The Giant NICS Improvement Act Thread Myth v. Reality

[Bartholomew Roberts]

If your state laws allow commitment without adversarial hearings and representation, then work to have your state laws updated.

Actually Maine law does not allow commitment for longer than three days (five days was the limit at the time Chamberlain happened) without an adversarial hearing. The problem is that the First Circuit determined that even though Chamberlain did not have a commitment hearing (he was voluntarily admitted after five days), the diagnosis by two physicians was enough to make him a prohibited person under 922(g) given the facts of that case.

HR2640 offers no fix to the basic problem of lack of standards to protect rights (not just to firearms, but to freedom itself) in mental health "adjudications".

This is true. Whether H.R. 2640 passes or not, this will continue to be a problem until Congress better defines what process is necessary to constitute an "adjudication" under 922(g).

Some might think that having an appeals process in states (and Federal agencies) will repair these errors

It might not "repair" the errors; but it does offer a better chance of change than what current law allows. At a bare minimum, it allows people, deprived of an adversarial hearing but added to NICS, a chance to get a lawyer and present opposing evidence - which is more than they get now unless they are arrested and charged for violating 922(g)(4).

 

[JohnBT]

"JohnBT, I think the concern here is that Chamberlain was held under a Blue Paper and did not receive the process afforded under a White Paper."

I agree. Somebody with enough time and money needs to get it overturned. Or get the legislature to rewrite the law to make it clear.

John

 

[Phil Lee]

Bartholomew Roberts says

It [appeals] might not "repair" the errors; but it does offer a better chance of change than what current law allows. At a bare minimum, it allows people, deprived of an adversarial hearing but added to NICS, a chance to get a lawyer and present opposing evidence - which is more than they get now

Not necessarily true. First, and most important, time destroys evidence in mental health proceedings. If a mentally ill person doesn't have the right to an examination by an expert of his choosing at the time of the episode, the state is in a position of having the only expert opinion at the time of the triggering moment.

At best, the appeal might decide that the ill person is no longer sufficiently ill to warrant loss of liberty or right to arms at the moment, but will state decisions be respected by federal removal from NICS? There is some conflicting evidence wherein state expungement of crimes was not sufficient to recover a right to arms according to federal court decision.

And, of course, justice delayed is justice denied. It may be that valuable firearms have been seized and destroyed or damaged before any appeal is heard (not necessarily by order of the court, but at least by neglect).

And all of this presumes that appeal processes are actually implemented with sufficient resources to facilitate timely appeals -- a questionable presumption given past history. Those who assume this bill will determine an appropriation adequate to make appeal processes meaningful are ignoring past history with the federal government.

 

[Bartholomew Roberts]

At best, the appeal might decide that the ill person is no longer sufficiently ill to warrant loss of liberty or right to arms at the moment, but will state decisions be respected by federal removal from NICS? There is some conflicting evidence wherein state expungement of crimes was not sufficient to recover a right to arms according to federal court decision.

Well considering it is written into the legislation that the state will administer the relief from disability process, I think even the best lawyer is going to have a hard time arguing that the state cannot remove someone from the NICS list.

And, of course, justice delayed is justice denied.

I don't know that I find that a compelling argument when the alternative is no chance at justice at all. Let's face it... most of your arguments are merely speculation about what might happen to make the appeals process less than perfect. We don't necessarily know it will go down the way you say it will and even if it does, that is still more than someone denied under 922(g)(4) gets right now.

 

[Phil Lee]

Now, if I were using loaded words such as "speculation about what might happen" to describe my belief about your expectation about the relief program, I might describe is with the word "pollyannaish". Given that the deal the NRA is trying to promote is with a bunch of snakes, given how they tried to ram the deal through in the aftermath of a bad mass shooting, and given the misinformation the bill promoters have provided -- I'll take my "speculation" over your "pollyannaish" view any day.

As to having relief program which is "more than someone denied under 922(g)(4) gets today" I'd accept that statement if the language of the bill had less "may's" and more "shall's" and the precise directions and definitions for the relief program process were spelled out.

You might be aware that Wyoming is trying to "administer a relief from firearm disability" and being thwarted though the Federal Courts. So, I'm not certain a state decision can affect a federal disability.

Until I see some directive language (may replaced by shall), until I see a standard for "adjudications", until I see the relief program be defined to include a cause of action for state or federal courts in addition to an administrative program so that there is a guaranteed path for relief appeals so long as courts operate and are funded, and until I see some clarification as to the conditions under which an appeal can be successful (including a legal analysis), HR2640 will look to me like a shell game you city-slicker proponents are trying to slip past this old-boy country-bumpkin.

I'm not buying what your selling.

 

[Bartholomew Roberts]

You might be aware that Wyoming is trying to "administer a relief from firearm disability" and being thwarted though the Federal Courts.

I am not aware of the case you are discussing; but I will assume you have characterized it correctly. I don't grasp whatever point you are trying to make here. Have you actually read the legislation? It is as if you said to me "Currently we pay a $200 transfer tax on NFA items, so I doubt that a bill that expressly lowers the transfer tax to $100 would work if it was passed into law." Perhaps I interpreted something wrong; but what you are saying makes no sense. You do understand the legislation expressly says that states CAN relieve someone from disability under 922(g)(4) right?

