Upon signing the Social Security Act on Aug. 14, 1935, Franklin Delano Roosevelt remarked, “We can never insure 100 percent of the population against 100 percent of the hazards and vicissitudes of life, but we have tried to frame a law which will give some measure of protection to the average citizen and to his family against the loss of a job and against poverty-ridden old age.” Little could the 32nd president have known that 80 years later, one of his most enduring legacies, intended to ensure the dignity and peace of mind of all Americans, would be perverted to potentially strip millions of their most basic constitutional rights.
However, this is exactly what the Obama administration intends to do. Despite running on a 2012 Democratic Party platform that assured voters with a Social Security plank holding, “We believe every American deserves a secure, healthy and dignified retirement,” Obama is targeting the most vulnerable among us to further his radical anti-gun agenda.For those assigned a representative payee, this program will automatically assign them prohibited-person status and forward their name to NICS, with no due process or finding of dangerousness.
In July, the Los Angeles Times broke the story that the Social Security Administration (SSA) intends to start forwarding the records of Social Security recipients who have “representative payees” to the FBI’s National Instant Criminal Background Check System, or NICS, which would prohibit these individuals from obtaining or possessing firearms. This action would deny a fundamental constitutional right to more than 4 million Americans, simply because they want or need assistance in managing their finances.
The move is an extension of Obama’s “23 Executive Actions to Reduce Gun Violence” from 2013. Specifically, on Jan. 16, 2013, Obama issued a presidential memorandum demanding that federal agencies identify firearm prohibiting records and “prioritize making those records available to the NICS on a regular and ongoing basis.” In developing the new policy, it appears that SSA is following the blueprint the Department of Veterans Affairs (VA) has been using in order to bar non-violent veterans from possessing firearms.
For many years, the NRA has been locked in battle with the VA over its disregard of due process to determine a veteran’s status as a prohibited person. Under the Gun Control Act (GCA), those “adjudicated as a mental defective” are banned from possessing firearms. BATFE has defined this term, in part, to apply to anyone who “[l]acks the mental capacity to contract or manage his own affairs.” The VA has taken this to mean that any beneficiary for whom the VA has appointed a fiduciary to manage their benefits has been determined incompetent to manage their own affairs, and thus the person is prohibited from possessing guns.
Under this rubric, veterans or other beneficiaries, such as a surviving spouse, who might have a little trouble balancing a checkbook or would simply rather have their spouse or other loved one manage their finances, are being denied their fundamental right to keep and bear arms with no impartial adjudication or finding of dangerousness.
In an April 2013 letter to then-Attorney General Eric Holder, Sen. Charles Grassley (R-Iowa) took issue with the lack of due process in VA’s fiduciary appointment procedure and the avenue by which a beneficiary may contest a determination. As the right to keep and bear arms is a constitutionally protected right, the Fifth Amendment’s due process protections apply before it can be stripped. This is understood to require something akin to a court proceeding with an impartial authority and an opportunity to present evidence.
As Grassley so aptly pointed out, “When a veteran receives a letter stating that the VA believes he is unable to manage his finances, that veteran now has the burden of proving that he is in fact competent to manage his benefit payments and does not need a fiduciary.” The letter goes on to make clear that beneficiaries face a “hearing that takes place inside the VA administrative system and is composed of VA employees rather than a neutral decision maker.”
The results have been disastrous. A 2013 Senate report found that 143,580 veterans had been reported to NICS as prohibited persons. And the number is growing. The Times article cites VA figures that place the current number of those prohibited at around 177,000.
The SSA has a system similar to the VA for distributing benefits. As mentioned previously, it can assign a “representative payee” to receive a beneficiary’s benefits either at the request of a beneficiary, or at the initiation of the agency itself or someone that knows the beneficiary. According to a former SSA employee, this process typically takes place voluntarily at the behest of the beneficiary, or a loved one, and is often for the sake of convenience.
For instance, elderly individuals may choose this option if they no longer drive, live far from a population center, or have physical difficulty traveling to a post office or bank. The assignment of a representative payee is typically a perfunctory bureaucratic procedure, offering no evidence that the person is of diminished mental capacity whatsoever, and certainly does not rise to the level of “adjudication” as required by statute.
Yet this is exactly how the SSA is formulating the new policy. For those assigned a representative payee, this program will automatically assign them prohibited-person status and forward their name to NICS, with no due process or finding of dangerousness. According to the Times article, the number of SSA recipients potentially impacted by this new policy is over four million, amounting to the largest gun grab in American history.
To the SSA, once you’ve been assigned a representative payee, you’re in the same category as violent felons and other prohibited persons and should be stripped of your Second Amendment rights. According to the Times article, the number of SSA recipients potentially impacted by this new policy is over four million, amounting to the largest gun grab in American history.
While Obama may relish the ease by which his pencil-pushers can deprive American citizens of constitutional protections, the NRA has pressed Congress for legislation to end what is quickly becoming a recognized pattern of abuse. U.S. Sen. John Cornyn (R-Texas) answered our call by introducing S. 2002—the Mental Health and Safe Communities Act—a bill that provides critical protections needed in the face of Obama’s ever expanding bureaucratic overreach.
S. 2002 makes several policy changes that will stop the Obama administration from continuing to implement the VA and SSA policies while also halting the development of similar programs in other federal agencies.
First, the bill clarifies that adjudications under the GCA’s mental health provisions require due process protections, including a full hearing in which an individual has notice, the opportunity to participate and the right to counsel. The findings of such a process are clearly specified and focus on adjudications that involve individuals that are a danger to themselves or others.
Second, the bill removes the BATFE-created category “lacks the ability to contract or manage affairs” for determinations of who shall be considered a prohibited person under the GCA. As described above, this provision is the hook used by the VA and SSA to sweep broad swaths of the American public into NICS. S. 2002 will end this abuse.
For veterans, the bill provides additional protections. It requires notification to veterans who have been submitted to NICS under the fiduciary program and provides an opportunity to have their individual case reviewed by an independent board established for this purpose. S. 2002 clarifies that a veteran must actually be a danger to themselves or others in order to remain in NICS. The right to have the findings of the board reviewed by a court is recognized in all cases.
The bill would also significantly expand avenues of relief from firearm prohibitions for others, including those who have their record expunged, those who are no longer subject to an order for treatment, and those who have been granted relief by state procedures. Critically, the attorney general is required to remove from NICS the record of any person who would not be considered prohibited under the new safeguards in the bill. In short, S. 2002 will restore the rights of those who have been improperly forwarded to NICS in the past.
For existing mental health records, the states will be encouraged to submit records with a “carrot and stick” approach, in which the states can maximize federal grant allocations by forwarding 90 percent or more of disqualifying mental health records within 18 months of the bill’s passage. States will lose funding if these records aren’t forwarded within five years. But critically, the bill’s safeguards provide clear standards under which records can be transmitted. Only those mental health adjudications that comply with the new due process protections are to be forwarded by the states.
In summary, this bill would protect millions of law-abiding citizens from bureaucratic abuse, while ensuring that only relevant records in compliance with the new due process safeguards are entered into NICS. We applaud Sen. Cornyn’s efforts to protect gun owners and urge all NRA members to call on their members of Congress to voice their support of S. 2002.
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