HHS Proposed Rulemaking on NICS and HIPPA Published

Appearing in the Federal Register:

The Department of Health and Human Services (HHS or “the Department”) is issuing this notice of proposed rulemaking to modify the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a Federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving a firearm. The NICS is a national system maintained by the Federal Bureau of Investigation (FBI) to conduct background checks on persons who may be disqualified from receiving firearms based on federally prohibited categories or State law. Among the persons subject to the Federal mental health prohibitor are individuals who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease. Under this proposal, only covered entities with lawful authority to make adjudication or commitment decisions that make individuals subject to the Federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, would be permitted to disclose the information needed for these purposes. This disclosure would be restricted to limited demographic and certain other information and would not include medical records, or any mental health information beyond the indication that the individual is subject to the Federal mental health prohibitor. HHS notes that the Department of Justice (DOJ) has proposed clarifications to the regulatory definitions relevant to the Federal mental health prohibitor. The DOJ proposal is published elsewhere in this issue of the Federal Register. While commenters should consider this proposed regulation in light of the clarifications proposed in DOJ’s proposal, we note that those clarifications would not change how this proposed HIPAA permission would operate.

This honestly won’t do much, because my understand that it’s state privacy laws, not federal, that prevent many of the states that don’t report from reporting.

Maryland Cops Harassing CCW Holders?

First question I have is how did he know:

Ten minutes later he’s back, and he wants John out of the Expedition. Retreating to the space between the SUV and the unmarked car, the officer orders John to hook his thumbs behind his back and spread his feet. “You own a gun,” the officer says. “Where is it?”

“At home in my safe,” John answers.

“Don’t move,” says the officer.

And they say we have nothing to fear from registration? Bullshit. Apparently the guy is thinking about giving up his permit. I’d consider a civil rights lawsuit before I considered anything else. This guy was lucky. When I drive through Maryland, I’m usually transporting the gun in compliance with FOPA. I’d probably have been arrested and charged. I really hope this guy files a lawsuit, because we need to send a message to Maryland authorities that it is not OK to harass law abiding gun owners transiting through their state.

Second, we all need to ensure that permit information is private in our states. Pennsylvania provides a means to verify a license given one in hand, but as far as I know the cops can’t pull up whether your licensed or not on their systems. Though, we do have that PSP registry I do believe the authorities, at least in Pennsylvania, can pull up. I’ve heard of cases of people getting pulled over in Pennsylvania and challenged by officers who had brought a gun with them when they moved from out of state, and thus it was not “registered” to the owner.

Metcalf Triples Down

Crying victimization in the media yet again, this time to Politico. Jim Zumbo accepted his career’s public hanging with more grace and class, and at least tried to make things right. And what Zumbo said was a lot worse. He’s continuing to feed the narrative of a gun rights movement dominated by extremists and foaming mad dogs to our enemies who are the media.

The existing body of literature and legal precedent on the Second Amendment is much like the Bible: One can find something to support nearly any agenda. Even the Founders themselves wrote many different things at different times (with commas in different places) about what they meant by a Right to Keep and Bear Arms. Or by “well regulated.” Or by “militia.” I wish more people would actually read those writings.

The problem is that a lot of us have read those writings, and there absolutely no support for your take on the meaning of “well-regulated” in late 18th century usage, or support for the idea that the exercise of the right could be preconditioned on something like a training requirement. It could be argued that the American gun culture of the late 18th century was very different from today, and I would even agree with many points in that regard, but the fact is there were no laws around that time that preconditioned the rights exercise on training. There was mandatory militia service, but that was a function of the state’s military powers, not its police powers.

Both sides believe they have the American mainstream on their side. But when Second Amendment supporters argue it is unconstitutional to bar convicted felons from acquiring guns, the American mainstream stops listening. When Second Amendment supporters argue it is unconstitutional to require any training whatsoever before carrying a concealed firearm in public, the American mainstream stops listening.

Except you weren’t writing for the American mainstream. You were writing for subscribers of Guns & Ammo. I might believe the courts are unlikely to strike down training requirements, but you basically said that we ought to like it. I don’t. Much like prior restraints can’t be constitutionally placed on speech, I don’t believe they ought to be constitutionally placed on the right to bear arms either. While I generally share Metcalfe’s concern about not pushing so far that the American mainstream will lash back, I’m willing to argue until I’m blue in the face that the Second Amendment ought to be treated as equals among rights, and that means not creating special conditions that would never fly with other rights, prior restrains being among them.

