by Dave Workman
Senior Editor
Even before they had seen any legislation, gun rights activists across the country were deluging Internet forums and chat lists with criticism, contradiction and cautious optimism about a so-called agreement hammered out between Congressional Democrats and the National Rifle Association (NRA) aimed at improving the National Instant Check System (NICS).
But in a remarkably fast-track move, two days after the legislation was introduced in the House, it was passed on a voice vote after suspension of the rules and sent to the Senate. HR-2640 requires states to automate the records they share with the FBI that are included in the NICS system database. It will provide $250 million annually to the states over the next three years to implement these updates, while penalizing states that do not update their systems by certain deadlines.
Quiet, behind-the-scenes negotiations on the legislation began shortly after the Apr. 16 Virginia Tech massacre that claimed 32 victims. If approved, this would be the first federal gun control law since 1994, the year Democrats lost Congress because they rammed through the Brady Act and the Clinton crime bill that contained a ban on some semi-auto rifles and shotguns and full-capacity magazines.
Many in the gun rights movement were furious at the NRA, calling the agreement a “sellout.” Others countered that without NRA participation in the negotiating process, a far worse measure would have been the result. According to The Washington Post, the NRA “drove a hard bargain” to produce an agreement that protects the rights of law-abiding gunowners, and actually contains some provisions that will remove thousands of people from the “disqualified” list.
The National Shooting Sprots Foundation (NSSF) also endorsed the compromise bill.
Gun Owners of America (GOA) urged its members to pressure Congress to defeat the “compromise” measure, even before there was a compromise. On its website, GOA argued, “Congress can create as many redundant procedures for cleaning up these records as it wants, but the bottom line is, there is nothing that will force the FBI to scrub gunowners’ names from the NICS system.”
The Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) said that the agreement did not go far enough to benefit gunowners. CCRKBA Chairman Alan Gottlieb argued that legislation should include a provision to “fully restore the process through which citizens can get relief from disabilities (RFD) that prevent them from owning and buying firearms.”
“Though the process remains on the books,” Gottlieb noted, “there has been no implementing funding since 1991. People who have a mistake in their past, but have since been good citizens cannot get their rights restored. There should be a mechanism in place to allow funding of RFD investigations, even if the petitioner pays the costs himself.”
CCRKBA Public Affairs Director John Snyder also suggested that while the agreement offers funding to states to update their NICS data, and withholds funding from states that do not, there should be additional pressure on colleges and universities that refuse to allow legally-licensed faculty, students and administrators from carrying handguns for self-defense on campus to prevent further tragedies like the one at Virginia Tech.
“This proposal is in response to Virginia Tech,” Snyder noted, “and such tragedies might be stopped by legally armed students or professors. Schools that prohibit those citizens from defending themselves should have their federal funding withheld.”
According to a summary of the agreement provided to Gun Week by NRA lobbyist Chuck Cunningham, the substitute language in the new legislation would prevent federal “adjudications” based on medical diagnoses without a finding of dangerousness or mental incapacity.
In layman’s terms, that means NICS could no longer accept decisions from the Veterans’ Administration (VA) that a veteran or other patient is an “adjudicated mental defective” when there has actually been no “adjudication” but only a mental diagnosis of a condition for the purpose of receiving disability benefits. Thousands of veterans apparently have had a financial incentive to agree to such a determination just so they could get their benefits, without realizing this could cost them their firearms rights.
About seven years ago, the VA dumped the names of some 83,000 veterans into the NICS system, and this agreement provides that those veterans can petition to have their names expunged. Gottlieb contends that it should be the responsibility of the VA to remove those names, not the individual citizens.
Also under the agreement, which was intended as a substitute version of HR-297—the bill sponsored originally by anti-gun New York Rep. Carolyn McCarthy—gun ownership rights would only be lost as a result of a specific finding that a person is a danger to himself or others, or lacks the mental capacity to handle his own affairs, according to Cunningham’s summary.
Further, the substitute language requires all federal agencies that impose mental health adjudications or commitments to provide a process for “relief from disabilities” (RFD). Under this scenario, a court could look at an RFD application on its own merits, rather than simply accept a decision by some government agency.
Currently, a mental health disqualifier can never be removed. Under the agreement, “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.”
CCRKBA’s position is that the individual should not have to pay for this process. CCRKBA also wants funding restored to the Bureau of Alcohol, Tobacco, Firearms and Explosives to conduct RFD investigations.
Under HR-2460, if a federal adjudication or commitment has expired or been removed, it would no longer prevent a person from possessing or receiving a firearm under provisions of the Gun Control Act. Cunningham says this actually restores a person’s rights, while deleting the record from NICS.
States would also need an RFD program for mental adjudications and commitments, and those programs would have to provide for de novo judicial review, same as the federal program.
“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,” according to Cunningham’s analysis. “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. 297 would be a significant improvement over current law.”
Not everyone agrees with that assessment. On gun rights forums like KeepAndBearArms.com (KABA) and TheHighRoad.org (THR), opinions were split to the extremes in most cases. On KABA especially, activists there turned thumbs down almost unanimously, with many accusing NRA of “selling out” gunowners.
They kept up the crescendo for a second day when they learned that McCarthy would still be the sponsor of the substitute measure.
THR participants were a bit more circumspect, and there was a better balance of pro and con, but it appeared that even on that forum, there were as many critics of the announced compromise as there were cautiously optimistic supporters. But the rhetoric was hardly congenial or collegial with very little movement toward the proverbial “middle ground.” One either hated the news of an agreement, or one hoped for the best.
While the NRA signed off on the compromise, it should be noted that the organization apparently agreed to support legislation only if it remained as agreed upon. That is, any attempt to tack on anti-gun amendments or back away from the agreement as it moves through the Senate will likely find the NRA pulling its support.
That is essentially what NRA’s chief lobbyist, Chris Cox, told The Washington Post. The newspaper noted that Democrats desperately want to demonstrate that they can put together a gun law that responds to what happened at Virginia Tech while not causing a backlash from average gunowners. That could become a very fine line that is easily crossed.
Some gun forum activists suggested above all that Democrats cannot be trusted on the gun issue, that they will find it impossible to resist tacking on additional gun control restrictions. A handful worried that now that the NRA has endorsed a compromise, no matter how the resulting legislation progresses and perhaps evolves, that initial support will be used against the 4-million member association.
Democrats needed a win, so it remains to be seen how willing they are to control their traditional anti-gun impulses, and that would include the introduction of any other gun control legislation on the heels of HR-2640.