How Mental Health Background Checks Affect Carrying and Owning Guns
President Donald Trump’s Second Amendment platform calls to attention an important consideration for gun owners: how do mental health background checks play into the firearms industry?
For context, his platform highlights the need to “fix our broken mental health system,” expand treatment programs and “reform laws to make it easier to take preventive action to save lives.”
Improving mental healthcare should be supported no matter one’s political background, but aside from treatment, mental health is an important consideration when it comes to firearms.
It factors into carry permits and firearms purchases through background checks.
How the NICS Background Check Looks at Mental Health
Anyone purchasing a gun from a location qualified with a federal firearms license will fill out an ATF form 4473, which will be used to aid the NICS background check process.
This works similarly for state concealed carry or general wear and carry permit applications — there will be a background check through the National Instant Criminal Background Check System.
The system identifies background reports that disqualify firearms ownership, and in regard to mental health it ensures there isn’t a breach of 18 U.S.C. §922 (g) (4), which under the Gun Control Act of 1968 forbids firearms access to those who have “been adjudicated as a mental defective or committed to a mental institution.”
Before considering how this background check incorporates mental health into its criteria, it’s important to review how the system, itself, works.
Established via the Brady Handgun Violence Prevention Act (Brady Act) of 1993, it’s a nexus of databases that hold federal and state records of individuals’ backgrounds that match federally identified criteria prohibiting possession and purchase of deadly weapons.
FFLs and law enforcement agencies in participating states conduct background checks through phone or internet, but the level of participation varies.
There are currently 13 full point-of-contact states, meaning once receiving the ATF form 4473 or a permit application the background check is conducted in state through a designated agency that accesses and runs the background check.
Seven states have a partial POC system, meaning there is a state agency that conducts NICS background checks for handguns, while long gun background checks are forwarded to the NICS Section. There are 36 states with no POC status and simply rely on NICS for all background checks.
The NICS background check is used to ensure public safety by keeping firearms out of the wrong hands, but it’s a flawed system and has seen updates since it was conceived.
This is proven by the NICS Improvement Amendments Act (NIAA) of 2007 signed into law in early 2008 by President George Bush. It was a reaction to the April 2007 tragedy at Virginia Tech. The shooter was able to purchase firearms from an FFL because prohibiting information about his mental health background was not available in the NICS system.
The act sought to improve and incentivize submitting information to NICS databases, specifically concerning mental health adjudications and commitments.
There have been concerns under the Health Insurance and Portability and Accountability Act of 1996 (HIPAA), however, and how it relates to privacy concerns with confidentiality of state records.
But, disclosure of records is possible when lessening or preventing serious threats to public safety and health, when required by law (and state law) and for law enforcement use, according to 45 C.F.R. §§ 164.508, 164.512(a), (f), (j).
There was a 700 percent increase in mental health records between the Virginia Tech shooting and January 2014, according to the Criminal Justice Information Services Division of the Federal Bureau of Investigation.
These tragedies committed at the hands of individuals who received firearms despite their disqualifying mental faculties — which among other reasons this access to firearms is often caused by insufficient reporting or private sales with no federal background checks conducted — are intended to be avoided through these background check systems.
Out of the total 1,166,676 NICS Section denials between November 1998 and December 2014, there were 16,669 mental health adjudication denials, according to FBI reports.
As of 2014, there were 12,881,223 NICS Index records, which show who may be disqualified from owning firearms when and why, and of those, adjudicated mental health records ranked second for the number of entries — 3,774,301.
The too long; didn’t read version: NICS background checks look at multiple systems of reported individuals who are disqualified from accessing firearms, and the mental health facet primarily concerns adjudications and involuntary commitments to mental health institutions.
How Mental Health Can Prevent a CCW Permit Application
Mental health background checks, which are inherently a part of the NICS check, mostly search for reported information regarding those “adjudicated as mental defective.”
Notably, this doesn’t necessarily outline which mental health conditions do and do not warrant a denial, but rather under 27 C.F.R. § 478.11 it means one who is “a danger to himself or others” and “lacks the mental capacity to contract or manage his own affairs.”
States may classify specific categories of individuals beyond that federal baseline. “Dangerously mentally ill” can be a subjective term in a case-by-case basis.
There are 47 states that authorize or require submitting health records. Their required timeframe for reporting ranges from immediately to 48 hours to 30 days to “a timely manner.”
Just because the authorization to report mental health records is there, doesn’t mean it plays out in reality. State submission of records is voluntary.
Flawed Mental Health Record Submissions
A July 2012 report from the United States Government Accountability Office, an evaluative and investigative arm of Congress, reported a gap in submitted mental health records for NICS background checks.
Between October 2004 and October 2011, there was an increase in mental health records from 126,000 to 1.2 million, but this was by and large the result of about 12 states. Most others made little to no progress following NIAA.
According to the report, technological, legal and other challenges limit some states’ abilities to actively report mental health records.
In that time span, three states increased their total submitted mental health records to about 150,000 each, whereas nearly half of all states increased their records on average by less than 100. As of October 2011, 17 states and five U.S. territories provided fewer than 10 mental health records for the NICS Index.
Federally funded grants are offered to offset costs and incentivize the process of actually submitting data on potentially dangerously mentally ill patients, and while things may have improved, even since the report in 2012, mental health remains a key issue in the spectrum of gun legislation.
Time will only tell how the standards, reporting mechanisms and systematic flaws will change how mental health records are improved.
As it stands, mental health reporting and healthcare remains debatably as much of a powerful tool for public safety as do the rights the Second Amendment affords. When and how mental health and firearms become interrelated, however, only serves to highlight, exacerbate and complicate bipartisan discussion on gun rights.
About The Author
Jake Smith (@notjakesmith) is a copywriter in his final year of studying public relations and apparel at the University of Idaho.