Social Security Recipients – Most Will NOT Lose Bear Arms Rights

In this episode, Lisa Shoalmire and John Ross are dispelling some myths out there that they’ve seen recently related to Social Security recipients and their ability to own firearms.

Episode Transcript
Lisa
Welcome everyone to Aging Insight. I'm Lisa Shoalmire and I'm here with John Ross and we're elder law attorneys here in the area. We always like to come to your home and bring you information that you might be able to use, or I bet, I bet our information, if you can't use it, I bet a friend or a neighbor can. So, we appreciate you investing your time in Aging Insight. And we're gonna give you a lot of information that can help you navigate through the aging and retiring process because it's a thing I saw one time John said, "Getting older is not for sissies. So... " [chuckle]
John
Yeah, that's right. That's right. And you know we spend a lot of our time with clients in many cases dispelling myths that they have heard out in the community, that they come in and they're very concerned about.
Lisa
Right.
John
And when in fact they really didn't have much to be concerned about.
Lisa
There's plenty to worry about for real without worrying about the made-up stuff. [chuckle]
John
And things like the estate tax, for example, people hear about the death tax. I can't tell you, I bet somebody once a week comes in because they don't want all their money going to the government, not ever realizing that that only applies to people that have, for a married couple, over $11 million in assets. And when I tell them that, they're like, "Oh, well, I'm not in that category."
Lisa
Right. [chuckle]
John
"So we're good", and I say, "Yeah, I figured you were." That's only, in 2016 the estate tax was only paid by 0.2% of the population.
Lisa
Yeah, every now and then I have a client that needs some help with that, but it's a rarity.
John
So, we do a lot of myth-busting out there. And with the prevalence of the internet and various news sources and opinion pieces that are out there floating around, as laws change, or new laws are added or tweaked around, many times as the information spreads through the internet, through the community, it can get distorted, either intentionally or unintentionally. So that by the time it's gotten to your ears it's something completely different than what it actually is.
Lisa
Right. And so there was an issue that came up and we thought today we would spend some time bringing you the truth about an issue that many seniors are very concerned about. It has to do with if you receive social security, can you still remain and exercise your second amendment right to bear arms? And, John, you really wouldn't think social security and a constitutional right to bear arms would be in the same conversation. But yet, there have been some law changes and some rule changes that I believe have been misconstrued in order to scare seniors, in order maybe for ratings. So today let's talk about those new rules and who these rules impact and what it means for most of our retirees.
John
Yeah, and this really, it started for me, on December 19th of 2016, right before the Christmas holiday. And I'm sitting there playing around on my phone reading news articles when I see a headline that says, "The Social Security Administration passes final regulations to take the guns from grandma." Well...
Lisa
Yeah, that's a little scary.
John
I've got a lot of grandmas as clients, so I thought I better read this rule and figure out what's going on. And so that was the headline, and as I saw that headline, I started seeing several others that were basically making the claim that there was a new social security rule that was gonna deny seniors their right to own firearms. Now, we can go ahead and cut out that's not the truth.
Lisa
It's not the truth.
John
But, we probably to explain this, I guess maybe there's a little background here.
Lisa
Right, so you know this rule, and there is a rule about certain persons who receive certain types of social security may have their right to own firearms removed. But, what is social security doing making rules about firearms and the constitutional right to bear those arms? Well, here's the deal. Way back when Congress passed the National Firearms Act, I believe we've had several versions of it. But a version in the 1960s, I believe, made it to where a person who was mentally defective cannot possess or own a firearm. And there's several other categories of persons that couldn't own or possess a firearm. For instance, a person who was a convicted felon, a person who had been adjudicated by a court as incompetent, a person who had various drug abuse offenses on their record. And so there was a list of individuals who had their right to bear arms removed by Congress under this national firearms act. But John, one thing congress does frequently, is they pass a law. And the law is worded a bit vague, and Congress in the same law says, "Here's the big law, here's the big picture." And we're gonna delegate to the agencies specific rules and regulations that they can make up in order to further the purpose of this law.
John
That's right. So you almost get, what is often referred to as the fourth branch of government. Which is these administrative agencies, who when they make rules, those rules essentially become law. And yet, those laws are not ever passed by Congress.
Lisa
Right. Your congressman didn't vote for it. It was just a...
John
Just out there. And so, like Lisa said, so you've got this list of people who cannot be in possession, buy, sell, transport firearms. And it's relatively easy to determine most of them. Either you've been convicted of a felony or you haven't. Either you're an eight-year-old child or you're a thirty-year-old adult. It's relatively easy to make those sort of determinations. But when you start talking about mental health, it gets a lot blurrier. And so when you start talking about mental health, there's people who are clearly competent, they just have some mental health issues. There are people who are clearly incompetent because of their mental health issues. And in the middle is this whole range of people who are mentally able to do some things but not others. Who are perfectly competent while they're on medication but perfectly incompetent when they're not. People who range from competent to incompetent, from day to night and back to day again. And so there's a lot of different... And this makes mental illness very difficult. Now, as a government out there, they don't want 'crazy' people having guns.
