Gun Prohibitions – Changes Before the New President Takes Office

In this episode, Lisa Shoalmire and John Ross try to clarify a few of the legal changes for Gun Prohibitions made before the new administration takes office.

Episode Transcript
Lisa
And so sometimes, it's really hard to separate the truth from the reality and depending on your news source and all that. And a lot of times, there's a little bit of truth in something, but they're shouting from the rooftops, but they're not telling you the whole story. And so Aging Insight is not a source of fake news.
John
No, that is true. We're gonna get to the bottom of some things.
Lisa
That's right. So this past week, I saw some headlines screaming off the computer about changes with regard to gun rights and folks that may receive Social Security disability insurance. And boy, I was all riled up, John.
John
You were. You were pretty riled up.
Lisa
I was like, "Oh no, no, no. This is not right."
John
No. In fact, as I was gathering up stuff, you talk about the headlines and this was the first headline that pulled up when I was trying to find the article I wanted to look at. But this was not the article, but this was the first one that popped up in my newsfeed, "Grandma got run over by Obama."
Lisa
[laughter] Yeah.
John
Social Security finalizes new gun prohibitions.
Lisa
Yeah. Well, and true enough, Social Security has finalized some new gun prohibitions. That is a true statement.
John
That's a true statement.
Lisa
Yeah. But as they say, "The devil is in the details."
John
Yeah. If I strike a match in a theater, there is still fire in a theater. But yelling out, "Fire," in the theater is probably not a good idea.
Lisa
So I thought today, I bet... We live in a community where there are a lot of folks that use firearms for self-protection, for protection of their home, for recreation and sporting purposes.
John
For collections and investments and all kinds of stuff.
Lisa
Yeah. So we have a lot of folks around that have firearms. And so when I first saw these headlines turning through, I thought, "Okay." And thankfully, you jumped in to investigate so we can tell our listeners what these Social Security rules really are.
John
Right. And so first of all, I think we gotta go... Anytime you start talking about this sort of thing, you gotta understand some of the background here. The first issue is, essentially, this whole fourth branch of government deal.
Lisa
Yeah. Yeah. The administrative law where Congress makes a law, the president... Congress is the only law-makers that we're supposed to have.
John
That's right.
Lisa
And then the president, as the executive branch, is the enforcement of the law. That's why the FBI and all that's under the president.
John
That's right.
Lisa
And then, of course, our judicial branch is simply to interpret what congress did when they passed the law. So that's how our three branches of government work. But you know what, John? Congress doesn't write every jot and tittle of the law.
John
I'm not gonna say they're lazy.
Lisa
But...
John
But I can't think of a better word.
Lisa
They're slothful, perhaps. [chuckle]
John
And so you often will hear... You will see laws that are written and they will say something to the effect of, "Social Security should have some stuff about mental illness and we want them to make up the rules related to that." That's the law that Congress has passed.
Lisa
Yeah. The law says that, "We Congress think that... We want prohibitions with gun ownership and certain mental health patients who receive Social Security, but we will leave it to the Social Security agency to come up with the details and regulations to implement our overall plan."
John
Right. The effect of which, though, is once these government agencies do come up with regulations, those regulations have the full force and effect of law.
Lisa
Right. They sure do. They have the full force and effect of law, and John, to challenge one of these regulations and to say that it is unconstitutional or improperly-applied or something like that, you gotta go to the courthouse and you gotta ask a federal judge to review it. That's expensive. Not a lot of people can do that. So, in reality, these regulatory bodies know that they can make thousands of rules. And in reality, almost none of them are ever going to be challenged.
John
Right. And this is why, generally-speaking, almost anybody walking around in the United States cannot go a 24-hour period without violating a federal rule.
Lisa
Yes. And there was actually a book written about that called "Three Felonies a Day." And the author takes the position that we basically all commit three felonies a day and we don't even know it. [chuckle]
John
Yeah. You just don't know it. And as a general rule, there may not be any actual prosecution of all of those. But they're out there because there's so many out there. So I guess that's the first thing. The other issue is the rules related to firearm ownership, because unlike virtually every other asset a person has, gun's got rules.
Lisa
That's right. And even though... Of course, we all know that possession of firearms is the Second Amendment. And I can't quite quote it. I used to could quote it. But the right to bear arms and such, but those rights are subject to reasonable regulation. And part of that reasonable regulation has been ever since... Gosh, it's been, I don't know, 30, 50 years, that persons who are known drug addicts, and persons who are mentally-defective and that kind of thing.
John
Yeah, convicted felons.