So, I'm not certain a state decision can affect a federal disability.

Section 105(b) of H.R. 2640: "(b) Authority To Provide Relief From Certain Disabilities With Respect to Firearms- If, under a State relief from disabilities program implemented in accordance with this section, an application for relief referred to in subsection (a)(1) of this section is granted with respect to an adjudication or a commitment to a mental institution, the adjudication or commitment, as the case may be, is deemed not to have occurred for purposes of subsections (d)(4) and (g)(4) of section 922 of title 18, United States Code."

Please note the bolded parts. There isn't any question that a state would have authority to relieve someone from disability under this legislation. Please read the bill - this language is under the section titled "RELIEF FROM DISABILITIES PROGRAM REQUIRED AS CONDITION FOR PARTICIPATION IN GRANT PROGRAMS."

Until I see some directive language (may replaced by shall),

Note the word "REQUIRED" above.

until I see a standard for "adjudications"

Not in H.R. 2640 and I agree this would be desirable; but since the language you are complaining about was a result of the 1968 Gun Control Act, maybe we could accept some partial progress on more recent issues (like no relief from disability at all) while we work on changing laws that have been entrenched for almost 40 years now?

until I see the relief program be defined to include a cause of action for state or federal courts in addition to an administrative program so that there is a guaranteed path for relief appeals so long as courts operate and are funded

From the same section 105 I have been quoting to you (you have read this right?):
"provides that a State court, board, commission, or other lawful authority shall grant the relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities referred to in paragraph (1), and the person's record and reputation, are such that 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..."

I'm not buying what your selling.

Your choice. If you would prefer to sit with what you have now and just wait for the states to add people to NICS more slowly with no chance of appeal at all, that is up to you.

 

[Phil Lee]

It appears that the feds can dictate a standard for "expungment" to Wyoming -- at least the U.S. District Court says so. For a statement of the issue, see
http://www.gunowners.com/amicus5.pdf

For a news story about the issue see
Wyoming gun lawsuit attracting national attention
By Ben Neary
ASSOCIATED PRESS
11:09 a.m. October 5, 2007

CHEYENNE, Wyo. – National groups on both sides of the gun control debate are training their sights on Wyoming.

The state has been waging a legal fight to uphold a 2004 state law that allows people convicted of misdemeanor domestic violence to regain their right to own a firearm by having their record expunged.

Although all states have the authority to restore gun rights, the federal government objected to the Wyoming law. The Bureau of Alcohol, Tobacco, Firearms and Explosives said it would not recognize the state's law, arguing convictions were not being truly expunged because they can be used to enhance a sentence in a subsequent case.

Gun control advocates have joined the fray, arguing that, because the record isn't wiped clean, Wyoming is violating federal law by allowing people convicted of misdemeanor domestic violence to obtain guns.

For Wyoming and gun-rights supporters, the issue is whether the federal government can dictate to states who can have a gun.

“The (Bureau of Alcohol, Tobacco, Firearms and Explosives) simply does not agree, on a policy basis, with the Wyoming Legislature's decision and has self-appointed itself the omnipotent role of deciding who should, and should not, possess firearms,” attorneys on behalf of Wyoming argued in court papers this summer.

The federal agency told the state that if its law stayed on the books, they would no longer recognize more than 10,000 Wyoming concealed weapons permits as a substitute for federal background checks for firearms purchases. Such background checks are required under the federal Brady Act.

The state sued the federal agency last year. This summer, U.S. District Judge Alan Johnson ruled in favor of the agency and Wyoming has appealed the case to the 10th Circuit Court of Appeals in Denver.

This week, the Bureau of Alcohol, Tobacco, Firearms and Explosives filed its response to the appeal.

“As the district court explained, the term 'expungement' is ordinarily understood to refer to the removal of all consequences of a conviction,” federal lawyers wrote.

The Wyoming law specifies that in order for a conviction to be expunged, it must not have involved the use of a firearm. Offenders also may only expunge their record once. Prosecutors and the petitioner's original victim must be notified when the expungement petitions are filed in court.

The National Rifle Association and the Gun Owners Foundation, both pro-gun groups based in Washington, filed briefs in support of the state's position in the trial court. The foundation has filed a brief in the appeals court, but a spokeswoman for the NRA said this week that her group hasn't decided whether it would do so.

Gov. Dave Freudenthal declined comment on the case this week. He was to speak Friday at the Capitol during a ceremony honoring victims of domestic violence killed in the state.

So far this year, 23 convictions have been expunged under the Wyoming law, according to Attorney General Bruce Salzburg. That compares to 27 in 2005 and 13 in 2006. Salzburg said the state has granted one concealed weapon permit to a person whose record was expunged under the law and is awaiting a decision in the federal appeal to see whether the state will have to revoke that permit.

Salzburg declined comment on the appeal, citing ongoing litigation.

House Speaker Roy Cohee, R-Casper, said he believes some people convicted of abuse should be barred from gun ownership, but that the state law was appropriate in giving courts latitude to weigh each individual case.

“If it was a domestic violence thing where a family went a little too far in defining their opinions to each other, should an individual be held for life never to hunt in the state of Wyoming again? I think that's probably going a little too far,” Cohee said.

The Wyoming Coalition against Domestic Violence and Sexual Assault supported the expungement bill when it passed a few years ago.

