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Editorial: Improving Gun Checks; Challenge of Including Mental Health

When U.S. Sen. Kelly Ayotte, R-N.H., cast her now famous, or infamous, vote against expanding the national system of background checks for gun purchases, she argued that a better approach is to enforce the laws already on the books. That struck us as something of a non sequitur, given that expanding background checks would in no way preclude improving enforcement of the current system.

However, as a Concord Monitor story published in the Sunday Valley News demonstrated, in one respect, at least, Ayotte’s argument about the deficiencies of the current system was apparently grounded in a solid knowledge of the situation in her home state. The Monitor reported that New Hampshire is one of about 12 states that do not make relevant mental health records available for the purposes of background checks.

But doesn’t federal law prohibit the sale of guns to people who have been involuntarily committed to a mental hospital, found incompetent to stand trial or found not guilty by reason of insanity, or whose mental illness makes them a danger to themselves or others? Indeed it does. It’s just that states are not required to make the relevant records available to the background-check database.

This, one would think, would be easy to fix. As usual, it turns out that the truth is more complicated. First, because of federal and state confidentiality laws relating to medical records, neither the court system nor the state Department of Health and Human Services believes it has the authority to make those records available to the Department of Safety for submission to the National Instant Criminal Background Check System. That, they say, would require an act of the Legislature because of the public policy questions involved in sharing those highly sensitive personal medical records.

It’s not a matter of lawmakers merely giving assent to submission of the records, either. Earl Sweeney, the assistant commissioner of the Department of Public Safety who has been assessing the questions involved with the goal of making recommendations for legislation to be introduced next year, gave the Monitor an idea of just how complex it is to make these judgments.

First there’s the sensitive nature of the records themselves. Mental illness is a medical issue, not a legal one. As such it can be treated, and Sweeney raises the legitimate question of whether someone who responds to that treatment and recovers ought to be permanently barred from buying firearms. And what kinds of mental health records reflect the inability of someone to manage his or her own affairs, another disqualifying factor? Which ones are relevant to the question of whether someone is a danger to themselves or others?

There aren’t any clear-cut answers to these questions, which may well be the reason that Ayotte did not tackle the issue when she was the state’s attorney general, despite having served on a task force of the National Association of Attorneys General that urged states to do a better job of reporting mental health records to the background check system.

But it’s precisely because striking the right balance between protecting the public and preserving the privacy rights of mentally ill individuals is so tricky that the Legislature needs to tackle this issue and provide a forum for the state to figure out how to live up to its responsibilities.