After the horrific shootings in Parkland, Florida, last week, President Donald Trump said very little about gun policy — but quite a bit about mental health. This has become a common move for many in the GOP, who hope to deflect a growing wave of pressure for stronger gun control laws.
The president spoke of mental health in his prepared remarks on the shooting and in a tweet:
Trump’s emphasis on mental health was reiterated by House Speaker Paul Ryan, Florida Gov. Rick Scott, and Attorney General Jeff Sessions, who announced that he had instructed the “office of Legal Policy to … study the intersection of mental health and criminality.”
As Vox’s Matthew Yglesias pointed out, there’s considerable irony in President Trump pointing to people with mental illness as his main subject of concern after mass shootings. That’s because one of the only actions his administration has taken on gun policy was signing a congressional repeal of an Obama-era rule restricting gun ownership for Social Security beneficiaries who have a psychiatric disability and use a “representative payee” to help manage their finances (typically a friend, family member, or third-party financial manager).
The Obama administration framed that regulation as a rare step forward on gun control that did not require action from a recalcitrant Republican Congress.
Many progressive commentators have been quick to point out Trump’s hypocrisy and have condemned the administration for signing the repeal of that rule. As a liberal disability rights activist who continues to fight Trump, these people are normally my allies. But I can’t join them in attacking Trump on this issue because Congress was right to repeal this particular regulation. It would have done nothing to prevent the Parkland shooting and would have set a dangerous precedent restricting the rights of people with disabilities without due process.
Who makes use of a “representative payee,” and why?
In December 2016, the Social Security Administration issued a new regulation that had the dubious distinction of bringing together pro-gun groups and advocates for civil rights and people with disabilities, including the ACLU and the Autistic Self Advocacy Network.
The rule required the agency to send names from its database of certain people receiving disability benefits who had a “representative payee” to the National Instant Criminal Background Check System (NICS). That’s a federal database of people prohibited from purchasing a gun. Representative payees can be designated either by the beneficiary, or the agency.
More specifically, the new rule singled out people who use a representative payee and possess a mental impairment. People affected by the rule could have a range of mental disabilities, from dementia to autism to agoraphobia.
Predictably, in the run-up to the debate, gun-control groups and gun-rights groups lined up on opposite sides of the issue. But disability rights groups and civil rights organizations were also concerned that the rule lacked a solid connection to public safety and might serve to restrict the rights of people with mental disabilities in other areas. While there is broad consensus in favor of preventing those deemed as dangerous from owning firearms, not all people with mental illness fall into that category. Needing a representative payee was never intended as a marker that a person might be violent.
The issue had been brewing for a while. As far as back as 2013, the National Council on Disability, on which I served as an Obama appointee, had written to the Vice President’s Task Force to Curb Gun Violence pushing back against any measure linking up the SSA representative payee database with the criminal-background-check system. Around the same time, a coalition of 11 major disability rights groups issued a similar warning.
Accessing a representative payee is a common procedure for people with a wide variety of cognitive, developmental, and psychiatric disabilities. Far from implying an individual is permanently incapacitated, a representative payee is often used as a less-restrictive alternative to a court declaration that an individual is incompetent to manage their own affairs.
Representative payees are used in a variety of situations: An aging grandmother might delegate finances to her children, or parents of an autistic young adult might serve as his representative. A middle-aged man with an anxiety disorder might select a representative payee to ensure his rent gets paid on time.
Rhetoric around the rule has described those it would apply to in frightening terms, with references to the “severely mentally ill” or those with “serious debilitating mental illness,” but in fact, people using a representative payee experience many different levels of impairment.
All it means is that an individual may require some assistance in managing their money; particularly for younger people with disabilities, it’s a common type of support.
The determination that someone should have a representative payee is very different from the determination that someone should be involuntarily hospitalized, a process that does include an evaluation of someone’s risk to themselves and others. I and many other advocates who worked against the representative payee rule have no issue with reasonable restrictions on gun ownership for people in the latter category.
From what we know, the Obama-era rule would not have applied to the Parkland shooter
In Florida, where the Parkland shooting took place, the state’s involuntary commitment law, the Baker Act, took 195,000 people into custody for mental health evaluations the 2015-2016 fiscal year, less than 2 percent of whom were ultimately deemed a danger to self or others, and committed. (Many advocates fear that the Baker Act is overused, particularly for children.)
Most news reports have failed to note that, based on the best information available to us, the Parkland shooter would not have been identified by either definition of mental illness: He did not seem to have a representative payee or have a prior history of court-ordered involuntary commitment.