Enough Tabs for News Links? Why Yes, There Are

Things have been busy. I’m normally in the office only two days a week, but because I have a data center construction project going on this week, I’m in every day. That means 2.5 hours a day goes “poof” in the commute to and fro. Today the electrician made a mistake that had me going back and analyzing my plans to see if I could live with it. Unfortunately for him the answer was no, and I had to ask him to change it. I have to be present enough to catch those kinds of things. Bitter is also still getting over her flu. So we’ll see if I have enough build up in the tabs to make a decent news link post:

Concealed carry permit holder stops shooting rampage. They never make the news because the body counts never rack up high enough to attract attention from the media.

Follow Jeff’s advice, not Joe’s.

Testing Markley’s Law.

Federal court says “strict scrutiny” for the Second Amendment in that Corps of Engineers case. I hadn’t noticed this, because to be honest, I didn’t have time to read the full opinion. But this is a welcome development.

Miguel has been digging through the MAIG e-mails in detail. He’s up to Part 4. You can find Part 1, Part 2, and Part 3 too.

Also, Miguel notes that Toby Keith’s new restaurant is jumping on board the Demanding Moms bandwagon. They’ve made it blatantly clear they don’t want people like us there.

Metcalfe’s apologists at work. One of the better commentaries on this particular foot-in-mouth incident I’ve read.

Tennessee goes for super duper preemption. A lot of states need this, because if you don’t spell it out clear as day the crooked politicians and crooked judges will do what they can to blow holes in it.

Gun Control, Mass Shootings, and Political Ignorance. One thing that’s always fascinated me about polling is how transient public opinion is on some issues. I kind of wish people that ignorant would do us all a favor and stop voting.

Fast and Furious was a secret program to arm the Sinaloa Cartel. I heard others speculate this before, but this is more evidence.

If you’re looking for good coverage of the 2014 Shot Show, I’d recommend following The Firearm Blog.

Kansas towns find it too costly to maintain their gun free zones, because the State of Kansas decided to follow an idea I had years ago on this matter. I called it the “Three S” test.

Shooting People a Joking Matter?

Tam takes a look at the Armed Mommy Facebook page, and the controversy it generated in an article at The Wire. Tam notes:

In the end, I’m torn. I’m always glad to see more people taking their Second Amendment rights seriously and getting hip to the idea of taking responsibility for their own safety, but at the same time, I’m vaguely squicked, and I can’t put my finger on exactly why…

RTWT. The first is, I think the issue is that there’s a certain un-seriousness about it, and guns are serious business. Most people who have thought about this stuff tend not to joke about shooting people. The second, I would say, is there’s a certain “way to be the stereotype!” about it. But than again, maybe we ought to be happy that there are women out there falling into the left’s stereotypes about gun owners!

Weekend News Links

Bitter will hopefully be getting over her bout with the 2009 H1N1 Swine Flu that’s going around again this year. I had it over New Years, but I feel bad for her because it was pretty mild for me and has been pretty nasty for her. Today is day 4, so it should be over for her soon. But as always, there’s news:

A victory in District Court in Idaho, where a federal court struck down the ban on firearms by the Army Corps of Engineers on their property.

Attention Robb Allen, it is not too late to start driving for this event in Philly.

You and I aren’t responsible enough to carry in places where they serve the Demon Rum, but the police are! What could possibly go wrong?

Pike County has nearly doubled gun permits issued in 2013, helped by out-of-state New Yorkers getting permits. I’m not sure what they think that will help them with up in New York.

Retirement scorecard for 2014. Two of those districts are in my local area. We have a good chance of keeping Gerlach’s seat pro-gun, but Schwarz’s district is reliably Democratic, and the chance of turning that seat in favor of gun owners is very small. To be honest, I’d be happy enough just to avoid her becoming Governor.

Another victory brought to us by the people who like to carry guns at people.

Jeff Soyer notes that the number of homes with guns is increasing.

Thirdpower expect the City of Chicago will rewrite its law to create a de facto ban on selling guns rather than a de jure ban. I’d say the odds are very good he’s right.

A look at AR-15 muzzle breaks/flash suppressors/compensators.

What media bias?

Campus Weapons Policy. A discussion on Pennsylvania’s proposed rule changes, which I think are a step in the right direction. I’d note that there’s no law banning guns on college campuses in Pennsylvania, so it’s really only students that are affected. Though there could be trespass issues if you’re asked to leave and don’t.

