Contrary to popular narratives espoused in the aftermath of tragic events involving both firearms and mentally ill persons,REF many federal and state laws already exist that restrict access to firearms by mentally ill individuals. The relevant question is often not whether there are mechanisms in place to prevent people suffering from a serious mental illness who pose a danger to themselves or others from possessing firearms, but rather whether those mechanisms are being adequately utilized by the relevant authorities. Moreover, because mental illness is so transient in the lives of so many individuals—and because the vast majority of mentally ill individuals are not and will never become violent (especially when treated)—laws restricting fundamental constitutional rights must contain adequate due-process protections and refrain from using broad, over-inclusive prohibitions.

To be more effective, laws regulating access to firearms by the mentally ill should focus on intervention and prohibition for specific individuals whose actions evidence that they pose a heightened risk of danger to self or others. States should also do everything practicable to increase the number and timeliness of disqualifying mental health histories reported to the National Instant Background Check System. These actions, however, should be taken with a view toward respecting due process and providing mechanisms for the restoration of an individual’s Second Amendment rights after he or she no longer poses a heightened risk of danger.

Federal Law Provides a Minimum Level of Restrictions on Firearm Possession by Mentally Ill Individuals

The principal source of federal regulation of firearms in relation to mental illness is the Gun Control Act of 1968, which prohibits the possession of firearms by any individual “adjudicated as a mental defective” or who has been “committed to a mental institution.”REF Federal law defines the term “adjudicated as a mental defective” to mean: “A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease (1) is a danger to himself or others; or (2) lacks the mental capacity to contract or manage his own affairs.”REF This includes a finding of insanity by a court in a criminal case, as well as equivalent findings under the Uniform Code of Military Justice.REF

Meanwhile, the term “committed to a mental institution” necessitates a “formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority,”REF including an involuntary commitment to a mental institution for mental defectiveness, mental illness, or drug use.REF It does not, however, include voluntary admission to a mental institution or a temporary stay for observation.REF

In 1986, Congress passed the Firearms Owners Protection Act, which established a “relief from disabilities” program for individuals prohibited from possessing firearms under the Gun Control Act.REF Applicants could petition the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to restore their firearms rights upon a showing that he or she “will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”REF Denials of relief would be subject to judicial review. This program, however, proved politically divisive, and in 1992, Congress stopped providing funding, causing the ATF to stop accepting restoration petitions.REF

Since then, individuals who have lost their right to purchase or possess a firearm through a federal criminal conviction or determination of a disqualifying mental defect have no way of getting those rights restored.REF Many states—but not all of them—have enacted their own mechanisms for restoring the Second Amendment rights of individuals disqualified from possessing firearms due to criminal convictions, adjudications of mental defectiveness, or involuntary mental health commitments under state law.REF

The NICS index is, in layman’s terms, a database of criminal and mental health records that would disqualify an individual from purchasing or possessing a firearm.

Congress strengthened the enforcement mechanisms of the Gun Control Act with the Brady Handgun Violence Prevention Act of 1993.REF Although some provisions of this Act expired in 2003 and were not renewed, the provision establishing the National Instant Criminal Background Check System (NICS index) remains in force.REF The NICS index is, in layman’s terms, a database of criminal and mental health records that would disqualify an individual from purchasing or possessing a firearm.REF The NICS index is run by the FBI as a means of facilitating background checks by Federal Firearms Licensees,REF who are required under the Brady Act to request federal background checks on all prospective firearm purchasers.REF

Federal law mandates that federal agencies, upon request from the Attorney General, submit to the NICS index all records of individuals disqualified from purchasing firearms. In the 1996 case of Printz v. United States,REF however, the Supreme Court held that Congress’s attempt, through the Brady Act, to “commandeer” state officials to perform background checks violated the Tenth Amendment.REF The FBI is, therefore, reliant on states to voluntarily submit relevant records for use in the NICS index, but most states have not been willing to disclose many pertinent records—particularly, relevant mental health records—because, they claim, the disclosure of such records violates individual privacy rights and protections afforded under the Health Insurance Portability and Privacy Act (HIPAA).REF By 2007, over a decade after the Brady Act became law, 28 states had failed to submit a single record to the NICS database.REF

