You may recall that the last blog we published on Typepad dealt with gun control[1]. In it Fred, our resident expert on lots of things, including Government and the preternatural, suggested that it might be OK to extend mandatory background checks for gun purchases from transactions with licensed gun dealers to other transactions at gun shows between private buyers and sellers. As we all know, the NRA didn’t like that idea one bit, and, on April 17, prevailed on over 40 Senators to quash it.

And why could a minority of Senators impose their will on the 54 who disagreed? Well, because this particular legislation required 60 votes (i.e., a super majority) for the Senate to schedule a later vote on the merits.[2] Fine, the Democrats needed 60 votes to escape a filibuster. That’s all part of the political process as we understand it today.

To hear the media tell it, the legislation at issue was simply about background checks. If you were for expanding them to gun shows, you should have voted for it; if not, you voted against it. And the NRA and its opponents seem to agree, at least on that point. But was it really true?

Bills in the Congress always have fancy titles, implying a worthy purpose and simple solutions. This one was called the “Public Safety and Rights Protection Act,” and was sponsored by Senators Mancin (WV) and Toomey (PA).[3] Feel good titles and fuzzy assurances are all part of the game. But, as we said in late April, the devil is in the details.[4] What strange ideas and proposals actually hide in the text?

I’m not really sure, but luckily we have people on staff here who can find out. I’m speaking, of course, of Fred, my strong right arm at Elemental Zoo, and Larry, our (now retired) legal scholar. They’ve been looking at the proposed legislation and have some thoughts to share with us.]

“Yes, indeed. This is Fred, by the way. Most people probably don’t realize that the Mancin-Toomey Act would have done a lot more than simply require background checks on people who buy guns at gun shows. Of course it did that; it said that generally no firearm could be transferred, even at a gun show, to a non-dealer, manufacturer or importer unless (i) the transfer passes through a licensed dealer, etc. and (ii) that worthy performs a background check on the transferee[5]. That seems simple enough, but apparently a lot more was necessary.

Mancin-Toomey also:

  • Provided an extra half-billion dollars (over 5 years) to states and tribal governments to improve record-keeping in the program[6];
  • Provided that, notwithstanding other protections in the law, a patient’s mental health information may be given to and (probably) disseminated by DOJ[7];
  • Added possibly meaningless “protections” for veterans adjudicated as mentally defective or incompetent by the Veterans Administration[8]; and
  • Authorized unlimited appropriations to fund a “National Commission on Mass Violence” to study why people commit those kinds of crimes, and issue a report.[9]

Now, I don’t necessarily understand all of this stuff, but Larry does. So I’m going to turn the discussion over to him to run down some of the issues. Bearing in mind, however, that while we have a lot of questions, we have only limited space. So Larry, where do you want to start?”

“How about at the beginning? The basic idea of Mancin-Toomey is that gun transfers at gun shows should go through dealers, and background checks ought to be performed in the process. So, what’s the problem with that? The dealers benefit; they probably get to charge a fee for facilitating the purchase. And the person who sells a gun has some assurance that the purchaser isn’t a criminal, isn’t crazy, and so forth. Responsible sellers probably worry about that kind of thing. And what cost is there to the system to do this? Not much, you might think. The National Instant Criminal Background System (aka, the NICS)[10] will take some extra calls, so possibly additional infrastructure might be required to handle the increased volume. Otherwise, no extra work and no additional charge to the federal government.

But Senators Mancin and Toomey don’t agree. They think that local government will require at least another half a billion dollars (over 5 years) to implement the revisions. Why? Well, they really don’t say. Offhand, I can think of three possible explanations. The money is pork, included as grants to the states, etc., to buy votes; or it’s necessary, because the background check program will be extended far beyond anything we’ve been told about; or both.”

“Larry, if I had a vote, I would say that the answer is option 3. Think of the context! The last two major shootings involved perpetrators with obvious mental health issues.[11] If you follow the media, you might conclude that all veterans of the Iraq/ Afghanistan conflicts suffer from PTSD.[12] Apparently lots of other people have it, too.

Then, of course, many people have a phobia about guns; they’re afraid of them and think than anyone who has one must be crazy to begin with. So it’s not surprising that some folks would like to send every gun purchaser to a shrink before clearing the sale. Are Senators Mancin and Toomey headed in that direction?”

“Not exactly. But they certainly would like to see more mental health information included in the background check process. The Government already prohibits people from buying guns if they have “been … adjudicated as a mental defective or [have] been committed to a mental institution.” [13] That wouldn’t change, so far as I can tell.

