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Old December 31, 2016, 12:06 AM   #1
Cnon
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Grandma Got Run Over by Obama: SSA Finalizes New Gun Prohibition Rule

On Monday, Barack Obama’s Social Security Administration (SSA) issued the final version of a rule that will doom tens of thousands of law-abiding (and vulnerable) disability insurance and Supplemental Security Income (SSI) recipients to a loss of Second Amendment rights under the guise of re-characterizing them as “mental defectives.” The SSA, for the first time in its history, will be coopted into the federal government’s gun control apparatus, effectively requiring Social Security applicants to weigh their need for benefits against their fundamental rights when applying for assistance based on mental health problems




https://www.nraila.org/articles/2016...ohibition-rule



Hopefully Trump can fix this!
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Old December 31, 2016, 10:17 AM   #2
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Old December 31, 2016, 12:56 PM   #3
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I think (and hope) this is on Trump's radar ... along with the VA healthcare system's protocol of reporting to NICS as "mentally defective" any veteran who has a designated payee for a pension or disability payment (without any "adjudication" as required by federal law).

Combine the veterans and the Social Security recipients, and there must be millions of people out there who are being deprived of their 2A rights illegally.
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Old December 31, 2016, 12:59 PM   #4
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Quote:
Hopefully Trump can fix this!
No, sorry, Trump can't fix this.

Congress AND Trump, together, could but it would require some tweaking of actual LAW as well as bureaucratic regulations.

This specific situation has been brought up and discussed before, and its not quite what the NRA is claiming in their headlines. I realize that the NRA has to overstate some things, just to get people off their indolent butts, but in this case, I think they are doing the "chicken little" act a bit too well.

The underlying law is the GCA 68, and its creation of the classification of "prohibited person". ONE of the things that gets you in that category is mental deficiency. And, the law provides for a framework (due process) to determine mental deficiency. Each case MUST be dealt with as an individual, and that person must be adjudicated mentally incompetent.

In other words, there must be a legal hearing, and a legal ruling (judgment) made. You do not get to be a prohibited person just because you meet the criteria on some bureaucratic checklist.

However, this does NOT apply to SSI "rulings". Whether or not you qualify for THEIR category of "mentally deficient" is done entirely "in house". And, its done on people who are ADMITTING disability, and seeking govt aid because of that.

The issue here seems to be that the administration has decided that the SSI "mental disability" class (and its standards for inclusion) is the same as the mental disability that makes you a prohibited person for firearms possession. (it is not) And, the laws requiring one agency reporting information to another.

If I am reading this correctly, SSI is NOT denying gun ownership, nor has a gun prohibition rule, as the headlines imply. What they will be doing (are doing?) is REPORTING your status (in their classification system) to ANOTHER AGENCY (DOJ) who is THEN, ASSUMING your SSI status puts you in the prohibited category.

This is done WITHOUT the due process required by the GCA 68. I see this as a procedure issue, internal to the government agencies, and not a "gun grab" by direct design, although I'm sure some people are delighted that it does have that effect on certain people.

And, lets look at those people. The ones affected are people who #1) have applied for government aid due to mental deficiency, and #2) have been declared incapable of managing their own (financial) affairs.

Quote:
It will affect those who receive SSI or disability insurance because of a listed mental health impairment and who have been assigned a representative payee to manage the benefits because of the person’s mental condition.
Note the "and".

Now, here's the rub, as I see it, that while we all have a right to arms, there are people who simply should NOT have them (have legal access to them).

And people who are not mentally competent SHOULD be on that list. The problem here is that people who meet one agency's requirements for PAYMENT, are being automatically included in another agency's classification of prohibited persons, WITHOUT having their day in court.

(and, likely without any kind of notification of their change of legal status, unless/until they attempt to buy/transfer a firearm.

As I see it, this is a case of the administration requiring one agency (SSI) to follow reporting rules, and at the same time, NOT requiring another agency (NICS - et al) to follow their own rules.

Trump can't "fix" this, the most he can do is order (attempt) to get each agency to follow the rules that apply to each agency, and not treat similar sounding classifications as automatically identical for all legal purposes.

Of course, if/when he does try, he'll get as much political crap as they can throw at him for "wanting nutcases to have guns"....

No matter what the actual truth is...
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Old December 31, 2016, 05:35 PM   #5
johnwilliamson062
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Quote:
The problem here is that people who meet one agency's requirements for PAYMENT
Payment based on an admission of not being able to hold the simplest of jobs due to mental issues. AT least that is how I understand the purpose of SSI disability payments. Now, of course many have received benefits without really fitting that description, but it is the supposed reason for the payments.

