H.3569 An Act Relative to the Transmission of Firearms Background Check Information.

3/6/12 Update

On March 6, 2012 the Joint Committee on the Judiciary held a public hearing on Governor Patrick's "NICS" bill H.3569 "An Act Relative to the Transmission of Firearms Background Check Information" The premise of the legislation is to bring Massachusetts in compliance with the latest Federal laws regarding the National Instant Check System. There are a lot of concerns with the legislation both with its premise and its actual language and clearly GOAL is not supporting it.

The first and foremost concern is the legislation actually required? There is a lot of concern across the country that the need for the legislation may be overblown, primarily by our opposition. There is also the concern that the Obama administration is using the opportunity to push for state legislation to reach much further than the federal law calls for. We are also greatly concerned with giving the federal and/state government, neither of which can be trusted at this point, anymore authority over our civil rights.

Aside from the obvious general concerns, if it is somehow shown that the legislation is legitimate there are many concerns with how it is written. Below is a short bullet list of those concerns:

Section 3. Under Section 36A of Chapter 123 - "All reports of examinations (mental health) made to a court" This section implies that all reports shall be made available to the DCJIS and therefore to the "Licensing Authorities". Our concern is that these reports are not convictions or confinements and could be abused by the local authorities.

Section 4 and Section 6. Does away with the background checks to the department of mental health. We are not sure why this is being done.

Section 5. This section creates a subcommittee within the Firearms Licensing Review Board to act as an agent for those seeking relief who has formally been adjudicated as mentally defective.

• The make-up of the subcommittee to include 3 members; 1 FLRB member, 1 designee of the Department of Public Health, 1 designee of the Secretary of Public Safety does not give confidence to lawful gun owners in the Commonwealth. With the current administration being so aggressive against lawful gun owners why would we trust them to fairly grant relief?
• Another major concern is the level of evidence that a citizen must provide for relief. The standard set in the legislation is "clear and convincing evidence" which is a very high legal standard to obtain. Why is it that in order to do away with a person's rights a local authority only needs to use the arbitrary "suitability" standard, but in order to get relief we would be forced to use the highest legal standard.
• Under the section that would grant citizens relief of disability is concerning. The term "may grant relief" appears in this section and describes a discretionary power. So even if a citizen were to meet the highest legal term, the committee can still use their discretion to not grant relief. As gun owners in the Commonwealth know all too well this authority has been greatly abused already. The legislation would also allow the committee to promulgate regulations regarding the carrying out of the legislative purposes. The regulatory process is certainly precarious at best and we certainly don't want a stacked committee of three making up the rules.
• The legislation also allows that committee to establish fees to cover the cost of the procedures. Any fees should be established by statute, not leaving it up to a small body of volunteers.

Section 7. The family member issue is a standing problem not necessarily related to this legislation. In past cases the courts have ruled that a brother-in-law from a deceased wife is considered family member. This allows tremendous far reaching rulings as to what domestic violence really is.

Section 9. We would like to make sure that the term confinement does not include those citizens who have sought temporary treatment on their own. In short there are many, many concerns with this legislation. If the government is truly concerned with providing relief to its citizens perhaps they should pass GOAL's Civil Rights and Public Safety bill.

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Governor Files NICs Legislation

Recently Governor Deval Patrick filed H.3569 “An Act Relative to the Transmission of Firearms Background Check Information”. The bill currently sits in the Joint Committee on the Judiciary.According to the Governor, the legislation is necessary for the Commonwealth to comply with the federal NICs Improvement Amendment Act.

H.3569 would create several new reporting requirements of state agencies to the United States Attorney General. These reports include certain mental health information, misdemeanor assault and battery on a family member, information regarding court appointed caretakers, etc.

Focusing more on the mental health issues and commitments regarding alcoholism and substance abuse, the legislation amends the licensing laws. The amendments would remove the portion of the background checks for Firearm Identification Cards and License to Carry by removing the requirement to conduct a check with the Massachusetts Department of Mental Health. According to the legislation, all such checks would be conducted through the use of the National Instant Check System (NICs) as that information would now be forwarded to it.

The legislation would also amend Chapter 140, Section 130B dealing with the Firearm Licensing Review Board (FLRB). This board was created in GOAL’s 2004 reform bill to give citizens denied their license because of certain misdemeanor offenses a chance to regain their rights. The amendment would create a subcommittee under the FLRB to address relief from disabilities dealing with mental health issues.

The subcommittee would be made up of 1 member of the Firearm Licensing Review Board designated by the chair, 1 person designated by the commissioner of the Department of Mental Health, and 1 person designated by the Secretary of Public Safety and Security, who shall chair the subcommittee. The subcommittee would hold hearings regarding petitions of relief and utilize the rules of evidence and finding of facts. That part at least is a good start, but the legislation would still place the burden of evidence on the petitioner: The applicant shall have the burden to produce evidence concerning these matters and the burden of persuading the subcommittee to grant relief.

There are some technical aspects of the legislation that GOAL will be working with the National Rifle Association with. GOAL currently opposes the legislation mainly because the current administration has proven itself to not be trustworthy in carrying out their duties with respect to our civil rights. Until our state government reforms the current uncontrolled draconian system, we see no reason to give it more opportunity to oppress our rights and share private information.