House Votes To Roll Back Measures Barring Gun Ownership For Some Severely Ill Social Security Beneficiaries

House Republicans Vote To Overturn Obama Gun Regulation. On February 2, 229 House Republicans and six Democrats voted to roll back an executive action by President Barack Obama that required the Social Security Administration to provide information on certain individuals with mental illnesses to the FBI’s National Instant Criminal Background Check database. Individuals covered by the measure would then be blocked by the background check system when trying to purchase a gun from a licensed seller:

The Republican-led House voted Thursday to repeal an Obama-era regulation that required the Social Security Administration to disclose to the national gun background check system information about people with mental illness.

The regulation instituted in the final days of the Obama administration required the SSA to share information about those who are considered incapable of managing their own disability benefits due mental (sic) illness.

The rule sought to limit the ability of those with mental illness to purchase guns but drew criticism for casting too wide a net and not providing the opportunity for due process. Opponents of the rule, including the National Rifle Association and the American Civil Liberties Union, also said the broad range of reasons that could be used to designate someone for the SSA database include conditions that should not stop a gun purchase.

The vote was 235-180.

[...]

The Senate is expected to pass the National Rifle Association-backed measure soon and President Donald Trump is expected to sign it. [CNN.com, 5/3/17]

Inclusion Requires A Diagnosis Of Severe Mental Illness And “A Representative Payee Because Of That Mental Impairment.” In publishing the final rule, the Social Security Administration (SSA) explained that criteria for inclusion are explained in its earlier Notice of Proposed Rulemaking (NPRM) and were designed to ensure the rule covers only individuals with severe mental illness who cannot manage their own affairs. [Federal Register, 12/19/16]

NPRM: Individuals Covered By The Rule “Are The Most Severely Disabled Beneficiaries We Serve.” The NPRM issued by the SSA explained that the criteria for inclusion involves such a high standard that only “severely” mentally ill individuals are included. [Social Security Administration, accessed, 2/7/17]

USA Today: The Regulation Is A Way Of Enforcing The Longstanding Prohibition On Gun Ownership For Individuals Adjudicated As Mentally Ill. According to USA Today, the rule creates a mechanism to enforce a 2007 bipartisan law that aimed to improve the national background check system by ensuring that more individuals with a prohibition due to mental illness are in the system:

The Social Security Administration says its rule was adopted to implement a 2007 law requiring federal agencies to provide records for inclusion in the National Instant Criminal Background Check System, which prevents gun sales to convicted criminals, fugitives, people adjudicated with mental health disorders and others prohibited from owning a gun. The rule, which took effect Jan. 18 and sets a December compliance date, requires the agency to notify individuals of their possible prohibition from possessing or receiving firearms and their rights to appeal.

The Gun Control Act of 1968 prohibits the sale of firearms to those “adjudicated as a mental defective.” Federal regulations say that bans people who a court, board, commission or other lawful authority determines are dangerous or can’t manage their own affairs because of “marked subnormal intelligence, or mental illness, incompetency, condition or disease.” [USA Today, 1/25/17]

Gun Rights Talking Heads Push Falsehoods About The Rule’s Scope and Whether It Includes Due Process Protections

NRATV’s Cam Edwards: Under This Rule, “A Bureaucrat Checked A Box … And You Don’t Have Your Second Amendment Rights.” Cam Edwards, the host of the National Rifle Association’s radio show Cam & Company, lamented that Obama put this regulation in place “a month or so before” leaving office, and he falsely claimed that under the rule, if “a bureaucrat checked a box somewhere … you don’t have your Second Amendment rights anymore,” ignoring the rule’s due process component and the fact that it was written to comply with the Supreme Court’s understanding of the Second Amendment. From the February 3 edition of NRATV’s Cam & Company:

