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Old December 6, 2017, 11:54 PM   #176
jdc1244
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In the case of the VA and SSA reporting people to NICS, there is no process, let alone due process. There's no hearing -- someone sees that the person appointed a third-party payee, and BOOM! Off goes a report to NICS. And there isn't even any notification to the individual that they've been reported so there's no way they would know to appeal -- even if there were an avenue for appeal.
Wrong.

There is an appeal process for anyone denied purchasing a firearm due to a NICS background check, regardless of the reporting agency.
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Old December 7, 2017, 12:42 AM   #177
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Originally Posted by jdc1244
Quote:
In the case of the VA and SSA reporting people to NICS, there is no process, let alone due process. There's no hearing -- someone sees that the person appointed a third-party payee, and BOOM! Off goes a report to NICS. And there isn't even any notification to the individual that they've been reported so there's no way they would know to appeal -- even if there were an avenue for appeal.
Wrong.

There is an appeal process for anyone denied purchasing a firearm due to a NICS background check, regardless of the reporting agency.
In order to appeal, you have to know there's something to appeal about. In the case of people who are reported because they appointed a third-party payee, unless they try to buy a firearm through an FFL and get a NICS denial, they have no way of knowing they've even been reported. You can't appeal what you don't know about.

Technically, the appeal you're talking about is an appeal of the NICS denial, it's not an appeal of the initial report that put the person on the NICS blacklist in the first place.
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Old December 7, 2017, 09:21 AM   #178
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5th Amendment violation? How do you figure?
Quoted from the 5th amendment:

Quote:
nor be deprived of life, liberty, or property, without due process of law
Since the RKBA is a constitutional right, I will assume it can be included in liberty. So an administrative agency adjudicating the restriction of a constitutional right very well should run afoul of the constitution.

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Examples of quasi-judicial administrative agency action include: a medical board revoking a physician's license for a breach of professional obligations; a department of insurance issuing a company a license to operate an HMO; a department of consumer affairs licensing real estate brokers fineing a real estate broker for an unlawful failure to properly maintain a trust account; or the ATF rejecting an application for an FFL.
Frank basic question for our resident attorney. I'm well aware of the above examples as I have had to testify at several such hearings. BUT... I would think it would be radically different if an administrative agency was trying to restrict a constitutional right. No one has a constitutional right to hold a medical license or open a FFL business. Is this correct or is my thinking flawed?
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Old December 7, 2017, 10:03 AM   #179
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Originally Posted by Aguila Blanca
The violation is when the SSA or the VA unilaterally determine, without benefit of any semblance of a hearing or trial, that a person is "mentally defective" and must be reported to NICS as prohibited simply because they designated someone else to receive their benefit checks
If I recall it was more than just a Representative Payee that was used to place SS Recipients on the NICS list.

If I recall, the Obama directive was for those that were collecting SS benefits based on mental defect or claims of mental illness AND they required a representative payee due to their inability to manage their own affairs.

Basically, by their own admission they were mentally defective.
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Old December 7, 2017, 10:08 AM   #180
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Administrative due process was at issue in the case just a couple of years ago in which the EPA issued a compliance order against the buyer of an empty lot that prevented them from building on it. That had constitutional implications, but just the fact of an administrative hearing resolving someone's rights isn't a violation. The people involved just need to afford due process. Goldberg v. Kelly is the case I recall from a class on that area.

Generally, one who disagrees with the result of the administrative hearing and appeal process is obligated to exhaust those administrative options before getting his problem before a member of the judiciary.

Quote:
Originally Posted by 5Whiskey
Since the RKBA is a constitutional right, I will assume it can be included in liberty. So an administrative agency adjudicating the restriction of a constitutional right very well should run afoul of the constitution.
Not that this point reflects pertinent law on the point, but I have affection for the point philosophically, and more broadly than as a matter of administrative law.

The problem [I have] with legislating that a rifle with a magazine that holds 11 rounds, for instance, should be prohibited from general possession because it won't be handled responsibly is that it deprives a right without any kind of individualized finding. I know lots of people who aren't responsible enough to possess a firearm, or drive or vote for that matter, but my opinion on that doesn't matter unless a person has had a hearing in which he gets to present his side of the matter.

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Old December 7, 2017, 11:09 AM   #181
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Originally Posted by 5whiskey
...I would think it would be radically different if an administrative agency was trying to restrict a constitutional right. No one has a constitutional right to hold a medical license or open a FFL business. Is this correct or is my thinking flawed?
In all cases the courts have essentially found a right to due process. So with regard to any such action of an administrative agency there can always be an inquiry into whether the procedures of the agency, with regard to the initial decision, any administrative appeal, and any judicial review, satisfy one's right to due process.
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Old December 7, 2017, 11:44 AM   #182
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On the face it's obvious that most administrative adjudicating hearings pertain to members of a professional organization, individuals with licenses subject to the administrative agency, or people seeking specific benefit from the administrative agency.

