It took a national nightmare, but America’s passion for firearms has cooled and President Obama is seizing the moment for reform. If he succeeds, the country will soon revive the ban on military assault weapons, ban high-capacity magazines and fill the widest gaps in our mental health system. In unveiling his blueprint for gun reform last week, the president also promised to expand the background checks required for commercial gun sales. “An overwhelming majority of Americans agree with us on the need for universal background checks,” he said―“including more than 70% of the National Rifle Association’s members, according to one survey. So there’s no reason we can’t do this.”
But background checks are tricky, especially where mental health is concerned, and NRA blowback isn’t the sole obstacle to expanding them. In his speech this week, the president hinted at loosening medical privacy laws to better identify dangerous people—a step that would raise issues extending far beyond gun control. He also promised to make the relevant health records more accessible—a mission akin to growing trees on Mars. “It’s a good aspiration,” says Richard Bonnie, director of the University of Virginia’s Institute of Law, Psychiatry and Public Policy, “but you’d have to weave a vast patchwork of local jurisdictions into a national data infrastructure that doesn’t yet exist.”
To be sure, mandatory background checks serve a critical purpose. Though only 60% of the nation’s gun sales are currently subject to background checks, the president notes that the checks have helped keep more than 1.5 million guns "out of the wrong hands” since 1999. But only one applicant in 417 was turned down in 2008 (the most recent year on record), and only a minute fraction of those denials hinged on mental health issues. The vast majority involved past felonies or domestic violence complaints. So it’s not clear that tougher mental-health standards would make background checks more effective.
Mental health advocates agree that people deemed dangerous are best left unarmed, but they’re wary of proposals to broaden the mental health exclusion. Under the 1994 Brady Handgun Violence Prevention Act, only publicly reported medical records get reviewed—and no sale is blocked unless the applicant has been formally “adjudicated as a mental defective” (sic) or involuntarily committed for treatment. The government defines a “mental defective” as someone a “court, board, commission, or other lawful authority” has deemed either “a danger to himself or others” or unable to manage his own affairs because of “marked subnormal intelligence, or mental illness, incompetency, condition, or disease.”
Despite its Dickensian language, the law draws a useful distinction between incompetence and milder disabilities. “Should we expand the law to cover anyone ever hospitalized for a psychiatric condition?” asks Ron Honberg, Legal Director for the National Alliance for the Mentally Ill (NAMI). “That may sound reasonable in the abstract, but think of the unintended consequences. It’s hard enough to get people to seek help when they need it. If checking into a hospital will land you in an FBI database, you may be less likely to seek care. Many of our worst tragedies have involved people who didn’t get the care they needed—not those who did.”
The current system may set a reasonable standard for mental competence among gun buyers, but a better system would provide clearer definitions and more consistent reporting. What does it mean to be committed to a mental institution? “In Maryland, it means you’ve been involuntarily hospitalized for at least 30 days,” says Honberg. “In another state, it could mean you were detained for an hour to have a psychiatric evaluation.” And conflicting definitions are only part of the problem. Every state has its own mosaic of “courts, boards, commissions and other lawful authorities”—all making potentially critical judgments about people’s mental competence. But when each records them differently, it becomes nearly impossible to apply them consistently. “Without consistent data collection, you can’t even start to build a workable national system,” says Bonnie.
The feds can’t change local custom by fiat, so the president is promising money and technical assistance to help states adopt a consistent national standard. The Justice Department will pony up $20 million this fiscal year, and the president will propose $50 more next year, while looking for “additional ways to ensure that states are doing their part to provide relevant information.” Similar efforts have fallen flat in the past, but at least one state (Virginia) has brought order to its records by devising a statewide protocol and paying judges only if they honor it. With enough money and resolve, Obama may yet move more states in that direction. But he should resist the impulse to broaden the mental health exclusion. Psychological suffering is rarely an incitement to violence, and stigma won’t prevent it.