In 2007, Congress passed the NICS Improvement Amendments Act, which attempted to further incentivize state reporting of disqualifying records to the NICS index.REF These incentives, as well as several high-profile mass public killings that might have been prevented through more active state disclosure of disqualifying records, appeared to substantially increase state reporting to NICS.REF The NICS index, however, is likely still missing millions of disqualifying histories because of problems with record backlogs and because many states still fail to adequately and promptly report relevant records.REF

After a 2017 mass public shooting at a church in Sutherland Springs, Texas, it also became evident that even the military—which is required to submit disqualifying records—had failed to report a significant percentage of relevant histories to the NICS index.REF In March of 2018, Congress passed and the President signed into law the Fix NICS Act in an effort to address some of these significant problems.REF The Act increases oversight over federal agencies and renders ineligible for bonus pay the political appointees of those agencies that fail to show themselves in “substantial compliance” with plans for better reporting.REF It also increases funding for assisting state reporting to the NICS index and directs the Attorney General to prioritize funding states that establish plans under the Act for increasing their NICS reporting.REF

On the whole, federal prohibitions on the possession of firearms by the mentally ill correctly place the focus on individualized determinations of dangerousness and not on the broader category of diagnosis alone.

In 2017, President Donald Trump rescinded an Obama-era regulation that, though never actually put into effect, would have required the Social Security Administration to report to the NICS index those individuals who successfully filed a disability claim for mental health reasons and requested that another person be given authority over those disability payments.REF Part of the controversy surrounding the Obama-era regulation was that disability claims of this nature do not require any “adjudication” of mental defect by a judge or jury or an involuntary commitment to a mental institution.REF Any person checking a box on a form submitted to the Social Security Administration would have seen their Second Amendment rights automatically revoked. Even the American Civil Liberties Union, an organization not known for staunchly defending Second Amendment rights, fought against the implementation of the regulation,REF which would have revoked constitutional rights of individuals with such illnesses as anorexia and mild autism without any meaningful due process.REF

On the whole, federal prohibitions on the possession of firearms by the mentally ill correctly place the focus on individualized determinations of dangerousness and not on the broader category of diagnosis alone. This is consistent with both the Second Amendment’s protection of a fundamental right and with the recognition that mental illness in and of itself is not significantly related to an increased risk of future violence.

The lack of federal mechanisms for the restoration of Second Amendment rights, however, is deeply problematic and effectively leaves some individuals permanently stripped of their Second Amendment rights, regardless of whether they currently pose a heightened risk of danger to themselves or others. Further, as detailed below, some states impose much broader and more severe restrictions than does federal law and similarly fail to provide a way of having Second Amendment rights restored.

Several States More Severely Restrict the Second Amendment Rights of a Broader Segment of the Population

Against the recommendation of the American Psychiatric Association (APA), several states have broadened the scope of their firearms prohibitions to include individuals who voluntarily commit themselves to mental institutions.REF On the one hand, there is certainly an argument to be made that individuals who commit themselves and who meet the criteria for inpatient mental health care are more likely to pose a danger to themselves or others. On the other hand, there are very legitimate concerns that the potential loss of Second Amendment rights could dissuade individuals from cooperating in their own mental health care—and even increase the likelihood of a person committing violent acts by delaying treatment.

Moreover, these restrictions apply to individuals who were aware enough of their deteriorating mental state to seek help and who may remain under inpatient care for a very short period of time before stabilizing—sometimes without ever again needing an intensive level of treatment. These individuals are not necessarily more prone to violent actions, and disarming them for lengthy periods of time—or in some cases, permanently—serves no real purpose.