Lisa
Convicted felons are not entitled to own firearms, even though it is a right that is enshrined in our US Constitution.
John
Right. So we have this list of people that should not own firearms. I think one of the things that... A lot of these, maybe on their face, have some pretty reasonable backing. So for example, if we say, "Okay. Well, we don't want people who have been convicted of a violent crime," for example, "to be able to possess, transport, buy, sell firearms." You can make an argument that that's a decent enough restriction that these are people who have proved themselves to be a danger to society. And although maybe they have served their time, we still maybe don't need them out there running around with guns legally. Not that that's gonna do anything to stop them from illegally doing it, but regardless, we can at least say that, okay...
Lisa
Yeah, that's another show. [laughter]
John
On its face that restriction seems legitimate. It's also easy to determine.
Lisa
Right. Have you or have you not been convicted of a violent crime?
John
Yeah, you either have or you haven't, it's just that simple. And the same thing goes with many of them like minority, for example. If you're three...
Lisa
Years old.
John
Three years old, yeah, that's relatively easy to determine. And we probably don't need you with your own little pocket cannon. Three-year-olds, not really responsible enough for that sort of thing.
Lisa
Well, and then we get to the one where it says, "If you have been adjudicated, you have been judicially adjudicated as incompetent."
John
Right. So this is where a judge has made a determination that you cannot comprehend what's going on in the world.
Lisa
Right. So once again, it's very easy to determine. Is there a judicial order that has deemed an individual to be incapacitated?
John
Right. But then we start... After that, we start getting into, and the big one here is the mental side of this.
Lisa
Yes.
John
And this is where it starts getting gray, really gray. Really, really, really gray. And unfortunately, we're gonna have to take a quick break. So let me see if I can get this over here.
Lisa
See if our technical?
John
Yeah. All right. We're gonna take a break. We'll be right back, maybe.
Guest
Welcome to Aging Insight, the only show dedicated to your elder care concerns, and your resource for learning about how to manage your health, housing, financial and legal needs. This is a live call-in program featuring John Ross and Lisa Shoalmire, elder law attorneys and senior advocates for the Ark-La-Tex. Aging Insight is dedicated to helping you navigate the challenges and blessing of growing older, so call in and ask your questions. The number is 903-793-1071. Now, here are your hosts, John Ross and Lisa Shoalmire.
John
Welcome back to Aging Insight everybody. We're here today, Lisa and I, right before the New Year's and talking about a rule change related to gun ownership and Social Security that was finalized right before the Christmas break.
Lisa
Yes, new final rule issued December 19th so this is all hot off the press.
John
That's right. And so, what we were talking about, before we took the break here, was that there are restrictions out there that are very easy, when it comes to gun ownership, that are very easy to determine but the Supreme Court in a case of District of Columbia versus Heller had made the comment. This is the Supreme Court saying that like most rights, the rights secured by the Second Amendment, is not unlimited and that nothing in the court's opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.
Lisa
Yes, John, but as I recall, that Heller opinion really did not discuss in any detail, at all, what is mentally...
John
What is mentally ill?
Lisa
Mentally ill means, right.
John
Yeah, because I've had some people that I've thought were mentally ill that were active members of society. Mental illness is very gray and we deal with this a lot, particularly in the context of things like Alzheimer's or Parkinson's where mental illness...
Lisa
Yeah, there are mental effects to those disease processes.
John
There are mental effects to those disease processes and a person might be perfectly fine in the morning, not fine in the afternoon, and fine again by the next morning. In any given day, they may go from mentally ill to not mentally ill and back again.
Lisa
Well, and John, even besides that, mental illness is something that the professionals in that area, they have a book that they use to diagnose various mental illnesses and it is the DSM and I know I've...
John
Four, I believe is the...
Lisa
Four, five, I don't know.
John
I believe it's the DSM-IV that's still the latest.
Lisa
But it's the Diagnostic...
John
Diagnostic and Statistical Manual.
Lisa
Manual, yeah. And so, things like narcissism and OCD and personality disorders and all those things are listed in this manual and basically it lists symptoms that correspond with each disease or each mental illness and you have to have five of six of these symptoms in order to be diagnosed with this particular mental illness. And for some, mental illnesses, John, there is some objective medical. We can do scans and we can look at the brain and see shrinkage and things like that and other mental illness, it's just observation.
John
Yeah, that's right.
Lisa
So, again, very gray area. The Social Security Administration rules about gun ownership, basically it has to do with the Social Security Administration making some rules about a whole additional category of people who Social Security Administration has taken the position that there are a number of people that receive Social Security payments that qualify as mentally defective, even though they've never been adjudicated by a judge as such. But their symptomology is such and so they should be prohibited from owning firearms.