“We were optimistic that if this would give judges a little room to take away more firearms, that's what we were hoping for,” said Suzan Pauling, public policy director for the coalition.

“We're trying to stay as neutral as we possibly can,” Pauling said of the coalition's current position. “The majority of homicides by domestic violence are caused by guns, and the more guns we can get out of the hands of offenders, the better. So whichever way we can do that, we support, basically.”

Herbert W. Titus, lawyer for the Gun Owners Foundation, said the Wyoming case is significant because the issue of whether restoration of gun rights is defined by federal regulations or state law is pending in trial courts around the country.

National gun control groups, however, say they find the Wyoming law inexplicable.

The Brady Center to Prevent Gun Violence in Washington intends to file a brief next week arguing against Wyoming's position, according to senior attorney Daniel Vice.

“Congress wisely determined that domestic violence abusers should not get guns, that that's a danger to the public, and especially for women who are abused by their spouses,” Vice said. “So by Wyoming making it easier for abusers to get guns, it endangers public safety, and especially women in those abusive relationships.”

 

[brickeyee]

Actually Maine law does not allow commitment for longer than three days (five days was the limit at the time Chamberlain happened) without an adversarial hearing. The problem is that the First Circuit determined that even though Chamberlain did not have a commitment hearing (he was voluntarily admitted after five days), the diagnosis by two physicians was enough to make him a prohibited person under 922(g) given the facts of that case.


Like I said, have your state law changed then.

 

[Bartholomew Roberts]

It appears that the feds can dictate a standard for "expungment" to Wyoming -- at least the U.S. District Court says so.

There is no current federal law that expressly says the states can set their own standards for expungement. If H.R. 2640 is passed, then there is federal law that says that the Relief from Disability program for 922(g)(4) and 922(d)(4) may be (in fact MUST be) administered by the states. Do you understand why that is an important difference between H.R. 2640 and the case you are discussing?

 

[Bartholomew Roberts]

Like I said, have your state law changed then.

That is part of the problem; both the 1st and 6th Circuits have said that the state law is not determinative. Those circuits look only to whether you meet the federal law - and since the federal law is so vaguely defined, those two circuits have found plenty of room to decide that temporary emergency detentions that are not enough to qualify as involuntary commitment under Maine law are still enough to qualify for the federal prohibition. So in the First Circuit at least, unless you demand an adversarial hearing even for temporary, emergency commitments (which is totally impractical), you risk being deprived of your rights even from just an emergency detenion order.

On the other side, the 5th and 8th Circuits share the view you gave. The state law is determinative and if the states didn't intend to deprive you of your Second Amendment rights by that process; then you aren't eligible for NICS.

However - this is already the law. H.R. 2640 doesn't change that for good or bad.

 

[Phil Lee]

Bartholomew Roberts says

There is no current federal law that expressly says the states can set their own standards for expungement.

Boy, you got that backwards. It must have been a while since you studied the Constitution of the U.S. whose Tenth Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

First, where in the national Constitution is power given to the federal government to determine the standard for state laws expunging crimes? If you can find that power granted by the Constitution, where in the U.S. code is that standard defined?

Unless you can find both, a state should be free to set its own standard as Wyoming has done.

And all proponents of Constitutional government should be supportive of that state power so long as it doesn't violate the U.S. Constitution or the state Constitution.

I suppose all proponents of loosy-goosy-anything-goes government will be upset about that state authority.

 

[Bartholomew Roberts]

Phil Lee, if you would like to discuss the Tenth Amendment and the case law surrounding it then please start a new thread for it. Likewise, if you would like to discuss the legal reasoning of the federal court that found the Wyoming law superceded under the supremacy clause, please start a new thread. Also not on topic for this thread would be a discussion of what the word "expressly" or its antonym "implicitly" means or where in the Tenth Amendment it expressly authorizes states to set their own standards for expungement.

Now if you can show how the Wyoming decision would invalidate H.R. 2640 - a bill that expressly authorizes states to administer a relief from disability program, that would be relevant here. Do you have some evidence of how the Wyoming case would negate an express grant of authority by the federal government to the states?

 

[JohnBT]

"HR2640 will look to me like a shell game you city-slicker proponents are trying to slip past this old-boy country-bumpkin"

Aw, poor little old you, the country-bumpkin from the close-in suburbs of D.C. They haven't moved Silver Spring out of Montgomery County have they?

John
1968 R. Montgomery H.S. grad, but my granny cooked on a wood stove

 

[Phil Lee]

Reply on creating a new thread -- that's wrong too.

Obviously, when you read GOA's amicus brief that I linked in an earlier message, you need to pay attention to the paragraph:

By this ruling, BATF has exceeded its statutory jurisdiction and authority, having erroneously insisted that expungement of a conviction of state misdemeanor crime of domestic violence is governed by federal law. According to the “choice-of-law” provisions of both 18 U.S.C. §§ 921(a)(20) and (33), and 18 U.S.C. § 922(t)(3), the question whether such a conviction has been expunged is determined by the law of the “convicting jurisdiction,” not by an overriding preference of a federal bureau. Additionally, by the very terms and purpose of 18 U.S.C. § 922(t)(3), BATF has no regulatory authority to impose any qualifications upon a state’s criminal background check other than those specified in 18 U.S.C. § 922(t)(3). Indeed, if BATF has such authority to impose a federal expungement policy upon state officials acting pursuant to 18 U.S.C. § 922(t)(3), such authority would run afoul of the Tenth Amendment.

