Anaya Nolan
In the United States, federal law prohibits firearm access to individuals with a history of involuntary commitment to mental health institutions or substance abuse treatment facilities, or those declared incompetent by a court. However, the enforcement of these laws relies heavily on self-reporting and varies across states. While some states have red-flag laws, which enable law enforcement or family members to obtain court orders restricting firearm access for individuals deemed to pose a threat, there are notable gaps in the legislation. These gaps allow individuals who present a significant risk of violence or self-harm to legally acquire and possess firearms.
| Characteristics | Values |
|---|---|
| Federal law | Prohibits firearm access to people with a history of involuntary commitment to a mental health or substance abuse treatment facility |
| State laws | Prohibit firearm purchase for individuals with a history of violent misdemeanor convictions |
| Red-flag laws | Allow law enforcement or family members to get court orders to block a person from accessing firearms if they pose a threat to themselves or others |
| Background check laws | Prevent people from acquiring firearms when they have a significant history of harming themselves or others |
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What You'll Learn
Background checks
The Brady Handgun Violence Prevention Act, or the Brady Act, mandates that licensed dealers request a background check before transferring a firearm. These background checks are carried out through a search of the National Instant Criminal Background Check System (NICS), which includes four federal databases. Two of these databases, the Interstate Identification Index (III) and the NICS Index, contain records that may disqualify an individual from possessing firearms due to mental health adjudications.
While some states have started reporting individuals prohibited from owning firearms due to mental illness, others have cited privacy concerns as a reason for not submitting records to NICS. It's important to note that NICS only includes identifying information such as names and birth dates, with no clinical details. In 2007, Connecticut began reporting these individuals to the background check system, resulting in a 50% decrease in violent crimes committed by this group.
Despite these measures, there have been tragic incidents where individuals with mental health issues have slipped through the cracks and obtained firearms. For instance, in 2007, Seung-Hui Cho, a Virginia Tech student with a history of mental illness, was able to purchase guns and commit a shooting that killed 32 people. This highlights the need for more comprehensive reporting and background check systems to prevent firearms from ending up in the wrong hands.
To address these concerns, House Bill 1711 has gained significant support. This bill aims to add certain mental health records to gun background checks, preventing federally prohibited individuals from acquiring guns. While facing resistance from gun rights groups, it is also supported by mental health and disability rights organizations.
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State vs federal law
In the United States, federal law prohibits anyone who has been "adjudicated as a mental defective" or "committed to a mental institution" from transporting, receiving, possessing, or shipping firearms or ammunition. This prohibition also extends to anyone who has been discharged from custody within the preceding 20 years after being found not guilty of a crime by reason of mental disease or defect. Federal law also prohibits anyone from knowingly selling or providing firearms or ammunition to anyone who they know, or have reasonable cause to believe, falls into these prohibited categories.
According to federal regulations, a person has been "adjudicated as a mental defective" if a court, board, commission, or other lawful authority has determined that they have subnormal intelligence, mental illness, or incompetency. This determination can be made through a variety of legal processes, including criminal trials, civil commitment proceedings, and guardianship hearings.
In addition to federal law, individual states have their own laws and regulations regarding firearm ownership and mental illness. For example, state law may prohibit the possession of firearms by individuals who have been voluntarily admitted to a psychiatric hospital or who have been confined under a probate court order within a certain time frame. State law also allows courts to authorize the seizure of firearms from individuals who are deemed to be a danger to themselves or others, even if they do not fall into the categories prohibited by federal law.
The interplay between state and federal law in this area can be complex, and there may be situations where an individual is prohibited by one level of government but not the other. As such, it is important for individuals with mental health issues and their loved ones to be aware of the laws and regulations at both the state and federal levels that may impact their ability to legally own and possess firearms.
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Mental health reporting
Federal law prohibits firearm access by people who have been convicted of certain crimes or become subject to certain court orders related to domestic violence or a serious mental health condition. These include people with a history of involuntary commitment to a mental health or substance abuse treatment facility or those declared incompetent by a court. Licensed gun sellers are required by law to conduct background checks to screen out prohibited buyers. However, mental health reporting laws vary across states, and federal law cannot mandate states to submit records to the FBI's National Instant Criminal Background Check System (NICS). While some states have enacted prohibitions mirroring federal law in areas like felony convictions, domestic violence, mental health, and drug addiction, others have implemented red-flag laws, allowing law enforcement or family members to obtain court orders to prevent individuals from accessing firearms if they pose a threat.
The current system has notable gaps and relies heavily on individuals truthfully disclosing their mental health histories. This places a significant burden on those experiencing mental distress. Inconsistent enforcement and loopholes in the law have resulted in individuals with a high risk of violence gaining access to firearms. For instance, an individual with known mental health concerns and previous interactions with law enforcement regarding concerns of "suicide by cop" was able to legally purchase two semi-automatic rifles.
