In the US, there are laws, both federal and in many states, restricting the ability of persons with a history of treatment for mental disorders to buy firearms. This has been justified by the common public perception that mental disorders are associated with an increased risk of violence, including with a firearm.
On this page, we won’t get into whether or not persons with a history of evaluation/ treatment for mental disorders are more likely to use firearms in violence against others, and/or should be restricted by law in their ability to purchase firearms. But, whether or not we think that the current laws restricting the gun rights of some persons with mental disorders are appropriate, mental health clinicians still do need to know about these laws.
Why this topic is important
In a survey of psychiatrists in South Carolina (Nagle et al., 2021):
– About 30% of those who responded to the survey reported that they themselves owned a firearm.
– About 45% of the respondents had treated a patient who later died from suicide by a firearm. Note: Using guns to harm others is not the only reason to be concerned about guns and mental illness. You may be surprised to know that two-thirds of deaths due to a firearm are in the form of suicide rather than homicide (Nagle et al., 2021). Also, half of the deaths by suicide involved the use of a firearm (Centers for Disease Control and Prevention, 2018).
– About 50% of the respondents had a patient under their care who had committed an act of violence with a firearm.
– About two-thirds of them had at least one patient who was prohibited by law from owning a firearm.
Another nationwide survey of psychiatrists in the US (Newlon et al., 2020) found that:
– Of psychiatrists who responded to the survey, 37% did not know the effect that involuntary commitment for psychiatric treatment would lead to restriction of gun rights.
– In those states in the US where this applies, over half of the psychiatrists who responded to the survey did not know that, in their states, gun rights are restricted even after voluntary psychiatric admissions and “emergency holds”.
The authors concluded that:
– Clinicians are “uninformed, misinformed, and misinforming patients of their gun rights regarding involuntary commitments and voluntary inpatient admissions”.
– There is “an urgent need for psychiatrist training on their state gun laws.”
The great majority of mental health clinicians have received zero training or guidance about laws related to mental health and the legal ability to buy, own, or possess a firearm/ ammunition. So, in this article, let’s try to understand a few important and clinically relevant things about gun laws in the US. I hope I have convinced you in this section that this is needed?
Federal law about when firearms cannot be sold to someone with mental illness
The Federal Gun Control Act of 1968, 18 U.S.C. § 922(d)(4) notes that:
“It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…has been adjudicated as a mental defective or who has been committed to a mental institution.”
Federal law in the US, unfortunately, still uses outdated language, referring to certain persons with mental illness as “mental defectives”. How does the law define “mental defective”? Any of the following (27 CFR § 478.11):
1. 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:
– Is a danger to himself or to others; or
– Lacks the mental capacity to contract or manage his own affairs.
2. The term shall include:
– A finding of insanity by a court in a criminal case; and
– Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility
Next, how does a licensed gun dealer know that a prospective buyer should not be sold a firearm or ammunition because the buyer falls under one of the categories of persons listed above?
The National Instant Criminal Background Check System (NICS)is a database maintained by the FBI (Federal Bureau of Investigation). Licensed gun dealers are required by law to check the prospective buyer’s name in the NICS database before selling anyone a gun.
But, as of May 2021, background checks using the NICS are not mandated for sales by private sellers or by any unlicensed vendors selling guns at gun shows.
How involuntary psychiatric hospitalization affects gun ownership
Mental health clinicians in the United States need to know that (as of May 2021), involuntary commitment to inpatient psychiatric treatment is required by law to be reported to the National Instant Criminal Background Check System (NICS) and that this has a significant effect on their ability to buy a firearm in the future. Otherwise, they may (Simpson, 2021b):
– Give wrong information to patients and their families, and
– Not be able to take this law into account as a potentially relevant factor when involuntary commitment is being considered.
Of course, clinicians should not use patients’ fear of losing gun rights to force patients to agree to “voluntary” psychiatric admission. In a nationwide survey of psychiatrists (Newlon et al., 2020), 16% of respondents reported that they had told patients that by agreeing to voluntary admission instead of being involuntarily committed, they could retain their gun rights. A voluntary admission should be truly voluntary.
The Virginia Tech shooting and its effects
In 2007, an undergraduate student at Virginia Tech university used semi-automatic handguns that he had legally bought to shoot and kill 32 people, wound 17 others, and to later fatally shoot himself (Source: Wikipedia). This person had a long history of psychiatric illness, and, when he had been accused in the past of stalking two young women, a judge had declared him to be mentally ill and ordered mandatory psychiatric treatment. Given the judge’s declaration and orders, how was he able to later legally buy handguns, you may ask?
There were two reasons why the Virginia Tech student was able to legally buy the two semi-automatic handguns that he used in the Virginia Tech shooting.
1. Only those involuntarily committed to inpatient psychiatric treatment were reportable to the National Instant Criminal Background Check System (NICS). Because this student had only been mandated by the judge to receive outpatient psychiatric treatment, the judge’s decision was not reportable to the NICS database. So, it was not difficult for him to legally buy a gun.
2. Also, at the time of the mass shooting at Virginia Tech, reporting by states to the National Instant Criminal Background Check System (NICS) was voluntary and was often not done.