It is essential context to understand that Wyoming is trying to expunge convictions for misdemeanor domestic violence crimes for the purpose of restoring person's right arms. GOA (and Wyoming) is making the legal argument that a state has the power to draft its laws to accomplish that purpose.

If Wyoming is correct, then you might make the argument HR2640 putting states in charge of expunging mental health commitments reflected a power available to the states. That isn't the view of the BATFE or the federal district court that held against Wyoming in criminal cases. It isn't much of a stretch to guess a similar holding will be made by courts in mental health commitments.

GOA gives an amicus brief that explains the basis for state power to make these decision in the paragraph above both in terms of U.S. Code and the Tenth Amendment to the Constitution. It is an argument in a criminal law context that is similar to one proponents of HR2640 seem to be making that the states will have power of expungement in the mental health arena. Yet, the district court and the BATFE don't agree.

Now, one HR2640 proponent appears to think that federal code must be written explicitly authorizing states to make expungements, otherwise they lack the power. I don't think that is correct and am sympathetic with the attitude expressed in the GOA brief. However, I think there are too many loosy-goosey proponents of government around in the courts for the proper Constitutional view to prevail.

So, I argue for the need in HR2640 for a precise definition of process required to land a mentally ill person on the NICS list along the lines that "states can determine a person should be committed, but if they want such a person to lose 2nd Amendendment rights, they must have a hearing for commitment before a qualified and appointed legal judge, they must allow the accused to be examined by his own experts, they must allow him to have legal representation to protect his rights, they must allow the accused to have an impartial jury as trier of fact if the accused chooses, they must have the hearing in a timely way (say within 5 days of being held by authorities), and, since illness isn't a crime, they must have a standard and process whereby those no longer a danger or no longer ill can recover their right to arms." Moreover, before seizing arms from an individual who is committed, they should allow the ill person to appoint a custodian for his arms that will protect the state and his property and will be authorized to sell the arms rather than have them destroyed if the person is committed."

Now, you can say that some of that will be available through passing HR2640 and that will be better than what we have today. But you can't make that argument with a straight face given the reaction of the BATFE and district courts to Wyoming's attempt for expungements in criminal cases. Expungement from NICS will require federal action (action by the FBI) and must be funded through Federal appropriations. Wyoming isn't actually trying to get a person on NICS off that list. What they are doing is under law expunging the record so that Wyoming can issue a concealed carry permit. It is having that permit, under current agreement, that allows FFLs to by-pass NICS. The BATFE is saying, wait a minute, Wyoming, you can't expunge the criminal record the way you want because it doesn't meet a federal standard that we've just made up (i.e., there is no law passed by Congress, and no regulation that we've promulgated setting a federal standard for expungements). And the district court has agreed that states cannot expunge on they own.

So, here is the rub. If the district court is correct, relief processes should be spelled out in federal legislation. You can't just say, states you have the power of expungment of mental health commitments, since it is possible that the BATFE or courts might find that a state's action doesn't meet its made up requirements. Even if the BATFE and federal courts agree the commitments restore a person's rights, you still need federal dollars to actually pay the FBI to remove a person from the list. If Congress decides not to appropriate money for that effort, you are dead unless the state issues a CCW permit which the BATFE doesn't challenge and Wyoming's problems with the BATFE shows that isn't likely.

I have given you examples in several states where "adjudications" don't fit my notions of a fair hearing process and, I bet, large numbers of other gunnies will think it doesn't fit their expectations either.

I have given you examples of court cases where it has been held that the states can specify commitment by two MDs, I've given a case of a state attorney general saying a single psychiatrist can make a commitment for the purpose of placing a person on the NICS denied list. Now, I've given a case (which I think is wrongly decided, but we have a lot of such cases these days) where an attempt by a state to expunge convictions for the purpose of restoring the right to arms doesn't meet federal standards according to a federal court.

Now we have a non-lawyer who claims I'm trying to introduce a new thread on the 10th Amendment because he didn't read the GOA amicus brief I linked showing the connection between state power, federal power supplied by the U.S. Constitution and the relation between federal and state law. And because he doesn't understand this relationship, he misses the application to the concern of this thread HR2640.

In making his response he implies he thinks that states will need some permission or direction from Congress to handle what is a state matter of expunging a state crime. By taking that position, it appears, he has undermined his case that HR2640 doesn't need explicit directions for accomplishing expungement (if you think such directions are a part of HR2640, please tell me what standards are required for restoring the right to arms for people committed for mental illness and dangerousness -- is it that such a person is no longer a danger or must he be cured of mental illness and no longer require medication or can his rights be restored under medication?

The problem with HR2640 is that there are some proponents of the bill who aren't being honest in their ignorance. You can recognize them -- they are the ones who aren't telling you about difficulties in mental health law aren't telling about court cases permitting words to be interpreted by authorities in ways that most of us wouldn't expect and are minimizing the dangers we all face from arbitrary actions by government.

In effect, they are saying "trust us, it will be better with HR2640" and we don't really need to amend it to make explicit provisions to protect us.

