No, the GOP did Not Just Repeal the Background Check System or Give Guns to the Mentally Ill
National Review February 3, 2017
If you follow the news — or, indeed, if you have a social media account of any variety — you probably saw one of these headlines last night, accompanied in most cases by some choice hyperventilation:
And when you saw these headlines you probably thought, “Wow, that seems extreme.” Has the House of Representatives really got rid of background checks? Are Republicans really intent upon putting firearms in the hands of the “severely mentally ill”? What fresh insanity is this!
And, given the way the headlines are written, you could be forgiven for drawing any one of those conclusions. But here’s the thing: None of them is true. Not at all. This was yet another sordid episode of The Press Is Having a Breakdown, coupled with a special installment of Celebrities Tweet Falsehoods Without Knowing It. Contrary to the AP’s suggestion, the background check system remains in place. Contrary to The Hill’s implication, the rule change in question did not repeal the limitations on the “severely mentally ill.” None of that happened.
Because most people read headlines and ignore the articles underneath, both Twitter and Facebook were full of talk last night about the perfidy of the House. As is customary, the NRA was denounced, as was Paul Ryan, President Trump, and the United States in general. “What are they thinking?” was the general tone of the commentary — and it was invariably asked in the pursuit of dudgeon rather than of truth.
But had the obligatory what-the-hells been offered in earnest, those who were stomping their feet would have discovered that all was not as it seemed. The House did indeed reverse an Obama-era rule yesterday afternoon, but that rule was neither “gun-buyers must obtain background checks” nor “the mentally ill are barred from buying guns,” and the measure was by no means an NRA initiative. The NRA was supportive, of course — that’s why it exists. But so was the American Civil Liberties Union. So were a host of disability groups. So was much of the medical community. And, unusually for a Second Amendment question, this one didn’t break down along the usual political lines.
And why would it, given the details? Here’s the American Association of People with Disabilities explaining what was at stake:
This rule would require the Social Security Administration to forward the names of all Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) benefit recipients who use a representative payee to help manage their benefits due to a mental impairment to the National Instant Criminal Background Check System (NICS).
Or, in layman’s terms: The rule would have allowed bureaucrats within one of our federal agencies to bar American citizens from exercising a constitutional right — and on the highly questionable grounds that to be incapable of managing one’s finances is, by definition, to be a “mental defective.”
There were a host of reasons to object to this measure. On separation-of-powers grounds, the prospect of the Social Security Administration playing judge, jury, and executioner is flatly intolerable. On due process grounds, there was nothing to recommend the measure (as the ACLU made abundantly clear in its opposition letter). On statutory grounds, it seems clear that the SSA was acting ultra vires.
And, as political matter, the vacillation of the Obama administration — which insisted simultaneously that “incidents of violence continue to highlight a crisis in America’s mental health system” and that it was “not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence” — was downright embarrassing. But one does not have to agree with me on process or in outlook to see that as a matter of positive policy, the idea was a terrible one. As Yale’s Dr. Mark Rosen observed when the rule was first adumbrated, the link between financial acumen and mental illness is extraordinarily weak:
“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.
It is for this lattermost reason — not from any great fidelity to the Second Amendment — that so many organizations urged the GOP to act. As the House Ways and Means Committee was sure to make clear, letters of support were received from ADAPT, which “urged Congress to use the Congressional Rule Act to repeal this rule“; from the American Association of People with Disabilities, which pressed Congress “to support a Congressional Review Act (CRA) resolution to disapprove the Final Rule issued by the Social Security Administration (SSA)”; from the ACLU, which pushed “members of the House of Representatives to support the resolution disapproving the final rule of the Social Security Administration”; from The Arc of the United States, which asked “Congress to act, through the CRA process, to disapprove this new rule”; from the Association of Mature American Citizens, which exhorted “Congress to quickly pass this Joint Resolution and restore the basic Second Amendment rights this rule has abridged”; from the Autistic Self-Advocacy Network, which implored “Congress to act, through the CRA process, to disapprove this new rule and prevent the damage that it inflicts on the disability community”; and, in addition, from the Bazelon Center for Mental Health Law, the Consortium for Citizens with Disabilities, the Disability Law Center of Alaska, the National Alliance on Mental Illness, the National Association of County Behavioral Health and Developmental Disability Directors, the National Association for Rights Protection and Advocacy, the National Association for Rural Mental Health, the National Council on Disability, the National Council of Independent Living, the National Coalition of Mental Health Recovery, the National Disability Leadership Alliance, the National Disability Rights Network, the New York Association of Psychiatric Rehabilitation Services, and Safari Club International. All of them — every single one — urged that the rule be killed.
On Twitter last night, the author Mark Harris proposed that the rule had been little more than a “sensible extra step that placed an onerous burden on nobody,” and that it had been “fought by an extremist lobbying group and its tools.” Which, I suppose, means that we have two plausible options when evaluating what just happened in Congress. The first is to conclude that America’s mental health groups are now “extremist lobbying groups,” and that statements such as this one from the National Council on Disability represent the latest chapter in the endless march toward Second Amendment absolutism:
NCD is a nonpartisan, independent federal agency with no stated position with respect to gun-ownership or gun-control other than our long-held position that restrictions on gun possession or ownership based on psychiatric or intellectual disability must be based on a verifiable concern as to whether the individual poses a heightened risk of danger to themselves or others if they are in possession of a weapon. Additionally, it is critically important that any restriction on gun possession or ownership on this basis is imposed only after the individual has been afforded due process and given an opportunity to respond to allegations that they are not able to safely possess or own a firearm due to his or her disability. NCD believes that SSA’s final rule falls far short of meeting these criteria.
And the second is to conclude that Mark Harris and his fellow pantywaists have no idea what they’re talking about.
It is a rare day indeed on which the NRA, the GOP, the ACLU, and America’s mental health groups find themselves in agreement on a question of public policy, but when it happens it should at the very least prompt Americans to ask, “Why?” That so many mainstream outlets tried to cheat them of the opportunity does not bode well for the future.