Formal Petition: Copy and Email
Office of the Attorney General
Merrick B. Garland
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
email: ASKdoj@doj.gov
Foreword:
[Insert your personal statement here].
Intent:
For the purpose of this petition, we submit that the ban of a particular firearm or classification thereof is not in itself an answer without more. Because any firearm of any caliber with any capacity is capable of causing an immense amount of destructive force to the human body, fundamentally it is the application process above and beyond the current standard of NICS background checks that need to be overhauled and amended.
The plain meaning of the change in law would mean, as a part of the application process, without a psychological clearance of record with the ATF, a person would not have the ability to buy firearms or ammunition. Each applicant would retain due process rights and the right to petition or appeal a decision with adequate evidence of psychological fitness.
Issue:
Whereas, there is no medical or psychological prerequisite screening for firearms or ammunition purchase within the construction of current law as provident 27 CFR Parts 447, 478, and 479, et seq.
Whereas, a competent and comprehensive mental health assessment is prudent considering the destructive power of firearms and ammunition in the possession of those deemed by competent evidence to be at risk of injuring themselves or others;
Whereas, a person of reasonable mind and sound judgment would submit to such an evaluation as a means of ensuring their safety and that of others;
Whereas the endemic of gun violence has irreparably permeated our places of worship, our public settings, schools, and our elected, public and private citizens alike;
The petitioners, hereby resolve to petition the U.S. Department of Justice (DOJ) to take swift action to propose agency rulemaking in consideration of the following:
Statutory, Regulatory, and Case Law Background:
The Second Amendment provides in pertinent part: “[T]he right of the people to keep and bear arms, shall not be infringed.” (U.S. Const. amend II)
Pursuant to 18 U.S. Code § 922(g)(4), It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person has been adjudicated as a mental defective or has been committed to any mental institution.
The Supreme Court held in pertinent part, that the state may prohibit the “mentally ill” from possessing firearms may provide solid constitutional ground for § 922(g)(4)’s restriction as to an individual “adjudicated as a mental defective,” District of Columbia v. Heller, 554 U.S. 570, 577, 595 (2008)
Historically, under the Gun Control Act of 1968, a person “adjudicated as a mental defective or committed to a mental institution” is prohibited to buy, own or possess firearms or ammunition. Gun Control Act, 18 U.S.C. 921 et. seq
Notably, in Tyler v. Hillsdale County Sheriff's Department, 775 F.3d 308 (2014), the government invoked the ratification history of the Pennsylvania Convention of December 12, 1787, which states, "The people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals."
Samuel Adams recommended, “that the said Constitution be never construed to authorize Congress...to prevent the people of the United States who are peaceable citizens, from keeping their own arms.” 2 Schwartz, The Bill of Rights, 675, 681. See Tyler 775 F.3d 308 (2014)
Likewise, “scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry.” (quoting United States v.Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010) (per curiam)) See Tyler 775 F.3d 308 (2014)
Nonetheless, “specific eighteenth-century laws disarming the mentally ill...simply do not exist.” quoting Carlton F.W. Larson, Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 HASTINGS L.J. 1371, 1376 (2009) See Tyler 775 F.3d 308 (2014)
The Court acknowledged, Professor Lawson's research stating, "the only more recent precedent that reveals Uniform Fire Arms Act of 1930, which “prohibited delivery of a pistol to any person of ‘unsound mind.’” (quoting Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Fortieth Annual Conference 565 (1930)) See Tyler 775 F.3d 308 (2014)
Regarding the same, the Tyler Court held, we need not reinvent the wheel and justify with historical reasoning § 922(g)(4)’s prohibition on possession of firearms by the mentally ill.
So much we may take for granted. Heller has already sanctioned the “longstanding prohibitio[n] on the possession of firearms by...the mentally ill” as permissible. 554 U.S. at 626.
Statement of Facts:
According to the Pew Research Center, in 2020, 54% of all gun-related deaths in the U.S. were suicides (24,292), while 43% were murders (19,384). Nearly eight-in-ten (79%) U.S. murders in 2020 – 19,384 out of 24,576 – involved a firearm. Gramlich, J. (2022, May 16). What the data says about gun deaths in the U.S. Pew Research Center.