In response to the Virginia Tech shooting, Congress passed the NICS Improvement Amendments Act (NIAA) of 2007, which increased states’ participation in reporting to the NICS (Nagle et al., 2021). Since then, about half of the states have enacted laws that authorize and require that relevant mental health records be submitted to the NICS (source: Giffords Law Center).
State laws regarding mental illness and gun rights
Federal versus state law
Note: The federal law prohibiting selling or giving of a firearm or ammunition to a person who “has been adjudicated as a mental defective or who has been committed to a mental institution” applies to all 50 states and the District of Columbia whether or not that state has any law regarding this (Newlon et al., 2020). So, the state laws should be thought of as applying in addition to the federal law.
Where to look up the law for your state
You will probably not be surprised to know that laws regarding mental illness and gun rights vary from state to state. So, please make sure to look up the relevant law in the state in which you practice. Here are two websites to start with:
Some states go even beyond the federal law
Some states go beyond the federal law, while others are particularly protective of the gun rights of people in their states, including those with mental disorders.
Some states even prohibit the sale of firearms to persons who:
– Had been voluntarily admitted for inpatient psychiatric treatment. For example, as of May 2021, Illinois state law prohibits selling or giving any firearm to any person who has “been a patient in a mental institution within the past 5 years”. This law doesn’t distinguish between voluntary and involuntary admissions.
– Who were detained on an emergency hold, e.g., a 72-hour involuntary psychiatric admission.
The American Psychiatric Association (2018) has argued against these laws: “Non-adjudicated events should not serve as sufficient grounds for a disqualification from gun ownership and should not be reported to the NICS system. The adjudicatory process provides important protections that ensure the accuracy of determinations (such as dangerousness-based civil commitment), including the right to representation and the right to call and cross-examine witnesses.” But, whatever we may think of them, these laws do exist and we need to know about the laws in the state in which we practice.
Example of going beyond federal law: California
As of May 2021, California state law (Ca. Welf. & Inst. Code § 8100) prohibits having, purchasing, or getting any firearm or other deadly weapon if the person is “receiving inpatient treatment [for a mental disorder], is a danger to self or others, even though the patient has consented to that treatment” (emphasis added).
Example of going beyond federal law: Hawaii
Another example of a state with regulations much more restrictive than the federal law we discussed above is Hawaii (Haw. Rev. Stat. § 134-7.):
“No person shall own, possess, or control any firearm or ammunition therefore, unless the person has been medically documented to be no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect if the person:
Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug, intoxicating compound or intoxicating liquor;
Has been acquitted of a crime on the grounds of mental disease, disorder, or defect; or
Is or has been diagnosed as having a significant behavioral, emotional, or mental disorders as defined by the most current diagnostic manual of the American Psychiatric Association or for treatment for organic brain syndromes.”
Note that this law goes far beyond the federal law in that it covers:
– Owning, possessing, or controlling any firearm or ammunition and not only the sale of firearms/ ammunition like the federal law does.
– Current or past treatment for addiction.
– Current or past diagnosis of ANY significant mental disorder or “organic brain syndrome”.
“Relief from firearm disability”: How patients can get their gun rights back
As you can imagine, a lot of people feel strongly that if a person’s ability to buy a firearm was restricted due to any of the situations covered by federal or state law, as discussed above, these restrictions should not be permanent or irrevocable. These people consider being restricted from buying a firearm to be “firearm disability”.
The American Psychiatric Association (2018) supports this, noting that “There should be a fair and reasonable process for restoration of firearm rights for those disqualified…”. The organization has published a resource document on mental health issues pertaining to restoring access to firearms (American Psychiatric Association, 2020).
So, among the provisions of the NICS Improvement Amendments Act (NIAA) of 2007 was a requirement that federal and state programs be established that would allow persons whose gun rights had been restricted to be able to ask for restoration of those rights (Nagle et al., 2021; Gold and Vanderpool, 2018a). This is called “relief from firearm disability (RFD)“. Most, but not all, states in the US have established such relief from firearm disability programs.
Relief from firearm disability laws vary widely
1. In some states, the prohibition is automatically valid only for a limited period.
For example, as of May 2021, Illinois state law’s prohibition against selling/ giving/ possessing any firearm to/by any person who has “been a patient in a mental institution within the past 5 years” automatically expires 5 years after discharge from the hospital if the person is not readmitted.
2. In other states, the person’s ability to buy a firearm can be restored after some time by certification by a specified type of professional.
For example, as of May 2021, in Massachusetts, 5 years or more after being having been “committed to a hospital or institution for mental illness, alcohol or substance abuse”, the person can submit an application for a license to carry a firearm along with “an affidavit of a licensed physician or clinical psychologist attesting that the applicant is not disabled by a mental illness in a manner that shall prevent the applicant from possessing a firearm, rifle, or shotgun”.
3. In some cases, the patient may effectively be permanently prohibited from buying a gun (Gold and Vanderpool, 2018b).
American Psychiatric Association. Position Statement on Firearm Access, Acts of Violence and the Relationship to Mental Illness and Mental Health Services (approved 2018). Last accessed May 31, 2021.
American Psychiatric Association. Resource Document on Mental Health Issues Pertaining to Restoring Access to Firearms (approved 2020). Last accessed May 31, 2021.
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