Loopholes and Bulletholes

By: Antoinette D’Addario

On Memorial Day 2005, Timothy and Janice Heyne were docking their boat at friend Steve Mazin’s home in Thousand Oaks, California when veteran Toby Whelchel opened fire. He killed Janice and Steve and critically injured Timothy.


Mazin had represented Whelchel in two court cases and in his Air Force court martial and took out a restraining order against Whelchel after he attacked Mazin in his own home. According to a 2005 Los Angeles Times article, Whelchel was court-martialed in 1999, fined $3,000 and discharged for failing to show up on time for work. Whelchel also had a criminal record in Florida and Indiana in addition to California.


“Their friend [Mazin] had a restraining order against a man [Whelchel] who came and shot the friend, shot my father three times, killed my mom [then] shot a police officer, bludgeoned a mother in front of her kids and finally turned his gun on himself,” Heyne said.


Shortly after losing his mother, Christian Heyne committed himself to fighting gun violence and promoting gun control.


“How the hell did this happen?” Heyne asked.


After his parents’ shooting, Heyne learned American gun laws had many loopholes.


“The gun lobby has made it easy for an illegal market of guns to run in our states,” Heyne said. “The majority of states in this country don’t require a background check to purchase a gun.”


Article XI § 7 of the California Constitution states “a county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” This provision gives local authorities equal power to the state legislature to protect the welfare of its residents. This made it possible for Heyne and other advocates to pass and implement local ordinances preventing gun violence in their communities.


The state legislature’s passing of California Assembly Bill 1471, which requires guns sold in California to have a micro stamp device on the weapon, was a major victory for Heyne.


“The micro stamp intentionally stamps a code on the shell casing to trace the weapon,” said Heyne.  “Shell casings are often [what are] left behind at shootings and what you find out is — contrary to what CSI shows tell you — it’s extremely hard to trace guns from shell casings; it only happens about one percent of the time,” said Heyne.


A series of lawsuits have been filed delaying enactment of the bill, but Heyne is hopeful it will roll out soon and be implemented in other states.


Under President Obama, the Social Security Administration (SSA) implemented provisions of the 2007 National Instant Criminal Background Check System (NICS) Improvement Amendments Act. This act allowed the Department of Veterans Affairs (VA) to report a person who they classified as “mentally defective” to the NICS to prevent them from obtaining a firearm unless the veteran is able to prove he or she does not pose a danger to themselves or others.


Under this system, if a veteran was appointed a fiduciary from the VA to manage their financial affairs, they were labeled mentally incompetent and his or her name was sent to the FBI’s NICS, which could prohibit them from legally purchasing or owning a firearm. While they could apply for relief from this prohibition, the decision was in the hands of a VA bureaucrat not a judicial authority.


Whelchel’s actions on Memorial Day elicited questions on his mental health status and whether or not he should have had access to a gun. His killing spree and ultimate suicide is indicative of a violent streak that may have been prevented had he been prohibited from purchasing a firearm.


In 2014, 7,403 veterans committed suicide, averaging 21 suicides per day. Sixty-six percent of these suicides were perpetrated using firearms. Veteran suicides accounted for 18 percent of all suicides committed in the United States in 2014, according to a study by the Department of Veteran Affairs.


Andrew Gottlieb, director of outreach and development at the Second Amendment Foundation, a nonprofit gun rights advocacy group, thinks deeming someone mentally incompetent is walking a very fine line.


“Obviously, we have too many veterans committing suicide, [but] when you deem somebody mentally incompetent it becomes a huge issue,” Gottlieb said.


Furthermore, the idea of someone losing their rights when they admit they are having a problem bothers him.


“If someone seeks help [they] could lose their rights,” he said. “We’re encouraging people to not get help because of the punishment that comes with it. I don’t think someone should be punished for getting help.”


“We have a public health crisis,” Heyne said. “We exist in a place where every year there are 100,000 people killed, wounded or maimed by guns and we aren’t doing anything about it. If it was a disease or car accidents, we would be all over it and right now, not only are we not all over it [but] we continue to see a push to stop any kind of regulation.”


In 1997, the CDC was banned from doing in-depth research on gun violence after the passage of the Omnibus Consolidated Appropriations Bill, also known as the Dickey Amendment. It was named after Jay Dickey, a Republican representative from Arkansas who proposed it in 1996 in response to the gun control debate heating up after the 1994 election and Clinton’s campaign on gun control legislation.


The bill contained clear and proscriptive language: “None of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.” This stipulation, along with the stripping of all funding to gun research, effectively banned gun violence research, despite many experts viewing the problem as a public health issue.


The NRA has a history of defending the bill and has lobbied for additional bans on gun research since its passage.


But Dickey never intended for the bill to be as far-reaching as it has become. Looking back, Dickey apologized for his actions.