Lisa
True. True.
John
Problem is figuring out who these 'crazy' people are. And so there is a list of people who are not supposed to be in possession of firearms. It's maintained by the FBI. It's the NICS database.
Lisa
This is the instant background checklist that keeps the name of all the people who fall into the categories that they cannot posses a firearm. And so the Social Security Administration has made some rules where they are going to forward names of certain Social Security recipients to this list. But you'll have to stick around, to find out the details of how they decide which names they're going to send. So stick with us.
John
Welcome back to Aging Insight everybody. I'm John Ross here with Lisa Shoalmire. And today we're doing a little bit of myth busting. Because there have recently been some changes in the way Social Security Administration and firearm ownership are gonna interact. And unfortunately, a lot of these rule changes had been blown out of proportion. And so many of our retirees' who receive Social Security benefits have become worried that these changes are going to affect them. And so today we're talking about what these rule changes are and why most of you probably don't have anything to worry about.
Lisa
Right. So, before the break, we talked about how the FBI maintains a list of persons who are prohibited from owning firearms. And the FBI receives the names that are on this list from court proceedings, from medical doctors, from various sources. And some new rules direct that the Social Security Administration should forward names of certain Social Security recipients to this list for inclusion so that those persons cannot own a firearm either. So John, the Social Security Administration, they have a framework that they're supposed to use in order to determine if a name goes from the Social Security Administration to the FBI list.
John
That's right. So essentially what the Social Security Administration has done is they've come up with a list of five items. And a person must meet all five of these items in order for their name to get referred over to the NICS database. And so the first one on this list and this really solves the issue, this number one item really generally solves the issue for most Social Security recipients and that is, the first one is, you have to have filed a claim for Social Security based on disability. So for your average person who's worked their whole life, has reached retirement age of say, early retirement at 62, or full retirement at 66, or delayed retirement at 70, or anywhere in between there, what you're making a claim for are Social Security retirement benefits not disability benefits. So for all of the folks that just receive regular old Social Security retirement, this law does not apply to you. Now, that being said, it does apply to people who have made a claim based on disability.
Lisa
Right.
John
And, if you make a claim based on disability and later reach age 66, full retirement age, your benefit does become retirement. But I think this law would still apply to you on that category because your original claim was based on disability.
Lisa
And we do have a number of clients that we have that maybe had filed in their late 50s or early 60s for disability and they received that and then when they reach 62, 65, 66 it splits over to the retirement benefit. So I think we'll go on down and look at the next factors so that way see if it applies to anyone else. But the second factor they look at, Social Security is directed to look at, is whether or not the disability determination. 'Cause remember this is, you're receiving Social Security based on disability. The next factor is if the disability is a mental health issue that is listed as part of the disabilities approved by Social Security for mental health problems.
John
Yeah. So they've come up with... I mean there's a long list in the Social Security regulations of various mental health disorders. And there's lots of different ones in there. But they have picked some of these that they think would be particularly relevant related to firearm ownership. So if your claim for disability is based on one of these particular category of mental health disorders then you're gonna to meet the second test. And then the third test is tied into this one.
Lisa
Right, the third test has to do with, "Is your primary disability a mental health disability?" And...
John
I think you used the example when we talked about this on the radio show, of a veteran... Let's say a veteran who during combat was catastrophically injured.
Lisa
Right, lost limbs or something.
John
Yeah. So they're clearly disabled. And so their disability is based on their catastrophic physical injuries. But as a part of that, they also have PTSD and other mental health issues that have gone along with that. But, the third factor here is, "What is your primary disability claim?" And so for this veteran, for example, the primary disability is based on the physical and even if one of the other mental health issues is present and part of the record then this rule still wouldn't apply to them because it's not the primary reason for their disability.
Lisa
So let's recap. The Social Security Administration has to forward the names of Social Security disability recipients so long as the person has filed a claim based on disability, that disability is listed as part of Social Security's approved disabilities related to mental illness, and third that the primary disability is, in fact, the mental illness. But we still have two more categories to check off before the name goes to the FBI list, so stick around and we'll talk about those.
Lisa
Welcome back to our final segment today of Aging Insight, and today we're dispelling some myths out there that we've seen recently related to Social Security recipients and their ability to own firearms. And so we thought we'd take the time today to explain the new rules and basically give assurance to most of our viewers that these new rules do not apply to our Social Security retirees. So, John, we've talked about that Social Security has to look at five factors and the individual in question has to meet all five factors.
