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H.R. 2640, the "NICS Improvement Amendments Act"

Wednesday, June 13, 2007

The NICS Improvement Amendments Act (H.R. 2640) would require federal agencies to provide relevant records for use in NICS. It would also provide financial incentives to states to do the same, by rewarding states that provide records to NICS and penalizing those that refuse to do so over an extended period of time.

Some pro-gun groups have claimed that H.R. 2640 would “prohibit” thousands of people from owning guns. This is not true; these bills would only enforce current prohibitions. In fact, H.R. 2640 would allow some people now unfairly prohibited from owning guns to have their rights restored, and to have their names removed from the instant check system.

The following are the key provisions of H.R. 2640, introduced by Reps. John Dingell (D-Mich.), Carolyn McCarthy (D-N.Y.), Lamar Smith (R-Tex.) and Rick Boucher (D-Va.), which passed the House of Representatives by a voice vote on June 13, 2007.

Key Provisions of H.R. 2640

  • H.R. 2640 would prevent use of federal “adjudications” that consist only of medical diagnoses without findings that the people involved are dangerous or mentally incompetent. This would ensure that purely medical records are never used in NICS. Gun ownership rights would only be lost as a result of a finding that the person is a danger to himself or others, or lacks the capacity to manage his own affairs.
  • H.R. 2640 would require all federal agencies that impose mental health adjudications or commitments (such as the VA) to provide a process for “relief from disabilities.” The bill allows de novo judicial review when an agency denies relief—that is, the court would look at the application on its merits, rather than deferring to the agency’s earlier decision.
  • As a practical matter, the mental health disability is the only firearm disqualifier that can never be removed. Criminal records can be expunged or pardoned, but mental records cannot.
  • While BATFE used to have the ability to accept applications to remove individuals’ prohibited status, appropriations riders every year since 1992 have barred it from doing so. Allowing this process through H.R. 2640 would be an improvement over the current law.
  • Under H.R. 2640, even if a person is inappropriately committed or declared incompetent by a federal agency, the person would have an opportunity to correct the error—either through the agency or in court.
  • H.R. 2640 would prevent reporting of mental adjudications or commitments by federal agencies when those adjudications or commitments have been removed.
  • H.R. 2640 would also make clear that if a federal adjudication or commitment has expired or been removed, it would no longer bar a person from possessing or receiving firearms under the Gun Control Act.
  • This actually restores the person’s rights, as well as deleting the record from NICS—a significant improvement over current law.
  • States that receive funding would also need to have a relief from disabilities program for mental adjudications and commitments. State relief programs would have to provide for de novo judicial review, as in the federal programs.
  • Relief granted by a state program would remove the federal prohibition on the person possessing or receiving a firearm under the Gun Control Act—again, an improvement over current law.
  • Many states have processes for temporary emergency commitments that allow a short-term commitment based only on affidavits from police, doctors or family members, without opportunity for a hearing. Because federal law prohibits gun possession by a person who “has been” committed, a person committed under such a process can’t possess a gun even after full release from the temporary order. By requiring participating states to have a relief program that actually removes the disability, H.R. 2640 would be a significant improvement over current law.
  • The legislation would improve the accuracy and completeness of NICS by requiring federal agencies and participating states to provide relevant records. For instance, it would give states an incentive to report people such as Virginia Tech murderer Seung-Hui Cho—that is, people who were found after a full court hearing to be a danger to themselves or others, but not reported to NICS due to lack of funding or contrary state laws.
  • The legislation requires removal of expired, incorrect or otherwise irrelevant records. Today, totally innocent people (e.g., individuals with arrest records, who were never convicted of the crime charged) are sometimes subject to delayed or denied firearm purchases because of incomplete records in the system.
  • The legislation prohibits federal fees for NICS checks. Under current law, only annual appropriations riders prohibit the FBI from trying to impose fees by regulation (as the Clinton Administration proposed in 1998). A permanent ban on such a “gun tax” has been an NRA priority for nearly a decade.
  • The legislation requires an audit by the Government Accountability Office of funds already spent for criminal history improvements. There has only been limited documentation of how hundreds of millions of dollars intended for NICS were spent on non-NICS programs such as automated fingerprint systems.

Voluntary Psychological Treatment

Neither current federal law, nor H.R. 2640, would prohibit gun possession by people who have voluntarily sought psychological counseling or checked themselves into a hospital:

  • Current law only prohibits gun possession by people who have been “adjudicated as a mental defective” or “committed to any mental institution.” Current BATFE regulations specifically exclude commitments for observation and voluntary commitments. Records of voluntary treatment also would not be available under federal and state health privacy laws.
  • Similarly, voluntary drug or alcohol treatment would not be reported to NICS. First, voluntary treatment is not a “commitment.” Second, current federal law on gun possession by drug users, as applied in BATFE regulations, only prohibits gun ownership by those whose “unlawful [drug] use has occurred recently enough to indicate that the individual is actively engaged in such conduct.”
  • In short, neither current law nor this legislation would affect those who voluntarily get psychological help. No person who needs help for a mental health or substance abuse problem should be deterred from seeking that help due to fear of losing Second Amendment rights.
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