None of the above really deal with a constitutional right. I would be appalled if an administrative hearing could, in fact, restrict a constitutional right. Appalled, but not really surprised. I can find neither example of, nor prohibition against this actually occurring. Admittedly I didn't spend a great deal of time researching this. I would be really interested if someone is aware of a specific example.
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Old December 7, 2017, 12:51 PM   #183
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Can someone help me out here? I'm not seeing anything in the text of HR38 that changes the NICS system. I am also seeing that HR4477, which would make changes to NICS, has not been voted on.

What am I missing?
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Old December 7, 2017, 12:53 PM   #184
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I fully expect the "usual suspects" to use every trick in their bag to kill this, for two main reasons, one its pro gun, and two, Republicans want it passed.
Unless McConnell fills the tree to block amendments from the floor, I don’t see how it avoids getting some iffy amendments attached in the Senate.
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Old December 7, 2017, 12:59 PM   #185
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Some refresher on the social security reporting to NICS:
https://thefiringline.com/forums/sho...ocial+security

HR38 does contain the Fix NICS Act, as well as authorizing a study on bumpfire stocks. Text here: https://www.congress.gov/crec/2017/1...-PgH9685-2.pdf

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Old December 7, 2017, 01:14 PM   #186
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Originally Posted by Aguila Blanca
The violation is when the SSA or the VA unilaterally determine, without benefit of any semblance of a hearing or trial, that a person is "mentally defective" and must be reported to NICS as prohibited simply because they designated someone else to receive their benefit checks
this isn't correct, but it is closer to the truth than what the press reported.


Quote:
If I recall, the Obama directive was for those that were collecting SS benefits based on mental defect or claims of mental illness AND they required a representative payee due to their inability to manage their own affairs.
This is the situation at actually occurred. What the press reported about Trump's (fully proper and justified) repeal was that it "allowed mentally ill people to buy guns", which, was neither truthful, nor accurate...as usual...

What actually happened was one of those all too common "perfect storm" bureaucratic catch-22s. A combination of law and bureaucratic regulations, from multiple govt. agencies. While it may not have been deliberately engineered, and might simply have been a case of unintended (and unforeseen) consequences, since the result was some people being improperly/incorrectly (and illegally) listed as prohibited persons, the anti gun administration simply let it slide along. Even after it was "discovered", they did nothing to correct the situation, since it went along with their agenda.

The LAW (GCA 68) says "mentally incompetent" people are prohibited from buying firearms (from and FFL dealer). The LAW also defines "mentally incompetent" as "adjudicated incompetent", meaning a COURT rules it, after a hearing where both sides get to present evidence.
(this is the ocean we all sail on)

Now along comes the SSA (and the VA) which also use the term "mentally incompetent" (or something similar) as in in house definition which applies ONLY to actions and rulings (about benefits) WITHIN their respective agencies.
(this is the first storm)

The Administration, in its hypercompetent wisdom orders that all "mentally defective/mentally ill people must be reported to the NCIS. This was one of those "common sense" things, (of course mentally incompetent people are prohibited, the law says so...) which did NOT take into account that the definition in law, and the definition used by various govt. agencies are substantially DIFFERENT!
(the second storm)

NCIS gets a report of mental incompetence, and has no means, nor motive (its not in their mandate) to verify that such reports are accurate and meet the legal definition. They simply HAVE to take them at face value, and at face value the (incorrect) classification puts that person in the prohibited category.
(Third storm, your boat (gun rights) gets sunk.

NO violation of gun rights happens when SSA (or for that matter the VA) lists you in the mentally disabled group. That ruling ONLY applies to your status in the SSA files. The violation of rights happened when that "in house" ruling was sent to the NCIS as if it were the legal ruling (which is it NOT).

To restate, slightly simpler...

The law says "ducks can't buy guns", and the law also says "its NOT a duck, until a judge RULES that its a duck".

Agency A says "if it walks like a duck, then for our purposes, it is a duck".

Agency B says "if it walks like a duck, AND quacks like a duck, then for our purposes, it is a duck".

Administration says "all ducks must be reported to Agency C".

Agency C says "if its reported to us as a duck, we put it in the prohibited group, per the law".

So, Agencies A & B send their list of ducks to Agency C, who does not know, and is not told that A and B list ducks are not ducks under the law, but only ducks in the eyes of Agencies A & B. Agency C performs their duty, under the law, and A&B list ducks get listed as prohibited.

