This is the response that I and other United States Justice Foundation attorneys prepared and submitted in opposition to some very dangerous proposed amendments to ATF regulations. These could cause millions of Americans to be denied their Second Amendment rights.
Subject: Comments on Notice of Proposed Rulemaking of Changes to
ATF Definition of Adjudicated as a Mental Defective and Committed to a Mental Institution. (Docket No. ATF 51P)
These comments are submitted in response to the above-referenced Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Notice of Proposed Rulemaking of changes to the ATF definitions of Adjudicated as a Mental Defective and Committed to a Mental Institution. These proposed changes will affect the inclusion of individuals in the National Instant Criminal Background Check System (“NICS”) as persons ineligible to purchase or possess a firearm.
Changes to the Definition of “Mental Defective”
The Gun Control Act of 1968 (“GCA”) is enforced by the ATF and, under the provisions of 18 U.S.C. Section 922(g), certain persons are expressly prohibited from shipping or transporting any firearm or ammunition in interstate or foreign commerce, possessing a firearm or ammunition in or affecting commerce, or receiving a firearm or ammunition that has traveled in interstate or foreign commerce. Among those so prohibited is a person who “has been adjudicated as a mental defective or committed to a mental institution”.
ATF has proposed a rule change that appears to significantly broaden the scope of those considered mentally defective, and by what authority such a declaration can be made. Specifically, the summary of the proposed changes is stated in the Federal Register to be: “The proposed rule would clarify that the statutory term ‘adjudicated as a mental defective’ includes persons who are found incompetent to stand trial or not guilty by reason of mental disease or defect, lack of mental responsibility, or insanity, and that the term includes persons found guilty but mentally ill. The Department recognizes that the term ‘mental defective’ is outdated, but it is included in the statute and cannot be amended by regulation. The proposed amendments would further clarify that federal, state, local and military courts are recognized lawful authorities that can find persons incompetent to stand trial or find them not guilty by reason of mental disease or defect, lack of mental responsibility or insanity.”
What is left unstated is what constitutes a “mental defective.” Under the explanation for the proposed rule provided in the Federal Register, it is claimed that the intent of Congress in passing the GCA was so that “the prohibition against the receipt and possession of firearms would apply broadly to ‘mentally unstable’ or ‘irresponsible’ persons.” Even assuming that this interpretation of Congressional intent were correct, there is no definition of the term “irresponsible,” leaving it up to a variety of individuals and institutions to add anyone to NICS.
A clear example of this is the plight of many of America’s military veterans who are being determined by the Veterans Administration (“VA”) to be incompetent to handle their own financial affairs. According to letters and other documents from the VA, a finding of financial incompetence can be based on even minor Post-Traumatic Stress Disorder (“PTSD”), temporary depression or even allowing one’s spouse to handle the family finances. In most cases, the declaration of incompetence is being made not because the veteran has been examined by a psychiatrist or a psychologist and found to be mentally ill, but simply because of some comment in his or her VA records.
Veterans bear the burden of proof to demonstrate they are competent, and that is a clear violation of their right to due process under the Fifth Amendment to the U.S. Constitution. In the correspondence from the VA, veterans are also being told that once they are declared incompetent to handle their own financial affairs, they are automatically added to NICS list. Yet there is no direct correlation between ability to handle finances and firearm ownership or possession.
That being stated, the changes in the definition of “mental defectiveness” proposed by the ATF will only further confuse the situation and lead to more people being denied their Second Amendment right to have a firearm, for reasons that are suspect at best.
Changes to the Definition of “Commitment to a Mental Institution”
The summary of the proposed changes printed in the Federal Register also includes this statement: “This proposed rulemaking would also amend ATF regulations to clarify that the statutory term ‘committed to a mental institution’ applies to involuntary inpatient or outpatient treatment.” If that is the case, it opens the door to all types of abuses.
A good example would be in family court situations where judges routinely issue an order for psychiatrists or psychologists to evaluate both parents and children and, in some cases, have them continue for a course of treatment and/or counseling. This is done in an outpatient situation and since it is the result of a court order, would be considered involuntary. This puts both parents and children in danger of, ultimately, losing their Second Amendment rights under the new commitment definition.
The same problem can occur in both criminal and juvenile court where judges can order psychological evaluations and treatment. Even if the defendant is found mentally competent, and ultimately exonerated of the criminal charges, he could still fall under the definition of having been involuntarily committed to outpatient treatment. Juveniles under the age of 18 will be particularly vulnerable since, even though their court records may be sealed, their medical records may not be.
It is also necessary to consider children who are simply unruly and a problem to their parents and/or teachers. At a time when schools encourage having students diagnosed with Attention Deficit Disorder (“ADD”) or Attention Deficit Hyperactivity Disorder (“ADHD”) and medicated, the minors are in danger of having had treatment that would brand them for life, even if the diagnosis is incorrect or the problem disappears as they get older. Where do these individuals stand under the new regulations? The answer is not clear at all.
Finally, the situation with veterans must also be considered. Many veterans are reporting that they are being encouraged and in some cases coerced to accept a diagnosis of PTSD in order to get benefits. The diagnosis will require them to take medications even if they feel they don’t need it. In fact PTSD is not classified as a mental illness, but the VA is still using it to place veterans on NICS. The proposed new rules will not alleviate this problem, but probably make it worse.
There are serious Constitutional questions raised by these new proposed amendments. First, there is the question of whether the U.S. Department of Justice (“DOJ”) and ATF even have the authority to make these changes since they will clearly have an impact on the GCA itself. Clearly, any such statutory changes must be enacted by Congress.
Secondly, there are serious due process issues raised by these proposals. Based on what is happening with the VA and our military veterans, the changes will lead to more veterans and non-veterans being put on NICS without any real adjudication and no opportunity to dispute the decision by a government agency, except through an expensive and time-consuming appeal and/or litigation.
Last, the Second Amendment implications cannot be ignored. The U.S. Supreme Court has twice ruled that the right to keep and bear arms is an individual right and that any limitations on that right must be carefully monitored to see that they do not violate the Constitution. The GCA was designed to prohibit certain persons from being able to legally purchase firearms. It was primarily directed at convicted felons and persons adjudicated to be mentally ill to the point of being a danger to themselves or others. The ATF’s proposed changes go far beyond the intent of the law.
For the foregoing reasons, the United States Justice Foundation requests the ATF to withdraw its proposed regulations.