Believe that if you want, but for me, saying such a message yields the product from the south end of a north bound horse.

 

[Bartholomew Roberts]

Phil, what we have here is a failure to communicate. Clearly I did not understand points you were making earlier and just as clearly, you do not understand things I have said repeatedly. Let's see if we can resolve this.

Obviously, when you read GOA's amicus brief that I linked in an earlier message

I didn't read the GOA's amicus brief earlier because:
1. It wasn't apparent to me from your post that I needed to read the link in order to understand your argument.
2. Even if it had been apparent to me, I'm not in the habit of reading and analyzing a 27-page legal brief in search of the one paragraph that is relevant to the discussion at hand (assuming I even analyze the problem in the same way).

In the future, if you would like me to read something, a simple paragraph quote like the one in your recent post is a more effective way to convey that than a link to a 27-page brief. If you do need to link to a long brief, a cite that narrows down the relevant reading is also much appreciated.

It is essential context to understand that Wyoming is trying to expunge convictions for misdemeanor domestic violence crimes for the purpose of restoring person's right arms. GOA (and Wyoming) is making the legal argument that a state has the power to draft its laws to accomplish that purpose.

Since you have only posted a link to the GOA brief and not to the actual decision, I can only go based on what I have read in the GOA brief; but based on that reading, it doesn't appear that either the state of Wyoming or the BATF disagree that the state has the power to expunge convictions.

They appear to be arguing over what the definition of "expunged" is. BATF argues for their own unpublished "standard" that a record must be completely removed from the system in order to qualify as expunged. Wyoming argues that because the law of the jurisdiction controls, they can define expunged to include an expungement that actually retains the record for future penalty enhancing purposes should a crime be committed.

Neither argues that Wyoming does not have the power to expunge; but the ATF seeks to impose their definition of that term on Wyoming and the district court has agreed with them.

You appear concerned that ATF might try something similar with the relief from disability program proposed by H.R. 2640. I think the key words that make this a different scenario are the words "shall grant relief, pursuant to State law" in Section 105. This makes it clear who grants relief (state courts, boards or other lawful authority) and what the controlling authority is (pursuant to state law). If you see problems with the language, I would welcome you pointing out specific sections of 105 that you see as problematic.

So, I argue for the need in HR2640 for a precise definition of process required to land a mentally ill person on the NICS list along the lines that "states can determine a person should be committed, but if they want such a person to lose 2nd Amendendment rights, they must have a hearing for commitment before a qualified and appointed legal judge, they must allow the accused to be examined by his own experts, they must allow him to have legal representation to protect his rights, they must allow the accused to have an impartial jury as trier of fact if the accused chooses, they must have the hearing in a timely way (say within 5 days of being held by authorities), and, since illness isn't a crime, they must have a standard and process whereby those no longer a danger or no longer ill can recover their right to arms." Moreover, before seizing arms from an individual who is committed, they should allow the ill person to appoint a custodian for his arms that will protect the state and his property and will be authorized to sell the arms rather than have them destroyed if the person is committed."

I am a bit confused by this argument. Didn't you just argue to me "First, where in the national Constitution is power given to the federal government to determine the standard for state laws expunging crimes?" in Post #111? If the federal government does not have the power to dictate that standard to states, where does it get the power to dictate all of that?

If the district court is correct, relief processes should be spelled out in federal legislation.

Sounds like a big "if" to me; but how about a practical demonstration? What language would you change in Section 105?

I have given you examples in several states where "adjudications" don't fit my notions of a fair hearing process and, I bet, large numbers of other gunnies will think it doesn't fit their expectations either.

And as I've pointed out numerous times now, that is ALREADY the law. H.R. 2640 doesn't change that or make it worse. However, let's revisit that issue because re-reading all of this brought this idea to mine.

What is the common thread between why the First and Sixth Circuits say that a non-adversarial process is sufficient and why the Fifth and Eighth Circuits say that it is not? The common thread is that the First and Sixth Circuits do not view state law as determinative of whether someone is included on NICS and the Fifth and Eighth Circuits do view state law as determinative. Now let's look at the language of Section 105 again:

"provides that a State court, board, commission, or other lawful authority shall grant the relief, pursuant to State law and in accordance with the principles of due process"

Now if that becomes law and is incorporated into 18 USC 922 - do you think it will be easier or harder for the next court that hears this issue to side with the First and Sixth circuits given the intent of Congress?

In making his response he implies he thinks that states will need some permission or direction from Congress to handle what is a state matter of expunging a state crime.

No, that isn't what I intended to convey. I simply meant to point out that it is much more difficult to argue against something when it is explicitly spelled out in the statute.

In effect, they are saying "trust us, it will be better with HR2640" and we don't really need to amend it to make explicit provisions to protect us.

Again, not what I am saying at all. As I have said numerous times now; my point is that without H.R. 2640 we still have all the same problems. People will still be added to NICS for mental health issues. It will still be illegal. The adjudications problem still exists. Even worse, a very few people will be approved by NICS and think they are OK when they are really felons waiting for their day in court.

If we pass H.R. 2640, then the mental health records are added to NICS more quickly and we get an appeals process. You may not like the appeals process as written. You may find fault with it; but at the end of the day it still represents a positive step forward from where we are at now (No appeal - ever).

