Midnight in the Garden of Rules & Regs: SSI recipients’ Second Amendment rights nullified
It’s midnight in the garden of rules and regulations, the time when a departing administration weaves directives into the bureaucratic infrastructure of federal agencies, encoding a matrix of fine-print entanglements designed to frustrate and infuriate the new administration.
Example: On Dec. 19, the Obama Administration announced the Social Security Administration (SSA) had “finalized” rules to deprive recipients of disability insurance and Supplemental Security Income (SSI) of their Second Amendment rights by adding their names to the National Instant Criminal Background Check System (NICS) list of those “exempt” from legally owning a firearm because they are “mentally defective.”
The new rules — which went into effect immediately — allow the SSA to add to the NICS exempt list anyone over 18 who is diagnosed with a “mental disorder” and receives benefits through a “representative payee” as being “mentally defective” and, therefore, deemed unqualified by the 1968 Gun Control Act from owning a firearm.
The tweak is in how the new rule defines "mentally defective.” Previously, “mentally defective” actually referred to one's mental health, such as those diagnosed with a mental illness, being treating for a mental illness or institutionalized against their will for a “mental disorder.
The new definition of "mentally defective,” as Bob Adelmann documents in The New American, “has nothing to do with being mentally ill” and leaves open to discretionary vagary what, exactly, constitutes a “metal disorder.”
Despite receiving more than 91,000 responses to the proposed new rule, including many seeking clarification about why anyone who receives SSI benefits through a “representative payee” is automatically deemed “mentally defective,” the rules remain as nebulous as when first proposed in April.
“The agency failed to respond to complaints that there is no provable relationship between using a payee to help manage an individual’s financial affairs, and their propensity for gun violence,” Adelmann writes.
The National Rifle Association has prepared “corrective action” that the incoming Trump administration can initiate to untangle this specific act of midnight monkey-wrenching.
“This is one more reminder of the petty, partisan politics of Barack Obama, and one more reason to be thankful that in a few short weeks he will no longer wield the power of the presidency against the nation’s law-abiding gun owners,” the NRA said in a statement.
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Punishing dog-and-pony show partisans could turn morons into martyrs
House Speaker Paul D. Ryan (R-Wis.) is correct in seeking a way to somehow officially censure House Democrats' who participated in the 26-hour gun control sit-in June 22-23. But many — including fellow Republicans — are concerned his proposed penalties for live-streaming videos or sharing photos from the House floor may be too restrictive and even unconstitutional.
Ryan’s rules — which he will submit to the House on Jan. 3 — could be considered an over-reaction to what is now acknowledged as a thinly veiled political ploy that avoided addressing solutions to gun violence by sustaining it as an issue Democrats believed they could capitalize on in November.
The dog-and-pony show — live-streamed on Periscope and Facebook Live because the House was not in session and being televised on CSPAN — failed to achieve its goal and, in fact, backfired by exposing gun-control zealots as the problem, not the solution, in developing effective ways to address gun violence.
"These changes will help ensure that order and decorum are preserved in the House of Representatives so lawmakers can do the people’s work," Ryan’s spokesperson, AshLee Strong, told the Associated Press on Dec. 27.
But, as Amber Phillips writes Dec. 28 in The Washington Post, since the sit-in utterly backfired because it was immediately identified as a blatant baseless antic, it’s uncertain if “punishing” participants is necessary.
“Democrats have struggled to turn their sit-in into any meaningful action. No post-Orlando gun control legislation passed Congress this year,” she writes. “Democrats didn't win big at the ballot box, either: They only gained six seats in the House despite expectations of up to 20 pickups, and Republicans kept their majorities in Congress and historically large majorities in state governments, too.”
Ryan’s proposed rules: A lawmaker who takes photos, shoots video, or live-streams from the floor of the House would be fined $500 for a first offense and $2,500 each for every violation after.
House Minority Leader Nancy Pelosi told the AP that Ryan’s proposed rules may be unconstitutional, noting a long-accepted interpretation of the Constitution is that only the full House, via a vote, has the authority to punish a lawmaker.
And, as The Washington Post’s Phillips notes, Ryan risks turning those correctly deemed as idiots into martyrs. “Democrats are practically begging Ryan to do something … and already some Democrats were acting as if they had been punished.”
Phillips referred to a self-aggrandizing comment by Rep. Eric Swalwell (D-Calif.), who tweeted on Dec. 26: “HouseGOP wants to fine me … for filming sit-in. I'll always stand w/ victims. Bring.It.On.”
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FBI’s nixes Nevada’s FBI background-check scam that duped voters
Nevada Attorney General Adam Paul Laxalt on Dec. 28 announced that the Background Check Act, approved by state voters as Question 1 on the Nov. 8 ballot, cannot be legally administered in its adopted form.
Ballot Question 1 requires private party gun transfers be subject to a federal background check through the National Instant Criminal Background Check System (NICS) administered by the FBI. The ballot initiative — financed by $20 million in campaign financing by former New York Mayor Michael Bloomberg — won by 50.45 percent of the vote to 49.55 percent, a difference of 9,899 votes.
But Bloomberg’s bucks didn’t anticipate the FBI informing the state that it cannot legally do these background checks in Nevada. On Dec. 14, the FBI notified the Nevada Department of Public Safety that “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.”
The agency essentially said it would require additional staffing or resources it doesn’t have to handle Nevada’s expansion of background checks, which is a standard guideline any federal agency reviews when a newly adopted state law imposes responsibilities on them without first seeking ways to accommodate increased costs.
After receiving the FBI’s Dec. 14 notification, Laxalt’s office reviewed option and determined that “citizens may not be prosecuted for their inability to comply with the Act unless and until the FBI changes its public position and agrees to conduct the background checks consistent with the Act.”
In a statement, Laxalt’s office said, “without this central feature (the FBI background check), the Background Check Act cannot commence.”
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IN THE COURTS
Mistaken gun confiscation prompts lawsuit challenging N.Y.’s SAFE Act
In April 2015, Donna McKay checked herself into the Soldiers and Sailors Hospital in Penn Yan, N.Y., after experiencing a bad reaction to cough medicine. She went home the next morning but, unknown to her, she had been incorrectly listed as being involuntarily committed to a hospital for mental health reasons.
McKay still may not be aware of that today but, because she has a handgun license, New York’s SAFE Act requires her name to be submitted to the National Instant Criminal Background Check System (NICS) as “mentally defective” and State Police came to her home to confiscate her weapons.
McKay, a lifelong hunter, eventually had her license and guns returned, she is suing the state claiming she should have had legal representation to defend her handgun license.
"No one facing federal and state disqualification from the ownership, use, and possession of firearms should represent themselves at a license hearing," attorney Paloma Capanna said in a prepared statement about the suit she has filed on behalf of McKay.
Capanna told Rick Karlin of the Albany Times-Union that McKay should have had legal representation when authorities confiscated the weapons in April 2015. According to the court filing, the SAFE Act provides no due-process procedure for those who have their guns confiscated.
The suit, filed earlier in December in federal court in Rochester, seeks an injunction that would require the state to provide legal counsel in gun confiscation cases and notification to individuals who are facing confiscation.
An estimated 380,000 New Yorkers have been reported to the NCIC database. Capanna argues that those people should be notified.
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