John
Right. You can't just meet one, you gotta meet all five. You've got to have made a claim for disability, you've got to have a diagnosis of one of their particular mental disorders, and that has to be the primary reason that you're getting disability. And then fourth, the fourth factor is that you're between 18 and full retirement age, which depending on your birth year is gonna range somewhere in the 65, 66, 67 aged frame right now. So you've gotta be in between those. So again, this is gonna cut out most of your retirees. Now your folks who are injured, people that have birth-related disabilities that turn 18, these folks, it's gonna apply to them at least on this particular factor. But again, for most of your seniors out there the fact that this rule only applies to people who are between 18 and full retirement age is gonna cut most of them out.
Lisa
Right. And the final factor that Social Security is directed to look at is whether or not the recipient of that Social Security Disability has a representative payee. Now a representative payee is another adult who is taking care of the money, who's taking care of that Social Security Disability payment on behalf of the disabled person. And so if we have a person who has filed for disability for a mental health issue that's listed by Social Security and that's their primary problem, and they're between the ages of 18 and 65, if they don't have a representative payee, well then that person can still own a firearm. So this final factor has to do with whether Social Security has deemed that the recipient of the disability cannot manage their funds and they're incapable of doing that, so they have a representative who does that for them. And while representative payees are not uncommon, particularly for disability claims, this is just another factor that the Social Security has to add into the mix before they can release that name to the FBI list for no firearms ownership.
John
But one thing about that representative payee is that Social Security does not recognize a Power of Attorney. So anybody that's watched the show before has heard us countless times talk about the importance of Powers of Attorney but it's still not gonna do you any good with Social Security. They don't look at them. And so for our senior clients who need help managing their finances or need help dealing with the Social Security Administration, the only way they can do that is by getting a representative payee, a family member or somebody appointed through the Social Security process. I think many people out there might fear that if they go and get a representative payee, that somehow this is going to equate to their name being placed on the NICS database list, which it's not. That's only one of the five factors. And so probably not too big of an issue right there. Now my concern at least with it is because it's a big government agency, I can certainly see the 30-year-old John Smith applying for disability because of a mental illness and the 66-year-old John Smith filing for retirement benefits at the same time, and the wrong name gets put on the list.
Lisa
Right. One of the things we always look at is when a right is removed, and certainly, the right to bear arms is enshrined in the constitution, but when that right is removed, what sort of due process is involved in removing that right and restoring that right if it's removed improperly? So I do have some questions here about the due process.
John
Yeah, unfortunately, there really is none. Essentially the Social Security Office makes this determination on their own. Since this information, your name is now on that list and then they notify you that it's been done.
Lisa
And then it's your burden to prove that you shouldn't be on the list. [chuckle]
John
And helpfully so, Social Security Administration in their own rules has given themselves 365 days to respond to your request to have your name removed from the list because it was inadvertently placed there or that there's some other reason why it shouldn't be there. So I don't really like that because I can see the inadvertent placement because of a technical error or something like that so that does give me a bit of concern.
Lisa
Well, it seems like the due process here is split. Normally before right is removed there is notice that you're at risk of losing that right and there's a hearing of some kind about whether or not that right should be removed and if those two, notice and hearing happen and it get's concluded, the right should be removed. Then the right is removed and you still have appeals if you like to. So here the right is removed and you don't receive any notice until after the right has been removed and the hearing opportunity to restore that right can take a year plus.
John
Now this whole context of government benefits and gun ownership, this is all new as it relates to Social Security. It's not new to other government agencies, so for example, we've been dealing with this issue in the veterans benefit context for years, the VA like Social Security, does not recognize a power of attorney and so when we have a veteran who, let's say, has the middle stages of Alzheimer's and is applying for some veterans benefits for some home care or something like that. If the VA looks at the medical records and makes a determination that they don't think the person can manage their funds, they will send a letter out that says, "We the VA plan on making a determination that you are not fit to manage your funds and need an authorized payee... "
Lisa
A fiduciary.
John
A fiduciary. But right below that paragraph is another paragraph that says, "If we do this you will have been declared mentally unfit for purposes of firearm ownership and your name is gonna get placed on the NICS list," and stuff. But at least they give you the opportunity to rebut it first.
Lisa
The other thing, though, John, is that the only criteria the VA is using is essentially whether or not you can manage your funds.
John
Yeah, which is completely false.
Lisa
As opposed to the Social Security criteria of all five of those criterias.
John
So somewhere in there might be the right way to do it but unfortunately it's the way we've got. You play with the team you've got, not with the team you want. So once again you've reached the end of another episode of Aging Insight. If you wanna catch past episodes you could always check at our website aginginsight.com. You can watch old episodes, you can listen to our radio program which we do live every Saturday at noon and you can listen to past episodes as well. You can also read a copy of our Aging Insight magazine right there on the website, so there's really no reason, no excuse for you to not be fully informed when it comes to how to navigate through your senior years. We're giving it all to you.
Lisa
So yeah, and if there's something you would like to see, you can always go to Aging Insight on Facebook and let us know if there's some topics that you would like to see us address here on Aging Insight television. So we look forward to seeing you next week.
John
Bye-bye.

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