 

[ConstitutionCowboy]

I am a bit confused by this argument. Didn't you just argue to me "First, where in the national Constitution is power given to the federal government to determine the standard for state laws expunging crimes?" in Post #111? If the federal government does not have the power to dictate that standard to states, where does it get the power to dictate all of that?

There is a simple answer to all this confusion. Understand that the NICS is unconstitutional on its face and any law pertaining to it that doesn't repeal it is unconstitutional. You always run into these conundrums when you are trying to justify or "improve" any sort of law that is afoul of the Constitution, our rights, freedoms, and common sense in the first place.

Do you all realize how little discussion this whole matter would take if it dealt with the repeal of the NICS compared to how much discussion it's consuming to justify or nullify one simple little "correction" to it? I think the high road is the short road in this instance - where all unconstitutional law belongs - and that short road is the one to the legislative sanitary landfill.

Woody

PS: No disrespect meant to anyone or their opinions. This is an interesting and thought-provoking discussion.

You all need to remember where the real middle is. It is the Constitution. The Constitution is the biggest compromise - the best compromise - ever written. It is where distribution of power and security of the common good meets with the protection of rights, freedom, and personal sovereignty. B.E.Wood

 

[Bartholomew Roberts]

I think the high road is the short road in this instance - where all unconstitutional law belongs - and that short road is the one to the legislative sanitary landfill.

All you have to do is get the votes and you are most of the way there

 

[scout26]

Woody,

Try this headline:

"NRA and Gun Lobby wants to give guns to felons and the criminally insane."

Can we deal with reality and what is called the "Art of Possible" ??? The NICS is not going to go away, no matter how much we stamp our feet and scream "Unconstitutional".

So we're stuck with it, so let's make it work to protect our rights and give those who have either been wrongfully put on the list or "earned" the chance to restore those rights.

HR 2640, while not prefect, is a step in that direction.

 

[ConstitutionCowboy]

"NRA and Gun Lobby wants to give guns to felons and the criminally insane."

How about the truth:

"NRA and Gun Lobby wants to keep violent felons and the criminally insane locked up."

That'd be closer to the truth.

Can we deal with reality and what is called the "Art of Possible" ??? The NICS is not going to go away, no matter how much we stamp our feet and scream "Unconstitutional".

So we're stuck with it, so let's make it work to protect our rights and give those who have either been wrongfully put on the list or "earned" the chance to restore those rights.

Is that why Illinois has such bad gun laws? "The Spirit Of What's The Use" in all its glory. Has being stuck with those laws in Illinois helped you protect your life lately? If the NICS is such a good system, why haven't the legislators and governor of Illinois "seen the light" and passed concealed carry laws for all the good law abiding citizens in Illinois? Capitulating to the status quo has never helped me or anyone I know out of any intolerable situation. How can It possibly help you?

All you have to do is get the votes and you are most of the way there.

Well, I'm one vote. Are you #2? Who will be #3? Don't forget, there is always the Court to shoot down the unconstitutional law as well.

Pardon me if I continue the fight. Pardon me if I continue to expose the truth. Pardon me if I continue to educate and recruit. I want to preserve my rights and freedoms - and your's too. That's just me being me.

It must be stopped some time. What's wrong with now? If not now, when will it be time?

Woody

"We the People are the government of this land. We decide who writes our laws, we decide who leads us, and we decide who will judge us; for as long as We the People have the guns to keep it that way." B.E.Wood

 

[Bartholomew Roberts]

I'm with you on recruiting and educating and building votes.

It must be stopped some time. What's wrong with now?

Well, you'll lose that particular fight (NICS is unconstitutional) if you have it now; because you don't have the support to make it happen.

If not now, when will it be time?

It is a cultural shift. Until you make the underlying culture change, you aren't going to make progress on that front.

 

[scout26]

How about the truth:

"NRA and Gun Lobby wants to keep violent felons and the criminally insane locked up."

That'd be closer to the truth.

But that's not what going to in the papers or on TV.


And you completely missed my point. Changing laws in the US is about evolution, not revolution.

Oh, and for the record; I live here in the belly of the beast to hold the line and maybe push it back where I can. I'm not one of those people who cut and run to a "Free" state just because the laws here suck.

I'm working and organizing to get the Pro- 2A resolution passed here in my county. See www.pro2aresolution.org. I've attended the last two IGOLD's (Illinois Gun Owners Lobby Days), I'm Co-Chair of my club's legislative action committee. My State Rep and Senator (and their aides) know my voice and face and where I stand. US Rep. Peter Roskam (IL-6th) lives down the street from me, our daughters are in the same classes at the local middle school. Needless to say he knows me pretty well and we share many of the same views.

I take the fight to enemy, but I also realize that you can't win one battle and declare victory, you have to fight and win many battles to acheive victory.

HR2640 is just one step in that fight.

Now, if you want to get NICS struck down, file a suit in federal court. Hell, I'll even send some $$$$ to your legal aid fund for that fight.....

 

[Phil Lee]

The NY commitment process -- you are toast if two MDs agree

From http://www.omh.state.ny.us/omhweb/forensic/manual/pdf/Chptr6.pdf and
http://www.omh.state.ny.us/omhweb/forensic/manual/pdf/Chptr7.pdf
it appears that NY has two involuntary commitment processes. One requires only two MD's to issue a Two Physician Certificate and off you go to the booby-hatch for up to 60 days and lose your right to arms.

