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Discussion Starter #1 (Edited)
NICS "Improvement" Act passes Senate

Just saw this:

Senate Passes NICS Improvement Act

Wednesday, December 19, 2007

After months of careful negotiation, pro-gun legislation was passed through Congress today. The National Rifle Association (NRA) worked closely with Senator Tom Coburn (R-Okla.) to address his concerns regarding H.R. 2640, the National Instant Check System (NICS) Improvement Act. These changes make a good bill even better. The end product is a win for American gun owners.

Late yesterday, anti-gun Senator Ted Kennedy (D-MA), failed to delay progress of this pro-gun measure. The Violence Policy Center, the Coalition to Stop Gun Violence and other gun control and gun ban groups are opposed to the passage of this legislation because of the many pro-gun improvements contained within.

The NICS Improvement Act does the following to benefit gun owners:



* Permanently prohibits the FBI from charging a “user fee” for NICS checks.



* Requires all federal agencies that impose mental health adjudications or commitments to provide a process for “relief from disabilities.” Extreme anti-gun groups like the Violence Policy Center and Coalition to Stop Gun Violence have expressed “strong concerns” over this aspect of the bill—surely a sign that it represents progress for gun ownership rights.



* Prevents reporting of mental adjudications or commitments by federal agencies when those adjudications or commitments have been removed.



* Requires removal of expired, incorrect or otherwise irrelevant records. Today, totally innocent people (e.g., individuals with arrest records, who were never convicted of the crime charged) are sometimes subject to delayed or denied firearm purchases because of incomplete records in the system.



* Provides a process of error correction if a person is inappropriately committed or declared incompetent by a federal agency. The individual would have an opportunity to correct the error-either through the agency or in court.



* Prevents use of federal “adjudications” that consist only of medical diagnoses without findings that the people involved are dangerous or mentally incompetent. This would ensure that purely medical records are never used in NICS. Gun ownership rights would only be lost as a result of a finding that the person is a danger to themselves or others, or lacks the capacity to manage his own affairs.



* Improves the accuracy and completeness of NICS by requiring federal agencies and participating states to provide relevant records to the FBI. For instance, it would give states an incentive to report those who were adjudicated by a court to be "mentally defective," a danger to themselves, a danger to others or suicidal.



* Requires a Government Accountability Office audit of past NICS improvement spending.



The bill includes significant changes from the version that previously passed the House, including:





* Requires incorrect or outdated records to be purged from the system within 30 days after the Attorney General learns of the need for correction.



* Requires agencies to create “relief from disabilities” programs within 120 days, to prevent bureaucratic foot-dragging.



* Provides that if a person applies for relief from disabilities and the agency fails to act on the application within a year—for any reason, including lack of funds—the applicant can seek immediate review of his application in federal court.



* Allows awards of attorney’s fees to applicants who successfully challenge a federal agency’s denial of relief in court.



* Requires that federal agencies notify all people being subjected to a mental health “adjudication” or commitment process about the consequences to their firearm ownership rights, and the availability of future relief.



* Earmarks 3-10% of federal implementation grants for use in operating state “relief from disabilities” programs.



* Elimination of all references to Bureau of Alcohol, Tobacco, Firearms and Explosives regulations defining adjudications, commitments, or determinations related to Americans’ mental health. Instead, the bill uses terms previously adopted by the Congress.
I still see this as an expansion of an unconstitutional program, but it could be worse.

It will be interesting to see if the House agrees with the changes.

By the way--my . . . unique typing style strikes again--I didn't mean "Inprovement" in the title of the thread. If any moderator has an inclination to save me some embarrassment and fix it, I would be much obliged.
 

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Discussion Starter #2

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* Elimination of all references to Bureau of Alcohol, Tobacco, Firearms and Explosives regulations defining adjudications, commitments, or determinations related to Americans’ mental health. Instead, the bill uses terms previously adopted by the Congress.
AFAIK these terms were always defined by regulations. Seems a bit odd.
 

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kjhof said:
Yeah--I'm not sure what that's all about, either. However, anything that explicitly takes the BATFE out of the process sounds good to me.
My concern would be that if these terms were previously defined by regulation and all references to those regulations are removed from the bill... do these terms become undefined or what definition do they revert to? Something in the congressional record at the time of this or some other bills passage?

If any legal minds could help me get a grasp on this I would appreciate it. Or if anyone has a link to the bill as passed.
 

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Discussion Starter #7
I still don't like this legislation, but seeing the Violence Policy Center, the Coalition to Stop Gun Violence, and the Legal Community Against Violence complain about it makes me feel better.

