No due process needed

[TemplarKormac]

From Senator Pat Toomey's own website a summary of the bill as a whole:

TITLE ONE: GETTING ALL THE NAMES OF PROHIBITED PURCHASERS INTO THE BACKGROUND CHECK SYSTEM

Summary of Title I: This section improves background checks for firearms by strengthening the instant check system.

- Encourage states to provide all their available records to NICS by restricting federal funds to states who do not comply.

- Allow dealers to voluntarily use the NICS database to run background checks on their prospective employees.

- Clarifies that submissions of mental health records into the NICS system are not prohibited by federal privacy laws (HIPAA).

- Provides a legal process for a veteran to contest his/her placement in NICS when there is no basis for barring the right to own a firearm.


TITLE TWO: REQUIRING BACKGROUND CHECKS FOR FIREARM SALES

Summary of Title II: This section of the bill requires background checks for sales at gun shows and online while securing certain aspects of 2nd Amendment rights for law abiding citizens.

- Closes the gun show and other loopholes while exempting temporary transfers and transfers between family members.

- Fixes interstate travel laws for sportsmen who transport their firearms across state lines in a responsible manner. The term "transport" includes staying in temporary lodging overnight, stopping for food, buying fuel, vehicle maintenance, and medical treatment.

- Protects sellers from lawsuits if the weapon cleared through the expanded background checks and is subsequently used in a crime. This is the same treatment gun dealers receive now.

- Allows dealers to complete transactions at gun shows that take place in a state for which they are not a resident.

- Requires that if a background check at a gun show does not result in a definitive response from NICS within 48 hours, the sale may proceed. After four years, when the NICS improvements are completed, the background check would clear in 24 hours. Current law is three business days.

- Requires the FBI to give priority to finalizing background checks at gun shows over checks at store front dealerships.

- Authorizes use of a state concealed carry permit instead of a background check when purchasing a firearm from a dealer.

- Permits interstate handgun sales from dealers.

- Allows active military to buy firearms in their home states.

- Family transfers and some private sales (friends, neighbors, other individuals) are exempt from background checks

TITLE THREE: NATIONAL COMMISSION ON MASS VIOLENCE

Summary of Title III: : This section of the bill creates a commission to study the causes of mass violence in the United States, looking at all aspects of the problem, including guns, school safety, mental health, and violent media or video games.

The Commission would consist of six experts appointed by the Senate Majority Leader and six experts appointed by the Speaker of the House. They would be required to submit an interim report in three months and a completed report in six months.

WHAT THE BILL WILL NOT DO

The bill will not take away anyone's guns.

The bill will not ban any type of firearm.

The bill will not ban or restrict the use of any kind of bullet or any size clip or magazine.

The bill will not create a national registry; in fact, it specifically makes it illegal to establish any such registry.

The bill will not, in any way at all, infringe upon the Constitutional rights of law-abiding citizens.

 

[bendog]

Due Process has two components: no arbitrary or capricious govt action, and notice and opportunity to be heard to challange any action.

There is no constitutional right to own a firearm if one is mentally ill and poses a danger to himself or others. The only people "on the list" are put there by their treating physician. Good luck showing that is arbitrary. Further, I assume that anyone flagged by the system will have a means to challenge with medical evidence any notion they are mentally ill. I'm not sure there are five Justices to knock this down.

 

[TemplarKormac]

Due Process has two components: no arbitrary or capricious govt action, and notice and opportunity to be heard to challange any action.

There is no constitutional right to own a firearm if one is mentally ill and poses a danger to himself or others. The only people "on the list" are put there by their treating physician. Good luck showing that is arbitrary. Further, I assume that anyone flagged by the system will have a means to challenge with medical evidence any notion they are mentally ill. I'm not sure there are five Justices to knock this down.

Just posted the summary. Those placed on the list will have to go through tons of hurdles to be removed. Physicians will not be required to tell their patients that they have placed them on the NICS list. Tell me, what part of that doesn't seem arbitrary to you? What if you already own a gun or gun(s)? Yeah, say goodbye to your legally purchased firearms if you are placed on that list.

Please for pete's sake educate yourself.