If someone can't hold any sort of job whatsoever due to mental issues I think it is very unlikely they are competent enough to be handling a firearm. I know many who do hold jobs and very likely should not be handling firearms. There are some jobs out there with pretty low expectations. I'm not sure method used is legal, I'd even agree it is not, but the underlying idea is going to meet approval of the vast majority of Americans. Last I checked NRA, with a couple million members, was less than 1% of population.
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Old December 31, 2016, 07:30 PM   #6
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This is less about the actual policy and more about the underlying circuit split on what "adjudicated mentally defective" means. ATF favors a more expansive interpretation that doesn't require an adversarial hearing with an opportunity to have counsel present. Under that interpretation, a three-day involuntary commitment for observation (which can be done on the say so of two doctors and a municipal court judge rubber-stamping it) could be disqualifying for life - even if the whole thing just turned out to be overblown and you were released.

Although SSA is providing notice and an opportunity for hearing, they are citing the ATF interpretation of the law. So NRA is rightly concerned about both the current implementation and how it might be easily changed "phone and pen" style.
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Old January 2, 2017, 08:36 AM   #7
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Here is the SSA information document.

https://www.ssa.gov/regulations/NPRM...7%20(NIAA).PDF

Here are some highlights.

We propose to implement provisions of the NIAA that require Federal agencies to provide relevant records to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS). Under the proposed rule, we would identify, on a prospective basis, individuals who receive Disability Insurance benefits under title II of the Social Security Act (Act) or Supplemental Security Income (SSI) payments under title XVI of the Act and also meet certain other criteria, including an award of benefits based on a finding that the individual’s mental impairment meets or medically equals the requirements of section 12.00 of the Listing of Impairments (Listings) and receipt of benefits through a representative payee.

https://www.ssa.gov/disability/profe...ders-Adult.htm

12.00 Mental Disorders
A. Introduction: The evaluation of disability on the basis of mental disorders requires documentation of a medically determinable impairment(s), consideration of the degree of limitation such impairment(s) may impose on your ability to work, and consideration of whether these limitations have lasted or are expected to last for a continuous period of at least 12 months. The listings for mental disorders are arranged in nine diagnostic categories: Organic mental disorders (12.02); schizophrenic, paranoid and other psychotic disorders (12.03); affective disorders (12.04); intellectual disability (12.05); anxiety-related disorders (12.06); somatoform disorders (12.07); personality disorders (12.08); substance addiction disorders (12.09); and autistic disorder and other pervasive developmental disorders (12.10). Each listing, except 12.05 and 12.09, consists of a statement describing the disorder(s) addressed by the listing, paragraph A criteria (a set of medical findings), and paragraph B criteria (a set of impairment-related functional limitations). There are additional functional criteria (paragraph C criteria) in 12.02, 12.03, 12.04, and 12.06, discussed herein. We will assess the paragraph B criteria before we apply the paragraph C criteria. We will assess the paragraph C criteria only if we find that the paragraph B criteria are not satisfied. We will find that you have a listed impairment if the diagnostic description in the introductory paragraph and the criteria of both paragraphs A and B (or A and C, when appropriate) of the listed impairment are satisfied.

So, anyhow it’s apparently not just “ability to manage finances.”

The criteria in paragraph A substantiate medically the presence of a particular mental disorder. Specific symptoms, signs, and laboratory findings in the paragraph A criteria of any of the listings in this section cannot be considered in isolation from the description of the mental disorder contained at the beginning of each listing category. . . . .

The criteria in paragraphs B and C describe impairment-related functional limitations that are incompatible with the ability to do any gainful activity. . . .

The listings are so constructed that an individual with an impairment(s) that meets or is equivalent in severity to the criteria of a listing could not reasonably be expected to do any gainful activity. These listings are only examples of common mental disorders that are considered severe enough to prevent an individual from doing any gainful activity. When you have a medically determinable severe mental impairment that does not satisfy the diagnostic description or the requirements of the paragraph A criteria of the relevant listing, the assessment of the paragraph B and C criteria is critical to a determination of equivalence.
. . .
B. Need for medical evidence: We must establish the existence of a medically determinable impairment(s) of the required duration by medical evidence consisting of symptoms, signs, and laboratory findings (including psychological test findings). Symptoms are your own description of your physical or mental impairment(s). Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception, as described by an appropriate medical source. Symptoms and signs generally cluster together to constitute recognizable mental disorders described in the listings. The symptoms and signs may be intermittent or continuous depending on the nature of the disorder.

C. Assessment of severity: We measure severity according to the functional limitations imposed by your medically determinable mental impairment(s). We assess functional limitations using the four criteria in paragraph B of the listings: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. . . .

"Under the proposed rule, we would identify, on a prospective basis, individuals who receive Disability Insurance benefits under title II of the Social Security Act (Act) or Supplemental Security Income (SSI) payments under title XVI of the Act and also meet certain other criteria, including an award of benefits based on a finding that the individual’s mental impairment meets or medically equals the requirements of section 12.00 of the Listing of Impairments (Listings) and receipt of benefits through a representative payee."