The 45,222 total gun deaths in 2020 were by far the most on record, representing a 14% increase from the year before, a 25% increase from five years earlier and a 43% increase from a decade prior. There were 7.0 gun suicides per 100,000 people in 2020, the highest rate since 1977. Gramlich, J. (2022)
The U.S. gun death rate was 10.6 per 100,000 people in 2016, the most recent year in the study, higher than Canada (2.1 per 100,000) and Australia (1.0), as well as European nations such as France (2.7), Germany (0.9) and Spain (0.6). Gramlich, J. (2022)
There is no government definition for mass casualty events related to mass shootings. Regarding "mass shootings" gunviolencearchive.org, defines these events as "four or more shot and/or killed in a single event [incident], at the same general time and location not including the shooter." Gun Violence Archive. (2022). Retrieved 2022,
As of June 7, 2022, there have been 247 mass shootings in 2022, 692 in 2021, 610 in 2020, 417 in 2019, 336 in 2018, 348 in 2017, 382 in 2016, 336 in 2015, and 272 in 2015. Gun Violence Archive. (2022)
Silver, Simmons & Craun (2018), authored "Pre-attack behaviors of Active Shooters in the U.S. from 2000 to 2013". This study was commissioned by the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). The report issued the following key findings:
1. The 63 active shooters examined in this study did not appear to be uniform in any way such that they could be readily identified prior to attacking based on demographics alone.
2. Active shooters take time to plan and prepare for the attack, with 77% of the subjects spending a week or longer planning their attack and 46% spending a week or longer actually preparing (procuring the means) for the attack.
3. A majority of active shooters obtained their firearms legally, with only very small percentages obtaining a firearm illegally.
4. The FBI could only verify that 25% of active shooters in the study had ever been diagnosed with a mental illness. Of those diagnosed, only three had been diagnosed with a psychotic disorder.
5. Active shooters were typically experiencing multiple stressors (an average of 3.6 separate stressors) in the year before they attacked.
6. On average, each active shooter displayed 4 to 5 concerning behaviors over time that were observable to others around the shooter. The most frequently occurring concerning behaviors were related to the active shooter’s mental health, problematic interpersonal interactions, and leakage of violent intent.
7. For active shooters under age 18, school peers and teachers were more likely to observe concerning behaviors than family members. For active shooters 18 years old and over, spouses/domestic partners were the most likely to observe concerning behaviors.
8. When concerning behavior was observed by others, the most common response was to communicate directly to the active shooter (83%) or do nothing (54%). In 41% of the cases, the concerning behavior was reported to law enforcement. Therefore, just because concerning behavior was recognized does not necessarily mean that it was reported to law enforcement.
9. In those cases where the active shooter’s primary grievance could be identified, the most common grievances were related to an adverse interpersonal or employment action against the shooter (49%).
10. In the majority of cases (64%) at least one of the victims was specifically targeted by the active shooter.
The authors concede, "it can become easy to believe that nothing can stop an active shooter determined to commit violence. “The offender just snapped” and “There’s no way that anyone could have seen this coming” are common reactions that can fuel a collective sense of a “new normal,” one punctuated by a sense of hopelessness and helplessness. Faced with so many tragedies, society routinely wrestles with a fundamental question: can anything be done to prevent attacks on our loved ones, our children, our schools, our churches, concerts, and communities?" Silver, J., Simons, A., & Craun, S. (2018). A Study of the Pre-Attack Behaviors of Active Shooters in the United States Between 2000 – 2013. Federal Bureau of Investigation, U.S. Department of Justice
Rulemaking Authority:
Not only Congress but also Federal Agencies have the authority to enact rulemaking. Federal Agencies, via the Secretary, or in this case the Attorney General, have the broad authority to adopt regulatory changes so long as it does not abrogate the intent of Congress or pose a Constitutional barrier to a right.
Under the Administrative Procedures Act (APA) a change in regulation or law can be initiated by the Secretary of a Cabinet-level agency, such as the U.S. Department of Justice (DOJ) which oversees the Bureau of Alcohol Tobacco and Firearms (ATF).
The process begins with issuing a Notice of Proposed Rulemaking (NRPM) in the Federal Register, following this, a 90-day period of Notice and Comment would commence, and after consideration of public and private commenting an Interim Final Rule and then a Final Rule would be published. This process may take as little as 9-12 months.
Alternatively, for Congress to pass an Act, legislation must be introduced into the House as a Resolution, the Senate as a Bill, pass both the House and Senate before going to the President to become law.
Analysis:
When challenging a law or requesting a law be changed there are levels of scrutiny that Judges consider when analyzing a case. The highest level of scrutiny is defined as "Strict Scrutiny".
The U.S. Supreme Court has determined that legislation or government actions that discriminate on the basis of race, national origin, religion, and alienage must pass this level of scrutiny to survive a challenge that the policy violates constitutional equal protection. This high level of scrutiny is also applied whenever a "fundamental right" is being threatened by a law.
These standards ensure fundamental fairness in the adjudication of legal questions that come before the Court.
The government must prove that:
1. There is a compelling state interest behind the challenged policy, and
2. The law or regulation is narrowly tailored to achieve its result.
An issue can be determined to be a compelling state interest if it is essential or necessary rather than a matter of choice, preference, or discretion.
Given the statistical increase in gun violence in the U.S. The human and psychological cost on our society as borne out in the facts herein incorporated by reference, there is indeed a compelling interest of the citizenry of the U.S. and it's elected officials to move away from a purely reactive and investigative posture regarding active shooters, gun violence, and the prevention of loss of life.
