Media Misrepresent Trump Reversal of Obama-Era Mental Health Gun Regulation

Regulation had been opposed by NRA, ACLU, and mental health advocates

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November 8, 2017

In the wake of the church shooting in Sutherland Springs, Tex., a number of media outlets misled their audience on the Trump administration's reversal of a mental health-related gun regulation from late in the Obama administration.

Reporters for CNN, NBC News, and other outlets have framed the February action as President Trump making it easier for those with mental health issues to obtain firearms in recent days.

"In February, we should also mention, that President Trump did make it easier for mentally unstable people to get their hands on guns," CNN's Alisyn Camerota said during a segment on Tuesday.

Some have gone so far as to suggest that the regulation in question could have prevented the Texas shooter from purchasing firearms.

"It isn't clear whether the now-eliminated rule would have applied to the gunman in the Texas church shooting, identified as Devin Patrick Kelley," NBC News's Adam Edelman wrote on Monday. "Kelley had a turbulent past, including a court-martial from the Air Force for assaulting his first wife and child, an animal cruelty arrest and a habit of harassing ex-girlfriends."

However, there is no evidence that Kelley—who was already prohibited from purchasing firearms due to his domestic violence conviction but was able to purchase guns due to a failure by the Air Force—was ever in the program affected by the regulation, which was opposed by the American Civil Liberties Union and disability rights activists in addition to gun-rights activists.

The regulation in question was adopted in December 2016 and went into effect on January 18, 2017, after the election of President Trump but before his inauguration two days later. Compliance with the rule was scheduled to begin on December 19, 2017. Before compliance ever began, however, the rule was repealed by a law passed through the House of Representatives and Senate, then signed by President Trump in February 2017. The regulation never had any effect.

The regulation would have required the Social Security Administration to report recipients who have their benefits managed by a representative payee and who meet other criteria to the FBI's background check system, effectively barring them from legally owning firearms. It would have applied to recipients between the ages 18 and 65 who Social Security assigned a representative payee to after determining they were unable to manage their own finances due to a mental impairment. The Social Security Administration would then notify those affected over the phone and in writing. Those affected would have been able to challenge their designation but only after their records have been submitted to the FBI.

Groups from across the political spectrum fought against the regulation's implementation and urged its repeal. Gun-rights groups like the National Rifle Association said the rule was a "gun grab" and criticized it for lacking a determination that those affected are a threat to themselves or others.

"The Obama administration's last minute, back-door gun grab would have stripped law-abiding citizens of their constitutional right to self-defense without due process," Chris W. Cox, head of the National Rifle Association's lobbying arm, said in February.

Officials at the American Civil Liberties Union opposed the rule and called for its repeal because the process did not include sufficient due process protections.

"The rule includes no meaningful due process protections prior to the SSA's transmittal of names to the NICS database," the group said in their letter. "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. Nor is it a determination that the person '[l]acks the mental capacity to contract or manage his own affairs' as required by the NICS. Indeed, the law and the SSA clearly state that representative payees are appointed for many individuals who are legally competent."

The National Council on Disability, Consortium for Citizens With Disabilities, and National Coalition for Mental Health Recovery all submitted letters calling for the reversal of the rule during hearings conducted by the Ways and Means Committee.

"There is, simply put, no nexus between the inability to manage money and the ability to safely and responsibly own, possess or use a firearm," the National Council on Disability said, echoing what the other groups have said. "This arbitrary linkage not only unnecessarily and unreasonably deprives individuals with disabilities of a constitutional right, it increases the stigma for those who, due to their disabilities, may need a representative payee."