Even more concerning than the expansion of restrictions to those who voluntarily seek inpatient mental health treatment is a 2013 New York law that puts at risk the Second Amendment rights of any person voluntarily seeking any type of mental health care. The Secure Ammunition and Firearms Enforcement (SAFE) Act,REF which was pushed through the state legislature on the heels of the horrific school shooting in Newtown, Connecticut, requires most medical practitionersREF to file reports on any person whom they believe is at risk of harming himself or others.REF These reports are forwarded to the local director of community services to evaluate the concern, and, in practice, almost all concerns are deemed “credible.”REF The reported person’s information is then sent to the state’s Department of Criminal Justice, which adds the person’s name to “no-buy” database for five years, reports the information to the national NICS background system as a disqualifying mental health record, and cross-checks with the state’s database of firearms licenses.REF

Several prominent mental health associations have argued that the SAFE Act’s mandatory reporting provisions also force doctors to violate the Health Insurance Portability and Protection Act.

If the person is a licensed firearm owner,REF local police are then tasked with confiscating his or her guns. At no point in this process is the individual given notice of the report, entitled to an evidentiary hearing or legal representation, or otherwise provided with the slightest semblance of due process. There is not even a post-deprivation hearing, nor does the statute provide any mechanism by which a person may have his or her Second Amendment rights restored.REF Within the first year of the SAFE Act, tens of thousands of New Yorkers had their Second Amendment rights eliminated under the mandatory-reporting provisions, many of whom still may not be aware that they have lost their rights.REF

Despite several challenges to the mental health–related portion of the law, as of the time of this writing no federal court has yet ruled directly on the law’s constitutionality as applied to an individual whose license was revoked solely on the basis of the reporting requirement.REF On its face, the SAFE Act appears inconsistent with the Supreme Court’s holdings in the pre-eminent Second Amendment cases of District of Columbia v. HellerREF and McDonald v. City of Chicago.REF

Like the other restrictions applied to people who voluntarily commit themselves to psychiatric facilities for treatment, the SAFE Act’s provisions regarding mental health and firearm possession may deter individuals from voluntarily seeking mental health treatment that they may desperately need in the first place, which may result in New Yorkers being less safe.REF The reporting mandate also raises serious concerns about a physician’s duty of confidentiality, which is both uniquely critical to the field of psychiatric treatment and imposes legal liability on physicians who breach that duty absent certain circumstances.REF Several prominent mental health associations have argued that the SAFE Act’s mandatory reporting provisions also force doctors to violate the Health Insurance Portability and Protection Act.REF

The State of Hawaii similarly maintains broad but highly questionable restrictions on Second Amendment rights. The state’s firearms laws prohibit the possession of firearms by any person “diagnosed as having a significant behavioral, emotional, or mental disorder as defined by the most current diagnostic manual of the American Psychiatric Association” unless that person “has been medically documented to be no longer adversely affected by the…mental disease, disorder, or defect.”REF

This broad categorization focuses exclusively on a person’s diagnosis and not on dangerousness or an individualized risk assessment as the basis for eliminating a person’s Second Amendment rights. And, like the SAFE Act and the voluntary commitment statutes discussed above, a statute that imposes a Second Amendment prohibition on anyone diagnosed with a significant behavioral, emotional, or mental disorder, without any regard to dangerousness, may deter some in need of treatment from seeking it on their own. Ironically, Hawaii relies on the APA’s expertise in defining mental disorders but roundly ignores the APA’s position on policies prohibiting the possession of firearms by individuals with mental illness.REF

Intervention Policies Should Focus on Temporary Disarmament of Individuals Whose Actions Indicate a Significant Risk of Violence, Providing Treatment, and Respecting Due-Process Rights

States Should Promptly and Adequately Share Mental Health Records with the NICS Database. The federal government has taken steps to encourage states to report relevant criminal and mental health records to the FBI for use in the NICS database, yet many states still fail to adequately share them and to do so in a timely manner. While state reports have increased approximately 200 percent since 2013, millions of records are likely still missing from the database, and the statistical increase can be attributed to the improved efforts of only a handful of states.REF As of December 31, 2017, there appeared to still be at least five states with fewer than 1,000 reported mental health histories.REF

