Being Right: End Flawed Regulation

Brett Wakeman

This past week the U.S. Senate passed House Joint. Resolution 40 (H.J. Res 40) by a vote of 57 to 43, having been previously passed in the House by a vote of 235 to 180. This resolution nullifies President Obama’s implementation of the NICS Improvement Amendments Act of 2007, which would have denied Second Amendment rights to thousands of law-abiding Americans. Under this regulation, the Social Security Administration (SSA) would be required to report anyone who uses a representative payee to the National Instant Criminal Background Check System where they would be labeled as mentally defective and unfit to possess a firearm. This regulation is incredibly broad in its language and evokes numerous questions regarding its constitutionality. It was a last ditch effort during the twilight of the Obama Administration to implement some form of gun control. However, via use of the Congressional Review Act, Republicans were able to stop a disastrous regulation from taking effect.

There are numerous issues with this regulation that impose a direct threat to a core civil right that is the Second Amendment of the U.S. Constitution. The main issue is that too much authority is delegated to the SSA with very few specifics. The SSA is simply not the right organization to determine limitations on who can own a firearm. They lack the expertise both in the medicine of mental health and in gun safety. Under this regulation anyone who has a representative payee is seen as mentally defective and is reported to the NICS. The criteria for this is extremely vague, and the mental disabilities encompassed range in severity. For example, illnesses like autism, agoraphobia and insomnia are all seen as mental deficiencies under this regulation. The usage of a representative payee covers a wide range of scenarios and cannot be used as the basis of whether someone is mentally fit to own a gun. There is no statistical evidence that someone with a representative payee has a propensity for gun violence. In fact, it is often the other way around as victims of mental illness are also often the victims of crime. Again the SSA is simply not the right organization to be tasked with gun regulations, as it brings in many questions regarding due process. 

There is no clear definition for mental defectiveness and the determination of whether someone should use a representative payee is often at the discretion of a few employees. These employees are tasked with distributing benefits, not in medical diagnosis or the determination of firearm ownership. Yet they can put a beneficiary on the NICS and prevent them from executing their constitutional right without consulting medical practitioners. When dealing with constitutional rights, there needs to be a hearing and process before the removal of such a right. Under this regulation the right can be stripped without any say from the individual. The SSA does allow someone to appeal his or her placement on the NICS, but this will come at the expense of the individual’s money and time. In essence the SSA is preventing due process while functioning as judge, jury and executioner.

In this hyper partisan era, it is extremely rare to find an issue, let alone a bill, that people from a variety of viewpoints will agree on. However, H.J. Res 40 drew support from a wide range of organizations. Both the NRA and ACLU supported the measure as well as over 20 groups representing those with disabilities. All of them had the same concerns, that this regulation was too broad and lacked specifics. It infringed on people’s rights to bear arms as well as the right to due process. Now mental illness and its relation to gun violence is something that many agree needs to be addressed. However, this regulation via the SSA is simply the wrong approach to this issue. The regulation is poorly crafted with glaring omissions in terms of criteria and constitutional implementation. It is purely a partisan effort by President Obama to sneak in a backdoor regulation as a way to compensate for his personal failure to infringe on the Second Amendment. Thus, it is reasons like this that the CRA was created and thankfully President Trump will soon sign H.J. Res 40 to end this flawed regulation.