John
Yeah, that's their idea. And that's the basis for the final regulation.
Lisa
Yes. But again, there's some details about this. So this is not that seniors can't own firearms but there are some ticky little details.
John
That is certainly true. And so what we're gonna do is, we're gonna take our bottom of the hour break here for the news and when we come back, we're gonna go into the details so you'll know.
Guest
Now back to Aging Insight with John and Lisa.
Lisa
Well, welcome back everyone to Aging Insight. This is Lisa Shoalmire here with John Ross. We are elder law attorneys here on the radio on Saturdays for you and we're trying to keep you up to date and we're trying to make sure that you don't get sucked in by fake news when it comes to dealing with firearm ownership and if you happen to be receiving social security benefits.
John
But on the other hand, that you also know what's out there because it's still a little strange out there.
Lisa
Yeah, yes it is. Of course, John, the Social Security Administration proposed these rules about firearm ownership and some changes back in May, I believe. And they received over 90,000 comments but most of the comments were just duplicates. I guess you call them spam or junk emails or whatever you'd wanna call it. But on December 19th, they did issue some final rules about receiving social security and your ability to own a firearm. And John, essentially what they're talking about is that, if anyone meets the criteria that they are setting out, which we're about to discuss, then those names of those Social Security recipients will be sent to the list. [laughter]
John
Yeah, it's the FBI's National Instant Criminal Background Check System or NICS.
Lisa
Yeah, so these names will be sent to the NICS list so that should this person go to Academy, Walmart of wherever and look to purchase a firearm, their instant background check will come back as rejected, that they cannot own a firearm. So let's get into the criteria, John.
John
Yeah, so this is where the deal is. Does this apply to certain people with Social Security? Yes, but essentially there's a list of five separate requirements that you as a Social Security recipient would have to meet for you to fall into the category under this rule.
Lisa
Well, I was gonna jump in there and say they're putting all this under the umbrella of mentally defective. Yes.
John
And so the first thing is that you're filing a claim based on disability.
Lisa
That's a big... So for a lot of our listeners out there, that rule in itself oughta give you some comfort that a lot of folks, you can file for social security either as part of social security retirement when you reach retirement age that you can file for social security based on your work record. And then you can also file for social security based on a disability. Whether disability due to an injury or illness, and so that disability is based on your work record but you're not yet retirement age or a disability, perhaps you've had a certain disability since birth or...
John
Right. And so if you've paid into the system, you get Social Security disability benefits. If you have not paid into the system, but are disabled and also do not have any other income or assets then you would qualify for Supplemental Security Income, SSI, which also comes through the social security. And applying for either SSDI or SSI, both of those would be, number one, filing a...
Lisa
Claim based.
John
Claim for based on disability, but what it is not is turning 65 and retiring.
Lisa
Or 66.
John
Or 66.
Lisa
Or 62.
John
Or 62. Or 70. Or whenever it is that you...
Lisa
Whenever that you file. But if you've just reached an age and you know you qualify for social security benefits based on your age and your work record and so your 62 or above and you go up to the Social Security Administration and you file for social security, you will not be deprived of your right to own a firearm based on your applying for social security retirement benefits.
John
That's right. So that's step one.
Lisa
Okay.
John
So that cuts out basically the vast majority of Social Security recipients, at least the ones that are... It cuts out all the ones that are receiving it due to retirement.
Lisa
Yes, but the headlines, you know, John, don't really give you that detail.
John
No, that's right. So the number two is that the disability determination is based on one of the mental disorders that are listed in all of the various social security rules. I have to admit. I did not do the research to come up with a list of all of the various potential mental disorders that Social Security maintains a list of.
Lisa
Well, I looked at the citation for that list, John, and it was subpart B of section 404 appendix 2.1. I thought, "Oh, that's gonna be... "
John
Not gonna do it.
Lisa
Yeah, so you have to be making a claim to Social Security for disability and that disability has to be found that you're disabled due to a mental impairment that is listed as a mental disorder in the appendix in the Social Security handbook.
John
Right. Number three goes along with that same thing which is the... And again, this just sounds like typical government stuff. When the Social Security inputs your disability, they're gonna use a code. If that code relates to a certain primary diagnosis for mental impairment, then now you've met number three.
Lisa
So this is an issue, John, I think that we've seen this. What about a veteran who has lost a limb and is disabled, but has PTSD as well? Perhaps their primary diagnosis code is loss of limb.
John
Sure.
Lisa
So they are saying here that the primary diagnosis has to be a mental issue.