Whereas each active shooter displayed 4 to 5 concerning behaviors but was not reported over 60 percent of the time, and whereas the individuals had no prior mental health diagnosis yet concerning behaviors observed by nonmedical personnel were related to the active shooter’s mental health, problematic interpersonal interactions, and leakage of violent intent.
Therefore the language of the change in law should be tailored such that it narrowly limits only those individuals with presenting pathology that may pose a danger to themselves or others based on interview by a licensed mental health professional authorized to administer psychological testing methods to conduct an examination for the purpose of acquiring firearms and ammunition.
Proposed Changes in Regulation:
§ 478.11 Meaning of terms.
Adjudicated as a mental defective.
(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, psychological pathology, incompetency, condition, or disease:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.
Note: Psychological pathology means based on standardized objective testing in conjunction with a mental health evaluation. which includes a finding that such person represents a credible threat to the physical safety to themselves or others.
§ 478.32 Prohibited shipment, transportation, possession, or receipt of firearms and ammunition by certain persons.
(a) No person is authorized to ship, or transport any firearm or ammunition in interstate or foreign commerce, or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce, who:
(4) Has been adjudicated as a mental defective or has been committed to a mental institution, which includes a finding that such person represents a credible threat to the physical safety to themselves or others.
Statutory Authority:
"It shall be unlawful for any person—who has been adjudicated as a mental defective or who has been committed to a mental institution" 18 U.S.C. 1922(g)(4)
Equal Protection and Due Process:
Pursuant to US Code, Title 18, Sec 925(c), the statute includes a “relief from disabilities provision,” allowing the director of the Bureau of Alcohol, Tobacco and Firearms (ATF) to remove someone from the category of precluded purchaser based on a finding that “the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest”.
ATF regulations prescribe the form and contents of an application for relief from disabilities. See 27 C.F.R. § 478.144
The Attorney General may grant this relief if, after reviewing the circumstances regarding the disability and the applicant’s record and reputation, “it is established to his satisfaction...that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” Ibid.
The adjudication would rest with the Attorney General of the Department of Justice, delegated to the Director of ATF, pursuant to 28 C.F.R. § 0.130(a)(1).
Similar to the federal relief-from-disabilities program, states “shall grant the relief” if the circumstances regarding the disabilities....and the person’s record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. See 18 U.S.C. § 925(c)
Recommendations and Conclusion:
A first-time applicant would be required as a matter of procedure, to undergo a psychological or neuropsychological interview and assessment whereby a clinical evaluation and use of a psychological battery of assessments such as, but not limited to the Minnesota Multiphasic Personality Inventory-2 (MMPI-2)[1] be conducted, evaluated, with assessments provided which address aberrant tendencies of the applicant towards self-harm, revenge, violence and misuse of force. These test batteries have built in validity scales which can reflect faking responses.
However, in all instances, clear recommendations, cutoff scores, and sufficient rationale would be required to ensure that taken together, the licensed professional is sufficiently convinced the applicant seeking to purchase firearms or ammunition is or is not a danger to him/herself or others.
As a matter of implementation, we, propose amendments to the requirements provident within ATF Form 4473, replacing section 21(f) as follows:
"Have you ever been adjudicated as a mental defective OR have you ever been committed to a mental institution?"
And replace the text with: "Have you completed a mental health evaluation in connection with this transaction?"
Add section 21(f)(a) "Please provide your [insert nomenclature] examination report reference number".
Add section 21(f)(b) "Have you ever been committed to a mental institution?”
The aforementioned indicates that a reference number would be provided to the applicant to complete ATF form 4473, without which the applicant may not proceed.
Likewise, similar to e-NICS, an online web-based application or portal should be stood up in order to submit examination results, that can be scanned and possibly graded based on standard inputs or a final “yes” “no” recommendation. These results would be authenticated with the provider’s NPI number whereby DOJ/ATF administrative adjudication personnel make a final decision and issue the response to the FFL.
Any negative response would follow with a letter delineating the applicant’s due process rights and right to a teleconference hearing with the administrative adjudicating body
No liability would be levied by the government based on the report of the examination provided by the licensed professional unless, through investigation, audit, or other fact finding, the examination was clearly based on fraud or misrepresentation of a material fact.
Time limits relating to how long an assessment may be valid should be considered in consultation with psychological best practices with an eye towards efficiency and thoroughness balancing the interests of the applicant with the issuing authority's obligation to prevent risk to the public.
Penalties should be commensurate with existing law, eg. punishable by up to 10 years imprisonment and/or up to a $250,000 fine.
I thank you for taking the time to review and evaluate this recommendation for proposed rulemaking.
Sincerely,
[Type Name Here]
[1] The Minnesota Multiphasic Personality Inventory (MMPI) is a standardized psychometric test of adult personality and psychopathology.