These are reasonable
solutions to
the bill’s
.
shortcomings, and would be inserted in a REMEDIES
SECTION of the bill – as the bill may change, if a truly final version becomes
available (a rare thing in Congress) we will post the specific proposed
location of each of the proposed amendments
1. strike
"on the date of the enactment of this
Act" and insert "on July 26, 2007".
Ø
This is probably the most important provision.
This would do two things. First, it would keep the law from being applied
retroactively, and second, it would keep the BATFE from changing the meaning of
the statute by changing its regulations
between now and enactment. Remember, administrative regulations are primarily
created by unelected bureaucrats.
2.
"Notwithstanding any other provision of law or of
this Act, if a person is denied the right to purchase a firearm in a National
Instant Criminal Background Check System pursuant to 18 U.S.C. [UNITED STATES
CODE] 922(g)(4) et seq. that person shall,
within 14 (fourteen) days of the denial, be sent a letter to the address the
person provided on the 4473, informing the person denied specifically WHY they were denied, including date of record, the authority
supplying the record, and if a court, the name and address of the court and
docket number of the record.
If the denied person does not receive a letter within fourteen days from the
NICS explaining specifically why they were denied, then the person may request
such record from NICS. If NICS does not provide the requester with the specific
reason for denial within 14 (fourteen) days of receipt of the request by NICS
said person may bring an action
against the head of the Federal Bureau of Investigation as the federal agency
responsible for the National Instant Criminal Background Check System in the
district court for the district in which such person resides, the current filing fee of $350.00 shall be waived,
despite any local rules to the contrary, the person filing shall not be required to file electronically, if requested
by the person filing the court shall
hold a hearing on the matter within 120 (one hundred and twenty) days of
filing, and, that person shall be awarded actual damages, attorneys' fees,
and liquidated damages of $10,000.00 for having had to file to obtain the
information held by NICS." (emphasis supplied for clarity)
Ø
This provision requires that NICS not simply
ignore a person who has been denied a firearm, and allows those denied to
receive a specific reason why they were denied within a reasonable period of
time (the amendment mandates the court hear the matter within 4 months), and if
NICS refuses to provide the specific information to the person as to why they
were denied the right to purchase a firearm, this amendment allows the person
to bring an action in their local court without having to pay an expensive
filing fee as well as provides that the person will be reimbursed for expensive
attorney fees.
3. "Notwithstanding
any other provision of law or of this Act, the name of a veteran, disabled
child, or other person suffering from a disability may be made available to the
National Instant Criminal Background Check System pursuant to 18 U.S.C. [UNITED
STATES CODE] 922(g)(4) only pursuant to a finding of a judge, magistrate, or
other judicial authority and only after notice and an opportunity to be heard
by the individual whose name is to appear on this list. It shall be unlawful
for the National Instant Criminal Background Check System to maintain the name
of any veteran who was discharged under honorable conditions and who has not
been subject to a finding of a judge, magistrate, or other judicial authority
pursuant to the provisions of this paragraph. Any person whose name continues
to be unlawfully retained by the National Instant Criminal Background Check System
in violation of the provisions of this paragraph may, beginning on the day six
months from the date of enactment of this Act, bring an action against the
National Instant Criminal Background Check System in the district court for the
district in which such person resides, the current filing fee of $350.00 shall be waived, despite any local rules to
the contrary, the person filing shall
not be required to file electronically, if requested by the person filing
the court shall hold a hearing on the
matter within 120 (one hundred and twenty) days of filing, and, upon a
finding that such person's name has been unlawfully retained, shall be awarded
actual damages, attorneys' fees, and liquidated damages of $10,000.00."
Ø
This requires that NICS not simply ignore a
person whose name has been illegally or wrongfully included on the list and allows those
prohibited from purchasing a firearm by the illegal inclusion of their name on
the list a hearing within a reasonable period of time (the amendment mandates
the court hear the matter within 4 months which is reasonable considering in many instances a person will not actually
go to trial and receive a final decision from a judge until years after filing
a suit it court), and if the person prevails, the person will regain the
right to purchase a firearm. This amendment allows the person to bring an
action in their local court without having to pay an expensive filing fee as
well as provides that the person will be reimbursed for expensive attorney
fees.
