NICS Improvement Act Passes

[Charles L. Cotton]

From the NRA/ILA: http://www.nraila.org/Legislation/Read.aspx?ID=3321

Senate Passes NICS Improvement Act, House Concurs

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.

On Wednesday evening, by unanimous consent, the U.S. House accepted the Senate amendment to H.R. 2640. The legislation is headed to the President's desk for his signature into law.

[Charles L. Cotton]

Now look at what the anti-gun organizations have to say about its passage!

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."

Violence Policy Center

[Mike1951]

The GOA isn't too happy, either.

Thursday, December 20, 2007

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.

So our appeal to you is this -- please help us to grow this coming
year. Please help us to get more members and activists. If you add
$10 to your membership renewal this year, we can reach new gun owners
in the mail and tell them about GOA.

Please urge your friends to join GOA... and, at the very least, make
sure they sign up for our free e-mail alerts so that we can mobilize
more gun owners than ever before!


****************************

[lrb111]

Well done! A fair policy, with recourse available. Icing on the cake in the VPC whining about another loss to gun owners.
Anytime the antis publicize their ineffectiveness we all win.

[Xander]

The GOA isn't too happy, either.

And this kind of idiocy is why the GOA doesn't get any of my money.

[Mike1951]

Well done! A fair policy, with recourse available.

I guess only time will tell.

The Gun Owners of America has been viciously attacking the NRA since the NRA backed this bill.

According to the GOA, there really isn't any recourse.

I personally think the GOA went way overboard on this and am finding it hard to keep supporting them.

[Charles L. Cotton]

Here is the response to GOA's "Veterans Disarmament Act" lie from Larry Scott at Military.com:

Gun Bill Not Anti-Veteran
Larry Scott | October 02, 2007

There is no such thing as the “Veterans Disarmament Act.� There is no pending legislation that would take firearms away from veterans. There is no pending legislation that would prevent a person with post-traumatic stress disorder (PTSD), veteran or not, from purchasing a firearm or ammo.

But, there is a huge campaign of misinformation and scare tactics being forwarded by a small gun owners group who view themselves to be in competition with the National Rifle Association (NRA).

Let’s use some common sense instead of nonsense. If veterans were to lose the right to own firearms, you’d have a lot of unemployed cops. If those who have PTSD were to lose that right, there’d be even more unemployed cops and other first responders, as well. The arguments about a “Veterans Disarmament Act� are, quite simply, ridiculous and illogical.

The piece of legislation is question is H.R. 2640, the NICS Improvement Amendments Act of 2007. H.R. 2640 was carefully-crafted by the NRA and Members of Congress to protect the rights of gun owners, especially those who may have mental health issues such as PTSD.

Alert: Tell your public officials how you feel about this legislation.

The NICS is the National Instant Criminal Background Check System, the database that contains the names of those not allowed to buy firearms and ammo. There are nine specific groups of persons who are included in the database.

Included is anyone "has been adjudicated as a mental defective or has been committed to any mental institution." "Any mental institution" would, obviously, include a VA hospital mental ward. And, the government's definition of a "mental defective" is: “A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs. The term shall include a finding of insanity by a court in a criminal case.�

The confusion over H.R. 2640 and veterans, especially veterans with PTSD, began in 2000 when the VA gave the names of between 83,000 and 89,000 veterans to the NICS database. The names were of veterans who had been committed to VA psychiatric wards or who had been adjudicated as a “mental defective.� This was required of all government agencies.

Some thought that any veteran with a mental health issue ended up on the NICS list. That is an absurd assumption. If a veteran tries to quit smoking and goes to VA smoking cessation classes, they are in a mental health program because nicotine is considered an addictive substance. The same applies for those seeking treatment for alcohol or drug abuse. And, we know, these veterans did not end up in the NICS database.

Neither current law nor H.R. 2640 would put any person, including veterans, who have sought psychiatric treatment or voluntarily checked themselves into a psychiatric unit on the NICS list. This includes those with PTSD, those seeking treatment for alcohol or drug abuse and those who have voluntarily sought help and been admitted for observation, sometimes termed a “voluntary commitment.�

So, why all the noise about H.R. 2640? Some feel the small gun owners group is just looking for members. Others feel they have some kind of beef with the NRA. Whatever the reason, the misinformation and scare tactics should be considered for exactly what they are.