But, on the other side of the ledger, their proposal does strike down some important protections for people caught up in the mental health industry. It specifically provides  the “Attorney General … shall not be subject to” HIPAA regulations.[14]

“And what is HIPAA?”

That’s the Health Insurance Portability and Accountability Act of 1996.[15] Among other things, it established complex and strict protections for patient medical information. If you want to know more about that, you should go to the HHS web site.[16] The important thing is that none of these rules will apply to the Attorney General if Mancin-Toomey passes. The only question is, who will evaluate the medical information made available to DOJ? The Attorney General? Outside doctors? Gun dealers?

And it’s even worse than you might think. Firearms dealers also can use the data base to screen their “prospective employees.”[17] So why not expand that even further? Why not allow the dealers to run checks on anybody’s employees, so long as the employer asks them to? That could be a new source of income for the industry. You know, you pay me; I get DOJ to provide otherwise unobtainable medical records for you.”

“Well, nobody’s gone that far, yet. Let’s move on to veterans for a moment. Are they protected by HIPAA?”

“You know, I’m not sure, but if they are, they won’t be under Mancin-Toomey.

And in any case, currently if a veteran is incompetent to manage his (or her) own affairs, the VA can initiate proceedings to commit the veteran for “treatment or domiciliary purposes.”[18] VA has to file an annual report outlining its activities in this area.[19]

“Well, if a veteran is committed, that ought to show up in DOJ’s data base, wouldn’t you think? After all, there’s a question about that in the form you fill out when you buy a gun, and applicants are supposed to answer it truthfully. Anything else?”

“Oh, yes. There’s also the VA’s disability claim process. As you know, veterans can file claims for a pension based on disabilities they incurred while in the service.[20] The veteran provides medical records, submits to an examination, and the VA ‘adjudicates’ the matter. It may find that the veteran is not disabled, is partially disabled, or is completely disabled. Typically VA’s findings are expressed as a percentage: i.e., the veteran is 20% disabled, or 40% or whatever.

My question is this: Suppose a veteran files a claim for service connected PTSD, and the VA agrees that he (or she) is 20% disabled. That’s adjudication, I guess; but is it adjudication that the veteran is, in the words of the basic statute[21], a ‘mental defective,’ and therefore is not entitled to purchase a gun? How about a 40% disability, flowing from PTSD? Or 60%? And who decides, the VA, DOJ or somebody else?

That’s only a hypothetical, but I could come up with more, if asked. Mancin-Toomey leaves this kind of issue hanging out there, with no resolution. Except, of course, it does provide that a veteran who doesn’t like a particular decision by the VA, can appeal; but he (or she) can do so only for 30 days.[22] That’s a ridiculously short period of time. Normally veterans have 1 year to appeal adverse decisions by the VA.

The only way to meet a one month deadline is to walk in on day 1 with a lawyer, and keep him (or her) involved for the whole period of the examination. But wait, that could be a whole new line of practice young lawyers! Why do I object?”

“I’ve got to admit, Larry, we’ve gone pretty far afield with this. Badly written legislation makes for long blogs. But let’s talk about the final item on your list. Apparently Congress is intending to kick off a very intensive study, to determine once and for all why people are violent in this country. What do you think of the effort?”

“Well, it certainly is ambitious. There will be a 12 member Commission: 6 appointed by the Majority Leader of the Senate, and 6 appointed by the Speaker of the House.[23] The Commission will have its own appropriations[24]; can hire its own experts and consultants;[25] and will select permanent staff without regard to the civil service laws.[26] All in all, it will have a great deal of latitude in setting up its operation.

Once it’s running, the Commission will study the ‘root causes’ of mass violence; it can hold hearings and take testimony and ‘memorialize’ the views and experiences of the people who have suffered in those situations.[27] At the end of all this, the Commission will produce a report, and will terminate 30 days after the report is finalized.[28]

“Another report? And what will it say?”

“Who knows? But I doubt the Commission will come up with anything new. As one 20th Century philosopher said, ‘Hell is other people.’[29] Having lived through World War II in Europe, he probably knew what he was talking about. The human situation really hasn’t changed much since then.”


