Floor Statement: Protecting Second Amendment Right of Social Security Beneficiaries

 

Mr. President,

 

The resolution of disapproval I am introducing today via the Congressional Review Act repeals a Social Security regulation that unfairly stigmatizes people with disabilities. It also violates the fundamental nature of the Second Amendment. 

 

The Second Amendment recognizes the God-given right to self–defense. In order to take away that right, the government must have a compelling interest. The law or regulation to achieve that compelling interest must be narrowly tailored. In other words, the government better have one heck of a reason.

 

The Justice Department, the Department of Veterans Affairs, and the Social Security Administration have not protected Second Amendment rights adequately under the Obama administration.  Our fundamental Second Amendment rights were constantly under attack. 

 

For example, hundreds of thousands of veterans have been reported to the National Instant Criminal Background Check System without due process.

 

That system amounts to a national gun ban list for those reported erroneously.

 

Veterans were reported without first having a neutral authority find them to be a danger to self or others.

 

According to the government, the veterans needed a fiduciary to manage benefit payments. But that is not a sufficient reason under the law. Needing help with your finances should not mean you have surrendered your fundamental right of self-defense. And it doesn’t mean that you are a danger to the public.

 

On May 17, 2016, Senator Durbin and I debated my amendment that would require the Department of Veterans Affairs to first find veterans to be a danger before reporting their names to the gun ban list.

 

During the course of that debate, Senator Durbin admitted that the list was broader than it should have been. 

 

Senator Durbin said, “Let me just concede at the outset, reporting 174,000 names goes too far, but eliminating 174,000 names goes too far.”

 

For the record, it was 260,381 names from the VA sent to the gun ban list for allegedly being in the “mental defective” category. That’s 98.8 percent of all names in that category. So the Veterans administration reported more names by far than any other agency.

 

Senator Durbin’s staff and mine have met over these issues since that debate. I appreciate and thank him for that outreach, and I want to work together to solve these problems.

 

But now, the Social Security Administration is about to make the same mistake as the VA – unless we stop it right here and right now. And if we don’t stop this, it could lead to hundreds of thousands of Social Security recipients being improperly reported to the gun ban list.

 

At its core, Social Security’s new regulation allows the agency to report people to the gun ban list if:

 

 

But, the process for designating someone to help a recipient manage Social Security benefits is not objective. The former Social Security Administration Inspector General said the following last year in testimony about the process:

 

 

The “personal opinion” of a bureaucrat cannot be the basis for taking away a person’s Second Amendment rights.

 

Further, the second element—the “disorder list”—is a convoluted mess of afflictions that may or may not cause someone to be dangerous. Many of the listed disorders also do not impact gun safety at all.

 

For example, some afflictions deal with anxiety disorders, fear of large crowds, or a lack of self-esteem. The list is complex, long, and not designed to regulate firearms. Rather this list is designed to regulate whether a person can manage his or her beneficiary payments.

 

But, here’s the essential question the federal government is incapable of answering: If they aren’t dangerous – why take away their firearms?

 

The National Council on Disability, a non-partisan and independent federal agency, has come out against the Social Security Administration’s rule and in favor of repeal. The Council has repeatedly stated its concerns about the agency failing to determine that people are dangerous before reporting their names to the gun ban list.

 

It has been the Council on Disability’s:

 

The Council has also stated that the rule:

 

The Consortium for Citizens with Disabilities, a coalition of 100 national disability groups, shares the same concerns about the regulation:

 

With that being said, even the ACLU wrote a letter in opposition to the agency regulation.

 

Mr. President, I’d like to enter these letters into the record as well as other letters from disability groups.

 

Simply said, the agency rule uses a massive regulatory net that captures innocent individuals who should be left alone. Just because a person is assigned a fiduciary does not make them dangerous.

 

Whenever the government tries to eliminate fundamental constitutional rights, it is required to narrowly tailor its regulatory action so that innocent people are not impacted. The Social Security regulation fails in this regard. That is why both the National Council on Disability and the Consortium for Citizens with Disabilities have called specifically for using the Congressional Review Act to repeal the final rule.

 

Constitutional due process is wholly lacking. For example, the agency does not afford a beneficiary a formal hearing before his or her name is reported to the gun ban list.

 

Think about that.

 

The Second Amendment, which recognizes a fundamental constitutional right, is being ripped away without a formal dispute process to initially challenge the action. Instead, the beneficiary must wait until their name is already on the gun ban list. Only then, can the beneficiary appeal the decision by the grace of the government.

 

This process effectively reverses what should be a burden on the government.

 

The government should not be able to strip a fundamental constitutional right without due process and then place the burden on the citizen to try to restore it. A hearing should be afforded before the infringement of a fundamental right, not after. And the burden must be on the government to prove its case.

 

That’s the American way.

 

The Social Security Administration regulation falsely claims that it requires an “adjudication” before reporting names to the gun ban list. But, there is no hearing afforded to the Social Security recipient before placing a name on the gun ban list. Without a hearing, that process cannot honestly be called an “adjudication.” And without an adjudication, the process violates federal law.

 

Now, here’s the kicker: in order for beneficiaries to remove their names from the gun ban list, they have to prove they are not dangerous. Guilty until proven innocent, and the burden is on you to prove it.

 

Any way you look at it, that’s totally unfair.  It’s a violation of the Constitution.  And common sense should tell everybody that it’s just plain wrong.

 

The federal government, under the Obama Administration, treated Social Security recipients with contempt and disregard. With this resolution of disapproval, we can effectively terminate this unconstitutional government regulation, which the new Trump Administration supports.

 

I encourage all of my Senate colleagues to support the effort.

 

I yield the floor.

-30-