CAM EDWARDS (HOST): The Obama administration put this in place a month or so before Obama left office. And so there is a law, already on the books, that say Congress can undo executive orders taken by the president less than 6 months left in their term, with a simple majority vote in both chambers. Now, you will recall, this is not the first time that Barack Obama has acted like this. More than a year ago, Barack Obama did something very similar to our nation’s veterans. Veterans who had a fiduciary appointed to help handle their affairs, all of a sudden, automatically, became prohibited persons. Because of when that executive order was put in place, Congress is gonna require additional legislation. They can’t simply go and remove that EO with a simple majority vote. So that’s coming. We’ve already seen the legislation introduced to undo that damage. But it's a little bit easier to undo the more recent regulation put in place by Barack Obama. So how was this reported yesterday? Well the Associated Press, “Breaking, House votes to roll back Obama rule on background checks for gun ownership.” No. Because again, it wasn’t about background checks for gun ownership. It was about who is legally able to own a gun. This rule didn’t say, well listen if you’re a Social Security recipient, you’ve gotta undergo a background check when you buy a gun. No, this order said, listen, if you’re on Social Security disability, and you’ve had someone appointed to manage your financial affairs, you can’t buy a gun anymore. When you undergo that background check, it's going to come back as denied now. Not because a court has determined that you’ve lost your right, not in a setting where you have any form of due process. No, a bureaucrat checked a box somewhere and you don’t have your Second Amendment rights anymore. So the Associated Press breaking tweet, “House votes to roll back Obama rule on background checks for gun ownership,” no. The Hill, “House strikes down Obama era regulation that blocks gun sales to the mentally ill.” No. Again, the categories of prohibited persons haven’t changed. What Barack Obama wanted to do was to try and expand the number of Americans who fit into these categories of prohibited persons without due process. [NRATV, Cam & Company, 2/3/17]

The Blaze’s Dana Loesch Vastly Overstates The Scope Of The Rule. During the February 3 edition of NRATV’s Live Updates with Grant Stinchfield, The Blaze’s Dana Loesch, who is also an NRATV commentator, falsely claimed that any Social Security recipient receiving “financial management assistance” has been deemed under the regulation “too crazy to be able to possess a firearm,” misstating the actual criteria for inclusion in the rule:

DANA LOESCH: Well and this was part of, this was back in 2013, which was one of the 23 steps that Barack Obama had undertaken after Newtown to go after the Second Amendment. And one of those was expanding -- the way they were spinning it was that they were saying expanding it to where they could better assess people that perhaps had a mental illness. But the problem is that this bill was so poorly written and the overreach was so egregious. Everybody -- I mean it just cast everyone under this net. And Social Security recipients, so if you are receiving Social Security and you have to -- you are seeking any kind of financial management assistance, basically they will classify you as being too crazy to be able to possess a firearm or purchase a firearm simply because you sought assistance as a Social Security recipient for financial management. And that’s a complete gun grab without due process. I mean, you’re being deprived and being adjudicated mentally unfit without any due process at all, whatsoever, or any actual real evaluation. And what really angers me, and I told you this Grant, before we started, is that it was CNN, Reuters, Associated Press, all of these news agencies were out there spinning this as, oh my gosh, look at this. You know, now Wayne LaPierre’s talking to Donald Trump and look what happened in the House. They’ve just completely rolled back background checks. Background checks are still in effect.

[...]

LOESCH: Increased age doesn’t mean you’re somehow mentally deficient. Increased age -- that is incredibly ageist and I’m actually pretty shocked that the gun control activists are pushing this considering most of the people in that movement are probably older than dirt. [NRATV, Live Updates with Grant Stinchfield, 2/3/17]

NRATV’s Grant Stinchfield: This Is A “Gun-Grabbing Obama Regulation.” During the February 6 edition of NRATV’s Live Updates with Grant Stinchfield, host Grant Stinchfield said the rule is a “gun-grabbing Obama regulation,” falsely claiming that the rule “stripped seniors of their rights to keep firearms if someone helps them with their finances.” Like other NRA figures, Stinchfield denied that the rule has anything to do with background checks, even though it plainly involves what is or isn’t reported into the national background check system:

GRANT STINCHFIELD (HOST): Well, the fake news continues. Take a look at this tweet from the Associated Press. Its says, “Breaking: House votes to roll back Obama rules on background checks for gun ownership.” Folks that is a bold-faced, flat-out lie. Politico repeated the claim. It’s so devious, I have to call it out. What the House did last week is roll back an Obama rule that stripped seniors of their rights to keep firearms if someone helps them with their finances. Without a hearing, due process, we call it, the government could strip seniors of their Second Amendment rights because getting help with finances put them in a category of, get this, mentally deficient. That’s the gun-grabbing Obama regulation the House rolled back. It has nothing to do with background checks. More proof liberal mainstream reporters simply can’t be trusted. [NRATV, Live Updates with Grant Stinchfield, 2/6/17]

Salena Zito: These Decisions Are Made “By Faceless Bureaucrats.” CNN commentator and New York Post columnist Salena Zito falsely claimed this regulation does not provide those affected with due process, and that “faceless bureaucrats” are deciding a Social Security recipient’s mental fitness to own a gun. Zito claimed that the regulation amounted to a “a right being taken away” from people. From the February 3 edition of CNN’s New Day:

ALISYN CAMEROTA (HOST): Isn’t the headline here that the one thing everyone agrees on, gun enthusiasts and gun control activists, keep guns out of the hands of the mentally ill. And this, by reversing this action, it would allow something like 75,000 people with mental disorders so severe they cannot work to get a gun.

SALENA ZITO: This is one gun issue that both sides are -- they’re on the same page. Both the ACLU and the NRA. This does not allow the people in this little nugget of it due process and that is an incredibly important part that's missing. It's not all mentally ill people. It has to do with the people who are on the Social Security rolls, and a lot of times their mental facilities are decided by faceless bureaucrats that never see them. So it's a right being taken away from them. [CNN, New Day, 2/3/17]

Breitbart’s AWR Hawkins: The Rollback Of The “Gun Ban … Will Guarantee That the Due Process Rights Of Social Security Recipients Are Not Circumvented.” In a February 3 article, Breitbart’s AWR Hawkins, who frequently appears on NRA news programing, wrote that the regulation is aimed at Social Security recipients “who require help with their finances,” and the rollback will guarantee recipients due process rights and ensure “their Second Amendments rights are not sacrificed on the altar of gun control":

The House passed H.J. Res. 40 on Thursday by a vote of 253-180. The goal is the repeal of an Obama administration gun ban aimed at Social Security beneficiaries who require help with their finances.

But Bloomberg is reporting that the House’s action will “rescind a rule on gun background checks” if also passed by the Senate and signed by President Trump. This claim is a perfect example of fake news.

Background checks in the United States will not be changed in the slightest by the repeal of Obama’s Social Security gun ban. Rather, the repeal will guarantee that the Due Process rights of Social Security recipients are not circumvented and their Second Amendment rights not sacrificed on the altar of gun control.

It is also interesting to note the way Bloomberg reports that the Social Security gun ban targets beneficiaries who need help with their finances. Instead of using plain language, Bloomberg says, “The rule requires the Social Security Administration to submit records to the gun background check system for an estimated 75,000 beneficiaries annually who, due to mental illness, cannot work at all and require a representative to manage their Social Security benefits.”

This misconstrues two important points. 1. The ban is not static; it includes a mechanism by which Social Security Administration (SSA) can investigate beneficiaries on the basis of their need for help with finances and find them unfit for gun ownership. 2. The estimate of “75,000 beneficiaries” is low, both because the ban is not static and because there are over “4.2 million” beneficiaries who require some degree of help with their finances. In sum, the ban targets a group of Americans that would steadily increase in size over time.

One thing is sure, repealing such a ban will not impact current background checks in any way. [Breitbart, 2/3/17]

Bob Owens: The Measure “Strip[s] Due Process From Social Security Recipients.”