 

[bendog]

Due Process has two components: no arbitrary or capricious govt action, and notice and opportunity to be heard to challange any action.

There is no constitutional right to own a firearm if one is mentally ill and poses a danger to himself or others. The only people "on the list" are put there by their treating physician. Good luck showing that is arbitrary. Further, I assume that anyone flagged by the system will have a means to challenge with medical evidence any notion they are mentally ill. I'm not sure there are five Justices to knock this down.

Just posted the summary. Those placed on the list will have to go through tons of hurdles to be removed. Physicians will not be required to tell their patients that they have placed them on the NICS list. Tell me, what part of that doesn't seem arbitrary to you? What if you already own a gun or gun(s)? Yeah, say goodbye to your legally purchased firearms if you are placed on that list.

Please for pete's sake educate yourself.

if a physician is treating a person for a mental illness that involves depression or any mania/inablity to ratioally perceive, they don't have a right to a firearm. If that sounds arbitrary to you, that's not a reflection upon my education or rationality.

 

[nitroz]

I think this is wrong.

Which is why I support regulation. You will have to inquire, apply, and test for your license. Not be at the mercy of some douchebag quack who only can malpractice. Nothing will regulate the doctor's decision of doing that.

Regulation will make sure that you are treated fairly. And if you DO have a mental illness, then you should be limited to a handgun (depending on the severity/illness) or not allowed to have a gun.

If you think the mentally ill should have a gun, then you need to be locked into an enclosed area with them as they are given guns and ammo like candy.

 

[PaulS1950]

Nobody seems to understand that mental health professionals are "mandatory reporters". That means if they feel that someone is a threat to the safety of others or to themselves, they have to report that to the proper policing authorities. If the authorities decide that they are indeed a threat they can get a court order to have the person committed which makes them inelligable to own, control or possess a gun. we already have laws in place - the problem is that the laws are ignored or the criminals are not prosecuted. More laws won't do anything that just enforcing the ones we have would accomplish.

If they did that there would be no need to restrict the rights of people to keep and bear arms - and they would have no way to gain more control over the law-abiding population.

 

[TemplarKormac]

Due Process has two components: no arbitrary or capricious govt action, and notice and opportunity to be heard to challange any action.

There is no constitutional right to own a firearm if one is mentally ill and poses a danger to himself or others. The only people "on the list" are put there by their treating physician. Good luck showing that is arbitrary. Further, I assume that anyone flagged by the system will have a means to challenge with medical evidence any notion they are mentally ill. I'm not sure there are five Justices to knock this down.

Just posted the summary. Those placed on the list will have to go through tons of hurdles to be removed. Physicians will not be required to tell their patients that they have placed them on the NICS list. Tell me, what part of that doesn't seem arbitrary to you? What if you already own a gun or gun(s)? Yeah, say goodbye to your legally purchased firearms if you are placed on that list.

Please for pete's sake educate yourself.

if a physician is treating a person for a mental illness that involves depression or any mania/inablity to ratioally perceive, they don't have a right to a firearm. If that sounds arbitrary to you, that's not a reflection upon my education or rationality.

Leaving that determination to an activist doctor can be dangerous. And what if you are a perfectly sane person upon whom the doctor suddenly perceives as mentally unstable? I have depression and something called ADHD, none of which affect my ability for rational thought or otherwise. My father is a Gulf War vet who has PTSD and owns several firearms. If he gets put on that list.. he will most likely get himself killed defending his 2nd Amendment rights.

So, once again, tell me how this isn't arbitrary?

 

[TemplarKormac]

Called my two senators, Chambliss and Isakson. They promised to push it through. Said 95% of callers favor it.

Oh man, Saxby and Johnny are gonna get it. Those two are my senators too. Those lying sons of bitches...

 

[bendog]

Just posted the summary. Those placed on the list will have to go through tons of hurdles to be removed. Physicians will not be required to tell their patients that they have placed them on the NICS list. Tell me, what part of that doesn't seem arbitrary to you? What if you already own a gun or gun(s)? Yeah, say goodbye to your legally purchased firearms if you are placed on that list.

