Why the NICS Reporting Improvement Act Falls Short

For every 10,000 people who go through a background check to buy a gun, only five are denied for reasons of mental illness.¹ This paltry level of denials for reasons of mental health stems from two facts: the original language defining who should be prohibited is antiquated, and it has been notoriously difficult to get most states to supply disqualifying mental health records to the NICS (National Instant Criminal Background Check System) database.

It is in that spirit that Senator Graham and others have introduced the NICS Reporting Improvement Act of 2013. But their good faith intentions will inadvertently make things worse. This memo explains why.

The bill would remove dangerously mentally ill persons already in the system.

The NICS Reporting Improvement Act would in practice compel an audit of all existing mental health records, because it changes the definition of who should be prohibited. It would thus require NICS to review each record and remove those who would no longer be disqualified from purchasing a firearm. Importantly, for those who would be removed it would not be because they have been determined not to be dangerous.

The 1968 Gun Control Act precludes several categories of individuals from purchasing and possessing firearms. Among those on the prohibited list is the inartful category of someone who is adjudicated “mental defective.” This has been defined in NICS as those who have been judged by a lawful authority as either a danger to themselves or others due to mental illness or as lacking the capacity to manage their own affairs. This current definition includes people who have been involuntarily committed to a mental institution, adjudicated mentally ill in some other way (such as being found not guilty by reason of insanity or incompetent to stand trial), or found to be a danger to oneself and others or incapable of managing their own affairs by a court or other lawful authority such as the Veterans’ Administration.

Over the past several years, particularly after the massacre at Virginia Tech by a mentally ill gunman who erroneously cleared a background check, the federal government and many states have sought to comply more fully with this provision of law and add the appropriate mentally ill people to the NICS database. As a result, there are now approximately 1.8 million records of mentally ill people in NICS today—a vast improvement compared to ten years ago.²

This improvement would be stopped in its tracks by the NICS Reporting Improvement Act because of the proposed law’s new definition of mental illness.

1. The bill would raise the standard for finding someone a danger to themselves or others by requiring that the danger be considered “imminent.” Since this is a new definition, whether the danger was imminent was neither considered nor reported to the NICS system for the existing mental health records, and it may be impossible to determine whether they would have met this new higher standard, so all of those records could be potentially invalidated. Imminence also implies a time limitation, meaning it could require regular review of each prohibited person’s record to determine whether the danger remains “imminent”—a task that would be completely unworkable under the current system.
2. It would also eliminate the entire category of people who are found not capable of managing their own affairs—a group which has been prohibited from purchasing firearms since 1968. Again, this change would require both an audit of current records in the system and the removal of records for those who have been determined incompetent to manage their own affairs.

By changing the standard of who is considered a danger to themselves or others and eliminating the prohibition for those judged incapable of managing their own affairs, the bill would call into question every mental health record in the current system. Each record would have to be reviewed to see whether the person should be considered “imminently” dangerous to themselves or others, a higher threshold that may be impossible to determine for many records based on the current information in the system.

The bill would automatically restore gun access to mentally ill persons without any proof their status has changed.

Getting out doesn’t necessarily mean being well, but the proposed law would restore gun rights to anyone released from a mental health institution regardless of their dangerousness or competence.

The NICS Reporting Improvement Act requires NICS to delete from the database the names of those who have completed mandatory or involuntary treatment, regardless of whether that person’s status as incompetent, mentally ill, or an imminent danger to himself or others has changed. This means that upon release from involuntary commitment, every person automatically and immediately would have the ability to purchase a firearm.

Under current law, 22 states allow people to show they are no longer mentally ill or a danger which allows them to be removed from the background check system, and federal law encourages states to develop and maintain such a procedure. But under Senator Graham’s proposal, upon discharge from treatment, those who were involuntarily committed or found not guilty by reason of insanity would automatically be able to purchase guns, even if their release was based not on a finding of competency or mental stability, but because of a predetermined treatment timeframe or judicial sentencing guidelines. As such, the bill would effectively eliminate the prohibition on gun ownership by those who were involuntarily committed or found not guilty by reason of insanity, since that prohibition is not aimed at their actual time in a facility (where their access to guns is not in question) but the time after they have been released.

Conclusion

The linchpin of our gun laws is the NICS database. It is a good system, but not a great one. It does an excellent job of stopping felons, a good job of stopping domestic abusers, and a mediocre job for those who are mentally ill. As of October 31, 2012, nineteen states had submitted fewer than one hundred mental health records to the system, eleven had submitted fewer than ten, and Rhode Island had submitted a grand total of zero.

Despite good intentions, this bill would not improve reporting of records by the states. On the contrary, it actually removes important records already in the NICS system. What we really need to do to improve the system and make sure guns stay out of the hands of those who are a danger to themselves and others is to incentivize states to submit mental health records to the system. The Graham bill doesn’t do that.