Is This President Obama's Parting Shot at Gun Owners?

By Markets Fool.com

With just weeks to go in his administration, President Obama will see finalized a rule he pushed for three years ago to deny certain Social Security benefits recipients the right to purchase firearms, a sweeping denial of Second Amendment rights that has critics in an uproar. The rule would have the Social Security Administration feed into the national background check system its information on people getting disability benefits who have a mental health issue.

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The new rule will roll Social Security Administration information on mental health into the background check system. Image source: Getty Images.

Because the benefits distributed by the Social Security Administration go to so many people, this new system portends a loss of rights for tens of thousands of Americans -- the White House itself says as many as 75,000 people could be covered -- who have not necessarily been determined to be a danger to themselves or anyone else. But the SSA steps aren't as sweeping as those undertaken by the Department of Veterans Affairs, which, according to The Los Angeles Times, reports "anyone who has been declared incompetent to manage pension or disability payments and assigned a fiduciary."

Born from tragedy

In January 2013, following the shootings the month before at the Sandy Hook elementary school in Newtown, Conn., Obama called for federal agencies to step up their efforts at reporting people to the National Instant Criminal Background Check System, or NICS, which is intended to prevent criminals and the mentally ill from being able to buy guns.The SSA, which previously didn't participate in sharing its records with NICS, last year began drafting its rules to comply with Obama's executive orders on gun control.

The fear was that it would use an overly broad classification system like the much-criticized one the VA uses, and though the SSA has significantly narrowed the scope of its rules, it still denies benefit recipients adequate due process by taking away their rights without any sort of administrative hearing and requiring them to petition to have them restored. Equally problematic is that it may cause people to avoid seeking the help they need for mental health problems due to fear of losing their rights to own or buy a firearm.

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A 5-step process

There's a five-step process the SSA will take before reporting a person to the NICS, first determining whether an individual has:

  1. Filed a claim based on disability.
  2. Been found disabled based on a finding that the individual's impairments meets or equals those on a list of mental disorders.
  3. Been given "a primary diagnosis code in [the SSA's] records based on a mental impairment."
  4. Reached 18 years of age, but not yet attained full retirement age.
  5. Benefit payments made through a "representative payee" because he or she is incapable of managing them due to "marked subnormal intelligence, or mental illness, incompetency, condition or disease."

Image source: Getty Images.

If the individual does not meetallfive conditions, they will not be reported to NICS, so on the surface the requirements sound reasonable. After all, the SSA chose not to focus on any age group like the elderly or those who are receiving retirement benefits, and it will provide advance notice to the individual that he or she will be reported to NICS. While the rules still don't give a person the right to act before his or her rights are denied, and the onus is on him or her to prove he or she is not a danger to the public, he or she isat least made aware an action is being taken and can begin the process of defending himself or herself.

Painting with a broad brush

The new rules will undoubtedly prevent some people from acquiring a gun who shouldn't have one, but it also sweeps up tens of thousands of others who have not been deemed a threat to anyone, and does so because someone else has been assigned to manage their finances, which might occur for any number of reasons that have nothing to do with their ability to otherwise function in society as a law-abiding citizen. It's not keeping someone who is mentally ill from getting a gun, but rather a person with a "mental impairment," and those are two very different things.

Even advocates for the disabled and mental health practitioners think using financial incompetence as a basis for denying fundamental constitutional rights is a poor measure to go by, as it stigmatizes an entire group of people.

The National Council on Disability, for example, said, "While the proposed rule is limited to people who have a "mental disorder," this classification includes a wide range of limitations and a shifting set of criteria that is relevant to whether or not one can engage in substantial gainful activity. However, the classification is irrelevant to the question of whether one can be a responsible gun owner."

It's also not the last we're likely to see of these initiatives being handed down from federal agencies as Obama's 2013 directive also applied to the Departments of Defense, Health & Human Services, Transportation, and Homeland Security, as well as the Offices of Personnel Management and Management & Budget. Moreover, the SSA has admitted that the number of people covered by its regulations could be expanded in the future to include other categories of benefit recipients, though the rulemaking process would have to go through the same procedure the current regulations did.

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A lasting impact

With the election of Donald Trump to the presidency, many have thought the issue of gun control would go away or at least lie dormant, but as is often the case in other areas of public policy, it's not so much the actual law that causes the greatest harm, but the rulemaking that follows where the real damage is done.

The lasting impact President Obama may have on the gun control issue will not have come from getting a new law passed,but rather having regulations adopted that achieved a similar effect and will live on long after he has left office.

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