The way I see this is rather simple.

If an individual applies for SS Disability based on Mental Defect, they must "prove" to the SSA that they are Mentally Defective. To "prove" they are defective and to prove they qualify, the applicant must supply the SSA with documentation, Medical records, court documents, etc.

If the applicant already has documentation proving they are Mentally Defective then they are already "prohibited person" whether they apply for Disability Benefits or not.

All the SSA is reporting the the NICS system those individuals have have declared and proven themselves "prohibited persons".
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Old January 2, 2017, 08:39 AM   #8
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OH, how about those of us that have Family Members collecting SSI based on Mental Defect, think we should make sure that these SSI Beneficiaries do NOT have physical access to our firearms?
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Old January 2, 2017, 10:12 AM   #9
Bartholomew Roberts
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Quote:
If the applicant already has documentation proving they are Mentally Defective then they are already "prohibited person" whether they apply for Disability Benefits or not.
Actually, it depends on the jurisdiction. In the Fifth Circuit, for example, you could be reported to NICS by this rule even though there is already case law suggesting you have not been "adjudicated mentally defective."

That is one of the issues. There is no actual language defining the phrase "adjudicated mentally defective" in the law. So that phrase is defined by ATF via regulation or by the courts. As a result, there are not only different definitions but as our outgoing president so amply demonstrated, the existing definition can be changed the same as any other regulation in the future - which naturally is a point of concern.
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Old January 2, 2017, 10:25 AM   #10
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Applying for SS Benefits based on mental Defect, and qualifying for Benefits based on Mental defect, makes one "mentally Defective".

Don't want to be reported to NICS for mental defect, don't admit to or claim you are Defective.

If one feels that they have wrongfully been reported to the NICS they can use the Appeal process. My guess is that if one were to appeal and declare themselves, not "mentally defective" and wish to retain their RTKBA, they would not Retain their Disability Status and lose their Benefits.

...and rightfully so.

Choose.
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Old January 2, 2017, 10:39 AM   #11
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I still have a question on how this affects family members.

If you are in contact with a person who is collecting Disability based on Mental Defect, what are your "legal" responsibilities to make sure that the SSI recipient has no access to your firearms.
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Old January 2, 2017, 11:06 AM   #12
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Assuming they are legitimately adjudicated mental defective in the eyes of the law, they are a prohibited person and the same rules apply - they cannot possess (including constructively) firearms or ammunition. It is illegal for the person who owns the firearms to knowingly transfer, sell or dispose firearms to a prohibited person.
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Old January 2, 2017, 12:07 PM   #13
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^^^
...and those that collect SS Disability for Mental Defect would be committing a Felony if answered (NO) to question 11(f) of form 4473??

https://www.atf.gov/file/61446/download
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Old January 2, 2017, 12:22 PM   #14
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They would also have to have a representative payee. However, you would have to do so knowingly. Given how rarely the government prosecutes lying on a Form 4473 in blatant cases, I'd be shocked if someone is going to try and argue someone who is adjudicated mentally defective with a representative payee has the ability to form the requisite mens rea. It is kind of a catch-22 as far as prosecuting goes.
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Old January 4, 2017, 12:58 PM   #15
ATN082268
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Originally Posted by 44 AMP
However, this does NOT apply to SSI "rulings". Whether or not you qualify for THEIR category of "mentally deficient" is done entirely "in house". And, its done on people who are ADMITTING disability, and seeking govt aid because of that.
I have two main issues with it. First, I'm not sure you should be taking the word of someone who is "mentally deficient" regarding anything, especially their own mental condition. Second, even if the "mentally deficient" category isn't expanded to encompass as many people as possible, I think similar buying of your Constitutional rights will be (and probably has been) applied in other areas.
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Old January 4, 2017, 04:58 PM   #16
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First, I'm not sure you should be taking the word of someone who is "mentally deficient" regarding anything, especially their own mental condition.
This seems like common sense, and of course, it is, BUT isn't that what ALL mental health determinations must be based on?

When you come down to it, what other ways are there to judge anyone, about anything, other than by what they say, and do, or have done??

There isn't any test I can think of that cannot be failed by someone determined to do it. (Why they would is a different question) The point here is that any kind of evaluation relies on the ASSUMPTION that the person being evaluated is responding honestly, and to the best of their ability. The assumption that someone is mentally deficient because they "fail" a certain exam MAY BE accurate, but should not be considered infallibly accurate in all cases.

Which brings up the question of what a "fail" is. What it is, is determined by those doing the evaluating. And those doing the evaluating are under the eternal question of "who guards the guards?"

The only way we have to do that (and it IS a FALLIBLE system) is with clinical definitions and legal regulations on the evaluators, and efficient unbiased oversight.