Please for pete's sake educate yourself.

if a physician is treating a person for a mental illness that involves depression or any mania/inablity to ratioally perceive, they don't have a right to a firearm. If that sounds arbitrary to you, that's not a reflection upon my education or rationality.

Leaving that determination to an activist doctor can be dangerous. And what if you are a perfectly sane person upon whom the doctor suddenly perceives as mentally unstable? I have depression and something called ADHD, none of which affect my ability for rational thought or otherwise. My father is a Gulf War vet who has PTSD and owns several firearms. If he gets put on that list.. he will most likely get himself killed defending his 2nd Amendment rights.

So, once again, tell me how this isn't arbitrary?

What's arbitrary is what courts say is arbitrary. I have a const right to marry. If a doc is treating me for a veneral disease, or perhaps even a DNA condition, may be on a list ....

But the pt is, if a citizen has notice he's put on the list when a background check is run, and has the opportunity to challenge it, then it's hard to show no due process. The govt can take away entitlement benefits to entire classes of people so long as there's a rational reason to think a bunch of them need to be taken off, and there's a way to get back on if the govts wrong. The govt can kick a kid out of school for a fist fight. But there has to be hearing later on.

It may be a bad, or good, law. But due process allows lots of bad shit to happen to honest folks. The govt simply doesn't have to come to you individually before taking some action.

 

[C_Clayton_Jones]

tell your senators to vote no to Toomey-Manchin Proposal

The proposal will allow a doctor to add a patient to the National Instant Criminal Background Check System (NICS) without ever telling the patient he or she has been added.

There would be no due process requirement. Not all doctors will be able to do it with the same ease, but many will. Knowing a doctor could add him to a federal database as mentally ill without his knowledge could potentially dissuade a patient from going to the doctor in the first place to get help.

Worse, if the doctor does so and makes a mistake, the patient would have to actively work through the system to get himself removed — guilty before being proven innocent. In some states, should a doctor flag you as having mental illness without your knowledge, you may very well see the state come collect your previously purchased guns.

Activist mental health providers will probably be overly aggressive in adding people to the list. Give it five years in liberal areas and people who believe in the physical resurrection of Christ will probably get automatic entry onto the list.

The Toomey-Manchin Proposal Will Allow Doctors to Block Your Right to Guns | RedState

Incorrect.

One is afforded due process if his name appears on the NICS:

If you believe you have been erroneously denied a firearm transfer based on a match to a record returned by the National Instant Criminal Background Check System (NICS), you may request an appeal of your deny decision. Please be advised the agency which processed your NICS transaction is required to have an appeal process. You may make application first to the denying agency, i.e., either the state or local law enforcement agency which processed your transaction. As an alternative to appealing directly through the denying agency, you may elect to submit your appeal request to the FBI NICS Section. The provisions for appeals are outlined in the NICS Regulations at Title 28, Code of Federal Regulations, Part 25.10, and Subsection 103 (f) and (g) and Section 104 of the Brady Handgun Violence Prevention Act of 1993.

FBI ? NICS Appeals Brochure - In English

It seems many on the right have an incorrect perception of due process doctrine.

Due Process does not exist to ‘prevent’ arrest, detention, or the taking of private property; due process manifests after one is subject to some punitive measure, including being denied purchasing a firearm; otherwise there would be no facts or evidence to review to determine if indeed the state’s action was correct and justified.

 

[jon_berzerk]

tell your senators to vote no to Toomey-Manchin Proposal

The proposal will allow a doctor to add a patient to the National Instant Criminal Background Check System (NICS) without ever telling the patient he or she has been added.

There would be no due process requirement. Not all doctors will be able to do it with the same ease, but many will. Knowing a doctor could add him to a federal database as mentally ill without his knowledge could potentially dissuade a patient from going to the doctor in the first place to get help.

Worse, if the doctor does so and makes a mistake, the patient would have to actively work through the system to get himself removed — guilty before being proven innocent. In some states, should a doctor flag you as having mental illness without your knowledge, you may very well see the state come collect your previously purchased guns.

Activist mental health providers will probably be overly aggressive in adding people to the list. Give it five years in liberal areas and people who believe in the physical resurrection of Christ will probably get automatic entry onto the list.

