Unable to legislate new restrictions on what kind of arms can be sold, the government has embarked on a long-term effort of adding an untold number of Americans to “no buy” lists—based on the unfounded conjecture that they pose a “danger” to others—and deprive them of a fundamental constitutional right. The Gun Control Act of 1968 and NICS Improvement Amendments Act of 2007 requires that agencies with pertinent records on who is or is not “a mental defective” disclose those records to the attorney general so those people can be excluded from purchasing arms through the National Instant Criminal Background Check System (NICS).
The Social Security Administration (SSA) has proposed a new regulation that would create a process for transferring the records of those who seek a “representative payee” (legal proxy) under Social Security disability benefits programs to NICS, so that they may be considered a “mental defective” and thus lose their Second Amendment rights. The proposed SSA rule is arbitrary—there’s no evidence that someone who needs help with SSA paperwork can’t be trusted with a gun—and inconsistent with the regulatory and statutory scheme, not to mention blatantly unconstitutional.
Accordingly, for the first time ever, Cato’s Center for Constitutional Studies, with the help of law professors Josh Blackman and Gregory Wallace, has filed a public comment objecting to the rule on 10 different grounds. No one disputes that the government has an interest in keeping guns out of the hands of those who could harm themselves or others, but depriving a constitutional right requires due process of law. Under existing law, the root requirement of the Fifth Amendment’s Due Process Clause is that an individual receive a hearing before she is deprived of a constitutional right by a federal agency, one where the government must justify its restriction.
Here, the process entails an SSA bureaucrat making the determination without the expertise necessary to tell if the applicant is a danger to herself or others and without necessarily having the benefit of medical evidence. Indeed, the criterion evaluated—whether a person is “a mental defective”—is the same unscientific and unspecific standard that the Supreme Court approved in 1927 when legalizing the sterilization of the mentally ill and other eugenic treatments. The term is antiquated and vague.
Moreover, it is unconstitutional to condition the receipt of benefits on the sacrifice of rights. The “condition” here could not be more clear: to gain or maintain a representative payee, needy disabled persons must submit to being placed on the NICS list and foregoing their Second Amendment rights. The government is not allowed to foist that Catch-22 onto those who qualify for Social Security disability but need help administering their benefits.
On a more practical level, the SSA is not the agency that should be making this sweeping policy. Determining whether someone satisfies the criteria for obtaining a representative payee is perfectly within SSA’s expertise, but determining who among its recipients is capable of responsible firearm ownership is far, far afield of the SSA’s area of expertise. The SSA’s job is to administer social-insurance benefits, not to implement gun-safety regulations. The agency is simply not staffed with the medical and gun-policy experts necessary to make such determinations on a regular basis.
Finally, the proposed rule treats the entire category of people who express a misgiving about their mental abilities as per se deprived of their right to armed self-defense. Surely the landmark case District of Columbia v. Heller (2008), which confirmed the individual right to keep and bear arms, did not mean to sweep every hypochondriac, arachnophobiac (spiders), coulrophobiac (clowns), or lepidopterophobiac (butterflies) into the federal mental-health gun-prohibition.
The SSA should abandon this ill-devised rule.
Conservatives outright reject the idea that big-government gun-control schemes would reduce mass shootings like the recent murders committed at a Planned Parenthood clinic in Colorado Springs. So why do so many conservatives seem to believe a big-government mental-health-care scheme, like the bill sponsored by psychologist and congressman Tim Murphy (R-PA), would be any more effective?
Murphy's bill would reorganize and expand the federal government's involvement in mental-health care. It would create a new Assistant Secretary for Mental Health and Substance Use Disorders at the U.S. Department of Health and Human Services. It would create an Interagency Serious Mental Illness Coordinating Committee. It would encourage telepsychiatry--by subsidizing it. It would expand Medicare and Medicaid subsidies for mental-health goods and services. It would leverage federal grants to coerce control how states treat mental-health patients suspected of being a threat to others. It would do other things.