I would remind everyone that it was not all that long ago that homosexuality was listed in the recognized standard medical reference texts as a mental illness.

There are people who believe any interest in firearms is a form of mental illness. If one of those is doing your evaluation (for anything), how objective do you think they are going to be?
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Old January 5, 2017, 08:45 AM   #17
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Quote:
Originally Posted by ATN082268
First, I'm not sure you should be taking the word of someone who is "mentally deficient" regarding anything, especially their own mental condition.
Quote:
Originally Posted by 44 AMP
This seems like common sense, and of course, it is, BUT isn't that what ALL mental health determinations must be based on?
I have no idea what goes into a mental health determination and it wouldn't surprise me if the criteria can vary significantly from one evaluation to another. I would hope that mental health determinations would rely on general actions (behavior) of an individual prior to the evaluations. Using particular claims of an individual during an evaluation are O.K. but only if they can be independently verified. Would you, for example, just take the word of someone who says they're not crazy? Talking to someone might be useful in determining certain tendencies, like being a liar, for example, but I would never solely rely on them for any specific information.
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Old January 5, 2017, 09:01 AM   #18
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Who gets to determine just who is mentally defective and who is not? Trust anyone employed by your Government? My best guess would be that any returning serviceman that receives any SS benefits because they were diagnosed with PTSD is automatically deemed as such, and therefore denied their second amendment rights...correct?
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Old January 5, 2017, 04:27 PM   #19
Bartholomew Roberts
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As an aside, the OP is a bad person for putting that earworm in my head every time I read the title of the post in this forum.
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Old January 5, 2017, 10:34 PM   #20
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Originally Posted by shootbrownelk
Who gets to determine just who is mentally defective and who is not? Trust anyone employed by your Government? My best guess would be that any returning serviceman that receives any SS benefits because they were diagnosed with PTSD is automatically deemed as such, and therefore denied their second amendment rights...correct?
I think you are missing the point here.

The SSA is not "determining" if the applicant is mentally defective.

The applicant requests benefits based on Mental Defect. The applicant must then supply documentation and prove to the SSA that they qualify as Mentally Defective.

If the applicant has sufficient documentation to prove to the SSA that they are Mentally Defective, then,,, They are Mentally Defective by their own admission and documentation.

Last edited by steve4102; January 6, 2017 at 09:33 AM.
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Old January 6, 2017, 08:31 AM   #21
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Originally Posted by 4102
The SSA is not "determining" if the applicant is mentally defective.
True but mental defects can cover a wide range of things. For now anyway, it seems confined to people who have help managing their finances. That aside, what bothers me is how the government gives us our own money back with a host of unsavory strings attached...
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Old January 6, 2017, 01:20 PM   #22
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As I understand the law, and I am not a lawyer, it requires that a person be adjudicated as insane. The definition is not knowing the difference between right and wrong, a danger to oneself or others.
A court of law is the only place such adjudication can be made and it must be made by a jury.
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Old January 6, 2017, 01:39 PM   #23
Bartholomew Roberts
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The definition is not knowing the difference between right and wrong, a danger to oneself or others.
Under all of the regulatory and case law interpretations of "mentally defective", there is no requirement that you are unable to distinguish right from wrong. You can be a prohibited person as a mental defective even if you can tell right from wrong.

Under all of the regulatory and SOME of the case law, there is no requirement that you are a danger to yourself or others. You can still be adjudicated "mentally defective" without any such finding right now.

Quote:
A court of law is the only place such adjudication can be made and it must be made by a jury.
As the law stands now, it does not require a court of law or a jury. An administrative hearing is sufficient in all jurisdictions. In some jurisdictions, they don't even have to grant you an adversarial hearing with a right to have counsel present (which is also the stance ATF takes).
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Old January 6, 2017, 05:56 PM   #24
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Here is the purchase form 11 f about the adjudication process and the directions of answers:

Quote:
Have you ever been adjudicated mentally defective
(which includes a determination by a court, board, commission, or other lawful
authority that you are a danger to yourself or to others or are incompetent to manage your own affairs)
OR
have you ever been committed to a mental institution?

Directions to Question 11 f:
Question 11.f. Adjudicated Mentally Defective:
A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) is a danger to himself or to others; or (2) lacks the mental capacity to contract or manage his own affairs. This term shall include: (1) a finding of insanity by a court in a criminal case; and (2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility.
So if you are a danger to yourself or others, or are severely retarded or otherwise incapable of signing a contract, or found not guilty by reason of insanity or adjudicated as insane in a court of law you aren't able to own, control or use a firearm.
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Old January 6, 2017, 05:56 PM   #25
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So, in order to get the government to allow your family to deposit your checks and pay your bills, they have to judge you as mentally defective. Pretty harsh way to accomplish a fairly trivial function, isn't it?

I doubt if there is a single balanced checkbook in our entire office.
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