Repeal of a Federal Regulation linked to guns…

Repeal of a Federal Regulation linked to guns…

Regardless of one’s views on guns, gun ownership, the right to bear arms and all that the second amendment entails – it is inarguable that the United States has a problem with gun violence: “The United States, with less than 5 percent of the world’s population, has about 35-50 percent of the world’s civilian-owned guns, according to a 2007 report by the Switzerland-based Small Arms Survey. It ranks number one in firearms per capita. The United States also has the highest homicide-by-firearm rate among the world’s most developed nations” (http://www.pbs.org/newshour/rundown/how-do-u-s-gun-laws-compare-to-other-countries/); compared to other high-income nations the US has an overall fire arm death rate that is 10 times higher (http://www.amjmed.com/article/S0002-9343(15)01030-X/fulltext). For a visual snapshot of how US gun violence compares to other countries: http://www.humanosphere.org/science/2016/06/visualizing-gun-deaths-comparing-u-s-rest-world/ and for more analysis on this issue: http://www.npr.org/sections/goatsandsoda/2015/12/07/458815891/the-u-s-is-a-world-leader-in-gun-deaths; http://www.cbsnews.com/news/how-u-s-gun-deaths-compare-to-other-countries/.

One way that the US attempts to curb gun violence is by having databases with multiple pieces of information which are in turn analyzed to determine whether someone should be permitted to possess a firearm. The Obama Administration created a Federal Regulation (91702) that would have added information to one such database and our current President signed a law (H.J. Res 40) that repealed this Federal Regulation.

Federal Regulation 91702 required the Social Security Administration to report to the National Instant Criminal Background Check System (NICS) individuals who receive Social Security benefits (monies) due to a mental health disorder and/or receive their Social Security benefits (monies) through a payee (https://www.federalregister.gov/documents/2016/12/19/2016-30407/implementation-of-the-nics-improvement-amendments-act-of-2007). That is all the Federal Regulation would have done.

A quick note on Social Security – in order for someone to receive benefits due to a mental health issues those issue must be so severe that no employment is possible, “The law defines disability as the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months” (https://www.ssa.gov/disability/professionals/bluebook/general-info.htm). Phrased another way, it is not easy to gain Social Security benefits due to mental health – there is a high standard of severity that must be met. In terms of receiving a payee, this occurs only after there is proof that the individual receiving the Social Security monies cannot manage the funds on his or her own, this standard is even harder to reach (https://www.ssa.gov/payee/).

The NICS is administered by the FBI which is in the Justice Department and thus under the Attorney General. When applying for a gun permit a NICS check can be/is done and the check includes referencing the: “1) Interstate Identification Index (III), a database of criminal history record information, 2) National Crime Information Center (NCIC), which includes information on persons subject to civil protection orders and arrest warrants and 3) NICS Index, which includes the information contributed by federal and state agencies identifying persons prohibited from possessing firearms who are not included in the III or NCIC, such as persons with a prohibiting mental health history or who are illegal or unlawful aliens” (https://www.bjs.gov/index.cfm?ty=tp&tid=49).

So, to review the Federal Regulation that has been repealed would have added one more piece of information to the database, which is used to determine whether someone should be allowed to possess a firearm. If that piece of information, if the fact that the person receives Social Security due to a mental health issue or receives her/his monies through a payee, was the cause/part of the cause for the denial of the firearm, then the Federal Regulation provided for an appeals process (please note the emphasis has been added): “As required by the NIAA [NICS Improvement Amendments Act of 2007], at the commencement of the adjudication process we will also notify individuals, both orally and in writing, of their possible Federal prohibition on possessing or receiving firearms, the consequences of such prohibition, the criminal penalties for violating the Gun Control Act, and the availability of relief from the prohibition on the receipt or possession of firearms imposed by Federal law. Finally, we also establish a program that permits individuals to request relief from the Federal firearms prohibitions based on our adjudication” (https://www.federalregister.gov/documents/2016/12/19/2016-30407/implementation-of-the-nics-improvement-amendments-act-of-2007).

One of the rallying cries of those opposed to the new Federal Regulation was that it denied people with disabilities (mental health disabilities) their right to bear arms but this is not what the Regulation would have done.

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