Rolling mental health records into Brady background checks will backfire on gun owners.
“I’m very sorry we can’t sell you this handgun,” the gun dealer tells you as he snatches what was to be your new hunting revolver from your hand. “FBI denied your background check. Said something about you being ‘mentally defective.’ Sorry.”
As you leave the gun shop you’re confused, infuriated and empty-handed. You’ve never committed a crime in your life. You’re a hunter education safety instructor, a father, a life-long sportsmen, a military veteran and are active in your church. Yet somehow a bureaucrat who knows nothing about you claims you’re a mental case. Finally you remember: almost two decades ago, your family doctor sent you to see a “specialist” who prescribed anti-depressants for a temporary bout of depression you were dealing with after your father passed away. In hindsight, the pills didn’t help much and it all seemed so innocent at the time.
But that was then and this is now — when law-abiding gun owners get entangled in the nets of the NRA’s new-and-improved federal gun control scheme: NICS.
Recently Wisconsin Republican State Senator Alberta Darling (River Hills) announced she will sponsor a post-Virginia-Tech gun control bill in the state legislature. Her bill will dump mental health data at the state level into the federal National Instant Check System (NICS) database. Darling claims these records will be used to disqualify those “adjudicated mentally defective” from buying guns.
Darling’s bill is a response to federal legislation introduced by Rep. Carolyn McCarthy (D-NY) — formerly HR 297 which has now morphed into HR 2640, the “National Instant Check System (NICS) Enhancement Act” — which would expand the scope of point-of-sale background checks to survey the new influx of mental health records provided by states. The Federal Department of Justice (DOJ) has issued letters to state attorney generals requesting they voluntarily supply court-held health record data to the feds. So far only 23 states comply with those outlandish demands.
This all came about when it was discovered that Virginia-Tech shooter Cho Seung-Hui had been known to have had received psychological treatment in his past and later legally purchased a handgun through NICS — a gun he used to kill 33 people. Representatives from both sides of the aisle in congress “began negotiations” with NRA leadership to ram a gun control bill into law to “close the loophole.”
NRA Chief Lobbyist Chris Cox claimed, “We’ve been on record for decades for keeping firearms out of the hands of the mentally adjudicated. It’s not only good policy, it’s good politics,” he said.
Not so fast, Mr. Cox. An honest examination of this multifaceted issue reveals that an expansion of NICS buys into a dangerous false premise for all gun owners concerned about their liberty and is not sound policy or good politics for the Second Amendment community or anyone else. Here’s why gun owners must not only oppose expanding the NICS background check system, they must fight to repeal it.
NO OBJECTIVE STANDARD FOR DIAGNOSING MENTAL ILLNESS
Since 1952, the American Psychiatry Association (APA) has utilized the Diagnostic and Statistical Manual of Mental Disorders (DSM) as its standard for defining, diagnosing and treating mental health disorders. Since its first printing, the manual has undergone five revisions, the most recent being the DSM-IV, which was finalized in 1994. Currently a fifth version is being prepared and is due out by 2012.
Each new version contradicts the previous version; new authors with new perspectives and agendas write each new release. The standard keeps changing, shifting, sometimes radically so — the result is that mental illness is never clearly or objectively defined. It is a moving target shaped by political and social pressures.
“Following controversy and protests from gay activists at APA annual conferences from 1970 to 1973, the seventh printing of the DSM-II, in 1974, no longer listed homosexuality as a category of disorder. After talks led by the psychiatrist Robert Spitzer, who had been involved in the DSM-II development committee, a vote by the APA trustees in 1973, confirmed by the wider APA membership in 1974, replaced the diagnosis with a milder category of “sexual orientation disturbance.”
In today’s politically correct climate, the most recent version of the DSM-IV contains “no reference to homosexuality.”
Which DSM was correct or were both wrong? One can easily see the danger this contradiction raises if these diagnoses were synced up with a gun owner database that acts as an automated judge, jury and executioner for the gun buyer. Such variance also calls into question the credibility of those who define mental illness. Psychiatrists can’t even agree amongst themselves over a relatively short period of time on how to precisely define mental illness on any given issue. Thirty years ago no one heard the term “attention deficit disorder” or “post-traumatic stress disorder” — today diagnoses for these new mental illnesses are commonplace.
If NICS is expanded, expect entire groups of Wisconsinites to be denied their right to purchase a firearm. Legislation like this paints with a broad brush and will disarm many good people who should be able to buy handguns. One such group is veterans.
“[NICS Expansion] could have a significant impact on American servicemen,” wrote Gun Owners of America recently, “especially those returning from combat situations and who seek some type of psychiatric care. Often, veterans who have suffered from post-traumatic stress disorder have been deemed as mentally ‘incompetent’ and are prohibited from owning guns under 18 U.S.C. 922(g)(4). Records of those instances certainly exist, and, in 1999, the Department of Veterans Administration turned over 90,000 names of veterans to the FBI for inclusion into the NICS background check system.”