Conservatives have lauded the bill and demonized its opponents. In October, National Review editorialized basically that Murphy's bill would manage mental-health treatment from Washington better than Washington has ever managed mental-health treatment before. Last week, The Wall Street Journal editorialized that opponents, including some Republicans, "object to involuntary commitment for the mentally ill, despite overwhelming evidence of the risks to society and the sick." The Journal neglected either to recognize that involuntary commitment is a dangerous power for the government to wield, one with both benefits and costs, or to offer evidence that the benefits to society and the sick of broader involuntary commitment would exceed those costs.
The best way for government to aid the mentally ill is not a medical question. It is an economic one. What makes conservatives think that command-and-control economics will work better in mental health than in any other area? (Or are they just looking for a talking point in response to mass shootings?)
But that's not what I'm here to tell you about. I'm here to talk about a Balanced Budget Amendment.
The Congressional Budget Office projects the Murphy bill would increase federal spending by a mere $3 billion over 10 years. But that projection comes with a very big asterisk.
The bill contains a weird quirk. It allows, and creates the expectation of, broader federal subsidies for mental-health services under both Medicare and Medicaid (much of it for ObamaCare's new Medicaid-expansion population). But that broader coverage can happen if and only if the chief actuary of the Centers for Medicare and Medicaid Services certifies that such additional coverage will not increase net Medicare or Medicaid spending. The idea being, presumably, that this coverage expansion will be budget-neutral because the feds will pay for that additional stuff (much of which is currently being paid for by states) if and only if it produces, or CMS can otherwise find, offsetting savings elsewhere in Medicare and Medicaid. Without that funny little requirement, CBO projects the Murphy bill would increase net federal spending by as much as $66 billion over 10 years.
In other words, if those required certifications can be gamed--and political pressure from states and mental-health-care providers to game it will be considerable--the Murphy bill would increase federal spending by as much as 22 times the official projections. That's not just an asterisk: it's an exponent.
What does all this have to do with a Balanced Budget Amendment? It seems ideologically inconsistent for rock-ribbed, limited-government conservatives at the Wall Street Journal and National Review to support a bill like Murphy's. But in a world of deficit spending, it costs them little. 'Meh,' they can say, '$3 billion over 10 years is a drop in the bucket.' And it is easier to hand-wave away the looming threat of an additional $66 billion of federal spending.
Were there a constitutional requirement that federal spending must be financed by current taxation rather than deficit spending (i.e., a promise to raise taxes in the future), these conservatives probably would think twice about a bill like this because of the tax increases it portends.
Interestingly, both the Wall Street Journal and National Review have long editorialized against a Balanced Budget Amendment. Their principal objections are (1) to be effective, the impetus for a balanced budget must be political, not constitutional, and (2) a constitutional amendment would be difficult to enforce and, therefore, easy for politicians to game.
What these objections fail to appreciate is that the very process of ratifying a Balanced Budget Amendment would alter the political landscape, by creating expectations and thus a political constraint that augments the constitutional constraint and helps to make that constraint binding.
No Balanced Budget Amendment would or could be flawless. It would just be a vast improvement over what we have right now. Consider: following that ratification process, the politics of government spending might be sufficiently altered such that, when politicians presented conservatives with (say) a new big-government mental-health bill, conservatives would be forced to think about the additional taxes required to fund it, and would, therefore, reject it out of hand.
Last night, the New York Senate passed far-reaching reforms to New York’s gun laws. The law should easily pass the Assembly and then be signed by Governor Andrew Cuomo. Almost assuredly, this law will save no lives and stop no mass shootings. In fact, it may make New Yorkers less safe.
