Opinion: The right call — repealing Social Security gun rule

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What do you call a regulation that summarily deprives law-abiding Americans of their Second Amendment rights without any evidence that they pose a danger to others?

If you are a New York Times editorialist, you call it “sensible.”

That was the newspaper’s take on a Social Security Administration rule that Congress canceled with a bill President Donald Trump signed last week. The objections aroused by the rule’s demise show that its supporters do not understand it, do not value the constitutional right to arms — or both.

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The SSA rule would have blocked gun purchases by anyone who receives Supplemental Security Income or Social Security Disability Insurance benefits and who, because of a mental impairment, has been assigned a representative payee to handle the money. According to the SSA, such an individual has been “adjudicated as a mental defective” and is therefore prohibited from owning firearms by the Gun Control Act of 1968.

But as the American Civil Liberties Union pointed out, “The determination by SSA line staff that a beneficiary needs a representative payee to manage their money benefit is simply not an ‘adjudication’ in any ordinary meaning of the word.”

The beneficiary has no right to a hearing where he could contest that determination with the help of a lawyer, as he would if a court were deciding whether he is legally competent or whether he should be committed to a psychiatric facility (another disqualifying criterion under the Gun Control Act).

Furthermore, the ACLU noted, “The rule automatically conflates one disability-related characteristic, that is, difficulty managing money, with the inability to safely possess a firearm.” In doing so, “it advances and reinforces the harmful stereotype that people with mental disabilities, a vast and diverse group of citizens, are violent.”

There is no evidence that the SSI and SSDI beneficiaries covered by the rule are especially prone to violence. The SSA conceded as much, saying, “We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence.”

Supporters of the SSA rule glided over the lack of due process, noting that beneficiaries could appeal the loss of their constitutional rights after the fact by trying to show they pose no threat to public safety. In other words, they would be presumed guilty unless they could prove themselves innocent, and in the meantime they would be deprived of the basic human right to armed self-defense.

The rule’s defenders also ignored its weak empirical basis. The Times simply asserted that letting disabled people with representative payees buy guns “poses an inordinate and needless risk to public safety,” while a Bloomberg View editorial said, “America’s tragic experience with mentally ill gunmen — from Virginia Tech in 2007 to Newtown, Connecticut, in 2012 — shows the folly of simply dismissing the danger.”

Neither of those killers would have been covered by the SSA rule.

Many news media reports misrepresented the rule’s scope, saying it would affect a total of 75,000 people. The Obama administration estimated that the rule, applied prospectively, would have affected about 75,000 people each year.

The SSA rule, which was finalized in December, never actually took effect, so withdrawing it merely maintains the status quo. Yet editorials and news stories implied that the congressional override would expose Americans to new dangers.

A New York Daily News editorial (tactfully headlined “Gun Crazy”) claimed the vote against the SSA rule would “liberalize access to weapons,”  “making it easier for the mentally troubled to get guns.”

Bloomberg said it would “weaken” background checks for gun owners, while BBC News said it would “loosen” them. NBC News said Congress was “revoking Obama-era gun checks for people with mental illnesses.”

Legal restrictions on gun ownership in the United States already disqualify millions of people who have not demonstrated any violent tendencies, including drug offenders, cannabis consumers, and anyone who was ever forcibly treated for suicidal impulses. Adding another arbitrary category would only compound this injustice.

Jacob Sullum is a senior editor at Reason magazine.

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