Editorial: Background Checks and Preserving the Rights of the Mentally Ill

Very little of America’s ongoing debate about gun control takes place on common ground, and even that small portion is littered with obstacles. This was demonstrated again last week in Concord during a hearing on a bill that would add the names of mentally ill persons in certain categories to the federal database that is used to determine who is ineligible to buy firearms.

New Hampshire is one of 17 states that do not provide to the National Instant Criminal Background Check System mental health records intended to keep anyone “adjudicated mentally defective,” in the infelicitous phrasing of federal law, from buying guns from a federally licensed gun dealer.

As the Concord Monitor reported last June, the federal government does not require states to make the relevant mental health records available. New Hampshire does not because the various custodians of those records — health care providers and court officials — take the position that those records are confidential as a matter of law and as a result, specific legislative authorization is required for their disclosure. Moreover, those state officials say they would need guidance on exactly what records qualify a person for inclusion on the list of those prohibited to purchase firearms.

The bill now under consideration, sponsored by state Sen. David Watters, D-Dover, and state Rep. Jeff Goley, D-Manchester, attempts to remedy that. Those to be included on the national index would be any person who has been found not competent to stand trial due to a mental disease, or developmental or intellectual disability; has been found not guilty by reason of insanity; has been involuntarily committed to a mental health facility; or for whom a guardian has been appointed.

It also provides a mechanism whereby those who have recovered from mental illness can petition to have their names removed from the index.

As we noted, there is some common ground on this question, but it is not a broad expanse. The Monitor reports that while state law enforcement officials and some gun rights organizations support the bill, it is opposed by some advocates for the mentally ill, civil libertarians and different gun groups.

Some of these objections are absurd; others merit serious consideration. Among the former are assertions that the bill, if enacted, would be the first step toward the confiscation of all privately held firearms in the United States, or that anyone who sought help during a mental health crisis would be added to the background-check list.

More relevant is the assertion that the bill as written would stigmatize the mentally ill, contrary to the facts, as more likely to commit violent acts than other members of the community and unfairly infringe on their rights.

For instance, Michael Skibbie, policy director for the Disability Rights Center, pointed out that people can be found incompetent to stand trial on any kind of charge, including minor, non-violent ones. An added complication is that the New Hampshire Supreme Court ruled in 2007 that merely being found incompetent to stand trial is not sufficient grounds in itself to deprive someone of their firearms.

Ken Norton, executive director of the New Hampshire chapter of the National Alliance on Mental Illness, suggested that a better approach would be to prohibit all people who are deemed dangerous from buying guns, not only mentally ill individuals. But deciding who would be responsible for making that determination, in what forum and by what criteria likely would be highly controversial.

The bill’s language mirrors to a large extent that of federal law defining who is prohibited from buying a gun by reason of being “adjudicated mentally defective.” A better standard might be to focus on those who have been determined to be a danger to themselves or others by reason of mental illness — also a criterion under federal law — or whose illness renders them incapable of managing their own affairs. The bill as written addresses these matters only obliquely.

Given the complexity and sensitivity of the issue, it would make sense to send the bill to a study committee to consider more fully its implications, and address the legitimate concerns that were raised at the hearing. It’s important to strike the right balance between promoting public safety and preserving the rights of people suffering from mental illness.