New Gun Control Legislation
Identifies the Mentally Ill

The mentally ill will now be identified and disqualified as potential gun buyers under federal laws pursuant to Congress’ enactment of the National Instant Criminal Background Check Improvement Amendments of 2007. (P.L.110-180 (Jan. 8, 2008). The impact of this legislation remains to be seen as attorneys ponder how this will affect their clients who are involuntarily and voluntarily committed to mental hospitals and mental health programs. The National Instant Criminal Background Check System (NICS) requires state and federal agencies to report all mentally challenged individuals who have been adjudicated as a “mental defective” or committed to a mental institution.”

On April 16, 2007 a student with a history of mental illness at the Virginia Polytechnic Institute and State University shot 32 students and faculty members and wounded 17 more before shooting himself (Mental & Physical Disability Law Reporter Vol.32 No.1). The shooter, with a documented history of mental illness, was allowed to purchase guns that were used during the killing spree. The shooting renewed the outcry for more complete background checks on potential gun buyers. Congress found that most Brady background checks are processed through NICS within seconds, but many background checks are delayed if the Federal Bureau of Investigation (FBI) does not have automated access to complete information from the States concerning persons prohibited from possessing or receiving a firearm under federal or state law.(P.L.110-180 (Jan.8, 2008). Between the years of 1998 and 2004 nearly 49,000,000 Brady background checks were processed through NICS. (Id.) Over 20,000,000 criminal records are missing critical information, including any mental health data.(Id.)

State and Federal agencies are limited as to which mental health records they may provide to the NICS. These agencies may not provide records on individuals who receive an adjudication or any commitment that has been set aside or expunged. The legislation also increases the importance of expunging the criminal record after the sentence has been satisfied. Many defendants assume that expungement is automatic, especially in first offender sentences, but an explanation regarding the need to expunge is essential. Also, the records of an individual who has been released or discharged from all mandatory treatment, supervision of the court or lawful authority, and found that the person no longer suffers with the mental condition cannot be submitted to the (NICS). Thus, once a client’s sentence has been satisfied and they have been fully released from mental health treatment, their records should not be submitted to NICS.

The legislation recognizes patient rehabilitation and remission as factors that do not exclude them from owning a gun. Thus, the legislation does not identify or disqualify an individual from buying a gun who has been found by a lawful authority to no longer suffer with a mental condition or an individual who is in complete rehabilitation or in remission. In passing this legislation, it was very important that the information used to potentially disqualify a potential gun buyer be kept current and accurate. The Attorney General has the responsibility of maintaining accurate and current data. Defense attorneys have an additional duty to make sure all information that is not current or accurate is removed from the criminal record and the client is not adversely affected by it.

It is not known yet how this piece of legislation will affect mentally ill potential gun buyers, but we do know that expungements and updated criminal records will take on a new importance in the fight to maintain the rights of the mentally ill.