I invite you to read over the previsions of the law—expanding the definition of already-banned “assault” weapons, banning the sale of magazines that hold over seven rounds, a requirement that licenses be renewed every five years—and ask if there is a single would-be killer out there who would be hampered by such restrictions in a country where he is already surrounded by 300 million guns? It is simply unreasonable to think that any unstable person with plans for mass carnage will be stopped by only having seven rounds per magazine. The Virginia Tech shooter, after all, solved this “problem” by carrying a bag with 19 magazines.
And how could this law make New Yorkers less safe? First, the law will inevitably limit law-abiding citizens’ access to weapons, and those citizens may need those weapons to protect themselves or others from a crime. At minimum, this occurs 108,000 times per year, according to the federal government's National Crime Victimization Survey, and it likely occurs far more than that (you can read more about defensive gun use in the Cato study Tough Targets).
Second, onerous gun restrictions tend to drive gun purchasers underground. Those black and illicit markets are further expanded by gun-control advocates’ attempts to shame and demonize those who own firearms and enjoy using them in a responsible manner (for example, the recent Gawker exposé publishing the names and addresses of gun owners in New York City, who were blatantly described as “a**holes,” as well as the Journal News publishing similar data for gun owners in Westchester and Rockland counties). Moreover, as J.D. Tuccille recently documented in Reason, evading gun restrictions is not just a national pastime, it is an international pastime. Tuccille writes that there are approximately 58,000 registered gun owners in New York City, but that the Justice Department estimates that there are about 2 million illegal guns in the city.
Pushing more of the gun trade underground by passing onerous restrictions and creating bureaucratic labyrinths impairs our ability to keep guns out of the hands of dangerous people.
Some aspects of the law, such as the requirement that mental health professionals report patients who they believe are likely to harm themselves or others, seem like an honest attempt to prevent dangerous people from having guns. However, the requirement violates the traditional rules of therapist/patient confidentiality, and unfortunately it will likely do more to dissuade people from seeking help out of fear that they may be disarmed by the state.
Governor Cuomo’s statement—“Enough people have lost their lives. Let’s act”—shows that this law is more an example of the “something must be done, this is something, therefore it must be done” tendency in politics rather than a carefully considered bill that offers workable solutions to the problem. In many ways, this is the biggest harm of these cosmetic gun laws: lawmakers can pat themselves on the back and incorrectly say, “we saved some lives today” and then move on to other tasks while having done nothing to solve the problem.
Legislation rushed through passage is invariably bad law. And the gun bill that emerged overnight from the New York State Legislature, on its first day back, will surely be no exception. Written in private by Gov. Andrew Cuomo and legislative leaders and completed late yesterday, “rank-and-file Senators had only a few minutes to read the legislation before voting on it,” the New York Times reports. “If there is an issue that fits the definition of necessity,” Cuomo intoned, “I believe it’s gun violence.” Really! So pressing are events that the normal three-day waiting period, so legislators could study the bill, had to be waived?
So what do we have? A bill that bans, as “assault weapons,” semiautomatic pistols and rifles with detachable magazines and “one military-style feature,” and semiautomatic shotguns with such a feature. And what is a “military-style feature”? We’ve seen this play before. New Yorkers who already have such guns can keep them, but they’ll have to be registered. Expect litigation on all of those points. Once again, it’s the law-abiding people this bill will affect, not those we have to worry about.
But if the gun part of the bill is problematic, the mental health part is even more so. Mental health professionals would be required “to report to local mental health officials when they believe that patients are likely to harm themselves or others,” the Times tells us, the failure of which would not be sanctioned if they acted “in good faith.” Here again, as with the guns, we imagine that all we need is more law to address what is doubtless the most difficult part of the problem. The implications for confidentiality and, more important still, for encouraging people to seek help, are deeply troubling.
Yet the most important measure that could be taken immediately—one that has proven to reduce deaths from random mass shootings—seems to be missing altogether from this bill, despite the fact that two-thirds of Americans support it. It is to have armed security officials at schools and other currently “gun-free zones.” This act is likely to have little effect on the real problem, however much it makes those who promoted and passed it feel good.