Alternatively, the Director of Community Services (DCS) or Designee can send you to an examination, but you will be examined by the staff of some hospital to determine you meet the "Emergency Standard" prior to admission. So, if you aren't nuts, hopefully the nice doctor will refuse to admit. If the doctor isn't so nice, you must be examined by the hospital staff psychiatrist within 72 hours and if all agree, you can be committed for up to 60 days.

While the NY reference material states concern that patients be committed if they exhibit signs of "Substantial threat of harm" to themselves or others, this "Substantial threat of harm" language includes the person's refusal or inability to meet his or her essential need for food, shelter, clothing or health care -- I wonder if that also includes being poor and unemployed?

In NY "eleven parties may be applicants for a person's involuntary admission: 1) someone residing with the person; 2) person's father, mother, spouse, sibling, child or nearest relative; 3) committee of person; 4) officer of any public or well recognized charitable agency or home in whose institution the person resides; 5) DCS or Director of Social Services; 6) Director of hospital in which the person is hospitalized; 7) Director of a facility providing care to alcoholics, substance abusers or substance dependent persons; 8) Director of Division for Youth; 9) Social Services official or authorized agency with custody or guardianship of children over 16 years of age; 10) someone having custody of a child pursuant to Family Court Act §756 or §1055; or, 11) qualified psychiatrist who is either supervising the treatment of or treating person for a mental illness in a facility licensed or operated by OMH."

I can't find any statement asserting the person accused of being mentally ill and dangerous must have a hearing in front of a judge before being committed.

 

[Phil Lee]

Bartholomew Roberts says

I am a bit confused by this argument. Didn't you just argue to me "First, where in the national Constitution is power given to the federal government to determine the standard for state laws expunging crimes?" in Post #111? If the federal government does not have the power to dictate that standard to states, where does it get the power to dictate all of that?

He says this to suggest I'm being inconsistent when I argue that HR2640 should include process standards for landing a mentally ill person in the NICS list. The implication being that, if I'm right that the feds don't have the power to set standards for state expungements in criminal law (in the Wyoming case) they also don't have the power to set standards for state mental health processes.

Now, he'd have a point if we were talking about standards for a state commitment process. Under the Constitution, protecting society from the mentally ill, who, the casting of the chicken bones suggests will be violent, is entirely a state matter, perhaps subject to "The privilege of the writ of habeas corpus" and other legal processes designed to protect individuals against false imprisonments in a state or the federal Constitution. Still, it is a state matter and I'm not suggestion that should be different. Why would he think, I made such an argument?

I'm not talking about standards for a state commitment process at all. I'm suggesting standards required by Congress to impose on state commitment process for the purpose of reporting a person to the NICS list. So, why would you think that the federal government, a government with power to control its agencies under the federal Constitution, would have the power to create NICS but not the power to regulate processes and standards for placing people on the list? Obviously, they have as much power to regulate standards for placement on the list as they do to create the list in the first place.

The asymmetry is obvious to anyone thinking about the issue for a moment. If HR2640 had the proper protections for gun-owning people accused of being mentally ill, it would require states to have a commitment process conforming to federal standards -- states wishing to ignore these standards may have their own non-conforming process, but wouldn't be allowed to report people to NICS if they were handled by a non-conforming commitment process.

This asymmetry is so obvious that it is difficult for me to believe raising the question is any more than pettiforggery.

Another bit of pettifoggery is his statement

If we pass H.R. 2640, then the mental health records are added to NICS more quickly and we get an appeals process. You may not like the appeals process as written. You may find fault with it; but at the end of the day it still represents a positive step forward from where we are at now (No appeal - ever).

Do we get a real appeals process? "Of course we do, read the bill," would be a response -- "see, it is right there." The real question is how likely is the appeals process to be usable for the purpose of interest -- being removed form the NICS list. I have raised several issues concerning the separation of powers and funding that have been unanswered so far. I have raised several practical issues that haven't been answered. I don't wish to belabor them, but for the record here:
1) Separation of powers -- I question whether courts will agree that Congress may grant states control over federal funding to the degree that a state order to remove a person previously committed via their appeals process will be effective on the FBI (requiring it to spend the money necessary to perform the removal work) should Congress fail to appropriate money for that purpose.
2) Given that the standards for appeal are not defined in HR2640, I question whether the promise of appeals is more than an snare for the dupes? Will appeals be successful for persons committed but found after observation not to be mentally ill (hopefully a rare occurrence)? Or will appeals be successful for people cured of mental illness and no longer a danger and no longer requiring medication? Or may people who are still mentally ill but no longer determined to be a danger successfully appeal? Or . . . (as I suspect) may the only successful appeals be for people not properly handled according to law in the commitment process? That HR2640 contains no standard (description or process) of what might be appealed and how, to suggest it is a "step-forward" isn't to be believed.
3) we've seen what vague provisions in federal law concerning due process or adjudications have created in various state commitment processes and now HR2640 proponents want to argue that justice will be improved by a similarly vague appeals process -- what objection is there to amending HR2640 to tighten up these vague conditions? If the proponents of HR2640 who also claim to support RKBA (NRA et al) have a meeting of the minds with the likes of Schumer and this agreement favors justice for gunnies, what objection might there be to making these vague positions more precise about this meeting of the minds? If everyone intends the same honorable result, surely you can get the votes to insure fairness and justice to those poor souls caught up in mental health commitments.
4) What objection can there be to imposing a federal standard (for adjudication and for appeal) designed to ensure the right to arms is not lost except by a process we all agree is fair and just? Appeals may be useful, but what of errors made in the first place? Do we really want to support a process that will add people to the NICS list who have undergone kangaroo adjudications such as Delaware or Maine or NY provide?