To address these concerns, states can play a crucial role by enacting stricter laws that go beyond federal requirements. This includes prohibiting firearm possession by individuals with a history of violent misdemeanors, hate crimes, alcohol and substance misuse, and juvenile crimes. Additionally, strengthening background check laws and ensuring complete and accurate reporting to the NICS database are vital to preventing firearm access for individuals with a history of harming themselves or others.
While there have been calls for stricter gun control laws, it is important to note that the effectiveness of such laws depends on timely and comprehensive enforcement. Inconsistent or delayed responses by law enforcement can undermine even the most well-intentioned legislation. Therefore, it is essential to address not only the legal framework but also the implementation and enforcement processes to ensure the safety of the public.
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Red-flag laws
In the United States, federal law bars a person from owning a firearm only if they fall into one of several prohibited categories. However, a person who shows warning signs of considering suicide or engaging in violent acts, but who is not prohibited under federal law, would still be legally allowed to buy and possess firearms.
To address this gap in the law, some states have implemented Extreme Risk Protection Orders (ERPOs), also known as Red-Flag Laws. These laws allow loved ones or law enforcement to intervene by petitioning a court for an order to temporarily prevent someone in crisis from accessing guns. This is done by submitting an ERPO application and any other necessary documents to the respondent's local Supreme Court. An ERPO can be issued when a person may be dangerous to themselves or others, prohibiting them from purchasing or possessing firearms and requiring them to surrender any guns they already own.
The Red Flag Law provides procedural safeguards to ensure that no firearm is removed without due process while helping to prevent tragedies, such as school shootings or mass shootings. For example, in New York, Governor Hochul signed a law in June 2022 that expanded who could file an ERPO petition to include health care practitioners who have examined an individual within the last six months. This law also ensures that mental health practitioners' reports on potentially harmful individuals are closely considered when determining whether to issue a firearm license.
Research has found that Extreme Risk Laws are associated with reductions in state firearm suicide rates. A multistate study found that one suicide was averted for every 17 ERPOs issued, and when looking specifically at cases where individuals had demonstrated a threat of self-harm, one suicide was averted for every 13 ERPOs issued.
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Risk factors for violence
While there is no specific mention of "psychos" in the law, there are laws in some states that allow for the removal of firearms from individuals who pose a threat. For example, there are "red flag laws" that enable weapons to be taken away from those deemed a danger to themselves or others. This is part of a broader issue concerning the link between mental illness and firearm violence, which has resulted in various policy proposals and interventions.
People with serious mental illnesses (SMI) are more likely to be victims of violence than perpetrators. However, when SMI is poorly managed, untreated, or combined with substance abuse, the risk of violence can increase. Here are some specific risk factors for violence in individuals with SMI:
- History of prior violence or victimization: Past experiences of violence or victimization can increase the likelihood of future violent behavior. This is true for both individuals with and without mental illness.
- Substance use: The use of drugs or alcohol can impair judgment and increase the risk of violent behavior, especially when combined with untreated SMI.
- Inadequate access to treatment: Lack of proper treatment for mental illness can lead to poor management of symptoms, which may contribute to an increased risk of violence.
- Recent victimization: Experiencing victimization, such as threats or assaults, can be a risk factor for violent behavior, particularly when combined with acute psychiatric symptoms.
- Socio-economic factors: Individuals with mental illnesses often face socio-economic deprivation, including unemployment, poverty, inadequate housing, and homelessness. These factors can increase their vulnerability to victimization and heighten their sense of vulnerability and anxiety, potentially exacerbating symptoms of mental illness.
- Family issues: Problems within the family, such as a loved one's untreated SMI or violent behavior, can increase the risk of violence within the household. Maintaining healthy and safe boundaries is critical in such situations.
- Individual factors: Certain individual characteristics, such as being young, male, and in the early stages of a mental illness, can increase the risk of self-harm or violent behavior.
- Community and societal factors: Root causes of violence within society include poverty, racism, community design, education, health, lack of economic opportunities, and involvement with the justice system. These factors can contribute to an increased risk of violence for individuals with mental illnesses.
Am I Protected by Law Enforcement?
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Frequently asked questions
Yes, federal law prohibits selling a gun to anyone with a history of involuntary commitment to a mental health or substance abuse treatment facility, or whom a court has declared incompetent. Licensed gun sellers are required by law to conduct background checks to screen out prohibited buyers.
Red-flag laws allow law enforcement or family members to get court orders to block a person from accessing firearms if they pose a threat to themselves or others. As of 2021, 19 states and Washington, D.C., have implemented red-flag laws.
Red-flag laws are imperfect and sometimes fail to prevent individuals who pose a threat from legally purchasing firearms. For example, in the case of the mass shooting at a FedEx facility in Indianapolis, the shooter was able to legally purchase two semi-automatic rifles even after the police had confiscated a shotgun from him due to concerns about his mental state.
In addition to mental health, federal and state laws may prohibit firearm ownership based on criminal convictions, domestic violence, drug addiction, and other risk factors for future violence.
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