On Wednesday, the Senate voted to roll back an Obama-era regulation that required the Social Security Administration to provide information about people with certain disabilities to the national background check system consulted during gun sales. The companion bill had passed the House earlier this month. Senate Majority Leader Mitch McConnell (R-KY) took to the floor to announce that he was bravely defending the rights of “the disabled,” echoing rhetoric from Republican colleagues who also framed the regulation as an assault on disabled people’s Second Amendment rights. Meanwhile, the left had decried the move to undo the legislation, saying conservatives are so bent on protecting access to guns that they won’t even keep them out of the hands of mentally ill people.
Both sides make me want to scream, for different reasons.
With all due respect, Mr. McConnell, you haven’t exhibited any interest in protecting disability rights and standing up for our community, or you wouldn’t have supported the cabinet confirmations of people like U.S. Attorney General Jeff Sessions and Health and Human Services Secretary Tom Price. Nor would you be so intent on repealing the Affordable Care Act. Instead you, like other Republicans, like to leverage the disability community when it’s politically convenient.
As for the left, the insistence on repeating false memes about violence and mental illness builds up a dangerous cultural association that has far-reaching and extremely dangerous consequences, from feeding the justification of police shootings to denying security clearances and making people less supportive of mental health care. Considerable research exploring the subject has found that mentally ill people are less likely to engage in gun violence, and that overall, the mentally ill community is much more likely to be victimized by violent crimes than it is to perpetrate them.
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The regulation repealed Wednesday was part of a package of gun violence reforms introduced by President Barack Obama when Republican obstructionism made it difficult for him to press Congress to take action on the very real and pressing issue of gun violence in America. The reforms included strengthening the background check system; better enforcement of gun laws; investment in gun safety technology; and, oddly, requiring reporting of Social Security recipients who use a representative payee to the database used for background checks. Representative payees are third parties appointed by the Social Security Administration, who are designated to manage the finances of a beneficiary if the agency determines that the individual is a minor or an adult who is incapable of managing their personal finances. This measure targeting representative payees would have affected about 75,000 people.
As commentator Ari Ne’eman noted, proponents pitched this regulation as keeping guns out of the hands of mentally ill people. In fact, however, people use representative payees for a variety of reasons, including temporary ones; many are not mental health related, and using a representative payee doesn’t necessarily mean you’re “incompetent” any more than having a mental health condition makes you unfit to engage with society. Across the United States, 20 percent of people experience mental illness in any given year, and a little more than 4 percent live with severe mental illness (SMI). If mental illness—even SMI—rendered people incapable of meeting basic responsibilities, society would completely break down.
Supporters argued that this regulation as a whole would prevent acts of mass violence, and certainly measures like enhanced background checks would substantially reform the gun control landscape. But with respect to the section on representative payees, the assertion that there would be a decrease in violence isn’t necessarily supported by the statistics. Fatal gun violence is usually linked to intimate partner violence and white supremacy, not mental illness. While some instances have involved mentally ill people, not all of them were engaging in reportable behavior prior to the shooting, and it’s unclear how many, if any, were committed by people who would have been eligible for a ban under this particular regulation. Notably, federal law already bans people deemed “mentally defective” from owning guns—a classification laden with complex ramifications.
If the desire was to prevent gun violence, this was not an effective approach.
If the desire was to further abrogate the rights of mentally ill people and disabled people, however, it was a highly effective one.
It may help to take a step back and take guns out of the equation when thinking about this. The rule effectively said that people who use representative payees should be deemed incompetent to participate in an activity shared by millions of Americans and one that many people associate not just with a right, but a cultural and social heritage—whether you agree with those characterizations or not. Could that be logically extended to other activities or theoretically protected civil liberties? What about having children? Marrying? Voting? Going to school? Immigrating or traveling? These are all rights that are already at risk for disabled people.
The privacy implications here were also huge. In order to report information, the SSA would have had to violate the Health Insurance Portability and Accountability Act (HIPAA), the regulation patients across the United States rely upon for privacy. The Department of Health and Human Services was required to revise its guidance on HIPAA to make it possible to disclose private medical information to the database, something that should ring alarm bells. If it’s done once, it can be done again and probably will be.
In addition, this database isn’t just used by gun sellers. It also appears in a variety of other contexts, including employment for certain jobs, and it would be a gross violation of privacy and individual rights to have a disability-related flag come up, especially when that flag is associated with mental illness in particular. And what happens if or when that database is hacked, exposing information about those listed to the general public?
It was this rule that the House and Senate voted down under the Congressional Review Act, with some claiming that the move was done in the name of disability rights.
Of course, it’s transparently obvious that their votes had nothing to do with disability rights. There are things that conservative lawmakers could be doing if they were serious about such things. For example, they could rethink their attitudes toward the Election Assistance Commission, which, among other things, defends disability voting rights. They could also move to aggressively defend and protect the Individuals with Disabilities Education Act (IDEA), key legislation that hit the national stage during Secretary of Education Betsy DeVos’ confirmation hearing, when it became apparent that she wasn’t aware disabled students have a right to a free appropriate public education in America. They could adopt the Disability Integration Act and defend the Americans with Disabilities Act of 1990. They could stop trying to defund Planned Parenthood. They could abandon the proposal to fund Medicaid through block grants, a move that will harm low-income people across the United States, including disabled people who rely on the program. They could fulfill one of the president’s campaign promises and refuse to cut Medicare and Social Security. They could aggressively enforce the Mental Health Parity and Addiction Equity Act. They could address the shockingly long wait list at the Department of Veterans Affairs that leaves veterans without vital treatment and key medical equipment, like prostheses, as they wait for attention.
Or they could pressure the U.S. Department of Justice to resume investigating police violence in America with an eye to instituting reforms that will address the epidemic of police shootings devastating communities of color, especially the Black community, and also claiming the lives of disabled people, particularly mentally ill people.
The disability community is clearly being used as a political pawn here.
But it’s also true that the Obama-era rule was a significant abridgment of our civil rights and not just in the sense of the question of whether we should be allowed to own firearms. It’s odd to find myself congratulating congressional Republicans and frustrating that in this case they did the right thing for the wrong reasons, but it’s a reminder of the sometimes bizarre status of disability as a political identity. On occasion, disabled people end up with very strange bedfellows, sometimes lined up against the left, when progressives fail to think through the implications of policy proposals and initiatives and don’t consider their ramifications for the affected community.
The United States is in urgent need of comprehensive, effective gun control—something even most NRA members agree upon. It’s clear that we need a streamlined universal background check system, and preferably one that includes intimate partner violence convictions, young white men, and possibly toddlers, given that they repeatedly perpetrate acts of gun violence. It’s also clear that certain types of weapons patently exceed what was envisioned by the Second Amendment, whether you favor an individual rights interpretation or not. Democrats should absolutely be taking action on this issue, but leveraging mentally ill people just harms us and doesn’t accomplish the goal of making the United States safer.