The Toomey-Manchin Proposal Will Allow Doctors to Block Your Right to Guns | RedState

Incorrect.

One is afforded due process if his name appears on the NICS:

If you believe you have been erroneously denied a firearm transfer based on a match to a record returned by the National Instant Criminal Background Check System (NICS), you may request an appeal of your deny decision. Please be advised the agency which processed your NICS transaction is required to have an appeal process. You may make application first to the denying agency, i.e., either the state or local law enforcement agency which processed your transaction. As an alternative to appealing directly through the denying agency, you may elect to submit your appeal request to the FBI NICS Section. The provisions for appeals are outlined in the NICS Regulations at Title 28, Code of Federal Regulations, Part 25.10, and Subsection 103 (f) and (g) and Section 104 of the Brady Handgun Violence Prevention Act of 1993.

FBI ? NICS Appeals Brochure - In English

It seems many on the right have an incorrect perception of due process doctrine.

Due Process does not exist to ‘prevent’ arrest, detention, or the taking of private property; due process manifests after one is subject to some punitive measure, including being denied purchasing a firearm; otherwise there would be no facts or evidence to review to determine if indeed the state’s action was correct and justified.

never the less

i do not support such a measure

unless the person has been adjudicated

if the person is such a "danger" to either themselves or others

the doctor making the report to NICS should not

allow the person to walk the streets until the person

has had his day in court

 

[jon_berzerk]

The wording of the Toomey bil

Sen. Toomey Offers Full Text Of Public Safety And Second Amendment Rights Protection Act Online

Sen. Toomey Offers Full Text Of Public Safety And Second Amendment Rights Protection Act Online | Pat Toomey | Senator for Pennsylvania

 

[Papageorgio]

Due Process has two components: no arbitrary or capricious govt action, and notice and opportunity to be heard to challange any action.

There is no constitutional right to own a firearm if one is mentally ill and poses a danger to himself or others. The only people "on the list" are put there by their treating physician. Good luck showing that is arbitrary. Further, I assume that anyone flagged by the system will have a means to challenge with medical evidence any notion they are mentally ill. I'm not sure there are five Justices to knock this down.

Just posted the summary. Those placed on the list will have to go through tons of hurdles to be removed. Physicians will not be required to tell their patients that they have placed them on the NICS list. Tell me, what part of that doesn't seem arbitrary to you? What if you already own a gun or gun(s)? Yeah, say goodbye to your legally purchased firearms if you are placed on that list.

Please for pete's sake educate yourself.

if a physician is treating a person for a mental illness that involves depression or any mania/inablity to ratioally perceive, they don't have a right to a firearm. If that sounds arbitrary to you, that's not a reflection upon my education or rationality.

Sorry, I'm not in favor of giving a doctor arbitrary authority to deem someone mentally ill. There are many degrees of mental illness, how does one determine who is a danger or not. Then how much do you need to pay to get the appeal overturned, what is the time frame? A formal system set up, like we currently have for proving one mentally ill is flawed but it isn't arbitrary and it seeks many experts and many conditions.

I don't want anyone to be listed because one guy decides it, without your knowledge.

 

[jon_berzerk]

Just posted the summary. Those placed on the list will have to go through tons of hurdles to be removed. Physicians will not be required to tell their patients that they have placed them on the NICS list. Tell me, what part of that doesn't seem arbitrary to you? What if you already own a gun or gun(s)? Yeah, say goodbye to your legally purchased firearms if you are placed on that list.

Please for pete's sake educate yourself.

if a physician is treating a person for a mental illness that involves depression or any mania/inablity to ratioally perceive, they don't have a right to a firearm. If that sounds arbitrary to you, that's not a reflection upon my education or rationality.

Sorry, I'm not in favor of giving a doctor arbitrary authority to deem someone mentally ill. There are many degrees of mental illness, how does one determine who is a danger or not. Then how much do you need to pay to get the appeal overturned, what is the time frame? A formal system set up, like we currently have for proving one mentally ill is flawed but it isn't arbitrary and it seeks many experts and many conditions.

