Tuesday, January 8, 2008

As most Americans were preparing for the Christmas holidays last month, the U.S. Congress pulled another fast one when only few people were watching.

It was December 19. Most Congressmen had left town and were either at the airport or in the air returning home. They weren't in Washington, DC, because their party leadership had told them that all the major votes were over... that the only legislative business left related to non-controversial issues, such as when Congress would return from Christmas break, etc.

But it was then, with most of the Congress gone, that the House and Senate passed the Veterans Disarmament Act without a recorded vote.

It was a huge deja vu, as this was the method that a previous Democratic Congress used -- together with compliant Republicans -- to pass the original Brady Law in 1993.

WHO IS TO BLAME?

In the fury that resulted from this "fast one," many Americans have wanted to blame the entire lot of them... all 535 congressmen. And, to be sure, there is an extent to which they all share some blame.

But to be fair, no one congressmen can camp out on the floor of the House or Senate chambers, every day, 24/7. It's a physical impossibility, which is why members of each party rely on their leadership to protect their interests and keep them informed. And that's where the betrayal occurred.

No Unanimous Consent agreement can pass the House or Senate without the leaders of both parties signing off. And on December 19, the leaders of each party sent their members home for the Christmas holidays, while forging Unanimous Consent agreements in each chamber.

As such, the immediate ire should be directed at the following legislators: Democrats such as Speaker of the House Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV); Republicans such as House Minority Leader John Boehner (R-OH) and Senate Minority Leader Mitch McConnell (R-KY).

Obviously, the backers of the Veterans Disarmament Act should be held to account, as well. Most of the lead sponsors were Democrats -- such as Rep. Carolyn McCarthy (D-NY) and Sen. Chuck Schumer (D-NY).

But there were a few key Republicans who helped cosponsor the legislation: Representatives Michael Castle (DE), Christopher Shays (CT) and Lamar Smith (TX). And dishonorable mention goes to Tom Price of Georgia who was physically present on the House floor on December 19. It was Rep. Price who asked for the Unanimous Consent agreement to pass the Veterans Disarmament Act without a vote.

Finally, many of you know that Senator Tom Coburn (R-OK) held up the bill in the Senate for several months. His intentions were laudable as he desperately wanted to protect Second Amendment rights and cut unconstitutional spending.

Unfortunately, not one pro-gun senator chose to stand with Coburn... not one. In fact, GOA felt just as alone as Coburn did. While two veterans groups (and several pro-gun state groups) sided with us, GOA was the only pro-gun group at the federal level that actively fought this legislation week after week, while another and bigger organization was working behind the scenes to help pass the Veterans Disarmament Act.

Standing alone, Senator Coburn decided to negotiate for a better bill. GOA was asked for input and made a few contributions to the bill, but not enough to justify support for the Veterans Disarmament Act. Add to this fact that GOA was prevented from seeing the final version of the bill before the brokered Schumer-Coburn compromise was taken to the floor under a Unanimous Consent agreement. As a result, Senator Coburn spoke in favor of the compromise bill on the floor of the Senate -- something that was a huge mistake, for many of the glaring problems with the bill still remained untouched.

So chalk up a victory for Chuck Schumer... and for Carolyn McCarthy as well, as she told CBS News, "This is the best Christmas present I could ever receive."

WHAT DOES THE BILL DO IN GENERAL?

It would be a mistake to under-react -- or over-react -- to the passage of the Veterans Disarmament Act.  On the bad side, this bill statutorily validates BATF regulations which could potentially disarm millions of Americans.  This is a VERY DANGEROUS turn of events which will have huge ramifications over the next several decades.

The extent to which its unconstitutional potential will be realized will be clear only over time -- and perhaps a long time -- and will depend on whether pro-gunners or anti-gunners are in power.  For example, it took a full thirty years for language in the 1968 Gun Control Act to be used to disarm veterans.