John
Yeah, there may be secondary diagnoses, but the primary diagnosis has to be the mental issue.
Lisa
Yeah. And so the fourth rule, remember there's five requirements, and the fourth rule here is that a person has to have attained the age of 18, but not yet attained full retirement age. So again, John, this excludes all of our Social Security applicants who are applying for retirement benefits. Mostly.
John
Mostly. And the interesting thing is that you can actually apply for Social Security retirement benefits before full retirement age. But you're still not making a claim based on disability, so you don't have to worry that if you're feeling just a little crazy and thinking about taking your Social Security early, that in and of itself is not gonna get you on the list.
Lisa
Right, but if you're feeling a little crazy because you're crazy, well maybe that is different.
John
That's a whole different deal.
Lisa
But in...
John
Go ahead.
Lisa
And so then the final rule here is that your Social Security benefit... Your Social Security Disability is being paid to a representative payee.
John
Yeah. This is one thing that we run into all the time in the sense that Social Security does not recognize a power of attorney or an agent really of any sort. They take the position that a person who's receiving disability benefits or retirement benefits of any form from Social Security is competent and they're competent enough to manage their own benefits and therefore Social Security won't deal with anybody else.
Lisa
Right.
John
And so imagine just to... Take, for example, let's say that you've had a stroke that has caused paralysis and the loss of speech. Now, you may still be perfectly competent.
Lisa
Right, mentally you're fine.
John
But how hard is it to walk into a Social Security office and talk to a person? How hard is it to talk to somebody on the phone if you cannot speak? There are lots of people that are not mentally... They're perfectly competent and yet really could use somebody else's help. This is in large part why, in our practice, we do powers of attorney and so that you've got somebody who can handle business for you if you're incapacitated, but your incapacity doesn't have to necessarily be a mental incapacity. It could just be a physical incapacity where it's more convenient for somebody to help you out. But Social Security doesn't care.
Lisa
Right. And so that's our fifth and final rule. To recap real quick, and I think to really calm the... To get rid of the myth that is out there about this, Social Security is saying that they will report names to the list for not being able to own firearms, if the person is making a claim based on disability, they have been determined to be disabled based on mental impairments listed by Social Security, and that is their primary diagnosis. Further, the person applying for disability is over age 18, but below full retirement age, and is in need and has an appointed representative payee. And so Social Security says that you have to meet... The individual has to meet all five of these criteria, and if you do meet all five of these criteria then your name is reported to the FBI's list for not being able to own firearms.
John
That's right. I don't know how many people on their lists in Social Security would actually meet all five of those definitions. What I do know though is that your general retiree is not going to be on that list.
Lisa
Right. And of course John, a couple things, there has been some discussion, would there be people that meet all five of those, but who can own and responsibly own a firearm? There's been a discussion of that. I'm sure some enterprising attorney will find that person.
John
The problem you run into is of course the determination as to whether or not you meet all five of these criteria is made by Social Security and you are notified by Social Security... And I'm not sure that Social Security even notifies you at all, but essentially, they make the determination, they report you to NICS.
Lisa
And your ability to own a firearm is gone.
John
And then you're notified that this has happened.
Lisa
Right. So the right that you may be walking around with right now is removed without any hearing notice, and then after the fact, the individual's provided notice, and of course Social Security has helpfully set up an appeal process for a person who receives a notification that they have been reported to the NICS.
John
NICS. Yeah. But the deal is done.
Lisa
But yes. And then there's of course the timing to how long does it take for an appeal? What's the cost? So there's some issues there where civil rights folks are saying, "Hey, wait a minute. It may not be a bad idea to evaluate if someone has a primary diagnosis of mental impairment etcetera that they should not own firearms, but perhaps we should put the process first, and then remove the right, second. [chuckle]
John
Yeah, might be a good idea. Well, we're gonna take one more break, and then we're gonna come back and finish up our discussion on this. Stick around, and of course if you have any questions, you'll have a moment or two to call when we come back from the break. So stick around, we'll be right back.
John
Welcome back to Aging Insight, everybody. This is John Ross, and it looks like we've got a caller on the line, if they're still there. So let me see if I can get this caller on. Caller, you're on Aging Insight.
Caller-1
Hello?
John
Hello. Yes.
Caller-1
Yeah. This is Caller-1 again, nickname Stonewall.
John
Oh, yeah.
Caller-1
Okay, well up here, I went down to Walmart to get some medicine because... I got some recall back on this phone or something. I don't know what it is.
Lisa
Yeah, you might wanna step... Turn the radio down or step away from the radio.
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