Gun Lobby Hijacks Bill Intended to Improve Gun Buyer Background Checks

WASHINGTON, Dec. 19 /PRNewswire-USNewswire/ -- Leading national gun violence prevention organizations today warned that a bill intended to improve the records available to the National Instant Criminal Background Check System (NICS) -- the national system used to screen gun buyers -- has been hijacked by the gun lobby and would now do far more harm than good.

The "NICS Improvement Act" passed today by the Senate would:

-- Resuscitate a failed government program that spent millions of dollars annually to allow persons prohibited from buying guns to regain the ability to legally acquire firearms. The Department of Veterans Affairs (VA) would be required to establish a "relief from disability" program to allow persons now prohibited from possessing a firearm because they have "been adjudicated as a mental defective" or "committed to a mental institution" to apply to have their bar on firearms possession removed. As a result of the bill, more than 116,000 individuals would be eligible to apply. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) used to run a similar program that, in addition to those with mental disabilities, even allowed felons to apply for "relief." Annual costs for the ATF program ballooned to more than $4 million in 1991, with an average cost of $4,800 per applicant and 43 full-time employees dedicated to processing the applications. Congress shut down the ATF program in 1992 because of its high cost, inefficiency, and threat to public safety. Under the bill, states would also be required to establish such "relief" programs to restore the gun privileges of those with mental health disabilities in order to be eligible for potential grant money to upgrade records submitted to the NICS.

-- Set an arbitrary time limit for the VA to act on applications for "relief." If the agency fails to act within 365 days, applicants could file a lawsuit asking a court to restore their gun privileges, even if Congress fails to provide the VA with the appropriate resources to process these investigations. Some prevailing applicants would be entitled to attorneys' fees. This provision is contrary to a unanimous 2002 U.S. Supreme Court ruling that ATF's failure to act on a relief application from a felon (because of lack of appropriations) did not constitute a denial that would entitle the applicant to judicial review. The decision noted that courts are ill-equipped to make decisions on individual applications for "relief" under the standards that would apply under the "NICS Improvement Act," stating: "Whether an applicant is `likely to act in a manner dangerous to public safety' presupposes an inquiry into that applicant's background -- a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation. Similarly, the `public interest' standard calls for an inherently policy-based decision best left in the hands of an agency."

-- Significantly narrow the category of records of people with mental disabilities that would be submitted to the NICS by the federal government. The current permanent bar on persons with certain health disabilities would be replaced with temporary restrictions.

Kristen Rand, legislative director of the Violence Policy Center, states, "This bill was intended to be Congress' response to the mass shooting at Virginia Tech that left 32 people murdered. But rather than focusing on improving the current laws prohibiting people with certain mental health disabilities from buying guns, the bill is now nothing more than a gun lobby wish list. It will waste millions of taxpayer dollars restoring the gun privileges of persons previously determined to present a danger to themselves or others. Once a solution, the bill is now part of the problem."

Josh Horwitz, executive director of the Coalition to Stop Gun Violence, adds, "It is ironic that the gun lobby has coerced the Senate into providing resources to rearm mentally disabled veterans during a time when the VA is struggling to provide adequate mental health care to those in need."

Robyn Thomas, executive director of the Legal Community Against Violence, comments, "The bill's original intent, to increase reporting of state records to the NICS database, is an important objective that would improve enforcement of federal laws governing persons prohibited from possessing firearms. The changes made by the gun lobby risk undermining those laws, and we call on the House to have a full debate on the merits of this legislation."
 

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Kurt, I know you don't like the basic law at all, and I'm usually in agreement with you, but as long as we have a system for this (and realistically, do you see it disappearing anytime soon?) these changes look like they're a lot better.

I had to fill out a survey at the end of my tour in Baghdad before they let me leave the country. I can how some of my answers could've been used to deny my gun rights if the VPC and their friends had their druthers. I'm feeling cautiously optimistic about these changes.

Reid
 

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Discussion Starter #9
Reid--you're right that we're stuck with some form of this system for the foreseeable future (my endless complaining notwithstanding ;)), and I do acknowledge that it could have been a lot worse.

I'm still going to rail against the unconstitutionality of it, and against the naiveté of expecting a "prohibited persons" list to stop someone intent on committing murder.

If the VPC's Josh Sugarmann breaks down in sobs on national television, I'll probably feel better :p.

War on Guns sums up my views on it perfectly.
 

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Discussion Starter #10
Here's GOA's reaction.

Predictably, they're still talking about "Veteran's Disarmament," which I just don't see.

Gun Owners of America and its supporters took a knife in the back yesterday, as Senator Chuck Schumer (D-NY) out-smarted his congressional opposition into agreeing on a so-called "compromise" on HR 2640 -- a bill which now goes to the President's desk.