On the other hand, GOA was able to secure a few modest concessions which should provide some protection to gun owners -- though NOT NEARLY ENOUGH PROTECTION TO JUSTIFY SUPPORT of this bill.

So having said that, what are the implications of this legislation for Americans with psychiatric diagnoses? Although we succeeded in forcing the deletion of the ratification of the BATF regulations, per se, section 101 (c) (1) (C) contains new language which could make you a "prohibited person" (unable to own a gun) based solely on a medical finding (by a psychiatrist or psychologist), provided:

* That you had "an opportunity for a hearing by a court, board, commission or other lawful authority"; and * In the future, that you had notice that you would be made a "prohibited person" as a result of the agency action (section 101 (c)

(3)). [NOTE:  This was added pursuant to negotiations over GOA's objections to the bill.]

However, even these modest gains have severe limitations. Up to 140,000 veterans had their gun rights taken away as a result of a diagnosis of a mental disorder such as Post Traumatic Stress Disorder (PTSD). But this new law does not require two important things for those 140,000 people:

1. The new law does not require that a veteran needed to have any knowledge of the ramifications of the "diagnosis" in the past -- and the fact that this diagnosis could disarm him or her for life. How many veterans suffering from PTSD simply went to Veterans Affairs, hoping to get treatment, but now face a lifetime gun ban because of the new law?

2. Also, the act does not require that the disarmed vets even knew they had a right to appeal their diagnosis. Many of the 140,000 Americans who have now lost their Second Amendment rights first received a letter from Veterans Affairs telling them that, due to their diagnosis, a "guardian" was being appointed for them to handle their affairs. As stated above, how many vets realized that this action would deem them as "mental defective" under the 1968 Gun Control Act and strip them of their gun rights?

Moreover, how many vets realized they could challenge this action by appealing the diagnosis? If they didn't realize the significance of this VA letter, most likely, the vets did nothing, as they were more concerned with getting the monetary benefits that such a diagnosis would bring. But, whether they knew these things or not, this new law would still validate the removal of their Second Amendment rights.

HOW WILL THE BILL AFFECT ME?

If you have been subject to a psychological or psychiatric diagnosis, the following may be helpful:

* A diagnosis by your private doctor -- with no government involvement -- will probably cause you no problems.

* The biggest danger remains the danger for veterans.  Although the language of this bill could conceivably disarm adults who were diagnosed as kids with ADHD in connection with the IDEA program, seniors on Medicare with Alzheimers, etc., we know of no active efforts to disarm persons in these cases -- yet.

* The likelihood that new classes of people will be disarmed will be directly related to the ease of accomplishing this though a computer keyboard.  If your file exists only on microfiche in a dusty basement cabinet, you are relatively safe for now -- although, keep in mind, the new law calls for monies to be spent on collecting and updating records like this.

* Obviously, the question of whether a gun hater or Second Amendment supporter is in the White House on January 20, 2009, will have a lot to do with how vigorously this new statute is enforced.

 WHAT CAN I DO IF I'M ILLEGITIMATELY PROHIBITED FROM BUYING A GUN?

In the unlikely event that you can get your diagnosis "set aside," "expunged," or found to no longer exist, you can regain your rights. [See section 101(c)(1)(A)&(B).]

The McClure-Volkmer "relief from disabilities" provisions which have been blocked by sponsor Schumer for 15 years have been reinstated and expanded -- so that they will now exist in the broader range of state and federal agencies which this bill will allow to make you a prohibited person.  Pursuant to negotiations over GOA's objections, we were able to secure very modest improvements which:

* Would allow you to sue to get your rights restored if the agency sat on your appeal for 365 days;

* Would allow you to get your legal fees if you prevail against the agency in court;

* Would prevent Schumer from defunding these efforts in the same way he defunded McClure-Volkmer -- by requiring the 3% of state funds under this bill be used for these "relief from disabilities" programs.

But here's the major loophole in all of this. 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.)

This language sounds 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!

As we have predicted before: 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."