Notice of Rulemaking on Background Checks

It’s been published in the federal register. This is the first step an agency takes when it wants to change a rule, according to the Administrative Procedure Act. This is a proposal. There will be a public comment period, where the public can provide feedback. The docket number for this proposed change is ATF 51P. Reader Chris sent me some analysis which I agree with, so I will reproduce it here:

Big changes I saw:
– People who are not-guilty by means of insanity will be prohibited.
Comment:  Sen Begich proposed a federal law that would have done the same thing, S480.  S480 served as a sort of “RINO and DINO 2A Liferaft,” offering a refuge for lawmakers who need to look pro-2A but also need to Do Something For the Children.  ATF’s ruling will take S480 off the table in the future.  It basically closes off a safety valve that allowed lawmakers to duck a tough vote.
 
– ATF is considering clarifying whether the term ‘‘committed to a mental institution’’ includes a commitment that occurred when the person was under the age of 18.
Comment:  I wonder if people under age 18 receive the same due process rights as adults when being committed to treatment.
 
– In addition, the Department proposes amending the definition of ‘‘committed 
to a mental institution’’ to clarify that involuntary commitment to a mental 
institution includes both inpatient and outpatient treatment.
Comment:  The final text of the ruling here will be critical.  Does mandatory court-ordered substance abuse or anger management or marital counseling qualify as “involuntary outpatient treatment?”  S480 used different, more specific language:  “required involuntary outpatient treatment by a psychiatric hospital based on a finding that the person is an imminent danger to himself or to others; or”
 
– Persons are not considered to have been ‘‘committed to a mental institution’’ as a result of a voluntary admission to a mental institution or a temporary admission for observation unless the temporary admission for observation turns into a qualifying 
commitment as a result of a formal commitment by a court, board, commission, or other lawful authority.
Comment:  “Other lawful authority” gives me pause…  Does a nurse and cop authorizing a 72 hour hold qualify?  Hopefully no.  S480 used different, more precise language to rule out this possibility.  S480 also read that it would NOT include, “a person who is in a psychiatric hospital for observation;”
 
Finally, S480 included relief for individuals who were no longer a danger to themselves or others.
 
Really, the ATF rule looks like a way to take S480 off the table, and to run with the most restrictive aspects of S480 without any of the protections Begich/Graham had written in.

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9 thoughts on “Notice of Rulemaking on Background Checks”

  1. I wonder if the outpatient treatment change would include other then court ordered. This could affect the military and LE drastically. ‘‘committed to a mental institution’’ is
    not defined in 18 U.S.C. 922, is the scary part. If its not defined then, who has the ability to “commit” someone to outpatient treatment? Right now I assume it to be under the laws of the States. Could a supervisor, or a superior order you to get treatment be enough? Maybe I’m reading that wrong, hope I am.

    Then again, the law is quickly becoming what they say it is….

  2. Terri,

    If you read the rulemaking you will see that they do borrow heavily from provisions already applying under UCMJ.

    It is indeed a good question whether or not a command-directed mental health evaluation, or command-directed substance abuse intervention would qualify under the new rule. They certainly might.

  3. Cool cool….. So remind me which one of these would have prevented Sandy Hook? Columbine?

  4. Pingback: SayUncle » The new background check proposal

  5. How long until the legal definition of “committed to a mental institution” includes, perhaps by mere ATF regulatory revision, attending any mandatory company Human Resources training on diversity, sexual harassment in the workplace and job safety?

  6. First thing that came to mind are all those mothers who told their doctor they were feeling a bit of post-partum depression. Doctor checks the box, writes a scrip, and no firearms for life.

  7. Pingback: ATF 51P Updates | The Weapon Blog

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