The bill -- known as the Veterans Disarmament Act to its opponents -- is being praised by the National Rifle Association and the Brady Campaign.

The Brady Bunch crowed "Victory! U.S. Congress Strengthens Brady Background Check System." The NRA stated that last minute changes to the McCarthy bill made a "good bill even better [and that] the end product is a win for American gun owners."

But Gun Owners of America has issued public statements decrying this legislation.

The core of the bill's problems is section 101(c)(1)(C), which makes you a "prohibited person" on the basis of a "medical finding of disability," so long as a veteran had an "opportunity" for some sort of "hearing" before some "lawful authority" (other than a court). Presumably, this "lawful authority" could even be the psychiatrist himself.

Note that unlike with an accused murderer, the hearing doesn't have to occur. The "lawful authority" doesn't have to be unbiased. The veteran is not necessarily entitled to an attorney -- much less an attorney financed by the government.

So what do the proponents have to say about this?

ARGUMENT: The Veterans Disarmament Act creates new avenues for prohibited persons to seek restoration of their gun rights.

ANSWER: What the bill does is to lock in -- statutorily -- huge numbers of additional law-abiding Americans who will now be denied the right to own a firearm.

And then it "graciously" allows these newly disarmed Americans to spend tens of thousands of dollars for a long-shot chance to regain the gun rights this very bill takes away from them.

More to the point, what minimal gains were granted by the "right hand" are taken away by the "left." Section 105 provides a process for some Americans diagnosed with so-called mental disabilities to get their rights restored in the state where they live. But then, in subsection (a)(2), the bill stipulates that such relief may occur only if "the person will not be likely to act in a manner dangerous to public safety and that the GRANTING OF THE RELIEF WOULD NOT BE CONTRARY TO THE PUBLIC INTEREST." (Emphasis added.)

Um, doesn't this language sound similar to those state codes (like California's) that have "may issue" concealed carry laws -- where citizens "technically" have the right to carry, but state law only says that sheriffs MAY ISSUE them a permit to carry? When given such leeway, those sheriffs usually don't grant the permits!

Prediction: liberal states -- the same states that took these people's rights away -- will treat almost every person who has been illegitimately denied as a danger to society and claim that granting relief would be "contrary to the public interest."

Let's make one thing clear: the efforts begun during the Clinton Presidency to disarm battle-scarred veterans -- promoted by the Brady Anti-Gun Campaign -- is illegal and morally reprehensible.

But section 101(c)(1)(C) of HR 2640 would rubber-stamp those illegal actions. Over 140,000 law-abiding veterans would be statutorily barred from possessing firearms.

True, they can hire a lawyer and beg the agency that took their rights away to voluntarily give them back. But the agency doesn't have to do anything but sit on its hands. And, after 365 days of inaction, guess what happens? The newly disarmed veteran can spend thousands of additional dollars to sue. And, as the plaintiff, the wrongly disarmed veteran has the burden of proof.

Language proposed by GOA would have automatically restored a veteran's gun rights if the agency sat on its hands for a year. Unfortunately, the GOA amendment was not included.

The Veterans Disarmament Act passed the Senate and the House yesterday -- both times WITHOUT A RECORDED VOTE. That is, the bill passed by Unanimous Consent, and was then transmitted to the White House.

Long-time GOA activists will remember that a similar "compromise" deal helped the original Brady Law get passed. In 1993, there were only two or three senators on the floor of that chamber who used a Unanimous Consent agreement (with no recorded vote) to send the Brady bill to President Clinton -- at a time when most legislators had already left town for their Thanksgiving Break.

Gun owners can go to http://www.gunowners.org/news/nws9402.htm to read about how this betrayal occurred 14 years ago.

With your help, Gun Owners of America has done a yeoman's job of fighting gun control over the years, considering the limited resources that we have. Together, we were able to buck the Brady Campaign/NRA coalition in 1999 (after the Columbine massacre) and were able to defeat the gun control that was proposed in the wake of that shooting.

Yesterday, we were not so lucky. But we are not going to go away. GOA wants to repeal the gun-free zones that disarm law-abiding Americans and repeal the other gun restrictions that are on the books. That is the answer to Virginia Tech. Unfortunately, the House and Senate chose the path of imposing more gun control.
Kind of funny to see the NRA and Brady Campaign on one side, and the VPC and GOA on the other.
 