In addition to political pressures shaping the subjective nature of the mental health field, biases influence the outcome of psychiatrists’ opinions, too. “Furthermore the potential of conflict of interest has also been raised. Roughly 50% of the authors [of DSM] who previously defined psychiatric disorders have had or have financial relationships with drug companies.” 
While good science conducted objectively can yield good psychological evaluation and diagnosis, bad science fuels bad psychology rampantly and happens when the entire basis of diagnosis ebbs and flows with the political flavor of the day. The danger for misapplication here cuts across the spectrum.
On one side of the spectrum: someone could be diagnosed today as “mentally defective” who would later be undiagnosed tomorrow based on which way the political or societal winds blow. In terms of the psychiatric standards themselves, which DSM was right? Before the politically correct movement gained steamed or after — and which DSM will the NICS system rely upon — the one that may disarm you, or the other that may not?
NICS TRUMPS DUE PROCESS
On the other end of the spectrum, there are cases where someone is guiltless and becomes guilty. For example, there are gun owners sitting in prison right now who are well familiar with the 1996 Lautenberg Act — a federal gun control monster that essentially said that anyone who had been charged with misdemeanor domestic violence — this could include an unsubstantiated allegation that you raised your voice to a family member who called 911 on you — would result in your being disarmed for life.
Like Lautenberg, the expansion of the NICS system involving mental health determinations for gun purchase disqualifications relies upon the mere assertion by a psychologist who must rely upon standards that do not remain constant when they adjudicate you “mentally defective.” Once that diagnosis is made, you will not be able to buy a gun.
This top-down approach establishes a federal system that automatically red flags based on a shocking amount of highly subjective data (as we have seen). The result is that you are instantly presumed guilty by the system without there having been any determination being made in a court of law to prove that — a gross injustice and mockery of American jurisprudence.
Certainly there are disturbed individuals that can be objectively determined to be incapable of possessing or buying guns; but that should be determined on a case by case basis, objectively, and by affording the individual their right to due process in a court of law.
This is why we say that NICS itself is based on a dangerous false premise that paints with a broad brush, acts in a cold, robotic fashion that stomps due process. For this reason alone, NICS should be repealed, not expanded.
Even if NICS could stop a minority of cases that were misdiagnosed, we would still have a larger issue in which our opponents would be pushing forward an agenda that strips away from that minority its due process. The solution is to let the State decide on a case by case basis from the ground up in a court of law, contingent upon a charge at the local level. This is good politics, good policy — consistent with American liberty and yet still deals with the issue of preventing people with genuinely severe mental instabilities from buying guns (buying them illegally remains another matter).
This stands in stark contrast to Mr. Cox’s federal NICS gun control scheme — a system that imposes itself upon State jurisdiction and enforces broad standards that infringe due process across the board.How many rights tantamount to proper jurisprudence are we willing to give up to continue to feed the belly of this federal leviathan, which will only further subvert due process for thousands, perhaps millions of gun owners?
NICS IMPROPERLY SUBVERTS JURISDICTIONS
One maxim of good political strategy is that we never allow the enemy to define the terrain of political battle. So let’s back up: Are we gun owners asking the wrong question in the first place? Why are state representatives handing over our health record information here at home in Wisconsin to distant Washington, D.C., bureaucracies — agencies that are coming in to steal not only your individual gun rights but the right of your State to protect you?
It seems our state representatives are caving in to the federal bully — betraying their oath of office openly — oaths sworn to uphold our State Constitution, which enumerates our right to keep and bear arms. The federal government’s powers are enumerated in the Constitution and Bill of Rights and hence are limited by it.
“This bill violates…Mack v USA (95-1503) which states that ‘State legislatures are not subject to federal direction,’” said Sheriff Richard Mack, who won that landmark case after he refused to allow the feds to compel him against his oath to conduct unconstitutional background checks.
“The real irony here,” said Mack, “is that the NRA actually supported and helped fund this suit and now clearly supports Schumer and McCarthy as they violate the ruling the NRA helped pay to obtain in the first place. HR 2640 directs the states to take action and such laws run afoul of the separation of powers as set forth in the Tenth Amendment. I quote again from Mack v USA, ‘But the Constitution protects us from our own best intentions.’ I pray for the day when Congress and the NRA will abide by the law of the land as established by our Founders! How do you know the NRA is wrong on this law? When you notice that its primary supporters are Schumer and McCarthy.”
Remember, that Supreme Court ruling on NICS remains in force. According to Larry Pratt, Executive Director of Gun Owners of America, it essentially said, “Congress cannot commandeer the resources of a state to do its anti-gun bidding. This decision breathes new life into the 10th Amendment and our Republican form of government. The court ruled that the states cannot be compelled to perform background checks on gun purchasers,” he wrote. Wisconsin Gun Owners (WGO) concurs.
Knowing that the states cannot be forced to operate the unconstitutional NICS scheme, the federal agencies that are pushing NICS and its expansion are using a carrot-and-stick approach to threaten states that they will withhold federal funding and other federal handouts. Our state representatives should do their jobs by standing up to the feds, instead of groveling at their feet.