[1] See the blog of 01/21/2013, Guns and Facts, at http://elementalzoo.typepad.com/elemental-zoo/

[2] See the blog of 04/26/2013, Jeremy Bentham’s Back! at https://opsrus.wordpress.com/2013/04/26/jeremy-benthams-back/ the measure had 54 votes in its favor, but needed 60 in order to be filibuster-proof. See NBC Politics, O’Brien, Gun control supporters ponder path forward after Senate defeat (April 23, 2013) at http://nbcpolitics.nbcnews.com/_news/2013/04/23/17865390-gun-control-supporters-ponder-path-forward-after-senate-defeat?lite

[3] Senator Toomey published the text of the proposal on his Senate web page. You can find it at http://www.toomey.senate.gov/?p=press_release&id=968 Henceforth sections of the proposal will be cited as “Mancin-Toomey at § __.”

[4] See note 4.

[5] See Mancin-Toomey at §§ 121 – 126.

[6] See Mancin-Toomey at §§111 – 114.

[7] See Mancin-Toomey at §§ 116, 117.

[8] See Mancin-Toomey at § 115.

[9] See Mancin-Toomey at §§ 142 – 146, 148. Sec. 148 provides “There are authorized to be appropriated to the Commission and any agency of the Federal Government assisting the Commission in carrying out its duties … such sums as may be necessary to carry out the purposes of this subtitle. Any sums appropriated shall remain available, without fiscal year limitation, until expended.”

[10] Its public website is at http://www.fbi.gov/about-us/cjis/nics/nics

[11] If you want to know more about mental health and the Colorado shooting, check out the Wikipedia entry on the subject; just go to the Wikipedia web site and search Jared Lee Loughner, or click here: http://en.wikipedia.org/wiki/Jared_Lee_Loughner Wikipedia also has a pretty good report on the Newtown, CT, shooting. Go to the Wikipedia and search ‘Sandy Hook Elementary School shooting,’ or click here: http://en.wikipedia.org/wiki/Sandy_Hook_Elementary_School_shooting

[12] That’s Posttraumatic Stress Disorder, for those of you not “in the know.” See Desk Reference to the Diagnostic Criteria from DSM-IV-TR (APA, 2000) at 309.81, Posttraumatic stress disorder, p. 218-220.

[13] There are many online sources for accurate versions of existing statutes. For this one we used Cornell, at http://www.law.cornell.edu/uscode/text/18/922

[14] See Mancin-Toomey at § 117: “CLARIFICATION THAT SUBMISSION OF MENTAL HEALTH RECORDS TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM IS NOT PROHIBITED BY THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT. Information collected under section 102(c)(3) of the NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note) to assist the Attorney General in enforcing section 922(g)(4) of title 18, United States Code, shall not be subject to the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d-2 note).”

[15] We’re not going to do a treatise on HIPAA. If you want to know more, in a general way, take a look at the Wikipedia entry, at http://en.wikipedia.org/wiki/Health_Insurance_Portability_and_Accountability_Act

[16] See HHS.gov, Health Information Privacy, at http://www.hhs.gov/ocr/privacy/

[17] See Mancin-Toomey at § 125: “”(2) VOLUNTARY BACKGROUND CHECKS.-Not later than 90 days after the date of enactment of the Public Safety and Second Amendment Rights Protection Act of 2013, the Attorney General shall promulgate regulations allowing licensees to use the National Instant Criminal Background Check System established under this section for purposes of conducting voluntary [pre-employment] background checks on prospective employees.”

[18] See 38 U.S.C. § 5501. As usual, we use Cornell to find a current version of any statute we cite. You can find this one at http://www.law.cornell.edu/uscode/text/38/5501

[19] See 38 U.S.C. § 5510. Again, we used Cornell to find a current version of the statute. You can find it at http://www.law.cornell.edu/uscode/text/38/5510

[20] See 38 U.S.C. § 1110 et seq. For the statute, start at http://www.law.cornell.edu/uscode/text/38/1110

[21] That is, under 18 U.S.C. § 922.

[22] See Mancin-Toomey at § 115(c).

[23] See Mancin-Toomey at § 142. Presumably after a certain amount of log-rolling, that will result in a total panel of 6 Republicans and 6 Democrats.

[24] See Mancin-Toomey at § 146.

[25] See Mancin-Toomey at § 145(d).

[26] See Mancin-Toomey at § 145(c).

[27] See Mancin-Toomey at § 144(a).

[28] See Mancin-Toomey at § 147.

[29] This is from Jean-Paul Sartre, a French philosopher who lived from 1905 to 1980. The original is in French. A fuller version, in English, is “So that’s what Hell is: I’d never have believed it…Do you remember, brimstone, the stake, the gridiron? …What a joke! No need of a gridiron, Hell is other people.” See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) at Jean-Paul Sartre, p. 667, n. 4.

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