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kjhof said:
Kind of funny to see the NRA and Brady Campaign on one side, and the VPC and GOA on the other.
Kinda demonstrates exactly how "out of touch" they are, to me anyway.
It doesn't matter whether we're "on the same side" or not, Slinging wild accusations and out-and-out lying is the tactic of fringe kooks.
Their tactics would actually work better for an anti-gun group, as that relies on hyperbole and mis-information. Pro-gun groups do well to just stick with facts and logic, which back our position plenty well enough.
 

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More to the point, what minimal gains were granted by the "right hand" are taken away by the "left." Section 105 provides a process for some Americans diagnosed with so-called mental disabilities to get their rights restored in the state where they live.
No where in Federal law is there any language taking away peoples rights based on a diagnosis. Specific states may impose some kind of firearm possession prohibition (for example kurt posted about Illinois and their bad state laws where you are barred firearm possession for a certain amount of time after seeking any kind of treatment for mental illness) based on a diagnosis or treatment, but thats not in this bill or current Federal law.

The core of the bill's problems is section 101(c)(1)(C), which makes you a "prohibited person" on the basis of a "medical finding of disability," so long as a veteran had an "opportunity" for some sort of "hearing" before some "lawful authority" (other than a court). Presumably, this "lawful authority" could even be the psychiatrist himself.
Ironically section 101(c)(1)(C) the GOAs boogeyman in the bill says exactly the opposite of what the GOA claims, that a medical finding of disability by itself is meaningless outside of an adjudication and that there needs to be a specific finding that the person is a danger to self or others or incompetent to manage their own affairs.
 

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Discussion Starter #13
SistemaTodd said:
Kinda demonstrates exactly how "out of touch" they are, to me anyway.
It doesn't matter whether we're "on the same side" or not, Slinging wild accusations and out-and-out lying is the tactic of fringe kooks.
Their tactics would actually work better for an anti-gun group, as that relies on hyperbole and mis-information. Pro-gun groups do well to just stick with facts and logic, which back our position plenty well enough.
I have to agree with you Todd, and it pains me to do so (not agreeing with you, specifically--I have plenty of respect for you). As a life member of GOA, frequent critic of the NRA, and outspoken opponent of this bill . . . er, soon-to-be law, it's not easy for me to acknowledge that the GOA is out and out lying, and doing so in order to advance an agenda that seems counterproductive, but that's the only conclusion I can come to.

Why they would go to so much effort to flush their own credibility down the crapper is an utter mystery to me.
 

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They changed some of the more troublesome language hence VPCs no longer supporting it but I am against any improvement of an anti-gun policy though there are a few improvements, like no more fees for backgrounds
 

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The largest gain, imho.. is the multiple layers of protection for those who are truely innocent/not crazy.. preventing them from being on the black list.
 

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k_dawg said:
The largest gain, imho.. is the multiple layers of protection for those who are truely innocent/not crazy.. preventing them from being on the black list.
It also theoretically allows people who were suffering from a serious mental illness, and were hospitalized or treated against their will at some point, who have since been treated successfully for mental illness and gone on to resume a responsible role in society, to regain their rights.

If these Relief From Disabilities portions of the new bill work as designed this is better than current law, beyond the stricter redefinition of these terms. I can oppose the bill as a big waste of money and on philosophical grounds that anyone not responsible enough to bear arms isnt responsible enough to be free in society, but as a purely practical matter the law seems to be an improvement in several areas.
 

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k_dawg said:
The largest gain, imho.. is the multiple layers of protection for those who are truely innocent/not crazy.. preventing them from being on the black list.
How many people truly have the tens of thousands of dollars to fight for their right to own a gun because of a PTSD diagnosis or any misdiagnosis.:eek:
 

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Discussion Starter #19
owen502 said:
If the brady bunch calls it a "Victory" then I don't see how it can be a good thing for us.
I hear you (and remember that I despise this legislation), but the flip side of what you point out about a Brady Bunch "victory" is that they're so desperate for something to call a "victory"--just to prove their own relevance--that they're calling a bill largely written by the NRA, and bitterly opposed by the VPC, a "victory."

I definitely don't see it as a victory for us, but the fact that they're calling it a "victory" for them is pretty indicative of their desperation.

Remember, at one point, the Brady Bunch (back when they called themselves Handgun Control, Inc.) hated the NICS program itself, because it replaced they waiting period the had been so in love with.
 

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Cyborg said:
How many people truly have the tens of thousands of dollars to fight for their right to own a gun because of a PTSD diagnosis or any misdiagnosis.
People do not lose their right to own a gun based on a diagnosis.

A diagnosis is not an adjudication.

Thats the big lie the GOA is telling here. You can be diagnosed and treated for a mental illness even a serious one without any adjudication or commitment being involved.

An adjudication is a formal legal process, not the great undefined mystery the GOA has made it out to be.
 
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