“I wish we had started the proper research and kept it going all this time,” Dickey said to the Huffington Post in 2015.


While Dickey left Congress before changing his stance on gun research, he authored an op-ed in 2012 for the Washington Post on his new position and has encouraged his former colleagues to adopt a more open view of research.


In the wake of this bill, the CDC can only collect surveillance data (basically a count) on shootings. But the CDC’s gun research was never about gun control, according to CDC epidemiologist Cheryl Williams. Williams has spent over 20 years researching infectious diseases around the world. Researchers argue gun violence is similar to an infectious disease and can be studied by applying similar principles and methods.


“It was never gun control [research],” Williams said. “The CDC is all about prevention of illness and injury. We don’t make regulations, we don’t enforce, we just say ‘here is the evidence, x, y, z causes x, y, z, and we recommend these guidelines.’”


On February 16, 2017 Representative David Roe, R-Tenn., introduced the Veterans 2nd Amendment Protection Act to Congress. This act, if passed by both the House and Senate and signed by the president, would block the VA from reporting these “mentally defective” veterans to NICS.


Upon the House’s passing of the bill, Rep. Roe released the following statement:


“I strongly believe we must do everything in our power to protect the rights guaranteed to all Americans, especially the men and women who have served, by the Constitution. The Veterans 2nd Amendment Protection Act does just that. I’m proud to stand with my colleagues in passing this important legislation that ensures no veteran who utilizes a fiduciary will lose their Second Amendment rights without due process.”


The Department of Veteran Affairs’ acting deputy assistant secretary James Hutton offered the following statement to this reporter in response to the bill’s passage.


“The Bill passed the House, but it’s really not a VA issue, because VA does not maintain the NICS list, but rather the Department of Justice does. VA is required to comply with the laws as they stand at any given time. At this point, the new Bill must still go to the Senate and if passed in any form, would then go to the President for signature or veto.


“It’s important to point out that VA sends out a letter to Veterans who are proposed to have their names submitted to NICS. There’s a 60-day time frame before submission in order to allow the Veteran an opportunity to contest the submission. We commonly refer to this as a “Due Process” letter because it affords the Veteran his/her opportunity for due process.


“[The] VA makes every effort to provide the Veteran the opportunity to officially challenge submission to NICS and we take Veterans’ rights very seriously.”


The act concerns Heyne and the CSGV. There is an important component of this vote that is not being talked about; the Republicans brought this bill forward under the Congressional Review Act, which was passed in 1996 and allows new federal regulations from government agencies to overrule a regulation and prohibits the reestablishment of the rule in the same form, according to Richard Beth, a specialist on the Congress and legislative process.

“[It] basically says ‘we are going to overturn this bill and make it so it can never be voted on again,’” said Heyne.


“Rather than just throwing the rule out, let’s make it better,” Heyne said. “Whereas Republicans chose to throw it out and never deal with it again.”


“This move could set a dangerous precedent,” he said.


While the Coalition to Stop Gun Violence, where Heyne is currently the legislative director, was neutral on the vote, they saw flaws in how the Obama administration created the process to disqualify a veteran from owning a weapon.


“Our problem with the rule was [the way it was] written,” Heyne said. “The only determination they were using [for gun ownership] was a mental illness qualifier. If you look at the research, mental illness is not a huge indicator of future acts of violence. Research shows only about four percent of violence in this country is solely due to mental illness.”


Currently, somewhere between 168,000 and 174,000 veterans have been prohibited from purchasing weapons because of their mental illness.


“What we feel is grossly irresponsible is that we think that they would just blanketly [sic] give gun rights back to this at-risk group of veterans,” Heyne said.


Veterans have weapons training as part of their service, but this may not be useful knowledge for someone with a mental illness.


“Will veterans with PTSD be safe having a weapon in their home?” Hamm asked. “Many of them know their way around a weapon, but is that always a good thing? There comes a point that while you [a veteran] know what you’re doing, that may not be a good thing.”


“If you’re trying to give gun rights back to this population, you need to have an individualized process to prevent putting guns back in the hands of people who can potentially hurt themselves,” Heyne said.


“This is a nonpartisan issue,” Hamm said. “Gun safety is something every American should care about because it’s one of the leading causes of death.”


While the two sides of the debate rarely see eye to eye, in this case Gottlieb agrees with a need to reduce the number of deaths from firearms.


“We never want to see someone killed or shot,” he said.


Despite his wins in California and his work in Washington D.C. since coming to the Coalition to Stop Gun Violence, Heyne will never escape what brought him to the table.


“My wife will never even have the opportunity to meet my mother because we allowed a dangerous individual access to guns for… I still don’t know why,” he said. “My mom will never know her grandchildren.”



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