Although some states rely on their own internal databases of disqualified individuals, many do not make these records available to other states via the NICS database, thus creating a loophole for disqualified individuals to simply purchase firearms in another state.REF Finally, several states have not yet passed laws mandating that entities covered by HIPAA disclose otherwise protected mental health information for purposes of NICS reporting, thereby continuing to possibly hinder the disclosure of this important information on a national level.REF

Despite these gaps, the NICS database flagged and denied more than 1 million firearm transactions between 1998 and 2012,REF with some estimates suggesting that the number could be more than 3 million as of 2018.REF If more relevant records are submitted to the NICS, it is very likely that more disqualified individuals—including people with severe mental illness who pose a danger to themselves or others—will be prevented from legally purchasing a firearm.

The capacity to save lives through increased reporting is significant. One study found that “when states report mental health records to the federal system, they experience a 3.3–4.3% reduction in firearm-related suicides with no evidence of substitution to non-firearm methods.”REF Spread across all 50 states, an estimated 840 to 900 suicides could be prevented every year if states would simply submit disqualifying mental health histories to the NICS system, helping to ensure that people who have already been adjudicated as seriously mentally ill cannot legally purchase new firearms with which to harm themselves.

While there is little evidence that more adequate reporting of disqualifying records is associated with a decrease in gun homicide rates,REF it could well have prevented some of the worst acts of mass public shootings in the past two decades. For example, Devin Kelley was able to purchase several firearms—despite his lengthy history of disqualifying criminal and mental health records—solely because the U.S. Air Force neglected to forward these records to the NICS database.REF Unlike states, federal agencies are required by law to report disqualifying records to the FBI for the NICS database. But for the past two decades, the Army, Navy, and Air Force have failed to report the vast majority of military court-martial convictions, despite several public reports from the inspector general detailing this failure.REF

Similar failures of submission by states helped shooters obtain firearms in the following high-profile cases:

• Russell Weston, who was able to purchase a firearm in Indiana despite having spent 54 days in a Montana mental institution for schizophrenia.REF
• Paul Merhige was also able to pass a federal background prior to murdering four individuals on Thanksgiving Day in 2008, even though he had been involuntarily committed to a mental institution three times.REF
• Prior to killing four and injuring two at a Waffle House in Tennessee, Travis Reinking’s firearm possession permit for the state of Indiana was revoked by state officials due to Reinking’s deteriorating mental health.REF

Sometimes, states failed to report disqualifying mental health histories simply because their submission forms did not adequately account for verbiage discrepancies between state and federal law. Two years before committing the worst school shooting in U.S. history, Seung-Hui Cho was declared by a Virginia community services board to be “mentally ill and in need of hospitalization.”REF A Virginia special justice certified that Cho “presented an imminent danger to himself as a result of mental illness” before ordering him to undergo outpatient mental health treatment.REF Under federal law, this disqualified Cho from purchasing or possessing a firearm.REF

At the time, however, Virginia did not submit Cho’s mental health record to the NICS database, in part because the state’s forms did not include a “check box” for involuntary outpatient orders, even if the individual was “adjudicated as a mental defective.”REF Because of this, when Cho purchased the two handguns used in the Virginia Tech shooting, he was able to pass a mandatory federal background check even though he had clearly been “adjudicated as a mental defective” for purposes of federal law.REF States should therefore review how their submission forms may provide loopholes for otherwise disqualified individuals to pass background checks.

States Should Impose Narrowly Targeted Restrictions that Focus on Identifiable Risks of Future Violence but also Respect Due Process. Especially in the wake of the Parkland, Florida, shooting at Marjorie Stoneman Douglas High School, there has been a renewed interest by politicians and commentators in Gun Violence Restraining Orders (GVROs) and so-called “red flag laws.”REF

GVROs and red flag laws are already used in some states to temporarily remove firearms from the possession of individuals exhibiting signs of a mental health crisis or otherwise indicating they are at a heightened risk of violence toward themselves or others. The specifics of the statutes vary, but the general idea is that law enforcement officers (and, in some states, family members) may petition courts to issue search warrants to seize the firearms of individuals presenting a likely risk of harm to self or others in the near future.REF These search warrants must be based on the officers’ sworn affidavit explaining why he or she believes the individual presents this likely risk of future harm, whether due to diagnosed mental illness, emotionally unstable conduct, personal crisis, or other behaviors that support a reasonable belief that the person is at risk for violent conduct.

