Preeminent among the amendments is proposed Section 898 of the General Business Law of New York.
A new proposed subsection of the General Business Law, subsection “1-A” of Section 898 reads:
“Before any sale, exchange, or disposal pursuant to this article, a purchaser of any firearm, rifle, or shotgun shall submit to a mental health evaluation and provide the seller with proof of his or her approval to purchase such firearm, rifle or shotgun pursuant to subdivision (M) of Section 7.09 of the Mental Hygiene Law.”
Proposed Section “2-A” would apply the same standard to anyone who wishes to sell, exchange, or dispose of a firearm, rifle, or shotgun.
Proposed Section 7.09 (M) of New York’s Mental Hygiene Law sets forth the framework for a mental health evaluation:
“The Commissioner shall establish within the Office of Mental Health and administrative process for the mental health evaluation of any individual prior to such individual’s purchase of any firearm, rifle or shotgun. The Commissioner shall promulgate regulations to establish the mental health evaluation process which shall include but not limited to provision relation to: (1) the mental health professionals approved to perform such evaluation, (2) the process for evaluation by such mental health professionals and (3) the development of a standardized form to be used by the Mental Health Professional performing such evaluation to approve or deny an individual for purchase of a firearm, rifle or shotgun. The denial of an individual for purchase of any firearm, rifle or shotgun may be reviewed de novo pursuant to the proceedings under Article Seventy-Eight of the Civil Practice Law and Rules.”
For context, keep in mind that Federal law already addresses the mental health issue relevant to firearms ownership and possession. Federal Penal Code, 18 U.S.C. § 922(g), says:
“It shall be unlawful for any person who has been adjudicated as a mental defective or who has been committed to a mental institution to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
Since federal law has long since established mental health criteria apropos of firearms’ ownership and possession, Cuomo’s present New York law mental health reporting requirement is not only unnecessary, it is in conflict with Federal statute.
Moreover, under Article 6, Section 2, of the U.S. Constitution, referred to as the “Supremacy Clause,” the “Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land.” This means that the Federal government, when exercising any of powers enumerated in the Constitution, prevails over and preempts any conflicting or inconsistent state exercise of power.
Federal law places clear and very strict parameters around the use of mental health criteria, related to gun ownership and possession, and does so for very important and obvious reasons.
- First, the diagnosis of mental health conditions is often highly subjective, as much an art as a science, and deciphering the line between serious and non-serious mental health conditions is not and never has been clear-cut. There is a large, amorphous gray area.
- Second, the right of the people to keep and bear arms, a right that shall not be infringed, as expressly codified the Second Amendment, is a fundamental, immutable, unalienable, and natural right, intrinsic to man’s very being. This means that the Government shall respect the right as sacred and inviolate. The infringement of the Second Amendment’s core is forbidden.
Careful circumspection of Governmental action against it is essential and must be maintained if Governmental intrusion on the exercise of the right of the people to keep and bear arms is to pass rigorous, strict Constitutional scrutiny. The NY Safe mental health reporting requirement and the proposed mental health evaluation bill impermissibly infringe upon the rights and liberties of the American people and also violates the Supremacy Clause of Article 6 of the U.S. Constitution.
To understand how pernicious both the NY Safe mental health reporting requirement and the proposed mental health evaluation bill are, we will drill down into the critical mental health area of both the reporting requirement of the NY Safe Act that has been enacted into law—Section 9.46, Subsection (b) of Article 9 of the Mental Health Law of the Consolidated Laws of New York—and the proposed mental health evaluation requirement, Proposed Section 7.09 (M) of New York’s Mental Hygiene Law. You will come to understand why it is and how it is that the mental health reporting requirement of the NY Safe Act is bad enough, and how it is that, as bad as that reporting requirement is, the proposed addition to the Mental Hygiene Law is substantially worse.
You will see how the proposed bill builds upon the present mental health law affecting New Yorkers who simply wish to exercise their Second Amendment right, tightening the noose on those New Yorkers; for it is in New York’s Mental Hygiene Law that things become both interesting and dire.
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