4. "No
person shall be prohibited from acquiring, possessing, or selling a firearm
under subsections (d) and (g) of section 922, Title 18 U.S.C. [UNITED STATES
CODE] solely because of a diagnosis of bipolar disorder, post-traumatic stress
disorder (PTSD), or attention deficit disorder (ADD) or attention deficit and
hyperactivity disorder (ADHD)."
Ø
This makes it clear that simply because an
individual has been diagnosed by a psychiatrist or psychologist (maybe
incorrectly) with a given condition, does not, by itself without more, prohibit
them from owning firearms. Many veterans have served our country honorably, and
the military is becoming more and more concerned with their mental health and now,
in many instances conducts mental health examinations both before and after military
service. This provision will insure that those who have honorably served our country
will not be prohibited from owning firearms because of the emotional battle
scars they may carry from honorably serving their country.
5. "provided,
however, that a soldier or veteran, honorably discharged, is not, by virtue of
his service and the trauma suffered in connection with his service, prohibited
from shipping, transporting, possessing, receiving, selling, or disposing of a
firearm under paragraph (4) of section 922(d) and 922(g) of title 18, U.S.C.”
[UNITED STATES CODE]"
Ø
This makes it clear that simply because a
psychiatrist or psychologist (maybe incorrectly) believes a solider or veteran
that has been honorably discharge suffers
from a trauma in connection with his military service, that individual will not
be prohibited from firearm ownership. We cannot punish our veterans for the
scars that we demanded they incur on our behalf.
6. "provided,
however, that a person who, having been a child participating in a program
under the Individuals With Disabilities Education Act, shall not be prohibited
from shipping, transporting, possessing, receiving, selling, or disposing of a
firearm under paragraph (4) of sections 922(d) and 922(g) of title 18, U.S.C.
[UNITED STATES CODE], by virtue of a diagnosis in connection with such program."
Ø
Just being in the IDEA program wouldn't allow
the federal government to equate the IDA
diagnosis with that of a prohibited person. Many of those less fortunate than
us, both intellectually and financially, are, as a practical matter forced to
participate in this program. This would prohibit the federal government from stigmatizing
and punishing those least able to protect themselves. This does not mean that
having participated in the IDEA program is a pass from being included on the
list. If an individual meets the criteria for inclusion on the list they may
still be placed on the list, this amendment simply says that having
participated in IDEA without more is not a sufficient reason to place someone
on the list.
Submitted by GO-NH, Inc. consulting attorney Penny S. Dean,
Esq., A.A., B.A., M.I.P., J.D.
Attorney Dean was admitted by examination to the bars in New Hampshire, Maine and
Massachusetts.
She is admitted to all federal and state courts in those states as well as the
First Circuit Court of Appeals, and the United States Supreme Court. She is
regularly consulted by the media on firearm issues.
Attorney
Dean is not only a practicing attorney but a shooter and shooting instructor as
well. She is an NRA Certified Pistol
Instructor, Hunter Safety Instructor, a LFI I, II, & III graduate (Lethal
Force Institute, Massad Ayoob, Director).
She has been a guest commentator on Cam and Company, NRA Patriot radio,
and numerous other local and national radio shows, including NH Outlook,
New Hampshire Public Television 2/25/04 Gun Permit Debate with Laurel Redden,
of New Hampshire ‘Million’ Moms, on the question, “Should Gun Owners be
Required to Have a Permit in Order to Carry a Concealed Weapon?” On November 28, 2006 Attorney Dean gave
a speech at Durham,
UNH before the Young Americans for
Freedom. She was an invited speaker at the Mensa Granite State Gathering 2004,
Radisson Hotel Manchester, New Hampshire
Girls Just Wanna Have Guns! and has spoken at countless other events as
an invited speaker. She has testified countless times presenting an analysis of
legislation before the New Hampshire General Court on firearms and other civil
rights issues. She was a member of the Board of Directors of the New Hampshire
Wildlife Federation in 2006.