The NRA, in the wake of the Virginia Tech shootings that killed over 30 students, realized that current firearms legislation had some real problems. People who should be in the NICS database, like the Virginia Tech shooter, were left out. And, just as important, the NRA knew that some people who shouldn’t be in the database had been included and there was no way for them to get their names of the NICS list. Also, some believe there is wiggle-room in the current regulations that can allow government agencies to “interpret� them incorrectly. The NRA set out to solve those problems, and they did.

The NRA fully supports H.R. 2640. According to the NRA: “Some pro-gun groups have claimed that H.R. 2640 would ‘prohibit’ thousands of people from owning guns. This is not true…In fact, H.R. 2640 would allow some people now unfairly prohibited from owning guns to have their rights restored, and to have their names removed from the instant check system.�

H.R. 2640 would require states to provide quarterly information to the NICS database. This information would have to include those who no longer fall into one of the nine categories of “no buy� persons. There would be penalties for states that do not comply. And, the protections, especially for those with mental health issues, assure that a “medical finding of disability� would not put someone in the NICS database. That would include veterans with a diagnosis of PTSD. Here are the protections as stated in H.R. 2640:

(1) IN GENERAL- No department or agency of the Federal Government may provide to the Attorney General any record of an adjudication or determination related to the mental health of a person, or any commitment of a person to a mental institution if--

(A) the adjudication, determination, or commitment, respectively, has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring;

(B) the person has been found by a court, board, commission, or other lawful authority to no longer suffer from the mental health condition that was the basis of the adjudication, determination, or commitment, respectively, or has otherwise been found to be rehabilitated through any procedure available under law; or

(C) the adjudication, determination, or commitment, respectively, is based solely on a medical finding of disability, without a finding that the person is a danger to himself or to others or that the person lacks the mental capacity to manage his own affairs.

Please note again that a person cannot be put on the NICS list solely for a "medical finding of disability,� and that would include PTSD.

Also, H.R. 2640 will provide a means for a person to take their name off the NICS list if they should not be on it, something they cannot do at this time. That provision reads:

(A) PROGRAM FOR RELIEF FROM DISABILITIES- Each department or agency of the United States that makes any adjudication or determination related to the mental health of a person or imposes any commitment to a mental institution, as described in subsection (d)(4) and (g)(4) of section 922 of title 18, United States Code, shall establish a program that permits such a person to apply for relief from the disabilities imposed by such subsections. Relief and judicial review shall be available according to the standards prescribed in section 925(c) of title 18, United States Code.

The bottom line for veterans concerned about H.R. 2640 is to just use some common sense. Read the legislation. You may not agree with it. But, if you’re a veteran or you have been diagnosed with PTSD, don’t worry, they aren’t coming for your firearms. The NRA put it correctly when they said, “H.R. 2640 is NOT gun control legislation.� It IS... legislation designed to end inequities in the current laws that have unfairly prevented many from purchasing firearms and ammo.

Here is Mr. Scott's bio. Thank you for your service Mr. Scott

About Larry Scott

Larry Scott (former E-5) served four-plus years in the U.S. Army with overseas tours as a Broadcast Journalist at AFKN HQ, Seoul, Korea and AFN, Lajes Field, The Azores, Portugal and a stateside tour as a Broadcast Journalism Instructor at the Defense Information School (DINFOS). Larry was decorated four times including the Joint Service Commendation Medal with Oak Leaf Cluster. He was awarded DOD's First Place Thomas Jefferson Award for Excellence in Journalism. After the Army, Larry was a news anchor on WNBC Radio in New York City. He receives VA compensation for a service-connected disability. Today, Larry resides in Southwest Washington and operates the website VA Watchdog dot Org.

To contact Larry Scott email larry@vawatchdog.org

[DaveT]

As a Veteran who was diagnosed with PTSD many years ago following my service in Vietnam, I appreciate the good information I have read within this thread. I thank those who took the time to post.

Even with a diagnosis of PTSD, I went on to successful work in Law Enforcement, including metro area police work and serving for several years as a Chief of Police in a smaller community. All the early talk and nicknaming the bill as the 'Veterans Disarmament Act' was unsettling, I am thankful that the truth is finally coming out.