Shall we take a look at HR 2640 (tooltimey, pay attention here)?
Section 101(c)(1) sets out the standards for "Adjudications, Commitments, and Determinations Related to Mental Health" - as they relate to agencies of the Federal Government. It prohibits departments or agencies from transmitting records of anyone to NICS if:
Section 101(c)(2)(A) specifies that each department of the U.S. that makes any such adjudication or determination shall set up a seperatate program within that department that would allow such a person to apply for relief of the disability. It is to be modeled after the standards of title 18 USC 925(c).
Section 101(c)(2)(B) specifies that any records not transmitted to NICS wherein the person was not determined to have met the qualifiers of 101(c)(1)(A), or a person that has been granted relief under 101(c)(2)(A) shall be deemed not to have incurred the penalty of 922(d)(4) or 922(g)(4).
Section 101(d)(1) specifies that only those that have met the qualifications of the preceeding may be included in the NICS records.
Section 101(d)(2) specifies that any records that were previously transmitted to the NICS that do not meet the qualifiers above, shall be removed from the NICS database.
So, while these various departments and agencies relief mechanisma may be defunded at the federal level, just like the generic process under 925(c) has been defunded, it would require the legislature to specify each and every department and agency so defunded as a seperate item in any appropriations bill.
Still, I will concede that this is not an entirely insurmountable task. Some, like Chuck Schumer may attempt to do just that. It does make it harder to accomplish, however.
That takes care of the Federal side of things.
Section 105 deals entirely with the various departments and agencies of the States. It sets up the same criteria used at the federal level in order for the disability to occur. It mandates that the States will setup processes will be available for individuals so adjudicated, to apply for relief. This will be funded and processed entirely by the States. In addition, any denial by the States for relief can be taken to State Courts for a de novo review of the denial.
That in and of itself is a great step forward, as a de novo review allows the appeal to be made to the court entirely on its own merit, and not simply for procedural defects, as would a normal appeal entail.
Now along with the funding of the States ($250M) to supply all this updated info, in the manner provided, the proposed legislation also says that if the States do not provide functions and procedures for relief of disability, then not only will they get no more funds to operate the NICS referrals, they will have to return all monies given to them. A very strong incentive for the States to comply. This can all be found in Sections 102 and 103 of the Bill.
So, where's the Beef?
Section 101(c)(1) sets out the standards for "Adjudications, Commitments, and Determinations Related to Mental Health" - as they relate to agencies of the Federal Government. It prohibits departments or agencies from transmitting records of anyone to NICS if:
(A) the adjudication, determination, or commitment, respectively, has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring;
(B) the person has been found by a court, board, commission, or other lawful authority to no longer suffer from the mental health condition that was the basis of the adjudication, determination, or commitment, respectively, or has otherwise been found to be rehabilitated through any procedure available under law; or
(C) the adjudication, determination, or commitment, respectively, is based solely on a medical finding of disability, without a finding that the person is a danger to himself or to others or that the person lacks the mental capacity to manage his own affairs.
Section 101(c)(2)(A) specifies that each department of the U.S. that makes any such adjudication or determination shall set up a seperatate program within that department that would allow such a person to apply for relief of the disability. It is to be modeled after the standards of title 18 USC 925(c).
Section 101(c)(2)(B) specifies that any records not transmitted to NICS wherein the person was not determined to have met the qualifiers of 101(c)(1)(A), or a person that has been granted relief under 101(c)(2)(A) shall be deemed not to have incurred the penalty of 922(d)(4) or 922(g)(4).
Section 101(d)(1) specifies that only those that have met the qualifications of the preceeding may be included in the NICS records.
Section 101(d)(2) specifies that any records that were previously transmitted to the NICS that do not meet the qualifiers above, shall be removed from the NICS database.
So, while these various departments and agencies relief mechanisma may be defunded at the federal level, just like the generic process under 925(c) has been defunded, it would require the legislature to specify each and every department and agency so defunded as a seperate item in any appropriations bill.
Still, I will concede that this is not an entirely insurmountable task. Some, like Chuck Schumer may attempt to do just that. It does make it harder to accomplish, however.
That takes care of the Federal side of things.
Section 105 deals entirely with the various departments and agencies of the States. It sets up the same criteria used at the federal level in order for the disability to occur. It mandates that the States will setup processes will be available for individuals so adjudicated, to apply for relief. This will be funded and processed entirely by the States. In addition, any denial by the States for relief can be taken to State Courts for a de novo review of the denial.
That in and of itself is a great step forward, as a de novo review allows the appeal to be made to the court entirely on its own merit, and not simply for procedural defects, as would a normal appeal entail.
Now along with the funding of the States ($250M) to supply all this updated info, in the manner provided, the proposed legislation also says that if the States do not provide functions and procedures for relief of disability, then not only will they get no more funds to operate the NICS referrals, they will have to return all monies given to them. A very strong incentive for the States to comply. This can all be found in Sections 102 and 103 of the Bill.
So, where's the Beef?