Relief from Disabilities

[kgbsquirrel]

So, elsewhere there is a discussion going on between a bunch of veterans regarding the loss of 2nd amendment rights due to arbitrary decisions by people of the mental health field. This thread is not about that.

When reading about the "disability" setup from the Gun Control Act of 1968 I noticed that there was a provision to allow people to apply for "Relief from Disability" and the restoration of their 2nd amendment "privilege" (ATF's wording, not mine). The only problem to this though is that in 1992 Congress specifically barred the ATF from spending any money investigating individual applications. The ATF is still allowed to investigate corporate applications for RFD's, but not for people.

In short, sure there is a process to get your 2nd amendment rights back after being tossed in the padded room. But we're not going to process the paperwork you send in because *expletive deleted* you, that's why!

This prohibition has been included in every single appropriations bill for the last 20 years.

Oh and I found this case from the fifth circuit concerning a man who was convicted of filing false tax paperwork and making a false statement. He applied for RFD to the ATF and was told to pound sand. So he appealed to the district court which dismissed it for lack of standing. So he appealed that to the 5th circuit who likewise told him to pound sand. The short of it: We've determined that congress intentionally doesn't want individuals to be able to apply for Relief from Disability, so piss off.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/5th/9510342cr0.html


Discuss.

[RoadKingLarry]

Welcome to Amerika comrade.

[SteveS]

I will have to read it again, but it looks like Congress said you could apply for RTD, but subsequently defunded this.  Besides repealing a law, this is a way that they can change a law and effectively repeal it.  Congress could fund it again, but it is clear they don't care about this.  Sucks, but it is constitutional. 

[kgbsquirrel]

I will have to read it again, but it looks like Congress said you could apply for RTD, but subsequently defunded this.  Besides repealing a law, this is a way that they can change a law and effectively repeal it.  Congress could fund it again, but it is clear they don't care about this.  Sucks, but it is constitutional.  

Due process? We're not talking about guys convicted of beating their neighbor to death with a golf trophy, we're discussing, as one example given, a soldier dealing with suicidal ideation manifesting as a symptom of PTSD following a deployment and being involuntarily confined to a mental hospital. Fast forward a couple years and following counseling/drug treatment regimen the man is living on his own and is back to being a completely stable and productive individual. In many instances he may still be serving in the military. And yet he is permanently deprived of inalienable rights because of a Doctor's determination which was made during probably the worst part of his entire life. *eyebrow*

[Tallpine]

So what's keeping them from de-funding NICS 

 

[kgbsquirrel]

So what's keeping them from de-funding NICS  

 

300 million privately owned firearms? Apparently nobody gives a *expletive deleted* if you strip a few hundred thousand veterans and average Joes of their rights though.

[MillCreek]

Huh.  I have some legal colleagues who have thriving practices in terms of lifting disability prohibitions on firearms ownership.  Most of them have to do with disabilities from felony convictions, but I know that they also do disabilities on mental and substance abuse issues.  As with most other similar matters, if you can find a medical expert willing to testify or sign an affidavit attesting to your current condition, you can often get these overturned.  It also helps if you are a solid citizen with no other substantial criminal or psychiatric history.

So I suspect that if the people mentioned in this post retained competent counsel, they would have a better result. 

[kgbsquirrel]

Huh.  I have some legal colleagues who have thriving practices in terms of lifting disability prohibitions on firearms ownership.  Most of them have to do with disabilities from felony convictions, but I know that they also do disabilities on mental and substance abuse issues.  As with most other similar matters, if you can find a medical expert willing to testify or sign an affidavit attesting to your current condition, you can often get these overturned.  It also helps if you are a solid citizen with no other substantial criminal or psychiatric history.

So I suspect that if the people mentioned in this post retained competent counsel, they would have a better result. 

Exactly what sort of process are they managing this under? Filing with the ATF, going through the courts, some other bureaucracy?

[MillCreek]

Exactly what sort of process are they managing this under? Filing with the ATF, going through the courts, some other bureaucracy?

That is a darn good question, and I will ask them.  It occurs to me to wonder if they are doing the disability relief at the state or Federal level; i.e. state or Federal disabilities.  I know that a lot of what they are doing is getting domestic violence convictions overturned, for example.

[kgbsquirrel]

That is a darn good question, and I will ask them.  It occurs to me to wonder if they are doing the disability relief at the state or Federal level; i.e. state or Federal disabilities.  I know that a lot of what they are doing is getting domestic violence convictions overturned, for example.

From the ATF's own website.

http://www.atf.gov/firearms/faq/general.html#firearms-relief

As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for relief from Federal firearms disabilities submitted by individuals.

A person is not considered convicted for Gun Control Act purposes if he has been pardoned, had his civil rights restored, or the conviction was expunged or set aside, unless the pardon, expungement, or restoration expressly provides the person may not ship, transport, possess, or receive firearms.

Persons convicted of a Federal offense may apply for a Presidential pardon. 28 CFR 1.1-1.10 specify the rules governing petitions for obtaining Presidential pardons. You may contact the Pardon Attorney’s Office at the U.S. Department of Justice, 500 First Street, N.W., Washington, DC 20530, to inquire about the procedures for obtaining a Presidential pardon.

Persons convicted of a State offense may contact the State Attorney General’s Office within the State in which they reside and the State of their conviction for information concerning any alternatives that may be available, such as pardons and civil rights restoration.

There still seems to be a rather lacking recourse for the "mentally incompetent".

[SteveS]

Due process? We're not talking about guys convicted of beating their neighbor to death with a golf trophy, we're discussing, as one example given, a soldier dealing with suicidal ideation manifesting as a symptom of PTSD following a deployment and being involuntarily confined to a mental hospital. Fast forward a couple years and following counseling/drug treatment regimen the man is living on his own and is back to being a completely stable and productive individual. In many instances he may still be serving in the military. And yet he is permanently deprived of inalienable rights because of a Doctor's determination which was made during probably the worst part of his entire life. *eyebrow*

Has the due process argument ever been used?

[Hawkmoon]

I will have to read it again, but it looks like Congress said you could apply for RTD, but subsequently defunded this.  Besides repealing a law, this is a way that they can change a law and effectively repeal it.  Congress could fund it again, but it is clear they don't care about this.  Sucks, but it is constitutional. 

But they do care about it. They care enough to stipulate every year that they don't want any money spent to fund a program that they (their predecessors) wrote into law, but that the current crop of congresscritters (that has a certain alliterative ring to it) doesn't have the courage to just rescind.