Last week, the Obama administration put the finishing touches on a new policy that would deprive recipients of disability insurance and Supplemental Security Income (SSI) of their Second Amendment rights. The administration will now characterize those citizens as “mental defectives,” thereby having their ability to own a firearm subject to the federal Gun Control Act.
Supplemental Security Income helps blind, disabled, and elderly people with little to no income. Previously, it was understood that “mentally defective” referred to one’s mental health. Citizens who have been institutionalized against their will are restricted from owning a firearm. The new definition of “mentally defective” has nothing to do with being mentally ill.
The Social Security Administration released its final decision after a period of open comments that drew more than 91,000 responses, including a response from the NRA. Although Obama likes to empty out Guantanamo Bay of dangerous terrorists and commute the sentences of criminals guilty of breaking federal firearms laws, he doesn’t like law-abiding American citizens to possess firearms.
The NRA submitted comments to the Social Security Administration, but the issues raised by the gun rights association were ignored.
For example, the SSA did not attempt to answer most of the legal questions raised about its authority, instead deferring to an overbroad and problematic ATF regulation defining who counts under the federal Gun Control Act as a “mental defective” and to Department of Justice guidance on reporting. The SSA did not explain why, some two decades after the federal background check system came online, it was reversing its earlier determination about its reporting responsibilities and only now asserting a mandate to do so.
Incredibly, the SSA also brushed aside empirical evidence the NRA submitted suggesting that the proposed rule would have no public safety benefit. “We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence,” the SSA wrote. “Rather, we are complying with our obligations under the NIAA, which require us to provide information from our records when an individual falls within one of the categories identified in 18 U.S.C. 922(g).” This would seem to be the very definition of the sort of arbitrary and capricious rulemaking prohibited by the Administrative Procedures Act.
Most notably, the new rule does not make clear how an individual could appeal the agency’s decision to deny Second Amendment rights. Writes the NRA, “The rule would not provide those subject to its terms the ability to defend their suitability to possess firearms before the actual loss of rights took place. In other words, it offers no due process on the question of losing Second Amendment rights.”
Instead, a victim of the new regulations would have to petition for his constitutional right to own a gun because he poses no threat to the public safety. Has it even been established that SSI recipients are responsible for the “gun violence” the administration has been targeting? Do we know what percentage of gun criminals are on SSI?
This new authority the administration has granted itself is in line with Obama’s previous efforts to give himself extra-constitutional powers. Let’s hope President-elect Trump will change course and do something about this ridiculous new policy.