On Thursday, the United States House of Representatives approved H.J.Res. 40. The legislation prohibits the imposition of regulations published in December that define a process for placing individuals, who the Social Security Administration unilaterally determines have sufficient mental health problems, into the National Instant Criminal Background Check System (NICS) database so the government may restrain them from purchasing and possessing guns. The regulations, which had been in the works for years, would breach the privacy of affected individuals, while also denying respect for their due process rights and their constitutionally protected right to bear arms.
To reach President Donald Trump for approval or a veto, the legislation must first pass in the US Senate as well.
The House action is welcomed by many advocates for respecting individual rights. But, it is a relatively small step. Remaining in place, even should H.J.Res. 40 become law, is the NICS Improvements Amendments Act (HR 2640) that provided the authority under which the regulations H.J.Res. 40 overrides were created. When HR 2640 was considered on the House floor in 2007, then-Rep. Ron Paul (R-TX) warned of the rights violations it would spawn. In his floor speech, Paul stated that HR 2640 “pressures States and mandates Federal agencies to dump massive amounts of information about the private lives of all Americans into a central Federal Government database” and “seriously undermines the privacy rights of all Americans, gun owners and non-gun owners alike.”
Still, H.J.Res. 40 is one of those rare opportunities in the House for representatives to rescind far-reaching government powers that threaten individual rights without, via the same legislation, also voting to increase other government powers.
Rep. Bob Goodlatte (R-VA), in his House floor speech during the debate on H.J.Res 40, provided details regarding some criticisms — with a particular focus on due process concerns — of the regulations at issue in the legislation. You can read his speech below:
Mr. Speaker, today I rise in strong support of H.J. Res. 40, a joint resolution providing for congressional disapproval of the rules submitted by the Social Security Administration relating to implementation of the NICS Improvement Amendments Act of 2007.
On December 19, 2016, in the waning days of the previous administration, the Social Security Administration published a rule finalizing the criteria for sending the names of certain Social Security beneficiaries to the National Instant Criminal Background Check System, NICS.
Under the rule, an individual's name will be sent to the NICS if they receive disability insurance or supplemental security income benefits based on having a mental disorder, the person is between age 18 and the full retirement age, and the SSA determines that the person needs a representative payee to manage their benefits. Individuals who meet these criteria would be prohibited from exercising their Second Amendment right to possess firearms.
This rule is a slap in the face of those in the disabled community because it paints all those who suffer from mental disorders with the same broad brush. It assumes that simply because an individual suffers from a mental condition, that individual is unfit to exercise his or her Second Amendment rights. No data exists to support such an egregious assertion. In fact, studies show that those who suffer from mental disorders are more likely to be victims of crime rather than perpetrators of crime.
Furthermore, there is a total absence of any meaningful due process protections under the rule. Currently, citizens lose their right to possess a firearm when they have been convicted by a judge or jury of a felony or misdemeanor crime of domestic violence, when they have been dishonorably discharged after given a hearing, or when they have been deemed a fugitive after being given an option to appear and avail themselves of their due process rights, among other reasons.
All of these have one thing in common: they all provide due process to the affected individual.
Under the SSA rule, the affected party has no ability to defend himself or to even introduce evidence before the SSA denies his right to possess a firearm.
Additionally, at no time during the process during which the SSA is seeking to deny someone his Second Amendment rights must the Social Security Administration make a determination that the individual poses a risk to himself or others. This is the standard that has long been used to determine if the right to possess a firearm should be prohibited.
Some may point to the rule's appeals process as providing a form of due process. However, the appeals process is severely flawed because it puts the burden on individuals to prove that restoring their Second Amendment rights would not pose a danger to public safety or be contrary to the public interest. In every other instance in which someone is facing a loss of his ability to possess a firearm, the burden is on the government to prove that the individual should have his right taken away. Under this flawed system, the individual bears the burden against the government. This is not what due process looks like.
During debate on the rule for this joint resolution, I heard a number of reasons from my colleagues on the other side of the aisle as to why they opposed this joint resolution. Quite frankly, I am shocked at what little regard they have for the disabled community. The gentleman from Massachusetts claimed that this joint resolution was done at the bidding of the National Rifle Association. Yes, the National Rifle Association does support H.J. Res. 40. However, what my colleague from Massachusetts failed to mention during the debate yesterday was who else supports the joint resolution.
Supporters include the American Association of People with Disabilities, the National Disability Rights Network, the Autistic Self Advocacy Network, the Bazelon Center for Mental Health Law, the Arc of the United States, the Consortium for Citizens with Disabilities, the Disability Law Center of Alaska, the National Council on Independent Living, and the National Coalition for Mental Health Recovery. Even the National Council on Disability — an independent Federal agency that makes recommendations to the President and Congress to enhance the quality of life for all Americans with disabilities and their families — has called on Congress to utilize the Congressional Review Act in order to repeal this rule.
It was also mentioned — and will, undoubtedly, be mentioned here later today — that this rule received over 91,000 comments. What they didn't tell you, and what I am guessing they won't tell you today, is that the overwhelming majority of the comments opposed the rule. Opposition wasn't based on small, technical issues. It was based on the fundamentally flawed concept of the rule. Many of the organizations I mentioned earlier provided comments to the agency. Rather than listen to the organizations advocating for the rights of the disabled, the previous administration decided to ignore them.
I thank the gentleman from the State of Texas (Mr. Sam Johnson) for his hard work on this important issue that affects law-abiding citizens in every congressional district in America.
I ask my colleagues to support this resolution — to stand with the disabled community and to stand with the Constitution. Support H.J. Res. 40.
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