Pro-Gun New Hampshire has received a number of comments about Evan Nappen's article on Congressional bill HR 2640, "Enough NRA Bashing!"; almost all have focused on the phrase "other lawful authority" in the Code of Federal Regulations (27CFR478.11):
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, 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.
This is not surprising, because without knowledge of the ten-year-old legal history of this regulation and the basic legal principles that lawyers and judges know as the Canons of Statutory Interpretation, it is easy to misinterpret its meaning and conclude a disastrous result. Here is a typical example of the comments we received:
Now, what bothers me is the term "or other lawful authority." Could that mean any school counselor, principal, teacher or school nurse? Could it mean any psychiatrist or any psychologist or doctor? Could it mean any mayor (Mayor Ray Nagin) or police chief of any size town?
Attorney Nappen spoke on the "Cam and Company" NRA
broadcast on October 4, 2007,
and brought up this very subject. His comments referenced the official
promulgation of Code of Federal Regulations, ATF document TD ATF 391, which has
been in place for ten years. In that
document, in response to two questions by state agencies regarding the term "lawful
authority," the ATF stated that (quote) "In ATF's view, ‘lawful authority' as
used in the proposed regulations clearly means a government entity having the
legal authority to make adjudications or commitments, other than courts,
boards, or commissions which are specifically mentioned."
Note: "A GOVERNMENT ENTITY HAVING THE LEGAL AUTHORITY TO MAKE
ADJUDICATIONS OR COMMITMENTS."
A mayor, police chief, psychiatrist, psychologist, doctor, school counselor, principal, teacher, or school nurse is not a "government entity," and would have no legal authority to make adjudications to declare someone prohibited from gun ownership as a "mental defective." None of these individuals are boards, commissions, or courts, or act as government entities.
Attorney Nappen adds: The Canons of Statutory Interpretation would also mandate that a
"lawful authority" be interpreted in light of the examples used, "a court,
board, or commission." Under the Canon of Ejusdem generis, where general words follow an enumeration of
specific items, the general words are read as applying to other items akin to
those specifically enumerated. Under the
Canon of Expressio unius est exclusio alterius, items not on the list
are assumed not to be covered by the statute. In case this is not
enough, the Rule of Lenity would also
apply, in which criminal laws must be narrowly interpreted in favor of the
defendant, NOT broadly interpreted to ridiculous paranoid extremes.
Once again (as Attorney Nappen wrote in his article), this
definition has been in place since 1997; HR 2640 doesn't introduce any new
definitions. Even better, as he wrote,
HR 2640 LOCKS IN this definition "as
in effect on the date of the enactment of this Act" (Section 3, Definitions,
quoted in the article); that PROTECTS gun owners by not allowing any broadly extended
definitions of who may "adjudicate" someone as a "mental defective." It binds
the term to the original promulgated CFR.
You can find the original ATF CFR promulgation on the Web at http://www.ttb.gov/rpd/tdatf391.htm
. Here is its content, with the non-relevant parts omitted:
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Department of Treasury
Bureau of Alcohol, Tobacco, and Firearms
TD ATF-391
Definitions for the Categories of Persons Prohibited From Receiving
Firearms (95R-051P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of the
Treasury.
ACTION: Final rule, Treasury decision.
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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is amending
the regulations to provide definitions for the categories of persons
prohibited from receiving or possessing firearms. The definitions will
facilitate the implementation of the national instant criminal
background check system (NICS) required under the Brady Handgun
Violence Prevention Act.
DATES: The final regulations are effective on August 26, 1997.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, NW., Washington, DC 20226 (202-927-8230).
<snip>
Four Federal agencies and three State agencies commented on ATF's
proposed definitions. Two State agencies questioned the meaning of
``lawful authority'' as used in the proposed regulations. In ATF's
view, ``lawful authority'' as used in the proposed regulations clearly
means a government entity having the legal authority to make
adjudications or commitments, other than courts, boards, or commissions
which are specifically mentioned. Therefore, the final regulations do
not further define ``lawful authority.''
<snip>
Signed: April 21, 1997.
John W. Magaw,
Director.
Approved: May 5, 1997.
John P. Simpson,
Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 97-16900 Filed 6-26-97; 8:45 am]
BILLING CODE 4810-31-P
This was last updated on August 25, 1998
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