Much of the media discussion on this topic has been too broad — conflating many very different possible policies under the nebulous goal of “preventing the mentally ill from buying guns.”
But “people with a mental illness” is a vast category. In the most expansive definition, it covers about one in six Americans: nearly 45 million people. No one intends to restrict gun ownership for all those people. Instead, restrictions focus on specific definitions of mental illness. But whatever definition is used should have some reasonable link to protecting the public.
We worried this could set a precedent for other restrictions on autonomy
During my time at the Autistic Self Advocacy Network, I heard from a number of autistic adults who were concerned that their use of a representative payee would prevent them from taking part in hunting and other aspects of rural culture involving firearms.
“The rule didn’t care that I’m not a danger to myself or others,” wrote Savannah Logsdon-Breakstone, an autistic woman who would have been impacted by the regulation, “[or] that having a ‘rep payee’ manage my finances has been a boon for my mental health, one that has allowed me to decrease the impact that my anxiety has on my ability to live in my community. It just made an assumption, not based in evidence, that if I need help with my finances that I must be a danger.”
Still, the primary reason I and other disability advocates opposed the rep payee rule is less about guns than it is about the precedent the rule might set for other kinds of rights.
These concerns are rooted in discrimination that people with mental disabilities face in other areas of life, such as parenting and voting rights. People with mental disabilities often face an assumption of incapacity. Their advocates and lawyers often have to fight to overturn assumptions that a certain diagnosis, or a determination of need for support in one area, should lead to a loss of rights in an unrelated area. These advocates feared that using the representative payee database for prohibiting gun purchases might constitute a “thin end of the wedge” for loss of more important rights down the road.
Others have pointed out that many jobs require clearance through the NICS database, even for roles in security, construction, transportation or other businesses that don’t directly require the handling of a firearm. For those roles, even a temporary use of a representative payee could have barred future employment in those fields.
While some of these harms may seem minor or speculative to some, they are very real to a mental disability community that is heavily and inappropriately stigmatized by unfounded perceptions of violence.
It’s not just that no research supports the premise that those who use representative payees are more likely to be perpetrators of gun violence than members of the general population. It’s also that the statute authorizing representative payees explicitly allows people to make use of the program “regardless of the legal competency or incompetency of the qualified individual.” For many of these people, the system is a voluntary support they have chosen to access — and shouldn’t be penalized for using.
In the gun violence debate, both parties have failed people with mental disabilities
It was ironic to see the GOP adopt the role of champion for the rights of people with psychiatric disabilities in the gun control debate (at least surrounding this rule). For the past several years, many in the Republican Party have deliberately demonized this group to shift the conversation away from sensible firearms restrictions.
Shortly after the Newtown massacre, the same NRA that collaborated with the disability community in opposing the Social Security rule issued a bizarre and terrifying proposal for “an active national database of the mentally ill,” a far more expansive proposal than anything to come out of the Obama administration.
Subsequently, Republicans began consistently pointing to those with mental health diagnoses as the real cause of the nation’s gun violence problem. Led by Rep. Tim Murphy (R-PA), who has since resigned, they introduced legislation to strip people with psychiatric disabilities of HIPAA privacy protections, limit legal aid to the community, and dramatically expand coercive treatment.
Back then, congressional Democrats bravely stood up to Rep. Murphy’s proposals, and the Republican leadership withdrew the worst of them. In 2016, a dramatically weakened version of the original Murphy bill passed Congress, with the most counterproductive provisions, like the HIPAA rollback, stripped back to mostly symbolic measures.
This advocacy was rooted in an understanding that people with mental disabilities should not lose their civil rights because of their diagnoses. In standing up to Rep. Murphy’s proposals, Democrats showed they understood that mental illness was being used as a distraction, as a way for Republicans to avoid discussing opposition to politically popular proposals, such as a ban on assault rifles or high-capacity magazines.
Now, in the aftermath of Parkland, President Trump and other Republicans seem to once again be seeking to stigmatize people with disabilities rather than pursue common sense solutions around gun control for the general public.
People with disabilities deserve better than to be used as props in the country’s ongoing — and so far stalemated — arguments over gun control.
Ari Ne’eman is the CEO of MySupport.com, an online platform helping people with disabilities, seniors, and families to manage their in-home services. From 2006 to 2016 he served as president of the Autistic Self Advocacy Network, and from 2010 to 2015 he was one of President Obama’s appointees to the National Council on Disability. @aneeman
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