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 suggestingÂ 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.