- Mental health records can prevent someone from legally buying a gun
- New Hampshire, Montana and Wyoming are the three states not reporting in the system
- Gun rights groups fought state action alongside mental health advocates
Federal officials say the FBI’s database of people banned from buying firearms only works if it contains “complete, accurate, and timely information.”
Mental health records are a key part of the system. But three states – New Hampshire, Montana and Wyoming – still refuse to submit them.
As U.S. senators iron out gun reform initiatives, many Republicans like Senator John Cornyn of Texas have repeatedly pointed to legislation that bars people with criminal records or mental health issues from getting fire arms.
Cornyn backed a 2018 bill to bolster the FBI’s National Instant Criminal Background Check, or NICS, system following a church shooting in Texas that left 27 people dead. Among the dead was the shooter, an Air Force airman, whose criminal record that allegedly prohibited him from buying firearms had not been submitted to NICS.
“For years, agencies and states have broken the law, not downloading these critical records without consequence,” Cornyn said while celebrating “Fix NICS” solutions that were pushing for faster, more accurate submissions. . “A single recording that is not properly reported can lead to tragedy.”
President Donald Trump signed this bill, which injected $615 million into states to close loopholes and strengthen reporting in the FBI system.
States have made significant progress in reporting the database of 26 million records, including 6.9 million people declared mentally ill by a judge.
Without state laws mandating attendance, Montana and Wyoming submitted 36 and 17 mental health records, respectively. New Hampshire submitted 657. By comparison, Hawaii — with roughly the same population as New Hampshire — submitted nearly 10,000 mental health records.
Records from government-run mental health facilities in the three states show that several hundred additional people were involuntarily committed – all of whom should have been subject to NICS.
History of this program
The National Background Check System was established as part of the Brady Handgun Violence Prevention Act of 1993. Gun shops, pawnshops and other nationwide licensed dealers must use it when someone wants to buy a gun.
Prospective gun buyers must complete a form from the Bureau of Alcohol Tobacco Firearms and Explosives attesting to certain matters, and then their name is passed through the FBI system.
The FBI says more than 300 million checks have been made over time, resulting in more than 2 million rejections.
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Flaws in the mental health reporting system drew attention in 2007 after a shooting at Virginia Tech left 32 people dead. Two years earlier, a court found the student shooter ‘posed an imminent danger to himself or others’ after he was accused of harassing two classmates, resulting in a remand which should have prevented him to buy firearms.
At the time, only about half of the states reported their mental health records to NICS. By 2012, that number had dropped to about 19 states that reported less than 100 records, and by 2014 it had dropped to eight. In 2016, it dropped to four until Alaska increased its reporting.
“We know that a background check is only as good as the records it contains, so efforts to improve the reporting of records in NICS are essential for public safety,” said Kelly Drane, research director at Giffords Law Center, a gun violence prevention group. “Research has shown that as states improve the reporting of mental health event bans in the background check system, we see a reduced risk of violent crime arrest for those banned.”
The ‘Fix NICS’ law drafted by Cornyn and Democratic Sen. Chris Murphy has been called a ‘small step’ by gun control advocates, but won support from the two major gun lobbies, the National Rifle Association and the National Shooting Sports Foundation.
The National Shooting Sports Foundation continues to lobby New Hampshire, Montana and Wyoming to tighten reporting.
“We are committed to ensuring that the background check system reflects the most accurate data available,” said Mark Oliva, spokesperson for the foundation.
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Strange bedfellows carry on
Efforts to expand background checks to be “universal” — applying to private sales — have not been successful at the state and federal levels. But gun rights lobbyists and gun safety groups have both coalesced around strengthening the NICS.
Opposition to it has created “strange bedfellows,” said Susan Stearns, executive director of the New Hampshire branch of the National Alliance on Mental Illness.
Stearns’ group opposed a 2017 measure to report mental illness to NICS, largely because it didn’t include a way to get off the list.
The “position of the alliance has always been: if they pose a danger to themselves or others, they must be prevented from accessing lethal means, period,” Stearns said. “But you shouldn’t lose constitutional rights for your life.”
Stearns said people in mental health crisis often recover, but could be permanently barred from participating in shooting sports and hunting.
New Hampshire officials are submitting court records for anyone found unfit to stand trial or not guilty by reason of insanity, but not for those who are involuntarily committed to a health care facility.
The alliance was also lukewarm about a bill by former Democratic Senator Margie MacDonald in Montana, even though her bill was scheduled to be dropped from the slate after five years.
MacDonald attempted in 2014 and again in 2019 to pass a bill requiring records to be submitted. Ultimately, she said Republican opposition fueled by extremist gun advocacy groups in the state sank her efforts.
“It’s disheartening, appalling and very dangerous,” she said.
MacDonald hosted the father of a Virginia Tech victim for a 2014 hearing in Helena, Montana. The mother of a woman killed in 2008 by a man who bought a gun just days after she was involuntarily committed to a psychiatric hospital also testified. He had lied on the ATF form, answering “no” to the question of whether he had ever been declared mentally ill.
Lying on the form can result in fines and up to 10 years in prison.
Data published in The Washington Post by the Department of Justice shows that cases related to lying on the form are extremely rare: 243 in fiscal year 2020, out of millions of checks.
In Wyoming, former Rep. Sara Burlingame, D-Cheyenne, sponsored a 2019 effort to mandate NICS mental health reporting that also failed. She said she has faced “first-rate disinformation testimony” from groups such as Wyoming gun owners backed by the Dorr brothers.
Burlingame said Wyoming’s ranking as the worst place for suicides per capita is reason enough to keep guns away from people in crisis.
“It’s tied to older, isolated white men with access to guns,” Burlingame said. “If that doesn’t inspire people to create a culture that upholds our cultural right to firearms and our moral obligations, I don’t know what will.
“It’s common sense legislation that every other state has understood.”
Nick Penzenstadler is a reporter with USA TODAY’s investigative team. Reach him at [email protected] or @npenzenstadler, or on Signal at (720) 507-5273.