When he asks and answers:

What is the common thread between why the First and Sixth Circuits say that a non-adversarial process is sufficient and why the Fifth and Eighth Circuits say that it is not? The common thread is that the First and Sixth Circuits do not view state law as determinative of whether someone is included on NICS and the Fifth and Eighth Circuits do view state law as determinative.

he jumps to the wrong conclusion by suggesting that a state agency can fix this federal mess rather than agreeing that Congress should fix it with clear and unambiguous language.

Now, what are we really doing with this debate? Some might think that we are trying to marshal support for our positions either for or against HR2640. That might be a part of this exercise for some, but we are also establishing a record of concern for the future. That is, should HR2640 actually pass and some of the concerns raised here prove to be accurate, we'll have the record to know who was right and who was wrong and who told the truth and who didn't.

 

[JohnBT]

Looking at the footnotes under chart in the first link, one states that the person, or their representative, may at any time request a court hearing which must be held within 5 days, etc.

Definitely a complicated system. I looked for a clearer explanation of how it actually works, but haven't found a whole lot yet.

John

 

[Bartholomew Roberts]

That is, should HR2640 actually pass and some of the concerns raised here prove to be accurate, we'll have the record to know who was right and who was wrong and who told the truth and who didn't.

Because if someone guesses wrong about the future, clearly they must have intentionally lied right? After all if someone disagrees with your position they can only be an inveterate liar sent here to derail your righteous cause? There is no possibility they could just reason differently eh? Ahhh... I love the smell of smug righteousness in the morning.

This asymmetry is so obvious that it is difficult for me to believe raising the question is any more than pettiforggery.

Phil, we are just talking past each other now. Your position appears to be that it is better to have nothing at all than to have H.R. 2640 as currently written. My position is that while many of the things you mention would be nice to have, I would not say no to H.R. 2640 simply because it doesn't have them. A penny on the ground may not be much; but it still puts more money in your pockets than you had before.

However, a few points:

1) Separation of powers -- I question whether courts will agree that Congress may grant states control over federal funding to the degree that a state order to remove a person previously committed via their appeals process will be effective on the FBI (requiring it to spend the money necessary to perform the removal work) should Congress fail to appropriate money for that purpose.

However, since the law also says that a state MUST have that process if it wants to receive funds from Congress, how would Congress defund the process without also ending the extra funding for data to NICS (which is the only thing that this bill changes from current law besides the appeal)?

2) Given that the standards for appeal are not defined in HR2640, I question whether the promise of appeals is more than an snare for the dupes?

According to Section 105 of the bill, any state that wants grant money must establish a relief from disability board. Also according to Section 105 of the bill, these boards will be administered pursuant to state law. As a result, whatever standard a state sets will be the standard used. Since the bill is not yet law and no state has yet established a relief from disability board under that law, it should be little surprise that there is no standard mentioned beyond "the person's record and reputation, are such that 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."

we've seen what vague provisions in federal law concerning due process or adjudications have created in various state commitment processes and now HR2640 proponents want to argue that justice will be improved by a similarly vague appeals process -- what objection is there to amending HR2640 to tighten up these vague conditions?

As I have stated again and again and again and again, I have no objection to amending H.R. 2640 to make that process more definite. If we can get more, then let's get all we can; but I would not turn my nose up at what we have right now just because we can't get more.

What objection can there be to imposing a federal standard (for adjudication and for appeal) designed to ensure the right to arms is not lost except by a process we all agree is fair and just?

See the answer to the above question as it applies here as well.

he jumps to the wrong conclusion by suggesting that a state agency can fix this federal mess rather than agreeing that Congress should fix it with clear and unambiguous language.

Phil, you couldn't be more wrong in your understanding of my comments if you were staring to the West waiting for the sunrise. My point here is that the First Circuit reached the conclusion that even though state law intended only an emergency detention that did not deprive rights, they decided that the intention of state law did not control because of the specific language Congress had used regarding mental illness. If Congress via H.R. 2640 inserts the words "State Courts... shall require... pursuant to state law" in that same 18 U.S.C. 922 that the First Circuit analyzed, that pokes tremendous holes in that argument. At the very least, it becomes harder for other circuits to adopt that approach (as the Sixth Circuit did) and it could even cause a shift in the First and Sixth Circuits. At the same time, it supports the analysis used by the Fifth and Eighth Circuits in Giardina and Hansel.

I understand you would prefer to address this in the current bill now by better defining these terms rather than hope that the current language will aid some future litigant. You need not repeat yourself on this point for the umpteenth time (unless you just enjoy it). My point is not that the current language is superior to your proposal; just that the current language has more benefit to it than I think you've acknowledged and represents progress even if you would prefer MORE progress.

On a final note, you seem very selective about the points of mine you address. Shall I take silence on those points as agreement?