Comprehensive Mental Health Background Checks for Gun Buyers Is a No-Brainer — And Almost Impossible

The White House and New York State want to use more mental health data, but obstacles abound.

January 16, 2013  |  

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On Wednesday, President Obama said strengthening background checks for gun buyers was one of the key features of his package of gun control reforms, before he signed an executive order telling federal agencies to “clarify that no federal law prevents healthcare providers from warning law enforcement authorities about threats of violence.”
And on Tuesday, the fine print of New York’s new gun-control law–rushed through its legislature and signed that day by Gov. Andrew Cuomo–went even further. New York is now requiring mental health professionals to report any mental illness that could lead to violence to police agencies. The police, in turn, will use that referral to revoke any gun license issued to that person, confiscate any guns they own (but pay them), and possibly order forced hospitalization if that person doesn’t follow a treatment plan.

These steps–from the White House issuing executive orders to try to get more and better information into the FBI’s national background check database for gun buyers, to what New York’s Gov. Cuomo is calling the nation’s “ most comprehensive” gun law–are conveying to Americans that better gun buyer background checks are on the horizon.

But health law and policy experts say both the White House–and to a much greater extent, New York state–are overpromising what can be delivered in the near future to strengthen gun buyer background checks, especially when it comes to including and acting on mental health records and information.

“There’s a lot of technical stuff embedded in these issues,” said Richard J. Bonnie, a public policy professor at University of Virginia’s law school who led his state’s review of its gun laws after the 2007 Virginia Tech shooting that left 33 people dead. “My own view is this is worth doing–trying to make the system have the data that the system is designed to have. But trying to make the system as good as it can be is a big challenge. It’s a bigger challenge than people are willing to indicate.”

The public discussion following the Sandy Hook school shooting in December has included calls for more and better background checks for gun buyers.

On the “more” side of this ledger, was Obama’s call for “universal” background checks. In 1986, Congress created a loophole for buying guns privately at gun shows, with no background check by the FBI. Forty percent of all guns are now sold this way. On the “better” side of this equation is submitting more mental health information to federal and state gun licensing databases, which, as Bonnie said, gets complicated.

The federal background check system is hardly all that it can be, for a variety of reasons.

The first reason is states don’t have to participate if they don’t want to. They can decide what mix of court records–from criminal matters to mental health orders–to submit, as a result of a 1997 Supreme Court decision authored by Justice Antonin Scalia. “A recent report by the Government Accountability Office found that there are still 17 states that have made fewer than 10 mental health records available,” the White House said in a report issued Wednesday, highlighting this gap.

“If they don’t want to do it, they can’t be made to do it,” said Bonnie, referring to the Supreme Court ruling about state’s compliance with the 1994 Brady Bill, which created a nationwide system of gun background checks.     

What Congress has done since the 1997 ruling and what the White House proposed on Wednesday, is to offer states new money to create the technical and administrative capacity to collect and submit the background check data. In many states, the lack of political will, incompatible state and county computing systems, and varying mental health systems from county to county are sizeable obstacles, Bonnie said.

Mental Health Privacy Laws