By: Teresa Mull

The U.S. House, controlled by the Democratic Party, voted last month to pass H.R. 8, a bill labeled the “Bipartisan Background Checks Act of 2019.”

H.R. 8, should it become law, would be the largest expansion since 1994 of gun control in the U.S. This bill is dangerous for many reasons. Not only would H.R. 8 do absolutely nothing to prevent gun violence, it would also ban virtually all private firearms sales and create a Universal Gun Registry – remember what happened in Nazi Germany with such a system in place?

What’s more – the National Instant Criminal Background Check System (NICS) has already disproportionately punished hundreds of thousands of military veterans by denying them their Second Amendment rights without due process.

Hundreds of Thousands on the Growing List
Ryan Flugaur, Political Director at the National Association for Gun Rights, explained to Gunpowder Magazine that pinpointing the exact number of veterans who are punished under the current background check system is difficult, because “it’s a moving target.

“They presumably took a chunk of names off the list in 2016, but the number is still growing just as rapidly, maybe more so, that it was before,” Flugaur said.

According to NICS 2018 active records data, the most recent figure available shows 246,203 veterans are on the “no guns” list.

Data shows:

The initial dump in November of 1998 (Clinton administration) was 88,898.

This figure grew year after year as veterans returned home from Iraq and Afghanistan.

By 2007, the number grew to 116,000. (see this Senate Report)

By 2011, the number grew to 130,866. (see bottom of page 105)

By 2013, the number grew to 170,646. (see page 26s)

By December 2015, the number grew to 260,381.

In December 2016, the department allegedly pulled some names out, and the number dropped to 167,815 names.

By December 2017, the number grew to 194,325.

And now… we’re back up to 246,203 as described above.

How Did This Happen?
Flugaur explains how such a disastrous, unconstitutional system came about:

“A Clinton administration-era policy of adding any vet to the NICS, ‘no-guns list’ who opted to have a spouse or third party (called a ‘representative payee’) manage their benefits and receive their checks kicked in in 1998.

“In other words, the veteran ended up on the list without due process, simply because he or she elected to have someone else receive his or her benefits. No court, no lawyer. Because the process was so automated based on the ‘representative payee’ criteria, the circumstances of individual cases, medical records, or evaluations didn’t even need to be taken into account. Hardly ‘due process,’ and certainly not an accurate way of assessing whether the person really meets the criteria of ‘mentally defective’ for purposes of a gun ban as laid out in the Gun Control Act – 18 USC 1922 (g) (4).

“After troops started returning home from Afghanistan and Iraq, such reporting really ratcheted up at the tail-end of Bush’s presidency, aided by the 2007 NICS Improvement Amendments Act (NIAA – a post-Virginia Tech shooting bill), which statutorily broadened the word ‘adjudicate’ to include not just ‘courts’ but any ‘board, commission, or lawful authority.’

“Veterans started getting letters in the mail saying they were barred from owning a firearm, and had very little if any time to mount a credible appeal. Appeals didn’t even go to court; they went to VA boards.

“In 2016, President Obama tried to mirror this policy for some 4 million social security beneficiaries too, by executive rule and the Administrative Procedures Act.
“In 2017, Congress killed off the Social Security rule before it took effect using the Congressional Review Act. Allegedly, they narrowly addressed some of the veterans’ stuff around this time too, but as is evidenced by the latest NICS count, they failed to remove the names already put there without due process, and the count is once again growing at a steady rate.

“Unfortunately, Republicans like John Cornyn and Lindsey Graham are the biggest cheerleaders for expanding NICS right now in the areas of sketchy reporting. They did that in last year’s ‘Fix-NICS’ Act, which was co-sponsored by Dianne Feinstein and included in the Omnibus Budget deal back in March 2018. That makes it more likely that faceless bureaucrats or the next anti-gun president will continue to find excuses to lump more law-abiding people into made-up categories to take away gun rights.”

What’s Next?
Sen. Rand Paul proposed a bill that would have restored – two Congresses ago – the rights of veterans who have had their rights denied for the VA’s egregiously flawed reporting, (S.2802, the Protecting Gun Rights and Due Process Act,), but then-Chairman Sen. Chuck Grassley, a Republican, let it die in the Senate Judiciary Committee.

Under NICS, millions of law-abiding citizens are already prohibited unfairly – and unconstitutionally – from exercising their Second Amendment rights. If H.R. 8 passes, it’ll only get much, much worse, and our military veterans will suffer more than they already have.

Flugaur summed up the current background check chaos:

It’s pretty clear that NICS cannot be “fixed”. After years of failed efforts to ‘beef up’ the background check system which H.R. 8 relies on, the Federal government has proven the only thing it can do effectively with NICS is deny gun purchases to millions of law-abiding Americans, including veterans without due process.

I think it’s a joke that states like Pennsylvania claims 868,000 residents – that’s 7 percent – of their entire state population is mentally ill, which is numerically almost identical to the much larger California. (PA has a rather draconian Section 302 emergency hold statute as it pertains to firearms).

This disparity between states points to the unmistakable conclusion that government cannot decide on a set standard for who is and who is not mentally ill, and law-abiding citizens are being denied their rights in a discriminatory fashion based on where they happen to live. Even states that have already enhanced their reporting requirements come to radically different conclusions for who is mentally ill and when to report them to NICS.

Teresa Mull is editor of Gunpowder Magazine. Contact her at [email protected].