If the search warrant is granted and the firearms are seized, the state has a limited time in which to conduct an evidentiary hearing at which it must prove beyond some heightened standard of proof that the individual does indeed pose a risk of future harm—and at which point the individual can challenge the allegations. Sometimes, under exigent circumstances, law enforcement officers may seize the firearms without a warrant. These emergency seizures must, however, be subsequently determined by a judge to have been based on probable cause, often within 48 hours of the seizure.REF

There are many benefits to the use of GVROs as a supplement to mental health and civil commitment statutes, the most important of which is that they allow officials to focus on a broader range of factors than just the presence of a diagnosable mental illness when making determinations of dangerousness. Often, factors such as drug abuse, recent acts of violence, and threats of suicide are far better indicators of future violence than the simple presence of mental illness, and these factors are not always coupled with an underlying mental illness.REF

States should impose narrowly targeted restrictions that focus on identifiable risks of future violence but also respect due process.

This means that, in states relying solely on lengthy and burdensome civil commitment procedures for disarmament,REF violent individuals are often free to access firearms for long periods of time after they begin exhibiting violent behaviors, simply because they do not yet have a disqualifying mental health or criminal record.REF At the same time, GVROs are narrowly focused on only those individuals with mental illness who also display signs of violence, and do not—unlike Hawaii’s law and New York’s SAFE Act—broadly categorize all persons with mental illness as presenting a heightened risk of violence.

GVROs also have the added benefit of inducing otherwise uncooperative individuals to voluntarily seek mental health treatment or crisis counseling as a means of having their firearms returned. Further, the determination of dangerousness under GVRO statutes does not necessarily result in the types of life-long civil rights disabilities imposed by criminal convictions and civil commitments under mental health statutes.REF In other words, these statutes provide a middle ground between civil commitment procedures with very intrusive government intervention and informal police suggestions that a person seek mental health treatment voluntarily. In this middle ground, individuals posing a heightened risk of violence can be temporarily disarmed and induced to treatment without incorporating the fullest extent of mental health court oversight.

Finally, GVROs are one of the few means available by which states could significantly reduce certain subsets of gun violence without sacrificing either the civil rights of law-abiding citizens through wholesale restrictions on their right to keep and bear arms or the due-process rights of individuals allegedly posing a heightened risk of future violence. In terms of preventative value, the GVRO could have been used against such high-profile mass killers as Esteban Santiago-Ruiz,REF Jared Loughner,REF Jarrod W. Ramos,REF Eliot Rodger,REF and Nikolas Cruz.REF But this preventative value does not appear to come at the cost to due process imposed by overly broad “solutions” like New York’s SAFE Act.

Often, factors such as drug abuse, recent acts of violence, and threats of suicide are better indicators of future violence than the simple presence of mental illness, and these factors are not always coupled with an underlying mental illness.

Several researchers have studied how GVROs are utilized by states in practice and found that they can be fairly effective at temporarily disarming potentially dangerous individuals without unnecessarily sacrificing due-process protections. In a 2017 study, it was revealed that between 1999 and 2013, Connecticut used its gun removal law to seize firearms from 762 individuals.REF The annual rate of gun seizures under the statute increased substantially in the years following the 2007 shooting at Virginia Tech University but remains at an average of about 100 removals per year in a state with an estimated 448,000 gun owners.REF Of the cases in which the outcome of the seizure hearing was known, 10 percent of individuals had their firearms returned.REF While this may seem low, it is actually surprisingly high given that the low total number of seizures suggests that officers are directing their attention to the most grievous instances of imminent danger.REF

Shockingly, 88 percent of individuals whose firearms were seized had no criminal history in the year prior to the seizure, and only 12 percent had received mental health services in the year prior to the seizure.REF By contrast, in 55 percent of cases, law enforcement officers were so concerned for the imminent well-being of the individual that they brought him or her to the hospital for an evaluation.REF In other words, these were individuals who were flying under the radar of local law enforcement or mental health agencies and may have continued to spiral into a violent mental health crisis had it not been for the intervention of law enforcement during GRVO investigations.