GUN RIGHTS ORGANIZATIONS OPPOSED TO NICS
Perhaps Chris Cox and NRA leadership need their heads checked, as they are walking in lockstep with notorious anti-gun Democrats in congress on this issue. Their PR machine is revving up to sell NICS and its continued expansion to NRA members packaged as a reasonable way to stop the insane from buying handguns.
But Cox is divisively out of accord with most gun owners and most other national and state gun rights organizations in our nation — and in our view willfully neglecting the wishes of NRA members who want to preserve, rather than destroy, the Second Amendment. In our opinion, NRA leadership’s support of NICS is almost certainly out of touch with the views of NRA members who, upon hearing the truth about this issue, will see NICS as the proverbial “Emperor with no clothes” that it is — compelling them to oppose it vehemently.
“Calling NICS a background check is simply a deception: the Brady system is an elaborate scheme to register gun owners,” said Dudley Brown, Executive Director of the National Association for Gun Rights (NAGR) “And it’s the foothold the gun-grabbers need to enact even further restrictions on our Second Amendment rights.”Asking permission for a right — which is what the Brady Registration Check does — turns it into a government-administered privilege. How any ‘gun rights group’ could support it, or its expansion, is beyond me,” Brown said.
In addition to national gun groups like NAGR and GOA opposing the NICS mental health expansion, Wisconsin Gun Owners, Inc. (WGO) is unified with other state no compromise gun rights groups in our opposition. “The NRA will open a can of worms about what mental health is and who gets to decide who is mentally ill,” said Ken Rineer, President of Gun Owners of Arizona. “In today’s ‘politically correct’ society, do you really want a single judge deciding your mental competence to own a firearm? What is mental illness? Is it someone who is depressed and on meds? Our courts are not friendly to those who wish to own firearms and I would not want my right to own one left to a single person wearing a black robe!”
New Hampshire gun owners killed a similar piece of legislation to the one Wisconsin State Senator Alberta Darling intends to foist upon us Badger State gun owners. “The bill in question was a blanket gun ban for anyone who had gone to a shrink for any reason,” wrote Alan Rice, Treasurer of the New Hampshire Firearms Coalition. “The definition and diagnosis of mental illness is so subjective.”
Expanding the National Instant Check System is wrong for gun owners and dangerous for everyone else. We’re the ones who are insane if we think the subjective field of diagnostic psychiatrics can be trusted to accurately define or diagnose mental illness in the first place. Once that dangerous premise is established, linking these spurious diagnoses with a federalized database scheme that trumps due process will only lead to more injustice for gun owners while criminals continue to subvert the system. Indeed, if we expand NICS to subsume all our private medical records into a state and national gun owner database, we gun owners aren’t just nuts — we’ve completely lost our minds.
OBJECTIONS TO NICS OPPOSITION REFUTED
OBJECTION: Even though criminals and mentally-defective individuals will avoid NICS to get their guns, since we have the system in place shouldn’t we try to improve it? Shouldn’t we try to stop the mentally ill from buying guns?
RESPONSE: You just answered your own question, tacitly admitting that a diagnosis of mental illness will not necessarily prevent that individual from getting around the NICS system, thus conceding the worthlessness of NICS in the first place. How could a mentally-ill person buying a gun outside of a background check system use that gun to commit a crime if they are surrounded at all times by competent citizens with guns who know how to defend themselves? An armed society is a polite society. Gun control doesn’t prevent crime, it facilitates it. The question you should be asking is, why have we disarmed our competent citizens to begin with?
OBJECTION: Without the National Instant Check System, criminals could legally buy guns. The Brady Campaign to Prevent Gun Violence claims that since its inception in 1994, NICS has stopped “more than 600,000 criminals and other prohibited people from purchasing firearms from FFLs.”
RESPONSE: “The most comprehensive study of the Brady Act finds the law has not cut handgun killings.In fact, the law’s main result is increased violence against women… ‘We weren’t able to see any effect on the homicide rate,’ study author Philip Cook told UPI Tuesday. ‘In retrospect we would not expect Brady to be effective against violent crime. Increasingly homicides are committed by career criminals who do not get their guns in legal ways,’ said the Duke University researcher.”
OBJECTION: NRA supports NICS and its expansion. If you’re opposed to this ‘reasonable’ measure, does that mean you want someone diagnosed with severe schizophrenic disorder to be able to buy a handgun?
RESPONSE: We don’t want schizophrenics to buy handguns, and that’s not the issue. We want a localized court of law to make that determination on a case by case basis through objective analysis and diagnosis — to ensure the person’s due process is upheld. NRA leadership appears to have lost their marbles — standing shoulder to shoulder with anti-gun Democrats to expand an unconstitutional gun control law they themselves know by their own arguments can and will be subverted by those “adjudicated mentally defective” who are intent on committing a crime.
If you’re tired of the broken system of compromise and access — a system which has netted gun owners only more gun control — we urge you to Join Wisconsin Gun Owners today!