Social Security Regulation Limiting Second Amendment Rights is Patently Unfair
Prepared Senate Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Social Security Regulation Limiting Second Amendment Rights is Patently Unfair
February 14, 2017
There’s been a lot of talk about how the Congressional Review Act is the wrong vehicle to repeal this disastrous regulation.
The National Coalition for Mental Health Recovery says otherwise:
“The CRA is a powerful mechanism for controlling regulatory overreach, and NCMHR urges its use advisedly and cautiously. In this particular case, the potential for real harm to the constitutional rights of people with psychiatric and intellectual disabilities is grave as is the potential to undermine the essential mission of an agency that millions of people with and without disabilities rely upon to meet their basic needs. Therefore, in this instance, NCMHR feels that utilizing the CRA to repeal the final rule is not only warranted, but necessary.”
Mr. President, I’d like to enter this letter into the record.
There’s also been talk about how supposedly dangerous it will be if this Social Security regulation is terminated. I don’t see how that can possibly be realistic if the Social Security Administration doesn’t even determine a person dangerous in the first place.
Others continue to mention that mentally ill people will be able to acquire firearms. Again, the Social Security Administration DOES NOT determine a person to be mentally ill prior to reporting their names to the gun ban list.
The agency has confirmed this in writing to my office:
“Yes, you are correct. The Social Security Administration does not diagnose individuals as mentally ill.”
Supporters of this gun ban fail to address why individuals are not provided formal due process before reporting their name to the list. Supporters have also failed to talk about how the regulation is inconsistent with the statutory standard of “mental defective.”
An existing statute requires agencies to report individuals to the gun ban list who are ineligible under current law from possessing firearms. That requirement does not require the existence of any regulation to be effective.
So it is plainly wrong to claim, as was said today, that if the regulation is disapproved, agencies will no longer have to report prohibited persons. The reverse is true.
The regulation usurps unlawful authority to report people to the gun ban list who are not barred from owning guns under current law and that the agency is prohibited from reporting under current law, especially without the adjudication that is required under current law.
Opponents of the regulation base their opposition on the language of the regulation, existing statutory law, and the Constitution. That is why the regulation’s supporters must resort to arguments that lack legal and factual foundation.
Supporters of this gun ban also fail to address how overly broad the regulation is. It will capture innocent Americans. And sadly, we know how this will play out.
For example, the Department of Veterans affairs has reported hundreds of thousands of veterans to the National Instant Criminal Background Check System without adequate due process.
Veterans were reported just because some bureaucrat wanted to report them—with no opportunity to first have a neutral authority hold a hearing finding that they are a danger or actually have a dangerous condition.
These were veterans that needed financial help managing their benefit payments. Needing help with your finances should not mean you have surrendered your fundamental constitutional right of self-defense.
And just like the Social Security Administration, the VA does not determine whether a veteran is dangerous before reporting a name to the gun ban list, and denying that veteran constitutional rights to own firearms.
The VA regulation is eerily similar to what the Social Security Administration wants to do.
On May 17, 2016, Senator Durbin and I debated my amendment that would require the Dept. 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.
He said, “I do not dispute what the Senator from Iowa suggested, that some of these veterans may be suffering from a mental illness not serious enough to disqualify them from owning a firearm, but certainly many of them do.”
Senator Durbin also 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. That’s 98.8 percent of all names in the alleged “mental defective” category.
The Department of Veterans Affairs reported more names by far than any other agency, and without sufficient justification. Senator Durbin’s staff and mine have met over these issues since that debate. I appreciate and thank him for that outreach.
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 this regulation is not repealed, the agency has informed my staff that approximately 15,000 to 75,000 beneficiaries may be reported annually. That will add up quickly.
In my earlier speech on this topic, I made clear that the agency regulation is defective in many ways. Namely, the regulation does not require the agency to find a person dangerous or mentally ill. The regulation also provides NO formal hearing before a person is reported to the gun ban list. Supporters have also said that repeal of this regulation will interfere with enforcement of gun prohibition laws. Such a position is without any merit.
As I made clear in my earlier speech, important federal gun laws are still on the books even if the agency rule is repealed. And this is so because this new regulation is actually inconsistent with existing federal gun laws.
For example, individuals who have been determined to be dangerous or mentally ill will be prohibited. As will those convicted of a felony or a misdemeanor crime of domestic violence. The same for those involuntarily committed to a mental institution.
While discussing the faults and defects of the rule, I think it’s important to highlight that the issues I pointed out are also the solution to the problem. If the supporters of the agency rule want the Social Security Administration to report individuals to the gun ban list, changes need to be made.
Individuals must be first determined by a neutral authority after a fair hearing to be dangerous or have a dangerous mental illness. Constitutional due process must be afforded.
If we do not act, the agency will erroneously report tens of thousands of people per year to the gun ban list. Not one of them will have been adjudicated to be dangerous after a hearing with due process. Not one of them will have been adjudicated to be mentally ill after a hearing with due process. And all of them will have had the government’s burden shifted to them to prove they are not dangerous in order to get their name off the gun ban list.
Any way you look at this, the regulatory scheme is patently unfair.
If the government wants to regulate firearms, it needs to produce a clearly defined regulation that is narrowly tailored to identify individuals who are actually dangerous or who actually have a dangerous mental illness. The government must also afford constitutional due process.
What we are dealing with here is a fundamental constitutional right. With that type of constitutional status, the Second Amendment requires greater effort and precision from the government in order to fairly regulate how the American people exercise their rights.
This regulation simply doesn’t meet that standard.
I urge my colleagues to support the resolution of disapproval.