Protecting Constitutional Rights

I recently reintroduced S. 202, the Social Security Beneficiary 2nd Amendment Rights Protection Act, to protect Social Security beneficiaries from having their constitutional rights arbitrarily revoked.  I also co-sponsored a similar Congressional Review Act resolution to halt a rule issued by the Social Security Administration (SSA) in the waning days of the Obama Administration that would erode Americans’ Second Amendment rights.  The U.S. House of Representatives recently passed similar legislation, and the Senate should act soon.

In December 2016, the Social Security Administration issued a final rule requiring SSA to gather and submit information to the National Instant Criminal Background Check System (NICS) on individuals who may be determined to be what NICS refers to as “mentally deficient.”  Under the new rule, a person can be reported to NICS for their use of a representative payee in managing their benefits.  The Social Security Administration may appoint a representative payee to assist beneficiaries who need assistance with managing benefits.  More than eight million beneficiaries need help managing their benefits, according to the Social Security Administration.  The use of a representative payee is not indicative of mental deficiency. 

The rule ignores that statute requires that for an individual to be deemed “mentally deficient,” a court, board, or other lawful authority must find that the person is a danger to themselves or others, or is unable to contract or manage their own affairs.  The Social Security Administration is not a court of law, and SSA officers are not a “lawful authority.”  Requiring the SSA to report individuals to NICS who have not had their cases properly adjudicated will result in trampling their constitutional rights, as individuals reported to NICS are instantly prohibited from purchasing a firearm from a Federal Firearm Licensee.  Equally alarming is the lack of an established appeals process to enable the removal of names from the system once entered. 

Current law prohibits the sale of a firearm or ammunition to anyone who has been adjudicated as mentally defective or committed to a mental institution.  Those whose cases have been adjudicated in a court and determined to be mentally ill and dangerous should be properly reported in adherence with the law.  I have supported legislation aimed at strengthening our mental health system, outlining the proper procedures and forums we should use to make determinations about an individual’s competence to own a firearm and improving information sharing to strengthen the existing background check system, which includes clarifying that federal court information is to be made available to NICS.

The Obama Administration’s lack of regard for due process and unfair assumption that an individual is a danger because they participate in the SSA’s representative payee system is unacceptable.  More than 91,000 comments were submitted to the Social Security Administration following the publication of the proposed NICS rule.  I, along with several of my colleagues including fellow Idaho Senator Jim Risch, wrote the Social Security Administration four times to express our concerns about the proposed rule.  Our concerns, and the concerns of 91,000 Americans, were clearly not factored into the rulemaking process. 

A January 2016 White House fact sheet estimated that SSA’s rule would add 75,000 beneficiaries to the NICS list each year.  The number of law-abiding individuals who will be added to the NICS list will likely be much higher.  This is a brazen attack on our constitutional right to keep and bear arms—a freedom considered so important by our Founding Fathers that they listed it in our Constitution among our most central freedoms.  I will continue to work to stop this outrageous rule and protect the constitutional rights of law-abiding citizens.  

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