If you learn only one new thing about America's gun laws after the gruesome mass shooting in Aurora, Colorado, learn this: Even when individuals do undergo a background check when buying a gun in this country, the screening for mental health history is cursory at best.
You don't need to submit to a background check to buy a gun, of course. Currently, Americans can buy firearms through "private sales" in more than 40 states without undergoing any type of screening at all. The law requires background checks only for guns sold by federally licensed firearm dealers (FFLs), allowing those not "engaged in the business" of dealing firearms to do so without conducting background checks or maintaining any records of sale. How do we know who is "engaged in the business"? We don't (the IRS isn't looking at anyone's tax returns to find out), at least until guns start turning up at crime scenes and an investigation is opened by law enforcement. One study estimated that private sales account for 40% of all gun sales in the United States.
When an individual purchases a firearm from an FFL, however, he must undergo a criminal background check. First, the buyer fills out a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Form 4473 by hand, providing simple yes or no answers to a series of questions about criminal, mental health and substance abuse history. The dealer then queries the National Instant Criminal Background Check System (NICS) database maintained by the FBI via a toll-free telephone number or through the NICS E-Check System online (in a handful of states the dealer contacts the state police who in turn contact NICS). This instant computer check searches the NICS database for any disqualifying records that would prohibit that individual from buying a gun. During the check, the system does not disclose to gun dealers any actual information about these records. Dealers are simply seeing one of three responses from NICS on their computer screen: proceed, denied or delayed. If a potential gun buyer is denied, the FFL is never informed of the reason.
The specific disqualifications related to mental health are quite narrow. Under federal law, an individual is prohibited from buying or possessing firearms if they have been "adjudicated as a mental defective" or "committed to a mental institution." A person is "adjudicated as a mental defective" if a court -- or other entity having legal authority to make adjudications -- has made a determination that an individual, as a result of mental illness: 1) Is a danger to himself or to others; 2) Lacks the mental capacity to contract or manage his own affairs; 3) Is found insane by a court in a criminal case, or incompetent to stand trial, or not guilty by reason of lack of mental responsibility pursuant to the Uniform Code of Military Justice. A person is "committed to a mental institution" if that person has been involuntarily committed to a mental institution by a court or other lawful authority. This expressly excludes voluntary commitment. If a person falls under one of these two categories, they are prohibited from purchasing and possessing firearms for life -- although federal law now allows states to establish procedures for such individuals to restore their right to purchase or possess firearms. Many states have done so at the behest of the National Rifle Association, with questionable results.
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 example, only about 1% of people who have disqualifying mental health histories have been reported to NICS.
Another problem is that few Americans suffering from 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 10% of children and adolescents suffer from mental illnesses. Yet only 20% of this group have been diagnosed and are receiving services. Looking at adults, approximately 1 in 17 live with a serious mental disorder such as schizophrenia, major depression, or bipolar disorder. Yet less than one third receive mental health services.
James Holmes, the gunman who allegedly killed 12 people and injured 58 others in just two minutes at a crowded midnight screening of The Dark Knight Rises in Aurora, appears to possibly be one of those Americans suffering from serious mental illness. Holmes was seeing Dr. Lynne Fenton, a psychiatrist at the University of Colorado who specializes in schizophrenia. Prior to the shooting, he sent her a notebook detailing his plans for the massacre. In June, Holmes applied to join a gun range but was rejected because the range's owner was disturbed by the "weird and bizarre" behavior Holmes exhibited on his voicemail recording. Immediately after the shooting on July 20th, Holmes told police officers that he was The Joker, a villain from Batman comic books and movies. We will undoubtedly learn many additional details about Holmes' mental health history in the months ahead.
Almost all Americans would agree that dangerously mentally ill individuals, possibly like James Holmes, and like Tucson shooter Jared Loughner (who was found incompetent to stand trial because of paranoid schizophrenia) should not be able to legally purchase firearms. And it's not like this is a problem without a solution -- there is no other high-income nation on the face of the earth in which Holmes and Loughner could have legally purchased such weapons. So how can we provide for the public's safety while at the same refraining from the stigmatization of those suffering with mental illness (because, to be fair, research has made it clear that the vast majority of the mentally ill will never be violent)?
Several states have enacted laws that could serve as models for federal legislators. California, for example, takes a graduated approach to the problem, prohibiting the purchase and possession of firearms by individuals who:
• Have been voluntarily admitted to a psychiatric facility and are receiving inpatient treatment for a mental illness and the attending mental health professional states that the individual is a danger to self or others. Once an individual has been discharged from the facility, the prohibition no longer applies.
• 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.
New Jersey has created a model where any person seeking to purchase or possess a firearm must obtain either a permit to purchase a handgun or a Firearms Purchaser Identification Card (FPIC) to purchase a long gun. Applicants for a permit to purchase a handgun or FPIC are required to provide two character references and must agree to waive confidentiality and disclose their mental health records. No permits to purchase a handgun or FPICs are issued to individuals who:
• Have been confined for a mental disorder to a hospital, mental institution or sanitarium.
• Refuses to waive confidentiality and agree to disclosure of their mental health records.
In addition, the New Jersey state police can deny the issuance of handgun permits and FPICs when they feel it would not be "in the interest of the public health, safety or welfare." Individuals can appeal to a state court if they feel the state has abused its discretion in denying a permit or FPIC.
It's not difficult to see how such processes might have thwarted severely mentally ill individuals like Loughner and possibly Holmes. Would either have been able to provide character references? What would a careful and confidential analysis of their mental health records have uncovered?
The bottom line is that it's been almost 45 years since federal legislators defined mental health disqualifications for gun buyers in the Gun Control Act of 1968. It's time to see what else we can do to save lives. Providing law enforcement and mental health professionals with more tools won't stop every shooting, but -- combined with a policy of universal background checks on all gun sales -- could certainly lead to a future where grotesque acts of gun violence are not a daily feature of American life.