Post Aurora – Firearm Mental Health Disqualification Issues

After the mass shooting in Aurora, Colorado, it is now obvious that regardless of whether people underwent all the necessary criminal background checks when purchasing firearms in this country, the guns still make their way to mentally unstable individuals. This is because, screening for mental health and mental instability is voluntary at best. Although currently, everyone is still capable of buying their guns, through private sales and gun shows without undergoing any sort of checks whatsoever.

The law only requires checks when guns are purchased from federally licensed firearm dealers (FFLs), those who are not engaged in the industry or those people who are not dealers skip the screening process completely. A private study shows that privately sold firearms account for forty percent of all gun sales within the United States.

The specific disqualifications associated with mental health are very narrow. Under federal law, a person is prohibited from buying or possessing firearms if they have been “adjudicated as a mental defective” or “committed to a mental institution.” There is no guarantee, however, that a formal record of adjudication or involuntary commitment will find its way into the NICS database. Often disqualifying mental health records go unreported by the states. In Colorado, for instance, no more than one percent of people that have disqualifying mental health histories are actually reported to NICS.

Another issue is that few Americans being affected by serious mental illness ever come into contact with the “system” or receive treatment for their condition(s). According to the National Alliance on Mental Illness (NAMI), approximately ten percent of children and adolescents are afflicted by mental illnesses. Yet only twenty percent of the group are actually diagnosed and are receiving services. Looking at adults, approximately one out of 17 are experiencing a serious mental disorder such as schizophrenia, major depression, or bipolar disorder. Yet less than one third receive mental health services.

Several states have enacted laws that may serve as models for federal legislators. California, for instance, has a graduated method of tackling the problem, by prohibiting the buying and possession of firearms by people who:

• Have been voluntarily admitted to a psychiatric facility and are receiving inpatient treatment for a mental illness and the attending mental health expert states that the individual poses a risk to himself or. Once a person has been discharged from the facility, the prohibition will no longer apply.




• Have communicated to a licensed psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims. This prohibition applies for six months after the report of a threat is made. The subject of the prohibition may petition to have it removed.




• Are currently under a court-ordered conservatorship because they are “gravely disabled” as a result of a mental disorder. The prohibition expires when the conservatorship ends, though the subject of a conservatorship may ask the court for a hearing to contest the prohibition.




• Are receiving involuntary mental health treatment as part of a 72-hour hold (also known as a 5150) because they are a danger to themselves or others. The individual is prohibited from purchasing or possessing firearms while they are in the facility and for five years from the date of admission to the facility. The subject of the prohibition may go before a state court to petition for the restoration of their right to purchase and possess firearms.

The point is that it has been almost 45 years since legislators defined mental health disqualifications for buyers in the Gun Control Act of 1968 and it may be time to find other solutions. Perhaps in providing law enforcement officials and health care professionals with the proper tools along with a more broad policy of background checking for gun sales will certainly lead to a safer home for us all.