going through the agency hearing process (called “exhausting your administrative remedies”) and losing can a person request “judicial review” in a real court with a real judge. However, the opportunity for judicial review is often a hollow one. Through the 1984 U.S. Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. the judiciary has made a deal with the agency devil. The court decided that judicial review would start with the facts as already decided by the agency’s own biased administrative fact-finder, and not start over to see if the agency got the facts right. After Chevron, both state and federal courts only review agency decisions for “errors of law,” which are rare. Few decisions are overturned under this doctrine known as “Chevron Deference.”

In a real court proceeding, the most significant duty of a jury is to find the facts, and thus determine liability or guilt. The agency merry-go-round deprives citizens of that most basic protection of new (called de novo) review of the case by an independent court.

The military branches, the U.S. Social Security Administration, and the Veteran’s Administration are the major sources of federal determinations of disability that are given to the FBI and used by NICS to prohibit the purchase of a gun. States also have their own agencies that provide information to NICS. Each agency has its own labyrinthine appeals process, which the applicant must figure out before enduring the indignity of years of fighting the system in order to regain the right to buy a firearm.

Using Children to Deflect Attention

While the battle to preserve gun rights in the omnibus bill went on in the halls of Congress mostly unnoticed, except by hard-core activists and lobbyists, the media organized a far more visible public sideshow to advance their anti-gun position. The media featured a wall-to-wall spectacle called “March for Our Lives” to misdirect the public eye from the congressional leadership’s sleight of hand.  

The powers behind this march have been ably chronicled elsewhere in this issue (see article on page 10). In a clearly coordinated effort between the people in power and the media, anti-gun Marjory Stoneman Douglas High School students seemingly appeared everywhere to deliver a gun-control message. We cannot rely on media to give gun owners a fair shake, so we have to let our congressmen hear loud and clear that we don’t like what they did. It’s un-American, it’s unconstitutional, and it’s immoral. And we need to keep at them until they fold. 

Photo:  AP Images

Please review our Comment Policy before posting a comment

Affiliates and Friends

Social Media