An interesting graphic on crime and guns.

They really are against self-defense.

Dick Metcalfe in the New York Times

This article has been in my tabs for days, because I wanted to add something more than just a link to it, but the words either just weren’t coming, or it was stuff I’ve already said about it. It’s my opinion that after this article, I don’t think Dick Metcalfe can be forgiven. I was actually more willing to forgive and forget with Jim Zumbo, who said something far worse and more damaging, than I am willing to forgive Dick Metcalfe after reading this article in the NY Times. Zumbo at least made an attempt at attrition and making amends, but Metcalfe has gone and offered the Times a narrative about how crazy and extreme those gun nuts are.

I will maintain until I’m blue in the face that Metcalfe didn’t step in it because he spoke of moderation. He stepped in it because what he said was ignorant. His use of “well-regulated” was right out of the anti-gun playbook, despite it having long been explained in proper context by respected scholars. He called for a specifically enumerated constitutional right to be conditioned on a requirement which is not been deemed acceptable for any other right. He stood by a ridiculously lengthy training requirement, when there is absolutely no evidence that training requirements, regardless of length, lead to better outcomes. Yet he supported them as a prior restraint on the exercise of an enumerated fundamental right.

I’ve always been of the opinion that if you take an idiot, and train him for 16 hours, what you end up with is an idiot who can certifiably manage to sit still for 16 hours. The idiot part tends to rule over whatever training you think you’re giving them, and for those people, 16, 20, or 50 hours won’t make a difference. But since we can’t legally say “Well, this right is only for non-idiots,” you err on the side of freedom and have faith that most people will do the right thing.

Upping the Ante in Colorado for 2014

The anti-gun folks are trying to get a measure on the 2014 ballot to ban firearms on college campuses in Colorado. They need to collect 86,105 signatures in the next six months in order for the measure to go forward. I think that’s a tall order, but certainly not impossible if they have enough money behind them or enough volunteers. I think we stand a good chance of defeating this measure if it makes it onto the ballot, but I look at this as a mechanism for spreading us as thin as they can get away with. Ballot fights are hella expensive for both sides, and if Bloomberg throws his wallet into the fight, we really can’t compete. If we have to spend money fending off a ballot measure, it’ll take some of the heat off the politicians who voted for the magazine ban, and also some of the Colorado federal representatives who also voted for gun control.

If this goes through, the most important focus will need to be getting our voters to the polls, and to make sure they vote “no” on the campus carry ban. It’ll all come down to mobilizing our people.

First Victim in CT: Ignorance of the Law is no Excuse

SayUncle and Bob Owens are both reporting on the first victim of Daniel Malloy’s new gun control laws. He was carrying a firearm lawfully when a police officer pulled him over saw his concealed carry permit. The officer then asked him if he had a weapon on him. Our victim was carrying a 15 round magazine with 11 rounds in it. He was issued a summons for the misdemeanor. Our victim will have a lot of luck, I’m sure, landing employment with a gun offense on his record. To someone who is not a member of the criminal class, even a misdemeanor conviction can be devastating. If the anti-gun folks can’t put us in prison, ruining our lives is the next best thing!

As a side note, the guy got caught when the officer caught a flash of his concealed weapons license while he was fishing for his drivers license. Connecticut is not a “must inform” state. A lot of people will give you advice that you should always inform the officer. I think that’s foolish and unwise. I store my LTC separate from my license. I would never inform an officer I’m armed if I’m not legally required to. Many suggest it is a courtesy. You don’t owe the authorities anything. The less you reveal or say in an encounter, the better off you’re going to be. This demonstrates that.

Breaking News: New Jersey Court Ruling & Carolyn McCarthy

We have two breaking news items. One, a New Jersey Superior Court has ruled that local police departments can’t add their own forms and requirements above and beyond what is required by state law in order to issue FID cards and Purchase Permits. New Jersey courts used to routinely allow departments to disregard clear legal requirements, so if this indicates a shift in the attitudes towards guns by New Jersey state courts, it’s a welcome one.

The second breaking news items it that a prime leader of the Gun Control movement in the House, Carolyn McCarthy, is retiring. If Democrats become once again convinced that gun control is a losing issue, we might be able to earn ourselves a bit of peace. The leaders of the anti-gun movement have been getting old, and they may not be replaced by folks who are as zealous about it.