S. 413 and H. 3560 are bills that claim to simply be mental health reporting bills to make the NICS check better by stopping the mentally ill from getting guns. Who could possibly oppose bills to stop the mentally ill from getting guns? These bills have bipartisan support and have been introduced by Republicans and supported by Sen. Ford. SC AG Wilson had a great media day – along with support from the NRA – pushing these bills. But, these bills are NOT what you are being told they are. These bills include an expansion of anti gun laws and would deny you the due process protections guaranteed to you in a court of law. The devil is always in the details, and it is the details that you need to know to understand why you should oppose these bills.
Section 1 of H. 3560 expands the law to include more people who are banned from possessing handguns and to whom it is a felony to sell a handgun to. According to the proponents of H. 3560, existing law that already makes it a felony for a person who “has been adjudicated mentally incompetent” to possess a handgun is not sufficient to stop the mentally ill from getting a handgun. So, H. 3560 makes it a felony to sell a handgun to or for a person to possess a handgun if that person “has been adjudicated mentally incapacitated or committed to a mental institution, both as defined in Section 23-31-1010.” Some would think that these two legal phrases mean the same thing. But they do not. Remember, things mean what the definitions in the law say they mean regardless of what things mean to everyone else.
Existing law requires that the accused be afforded all the protections of a due process court proceeding before being found by the court to be “mentally incompetent.” But, H. 3560 defines what “a person adjudicated as mentally incapacitated” means even if that is not what we would think it should or would mean. A court with all the due process protections required in a court proceeding is no longer necessary for a person to be “adjudicated as mentally incapacitated.” Instead, a “board, commission or other lawful authority” would be sufficient to cause a person to be “adjudicated as mentally incapacitated.” “Other lawful authority” has been found to be a shrink issuing a PTSD diagnosis on returning veterans. Do you want a single person to be able to put you on the prohibited person NICS list? Do you want to give away your right to a fair trial before someone can put you on the prohibited person NICS list?
Pursuant to proposed Section 23-31-1010(1)(e), a person is defined as “a person adjudicated as mentally incapacitated” and placed on the NICS list and banned from buying or possessing handguns if that person is impaired by . . . physical illness or disability, advanced age, . . . to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property.” So, get old and feeble and the state can come and confiscate your handguns under H. 3560.
I served as a range safety officer for a CWP class. One of the students was an elderly woman with arthritis in her hands. She was unable to fire the 50 rounds required to complete the range qualification portion of the CWP test, although she was able to accurately fire about 20 rounds prior to her hands giving out. Since she did not complete the course of fire, SLED will not issue her a CWP.
How many times does a person need to fire 50 rounds in a self defense situation? So, why should this elderly lady be denied the right to effective self defense just because she has significant arthritis in her hands? Could the fact that she was physically impaired be interpreted to mean she should be denied the right to keep and bear arms under these bills just as SLED now denies her a CWP? Do we want to leave that arbitrary decision to a single person or committee? Or, should we demand that her rights be protected with all of the due process protections found in a court of law?
Pursuant to proposed Section 23-31-1010(1)(b), a person is defined as “a person adjudicated as mentally incapacitated” and placed on the NICS list and banned from buying or possessing handguns if found “not guilty by reason of insanity” for any crime – even non violent crimes – even “if the chief administrative judge finds the person not to be in need of hospitalization” and even if “the judge [orders] the person released upon such terms or conditions, if any, as the judge considers appropriate for the safety of the community and the well-being of the person.” And all handguns can be confiscated by the state.
Proposed Section 23-31-1030 is especially troubling because of the ambiguities that could be interpreted adversely to the interests of gun owners. Section 23-31-215 is the SC CWP law. Section 23-31-1030 states:
“A person who is disqualified from possessing … a firearm under … Section 23-31-215, as a result of adjudication as mentally incapacitated … may petition the court that issued the original order to remove all such disqualifications.”
Proposed Section 23-31-1030 could be interpreted to mean that if the local sheriff recommended against issuing a CWP to a person because the sheriff thought the person was mentally incompetent and SLED refused to issue a CWP based upon the sheriff’s recommendation, then the person would have been “adjudicated mentally incapacitated” by a “board, commission or other lawful authority” and could be placed on the NICS list.
Not all sheriffs are pro gun. Many sheriffs are anti gun politicians. Rep. James Clyburn was quoted as saying “People can only find comfort with guns if they’re not too stable to begin with. (The State, June 13, 1999)”
Even more troubling is the admission of retired SLED agent Mark Huguley who admitted to placing people on the NICS list who had not been “adjudicated mentally incompetent.” Mr. Huguley wrote an opinion article published by The State on March 3, 2013 that stated:
“As a retired SLED agent myself, I have seen firearms in the possession of people suspected of disqualifying mental disabilities. I even received occasional calls from family members concerned that a loved one whom they considered a threat to self or others was seeking to purchase a firearm. With sufficient evidence, we would enter these people into the FBI file to block purchases. I don’t know whether this prevented any tragedy, but it gave comfort to the family members and would be reassuring to others if they knew the circumstances.”
Mr. Huguley supports H. 3560, and obviously thinks he is above the law, too. Do you like the idea that some bureaucrat can unilaterally decide there is “sufficient evidence” to put you on the prohibited person NICS list without you ever being afforded the protections of a fair trial?
H. 3560 purports to provide a means to have one’s name removed from the NICS database, but such is an illusion. Once a person’s name is put on the federal NICS database, there is nothing that a SC court can do to force NICS to remove that person’s name from the NICS list – which is why it is so important that a person be accorded all due process protections found in a court of law and not shortchanged by allowing a “board, commission or other lawful authority” to cause a person to be “adjudicated as mentally incapacitated.”
There is another mental health reporting bill – H. 3564 – before the SC General Assembly. H. 3564 does not contain additional anti gun provisions as H. 3560 does. H. 3564 requires a court adjudication – with all due process protections – of mental illness before allowing a person’s name to be added to the NICS list. While it is not a perfect bill, it is far superior to H. 3560. Interestingly, H. 3564 has not gotten the attention of the mass media as H. 3560 has. Could it be because H. 3564 does not include the threats of gun control that are included in H. 3560? The real question that we need to demand an answer to is “why do Republicans and the NRA support a mental health reporting bill that denies people the due process protections of a court trial before having their fundamental right to keep and bear arms revoked?” If Democrats had introduced H. 3560, we gun owners would be up in arms. So, why are we gun owners letting H. 3560 slide by now?