The Obama administration is moving forward with plans to use the Social Security Administration to disarm American citizens deemed ineligible by government bureaucrats to possess a firearm. On January 4th 2016, President Obama signed an executive order that permits the Social Security Administration to report individuals to the FBI’s database used to determine an individual’s eligibility to purchase a firearm. On April 28, the rule was signed and posted to the Federal Register by Acting Commissioner Carolyn W. Colvin, guns.com reports.
A potentially large group within Social Security are people who, in the language of federal gun laws, are unable to manage their own affairs due to “marked subnormal intelligence, or mental illness, incompetency, conditions, or disease.”
Townhall.com observes that the Department of Veterans Affairs already participates in a similar process by reporting individuals who were declared too incompetent to manage their disability and pension payments and assigned a fiduciary to the National Instant Criminal Background Check System. Under the Obama administration’s plan, the Social Security Administration would be the latest federal agency to participate in the background-check system.
The U.S. Department of Health and Human Services even altered the Health Insurance Portability and Accountability Act of 1996 (HIPPA) Privacy Rule to allow for communication between specific entities regarding an individual’s mental health. In January, HHS modified the rule to “expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a Federal ‘mental health prohibitor’ that disqualifies them from shipping, transporting, possessing, or receiving a firearm.”
According to the LA Times, approximately 4.2 million adults could be impacted by the rule as they receive monthly payments through “representative payees.”
The Social Security website provides an exhaustive list for what is considered when determining mental impairment or disorder. Items that are evaluated include daily activities such as “taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office, as well as social activities including ‘the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords or bus drivers.’”
The proposal has provoked criticism from mental health experts and advocates for the disabled, who contend that using financial competence to prohibit gun ownership is wrong.
“Someone can be incapable of managing their funds but not be dangerous, violent or unsafe,” said Dr. Marc Rosen, a Yale psychiatrist who has studied how veterans with mental health problems manage their money. “They are very different determinations.”
Rosen notes that veterans may even feel compelled to avoid seeking help for their mental health problems just to avoid losing their Second Amendment-protected rights.
And Ari Ne’eman, a member of the National Council on Disability, asserts that the proposal unfairly targets people with disabilities.
Constitutionally minded critics, such as former Texas Representative Ron Paul, contend that this proposal creates an easy system for anti-gun politicians to deprive individuals of their Second Amendment-guaranteed rights.
“Mandatory depression screening will not just raise insurance costs,” notes Paul. “In order to ensure that the screening mandate is being properly implemented, the government will need to create a database containing the results of the screenings. Those anti-gun politicians who want to forbid anyone labeled ‘mentally ill’ from owning a firearm will no doubt want to use this database as a tool to deprive individuals of their Second Amendment rights.”
In an effort to stop the Obama administration, Texas Congressman Sam Johnson introduced legislation last year to prevent the Social Security Administration from denying social security recipients their Second Amendment-protected rights without the constitutional due process.
When introducing his legislation, Johnson said, “It’s no secret President Obama isn’t a fan of our 2nd Amendment. Because he failed to push his gun control agenda through Congress, his Administration is now seeking to deny millions of law-abiding Americans their right to bear arms by going through Social Security. Old age or a disability does not make someone a threat to society. These folks should be able to defend themselves just like everyone else, and Social Security has no business stripping them of that right.”
The bill, entitled the Social Security Beneficiary 2nd Amendment Rights Protection Act, is waiting for a vote in Congress.
The NRA-ILA began reporting since last summer on the Obama administration’s plan to use SSA as a basis to strip Americans of their Second Amendment rights. Concerns were initially raised by a report in the Los Angeles Times that SSA would follow the lead of the Department of Veterans Affairs by broadly reporting all beneficiaries receiving payments whose funds were disbursed to another individual on the beneficiary’s behalf. This prompted congressional inquiries, to which SSA replied that the plan would not apply to all beneficiaries assigned representative payees. The agency did not, however, elaborate on who would be included, and it did not rule out using the assignment of a representative payee as a consideration in determining who was reportable.
SSA’s intentions, as outlined in the proposal, would use five factors to determine which of its Disability Insurance or SSI recipients have been “adjudicated” by the agency as “mental defectives.”
- The claim with the SSA was filed based on disability,
- The disability meets the requirements of the Mental Disorders Listing of Impairments established in SSA rules,
- The individual has “a primary diagnosis code” in SSA records based on mental impairment,
- The individual is between the age of 18 and retirement age, and
- The individual’s payments are being made through a representative payee because he or she is incapable of managing the payments because of his or her impairment.
The first factor is whether the individual filed his or her claim with SSA based on disability. Thus, merely receiving retirement benefits from SSA would not trigger further action.
The second factor would require the agency to determine which individuals have “been found disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments” set forth in SSA rules. Those disorders cover a broad range of conditions, including but not limited to organic mental disorders, intellectual disabilities, anxiety-related disorders, personality disorders, substance addiction, and autism and other developmental disorders. Symptoms of these disorders can range from outright incoherence or hallucination to milder presentations such as sleep or appetite disturbances, decreased energy, or even “inflated self-esteem.”
The third factor is whether the individual has “a primary diagnosis code in [SSA’s] records based on a mental impairment.” According to the proposal, “The primary diagnosis refers to the basic condition that renders an individual disabled” under relevant SSA rules.
The fourth factor focuses on the individual’s age, specifically on whether he or she is at least 18 years old but has not yet attained full retirement age.
Factor five is whether the agency has determined the beneficiary’s payments are to be made through a representative payee based on a determination that he or she is incapable of managing them as a result of marked subnormal intelligence, or mental illness, incompetency, condition or disease.
If all five of these factors are met, the individual would be reported to NICS as a “mental defective” and banned (presumably for life) from receiving or possessing firearms.
The rule would also allow affected individuals to petition for restoration of rights. Under its terms, relief from Second Amendment disabilities “may” be granted if the individual could “establish to [SSA’s] satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant 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.”
Indeed, at no point in the actual “adjudication” is the individual’s propensity for violence a necessary consideration. Rather, the question ultimately devolves to whether or not the individual has any sort of mental condition and can responsibly handle money, which is not a fair basis to strip someone of their constitutional rights. The procedures established for relief, moreover, lack adequate due process and do not even allow the petitioner the opportunity for an administrative hearing.
From beginning to end, in fact, SSA’s process makes no provision whatsoever for the individual to attend a formal hearing before an adjudicative authority, to put forth their own experts, or to cross-examining adverse witnesses. It only involves anonymous bureaucrats reviewing documents in a government-compiled file. That is hardly the process most Americans would consider an adjudication, and certainly not one sufficient to strip someone of fundamental liberties.
Ultimately, SSA’s rulemaking highlights the need for systemic changes to the federal laws concerning when mental illness results in a person being prohibited from possessing and receiving firearms. Financial acumen, even if related to an underlying issue with sleep disturbances or inflated self-esteem, has no necessary relationship to a propensity for violence, and it’s not a sufficient basis to strip persons of their inalienable right to self-defense. This is exactly why NRA is supporting corrective legislation, including the Mental Health and Safe Communities Act of 2015, the Social Security Beneficiary 2nd Amendment Rights Protection Act, and the Veterans 2nd Amendment Protection Act.