A second study examined data from both Connecticut and Marion County, Indiana.REF According to this study, in 2015, police officers in Connecticut removed firearms from individuals under the state’s GVRO law on 180 occasions, approximately 65 of which involved individuals with serious mental illness.REF In 2012, police in Marion County, Indiana, utilized the state’s red flag law 30 times, with about 13 of those involving serious mental illness.REF In both Connecticut and Indiana, most people were placed under temporary observation but were not involuntarily committed. In most cases, their firearms were shortly returned to them.REF

This suggests that the post-deprivation processes are providing legitimate due-process protections that are not simply rubber-stamping the decisions of law enforcement officers or mental health practitioners. Further, by combining the information in the studies cited above, it becomes apparent that these laws also target a class of individuals unreached by mental health commitment laws: Only 30 percent to 40 percent of gun seizures in both studies were from individuals suffering from a known mental illness, while the other 60 percent to 70 percent of seizures stemmed from intimate partner conflict, intoxication, and acute emotional distress unrelated to an underlying mental illness.

A third study examined the data regarding firearm seizures under Indiana’s law in Marion County, Indiana, between 2006 and 2013, and concluded that the law resulted in the removal of firearms from only a small number of persons, most of whom did not seek to have their firearms returned.REF The county is populated by 950,000 residents, yet prosecutors filed for weapons seizure under the law only 404 times during this seven-year period.REF More than two-thirds of the petitions were for individuals presenting a risk of suicide, while 21 percent were for general violence, and another 16 percent were for individuals presenting signs of psychosis. Intoxication was noted in 26 percent of petition incidents, and domestic dispute scenarios accounted for about 28 percent of petitions for seizure—supporting the conclusions drawn above that these laws help at least temporarily disarm individuals who could not have been disarmed under existing mental-health-commitment laws.

More than two-thirds of the petitions were for individuals presenting a risk of suicide, while 21 percent were for general violence, and another 16 percent were for individuals presenting signs of psychosis.

In roughly one-third of the cases, the firearms were returned by the court following the initial hearing, and the cases were dismissed.REF This tends to show a measured approach by law enforcement that focuses on removing firearms only from those individuals showing acute signs of imminent danger to self or others, all of which is further tempered by hearings in front of a neutral court that did not simply rubber-stamp the decisions of officers or prosecutors. Finally, similar patterns were reported in Maryland during the first month after the state enacted its own “red flag” framework, further suggesting that the measured approach is not limited to a particular state or jurisdiction.REF

Conclusion

The federal laws regulating the purchase and possession of firearms by individuals with mental illness provide a starting point that is praiseworthy in intent but significantly flawed. Both Congress and some state governments have attempted to address some of these flaws through different measures that have met with varying degrees of success. States seeking to reduce gun violence perpetrated by individuals with histories of mental illness should:

• Make serious efforts to increase the adequate and timely reporting of disqualifying mental health histories to the NICS database;
• Promulgate laws that focus on the timely and effective removal of gun access for specific individuals in the midst or on the verge of mental health crises, who by their actions show themselves to be a heightened risk of danger to themselves or others;
• Ensure that such individuals are afforded due-process protections prior to or, at the very least, immediately following the restriction of their Second Amendment rights; and
• Increase the likelihood that individuals with mental illness will participate in their own treatment by affording adequate mechanisms for the restoration of their Second Amendment rights when they no longer pose a heightened risk of danger.

—John G. Malcolm is Vice President of the Institute for Constitutional Government, Director of the Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at The Heritage Foundation. Amy Swearer is a Legal Policy Analyst in the Meese Center.