New administration takes over, realizes what has been going on, and changes the rule (to comply with the law) to say "only those that meet the correct legal definition of "duck" must be reported to Agency C.

And then the press has its field day, shouting how the new administration is making it easy for the mentally ill to buy guns.

Sorry for the drift, but this issue needs to be correctly understood, not just with sound bites from either side, and since the Reciprocity bill now is linked with NCIS "improvement" I thought it a related issue.
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Old December 7, 2017, 01:14 PM   #187
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HR 38 and 4477

According to the link provided by BR, the bills were combined on recommendation of the House Judiciary Committee (Rules Committee Print 115-45), and the House voted on the combined version.
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Old December 7, 2017, 01:30 PM   #188
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Originally Posted by 5whiskey
...None of the above really deal with a constitutional right. I would be appalled if an administrative hearing could, in fact, restrict a constitutional right. Appalled, but not really surprised. I can find neither example of, nor prohibition against this actually occurring. Admittedly I didn't spend a great deal of time researching this. I would be really interested if someone is aware of a specific example.
With respect to rights protected by the First Amendment it's a very common occurrence. Many counties and municipalities require a permit for a public assembly (speech and assembly are rights protected by the First Amendment). Applications must be submitted to some public agency, and denials are subject to administrative appeals and, if sought, judicial review. It's a common process.

For just one example, see Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). A Chicago ordinance requires that organizers wishing to hold certain types of public assemblies first obtain a permit from the Chicago Park District. The petitioners had applied for permits on multiple occasions to hold rallies urging the legalization of marijuana. The Park District granted some permits and denied others.

Petitioners were dissatisfied and filed suit to enjoin enforcement of the permitting ordinance as facially unconstitutional. The case went up to the Supreme Court which ultimately agreed with the lower courts that the ordinance was valid and enforceable because it set constitutionally permissible standards of the issuance or denial of permits.
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Old December 7, 2017, 02:03 PM   #189
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Thank you Frank, that answers my question. Had not thought about protest permits but yeah it applies.
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Old December 7, 2017, 03:06 PM   #190
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Originally Posted by Steve4102
If I recall, the Obama directive was for those that were collecting SS benefits based on mental defect or claims of mental illness AND they required a representative payee due to their inability to manage their own affairs.
But the threshhold was as simple as the person could no longer balance his/her checkbook and therefore needed (or just wanted) some help in watching the money, not that they were in any way a danger to society. Ask Mike Irwin -- IIRC, he went through this with his mother. (Not the NICS report, but the fact that she reached a point of not being capable of managing her own finances. That didn't make her a menace to society.)

Quote:
Originally Posted by 44 AMP
NO violation of gun rights happens when SSA (or for that matter the VA) lists you in the mentally disabled group. That ruling ONLY applies to your status in the SSA files. The violation of rights happened when that "in house" ruling was sent to the NCIS as if it were the legal ruling (which is it NOT).
Correct. Thanks for filling in the dots for me.

The ancillary aspect, as it pertains to the VA, is that the VA is on a mission to try to prevent veteran suicides. That's generally a laudable goal. Where it becomes a problem is that they actively solicit any and all information that a veteran in their system even might be just a little bit depressed -- then they list him as having PTSD, and the next thing you know that veteran has been reported to NICS -- all because he answered a simple question at a routine appointment with "Yeah, I have felt a little sad a few times in the last six months." Well, who HASN'T?

I go to the VA for most of my health care. It doesn't matter if my wife ran off with my best friend, my dog died, my house burned to the ground, and a bus just ran over my pickup truck. when the intake clerk asks "Have you felt sad, even a little bit, since your last appointment?" my answer is "Nope, everything's great. How're things for you?"

Last edited by Aguila Blanca; December 7, 2017 at 03:15 PM.
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Old December 7, 2017, 03:15 PM   #191
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Thanks BR for the link. The text of the bill at congress.gov does not have the second half listed, for whatever reason.
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Old December 7, 2017, 05:53 PM   #192
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Originally Posted by K Mac
Armed_Chicagoan you can chase this rabbit all day if you wish. Yes, the 7th concluded that Mary Shepard had the right to carry to protect herself, and that the ridiculous Illinois law prohibiting CC was in violation of the 2A as interpreted by Heller. Again, it was Heller that ruled self-defense was an individual right. Illinois was dragged kicking and screaming to allowing concealed carry and it was Heller that made it possible.
Heller was silent about the right to bear arms outside the home. I think the 7th Circuit is the only one that has ruled there is a right to bear arms outside the home which forced Illinois' hand.
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Old December 7, 2017, 08:28 PM   #193
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ArmedChicagoan when you read the ruling of the 7th it cites both Heller and McDonald as the precedent for their reluctant decision:

The panel majority (Judge Williams dissenting) held that so strict a ban—unique among the states—on carrying a gun violates the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and held applicable to the states in McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

For purposes of the present appeal the most important part of our 2012 decision is the last paragraph:

The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.


