It seems every time mental health issues come up in relation to gun laws, folks suggest that the class of prohibited persons is being expanded. That’s probably because mental health prohibitions are among the most poorly understood aspects of federal gun laws. NSSF stepped in it when they announced support for sharing of mental health records, since I’ve noticed at a number of blogs, folks suggestingĂ‚Â NSSF is selling out. This isn’t really the case, but to understand why that is takes a bit of an explanation on federal law. States often have their own prohibitions, which can be stronger or weaker than federal law, but I won’t dive into that here. I’ll concentrate solely on federal law, which is what most states generally follow in their own laws.
A mental health adjudication only occurs when a person is involuntarily committed, or held to be mentally ill by a competent judge, board or other lawfully composed body in an adversarial hearing. They cannot apply because someone sought mental health treatment on their own, or if they are suffering from depression, PTSD or what have you. The law very specifically requires an adjudication.
Now, that said, there have been cases in the past where some federal agencies, particularly the VA, entered veterans records into NICS who were deemed unable to manage their own affairs. This issue has been fixed, however, and the VA can no longer legally do such a thing unless there’s been a hearing. In addition, there is now a mechanism for restoration of rights from someone who has been adjudicated or committed in the past, but is now no longer a danger to themselves or others.
As to the issue NSSF is advocating for, which is that state mental health records in regards to commitments and adjudications be shared with the federal system. Many states currently don’t do this, either because they can’t be bothered, or they have legal issues that prevent it.
So why do we care? Because a number of states operate as what is known as a “Point of Contact” states, meaning they maintain their own background check system. Pennsylvania is one such state. The states have fairly mixed records when it comes to maintaining their own systems. Pennsylvania’s is atrociously unreliable, as we have a recent example of here. In contrast, the FBI has done a rather good job at running the federal system in a professional manner, and it works much more reliably and cheaply than the POC systems in the states that have them. Additionally, if everyone used the federal system, we’d only have one leviathan to worry about. The federal system has had more protections put in place recently to prevent the kind of abuse that happens in POC systems, such as using the system to compile a backdoor registry, as has happened in Pennsylvania.
It would be beneficial if we could get rid of all the POC systems and put everyone on the federal system. It’s not perfect, but a step in the right direction. The lack of mental health records in NICS is going to be a big club for our opponents to defeat anti-POC bills, as the lack of sharing is an issue that politicians are going to be inclined to listen to. If the federal system and state systems contain the same data, it’s much easier to make a cost saving argument to the powers that be, which helps give some softer legislators some cover to vote for an anti-POC measure as a bill that merely eliminates redundancy and saves taxpayer money. In addition, that can also be used as justification for eliminating restrictions on buying firearms out of state. If we’re all using the same system, and it has all the same data, what can be the justification for now allowing FFLs to make transfers to residents of another state?
So what NSSF is advocating is not in any way an expansion of who is and who isn’t a prohibited person. As I stated last time this issue came up, just because NICS didn’t have a record, and cleared you, doesn’t mean you have a get out of jail free card on being a prohibited person in possession of a firearm if you are under a mental health prohibition. There’s relatively little harm in what NSSF is advocating, in terms of mental health records, with the potential of a lot of ground that could be gained if lawmakers feel good that the federal system has all the records it needs to determine if someone is under a mental health prohibition.
Informative analysis. Thanks. I wonder if better standards for mental health records-keeping in general would be part of that, that is, states or private institutions required to update & share data in a timely fashion. Recall that the Virginia Tech shooter’s psych records were removed and taken home by a professor wanting to study them–it would be nice if unauthorized actions like that, especially that contribute to something like the VA Tech shooting, were treated as crimes.
Adjudications and commitments are more of a legal than a medical matter. I don’t really have an issue with those being shared records. Private mental health records are another matter entirely. I would oppose any attempt by government to get their hands on private medical information.
The bigger problem was that Cho was allowed to voluntarily commit himself, rather than involuntary commitment. The former does not generally create a disqualifier; the latter (depending on state law) does.
Remember, the people who were crying sellout are the ones who failed to read the entire NSSF position and opted to just wing it by reading the headline.
These are the same people who are confused by fast talking, hand motions, and shiny objects. These trolls are also responsible for anyone of the other 100 or so myth emails that are going around. Like the one about the IRS, guns, and tax returns.
I’ve been reading Extrano’s Alley blog, that I linked for a while, and he’s a good blogger and generally on top of things. Even I’ve had a few posts that I winged on half information or bad information, and later had it pointed out. It happens to everyone sometimes.
Disagree; I read the whole news release, at least (I’m on the NSSF’s mailing list) and at the time I thought it was ambiguous enough that people who don’t know the details of this issue including the recent Federal fix (no thanks to the NRA) and Virginia’s special interest in this (they really did drop the ball with the VT shooter) would make the wrong assumptions.
I did read it, and I didn’t see any information that indicated they were advocating increasing the scope of prohibited person. And actually, that federal fix was entirely the work of NRA.
It would be beneficial to drop the whole “You need the government’s permission prior to exercising your rights” mindset and the mechanisms involved, but I recognize that isn’t going to happen anytime soon.
At lest in part these mechanisms are required because we no longer lock people up for long periods for serious crimes or for severe mental illness. You can argue whether these are appropriate actions or not, but they are the reason that we didn’t worry so much about people buying guns in 1960, and we do today.
The thing is, as you well know Clayton, that crime is at a level down where it was prior to the GCA ’68. In essence, the justification used to pass many, if not most, of those laws isn’t there anymore: Crime is down to levels not seen since before I was born, and I’m not a spring chicken anymore. I understand that it’s not going to happen overnight, that we are looking at something that’s going to take decades to accomplish, but we have to start thinking about long-term strategies to roll back some of these laws.
I’m certainly in favor of zapping a lot of the GCA of ’68 (most especially the import restrictions, due to the Executive level mischief they’re still causing us and future potential abuse) and of laws before and after it, but here we’re talking about a 1993 bill. And while I loathe the NICS, I find it very difficult to argue with Clayton’s point.
The right solution is of course to do it all: start locking up the people who really belong in prison or in inpatient mental health facilities (note also the option of outpatient regimes with teeth like the current TB protocols which confirm that people take their meds; part of deinstitutionalization is that we developed effective drugs), wait a long while, then repeal the Brady Bill.
I don’t see this happening in my lifetime, but then again I don’t see our ruling class staying in power before I die. As the Margret Thatcher paraphrase goes, “The problem with socialism is that eventually you run out of other people’s money” and we’re on a fast path to that with “trillion dollar deficits as far as the eyes can see.” Which has no small part in motivating me to buy guns, accessories and ammo.