Actually guts an Obama EO that stripped due process from Social Security recipients. Nice try, @AP liars. https://t.co/71TYP8O2r0

— Bob Owens (@bob_owens) February 2, 2017

[Twitter, 2/2/16]

In Fact, The Regulation Affects A Small Group Of Recipients And Gives Them A Path To Appeal

AP: Regulation Applies To Those “With A Mental Disorder So Severe They Cannot Work.” Reporting on the vote to rollback the measure, The Associated Press noted that the regulation applies to Social Security recipients with such severe mental disorders that they are prevented from working and “need someone to handle their benefits.” The article also estimated that the regulation affects about “75,000 beneficiaries”:

In the House, the issue was an Obama rule extending background checks for disabled Social Security recipients mentally incapable of managing their own affairs. The House voted 235-180 to scuttle it.

Under the rule, the Social Security Administration had to provide information to the gun-buying background check system on recipients with a mental disorder so severe they cannot work and need someone to handle their benefits. The rule, also finalized in December, would have affected an estimated 75,000 beneficiaries. [Associated Press, 2/2/17]

Due Process Component Of The Regulation Allows An SSA Beneficiary To Appeal And Then Challenge The Outcome Of That Appeal In Federal Court If Necessary. In publishing the final regulation, the SSA explained the rule’s implementation, including how it satisfies due process requirements by creating an appeals system and allowing for adverse rulings following an appeal to be challenged in federal court:

Affected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(g)(4) at any time after our adjudication has become final. We have clarified our rules to make that point. We will follow the requirements of the [NICS Improvement Amendments Act of 2007] and apply principles of due process in determining applicants’ entitlement to relief from the burdens imposed by inclusion in the NICS. Under these rules, we will provide individuals with advance notice at the commencement of the adjudication that we may report their information to NICS if we find they meet the criteria for reporting when the adjudication is final. An individual can request relief any time after the adjudication is final but we cannot delay fulfilling our obligations under the NIAA to provide relevant records to the Attorney General while the person decides whether to request relief. When an individual requests relief, we provide an opportunity for the individual to submit evidence in support of the request, which will be reviewed by an impartial decisionmaker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee. We will notify the applicant in writing of our action regarding the request for relief and explain the reasons for our action. We will also inform the applicant that if he or she is dissatisfied with our action, he or she has 60 days from the date he or she receives the notice of our action to file a petition seeking judicial review in Federal district court. And, of course, judicial review of our action denying an applicant’s request for relief is available in accordance with the standards prescribed in 18 U.S.C. 925(c). These procedures provide a beneficiary with ample due process protections. [Federal Register, 12/19/16]

The Rule Does Not Take Away A Second Amendment Right Because It Is Consistent With The Supreme Court’s Interpretation Of The Second Amendment. The SSA explained that the rule falls within the landmark Second Amendment decision District of Columbia v. Heller, in which a conservative majority found that the Second Amendment protects an “individual right” but also found as lawful “longstanding prohibitions on the possession of firearms by felons and the mentally ill”:

With regard to the broader point the commenters raised about the constitutionality of our actions under the Second Amendment, we note that the Supreme Court recognized in District of Columbia v. Heller, 554 U.S. 570, 595 (2008), ‘‘that the Second Amendment conferred an individual right to keep and bear arms.’’ The Court emphasized, however, that, ‘‘[l]ike most rights, the right secured by the Second Amendment is not unlimited,’’ id., at 626, and that ‘‘nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.’’ Id. Our actions, taken in accordance with the Congress’ directives in the NIAA, the President’s January 2013 memorandum to Executive agencies, and DOJ’s March 2013 guidance, are fully consistent with the Supreme Court’s recognition in Heller of the validity ‘‘of longstanding prohibitions on the possession of firearms by . . . the mentally ill.’’ Nothing in the rules we are issuing today is inconsistent with the scope of the Second Amendment as interpreted in Heller. Accordingly, we have not made any changes to the rule in response to comments asserting that our actions were inconsistent with an individual’s Second Amendment right. [Federal Register, 12/19/16]