It was the Heller ruling that "compelled" them to reverse their position. Were it not for Heller, Illinois would still be "unique among the states" with concealed carry illegal.

Here is a link to the ruling:

http://caselaw.findlaw.com/us-7th-circuit/1648621.html
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Old December 8, 2017, 09:36 PM   #194
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@K Mac - yes Heller and McDonald were necessary prerequisites but Shepard went beyond those rulings.
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Old December 10, 2017, 05:06 PM   #195
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The U.S. House passed the 'Concealed Carry Reciprocity Act' around 12/6/2017. It still has to pass the U.S. Senate.

I think it's interesting to see how National Public Radio reported this.
Quote:
On a mostly party-line vote, the measure easily passed, 231-198, although 14 Republicans voted no. Six Democrats voted for the so-called reciprocity measure, which would allow a gun owner with the proper permit in any state to carry a concealed firearm to another state where it is also legal.
I'm not claiming media bias this time, I'm just a bit confused. Doesn't a concealed carry permit holder ALREADY have the right to carry into another state where it is also legal? I see reciprocity maps already that show which states honor other states permits.

I'm thinking the bold text above demonstrates NPR just doesn't understand the issue or perhaps I don't. And I'm not being facetious here, I really might not understand this issue.

Here's the links:
https://www.npr.org/sections/thetwo-...ss-state-lines

https://www.politico.com/story/2017/...un-bill-283768
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Old December 10, 2017, 06:05 PM   #196
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National reciprocity is needed

We need national reciprocity it makes sense, if your drivers license is recognized in all 50 states, why shouldn't your gun permit be? I here so many stories of people traveling though anti gun states, and being arrested for doing nothing but carrying their gun. Often these states have ridiculous laws, simply to stop law abiding citizens from their 2nd admenent rights.
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Old December 10, 2017, 06:19 PM   #197
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And whose laws will rule in those states? They won't give up their restrictions.
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Old December 10, 2017, 07:30 PM   #198
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Dale, I think what was being referred to is that not all guns are legal in all states. I've read that there are some gun models that are not allowed in states like California. Maybe this law doesn't cover taking a gun that's fine in your state into one where it's been banned.
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Old December 11, 2017, 12:34 AM   #199
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if your drivers license is recognized in all 50 states, why shouldn't your gun permit be?
It sounds like common sense, but sadly common sense is sadly lacking in some areas of human endeavor. Government is often considered one of those.

The trouble the driver's license example is that gun laws, unlike traffic laws, vary widely between the states. AS DO the requirements for getting a carry permit.

Driving, you go to the DMV pay the fee, take the tests, written and road test, and if you pass, you get your license. Pretty much standard in all states. Not so gun laws and restrictions. Every state has their own versions, some states are similar, some are widely different.

There are multiple issues at work now, instead of one simple common set of rules. Further complicating matters, and moving things further and further from the driver's license example are the issues of state's rights, and many peoples differing interpretations of our right to keep and bear arms.

And then there is the current state of established law, and how it is interpreted by various courts. All very complex, and not easily amenable to a one size fits all solution.

It was long ago established that while you do have a Constitutional right to travel ("Liberty" is the usual reference), you and I DO NOT have a Constitutional right to operate a motor vehicle on public roads and highways.

SO, a state regulated system of licensing (and testing) was established. Since the "rules of the road" are pretty uniform throughout the states, there wasn't any big resistance to each state recognizing each other's driver's licenses.

It is automatically assumed that each state's drivers have the same basic skill and ability to operate a motor vehicle, and this is proven by their passing the required tests.

Not so with firearms. Some states have required tests before they will issue a carry permit, some do not. And some states have taken the approach that they will not recognize other states permits that do not have the same issuance requirements as their state. Which, under established law, they have a right to do. They shouldn't, but they legally CAN.

Not only is that right a matter of political power for the state, but it is also a matter of public safety, as they see it. The argument is that they simply don't wish to allow people who do not meet their state's "level of trust" requirements to go armed among them. They feel that is a public safety risk.

There is some merit to that argument. But, is it enough?
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Old December 11, 2017, 01:02 AM   #200
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Sonofscubadiver-your point about some guns not being allowed in some states was something I completely overlooked.

It seems like a 'common sense' gun law to me, that is, all states recognizing all permits but it's obviously a very messy issue. It's nice to come to this site and get peoples reasoned opinions on this stuff.
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