I don't want anyone to be listed because one guy decides it, without your knowledge.

if a doctor "deems" someone so dangerously mentally ill

that they can not have a firearm

that same doctor better insure that the someone

is confined to a mental health facility

any less is unacceptable

 

[Oldguy]

The wording of the Toomey bil

Sen. Toomey Offers Full Text Of Public Safety And Second Amendment Rights Protection Act Online

Sen. Toomey Offers Full Text Of Public Safety And Second Amendment Rights Protection Act Online | Pat Toomey | Senator for Pennsylvania

Thanks for the link. Now that the language of the bill is available, I agree with the majority of posters here that it's a bad bill which should not pass. Here's my concerns:

"...to improve the automation and transmittal of mental health records and criminal history dispositions, records relevant to determining whether a person has been convicted of a misdemeanor crime of domestic violence, court orders, and mental health adjudications or commitments to Federal and State record repositories in accordance with section 102 and the National Criminal History Improvement Program..."

One of the Senator's websites said it would only apply to the violent mentally ill, but I see no such distinction here, do you? It seems to allow the transmittal of ALL mental health records into the database, presumably to ascertain which ones are potentially violent and which ones are not.

"...(A) is not prohibited by State law or court order from submitting mental health records to the National Instant Criminal Background Check System;..."

If a state does not currently allow the transmittal of mental health records to the database, they can't be forced to do so. HOWEVER...the pressure on states to authorize it would be enormous.

"Protections" for Veterans:

"...a person who is determined by the Secretary to be mentally incompetent shall not be considered adjudicated pursuant to subsection (d)(4) or (g)(4) of section 922 of title 18 until...." (a review is made under the outlined procedure and subject to appeal)

Right now, a Veteran who has been deemed incompetent to manage his own affairs by the VA is not allowed to own a gun. This provision of the bill seems to allow the Secretary of Veteran's Affairs to designate other Veteran's who have not been deemed incompetent as "adjudicated" with a mental illness so long as the proper procedure is followed. That could conceivably leave millions of Veteran's drawing disability payments for PTSD open to having their case deemed "adjudicated," and losing their right to keep and bear arms.



"....shall apply only with respect to persons who are determined by the Secretary of Veterans Affairs, on or after the date of the enactment of this Act, to be mentally incompetent...."

This indicates that all the provisions related to protecting Veteran's rights go right out the window on or after the date of enactment of the act and the bill does not specify under what criteria a Veteran may be deemed "adjudicated."

Additionally, the bill allocates $300 million for grants to help states implement the provisions of the bill, in a time when federal spending is under scrutiny. Worse, it allows the federal government to pick up the full cost for all 50 states and numerous Indian tribes to comply with the bill AND mandates that they do so! This looks like an open-ended promise to pay whatever it takes and there's no doubt that will be a lot.

Worse, the bill establishes a Congressional committee to examine the issue of mass killings and make recommendations to Congress within a specified period of time. Among the things the Commission is specifically tasked to examine and make recommendations on are these:

"whether medical doctors and other mental health professionals have the ability, without negative legal or professional consequences, to notify law enforcement officials when a patient is a danger to himself or others;"

"the effect of depictions of mass violence in the media, and any impact of such depictions on incidents of mass violence;"

"the availability and nature of firearms, including the means of acquiring such firearms, and all positive and negative impacts of such availability and nature on incidents of mass violence or in preventing mass violence;"

Given the subject matter, it's not hard to imagine recommendations for new laws which could have enormous 2nd Amendment, freedom of speech and personal freedom implications.

This is a VERY bad piece of legislation.

 

[martybegan]

tell your senators to vote no to Toomey-Manchin Proposal

The proposal will allow a doctor to add a patient to the National Instant Criminal Background Check System (NICS) without ever telling the patient he or she has been added.

There would be no due process requirement. Not all doctors will be able to do it with the same ease, but many will. Knowing a doctor could add him to a federal database as mentally ill without his knowledge could potentially dissuade a patient from going to the doctor in the first place to get help.

Worse, if the doctor does so and makes a mistake, the patient would have to actively work through the system to get himself removed — guilty before being proven innocent. In some states, should a doctor flag you as having mental illness without your knowledge, you may very well see the state come collect your previously purchased guns.

Activist mental health providers will probably be overly aggressive in adding people to the list. Give it five years in liberal areas and people who believe in the physical resurrection of Christ will probably get automatic entry onto the list.

The Toomey-Manchin Proposal Will Allow Doctors to Block Your Right to Guns | RedState

Incorrect.

One is afforded due process if his name appears on the NICS:

If you believe you have been erroneously denied a firearm transfer based on a match to a record returned by the National Instant Criminal Background Check System (NICS), you may request an appeal of your deny decision. Please be advised the agency which processed your NICS transaction is required to have an appeal process. You may make application first to the denying agency, i.e., either the state or local law enforcement agency which processed your transaction. As an alternative to appealing directly through the denying agency, you may elect to submit your appeal request to the FBI NICS Section. The provisions for appeals are outlined in the NICS Regulations at Title 28, Code of Federal Regulations, Part 25.10, and Subsection 103 (f) and (g) and Section 104 of the Brady Handgun Violence Prevention Act of 1993.

FBI ? NICS Appeals Brochure - In English

It seems many on the right have an incorrect perception of due process doctrine.

Due Process does not exist to ‘prevent’ arrest, detention, or the taking of private property; due process manifests after one is subject to some punitive measure, including being denied purchasing a firearm; otherwise there would be no facts or evidence to review to determine if indeed the state’s action was correct and justified.

Due process does force the government to get your ass in front of a judge very quickly in cases of arrest or any other denial of rights. Thats why you have to be arraigned so quickly when arrested, as they cannot detain you without a judge saying "OK" (due process).

To apply the same to gun confiscation the same time limit would need to apply. Currently I doubt that happens. I for one am not comforted that some burecrat can take my property, then put me on a 6 month waiting list for a hearing to see if my rights have been violated.

That is NOT due process.

 

[Oldguy]

To apply the same to gun confiscation the same time limit would need to apply. Currently I doubt that happens. I for one am not comforted that some burecrat can take my property, then put me on a 6 month waiting list for a hearing to see if my rights have been violated.

That is NOT due process.

There is a legal precedent for that which has been deemed due process by the courts and it comes from the ever-popular "Drug War."

If a cop stops you and decides that you are a suspected drug runner (based upon numerous observable criteria which can be something as trivial as the amount of cash you have in your pocket), he can arrest you and the police agency can seize everything you own: House, car, bank accounts, personal property. And, they can sell it and keep a portion of the profits BEFORE YOU ARE EVER CONVICTED OF ANYTHING!

You cannot stop the seizure or sale of your property and your only "due process" comes after you're acquitted. You can then sue them for the VALUE of your property and that's all. That is usually a drawn out court battle lasting years which often leads to the wrongfully accused person receiving back only a portion of his pre-arrest wealth.

 

[martybegan]

To apply the same to gun confiscation the same time limit would need to apply. Currently I doubt that happens. I for one am not comforted that some burecrat can take my property, then put me on a 6 month waiting list for a hearing to see if my rights have been violated.

That is NOT due process.

There is a legal precedent for that which has been deemed due process by the courts and it comes from the ever-popular "Drug War."

If a cop stops you and decides that you are a suspected drug runner (based upon numerous observable criteria which can be something as trivial as the amount of cash you have in your pocket), he can arrest you and the police agency can seize everything you own: House, car, bank accounts, personal property. And, they can sell it and keep a portion of the profits BEFORE YOU ARE EVER CONVICTED OF ANYTHING!

You cannot stop the seizure or sale of your property and your only "due process" comes after you're acquitted. You can then sue them for the VALUE of your property and that's all. That is usually a drawn out court battle lasting years which often leads to the wrongfully accused person receiving back only a portion of his pre-arrest wealth.

And that is just as wrong as some bean counter being able to come to your house and say "well you have a prescription for Xanax (I have one I use to get on airplanes, fear of flying, 20 pills last me a year) so gimmie your guns.

A person should not be stripped of property or rights for more than a day or two (to give time for arraignments) until a court says so.