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Time to Close Mental Impairment Background Check Loophole for Guns

June 23, 2022, 8:00 AM

The Senate group negotiating a new package of gun safety legislation recently announced a tentative deal, which includes more funding for mental health services and funding for states to incentivize adopting and implementing “red flag laws,” a process for courts to order temporary gun removals from individuals shown to pose a serious risk to themselves or others.

While these measures are helpful and will save lives, there is an additional step Congress could take to help keep guns out of the hands of those with serious mental impairments. Each year, thousands of individuals petition the Social Security Administration (SSA) for permanent disability benefits (SSDI) based on mental impairments, and thousands of these go to a hearing before a federal administrative law Judge (ALJ).

If the ALJ grants benefits, this means the person has been legally adjudicated as having a mental impairment so severe that they cannot perform any full-time job on an ongoing basis. In the most severe cases, the person or their family will ask the SSA to designate the person as too mentally impaired to oversee their own finances. In some cases, an ALJ can do this on their own decision.

According to the SSA, there are currently around 75,000 individuals who have been legally adjudicated to have a mental impairment too severe for them to work, and too severe for them to handle their own money. Legally, this also means that the person is disqualified from gun ownership, possession, or purchase under 18 U.S.C. §922(g)(4).

This is not to say that SSDI recipients are prone to commit crimes—there are no published studies about rates of violent crimes committed by beneficiaries, nor is there any data linking SSDI beneficiaries to recent mass shootings. There is, however, evidence of very high, and steadily increasing, suicide rates among SSDI-Medicare beneficiaries. Firearm access increases the risk of suicide for those already at risk for self-harm.

Difference From Red Flag Laws

There are significant differences between these individuals and those potentially affected by red flag laws. The targets of temporary gun removal orders under red flag laws are otherwise legal gun owners, if they have not yet been adjudicated to have a mental impairment.

Those receiving SSDI benefits for mental impairments are already prohibited from buying a gun under federal law, but they can often pass a background check anyway because their names are not in the FBI’s system.

There is a longstanding problem with government entities, including federal agencies, cooperating and communicating with the FBI about names that should be in the background check database for gun purchases, the National Instant Criminal Background Check System (NICS).

One attempt to rectify this was an enactment by Congress in 2007, followed by a DOJ directive in 2013, directing the SSA to submit to NICS the names of individuals adjudicated to be so mentally impaired they cannot handle their own funds. The SSA started the process of developing a procedure and protocols for doing this.

Republican Controlled Congress

By January 2017, the SSA was ready to start sending existing names and new names as they came in. However, a newly seated Republican-controlled Congress intervened to block the SSA from doing so, invoking the Congressional Review Act, a type of legislative veto over specific actions by federal agencies.

At the time, Republicans said they did not want these individuals to lose their Second Amendment rights; but these individuals were already statutorily ineligible to buy or own a gun under Section 922(g)(4). The effect of the resolution was to enable these individuals to pass a background check (because their names would not be in the system) and purchase a gun that they were not legally allowed to possess.

The legal effect of the GOP resolution was to block the SSA from ever submitting these mentally impaired individuals to the NICS database—at least until Congress enacts a new law directing the agency to do so. Congress could include such an authorization, for example, as one small provision in the new package of gun legislation that will soon be voted on in the coming weeks.

The main objection to red flag laws is that someone might be wrongfully accused of being mentally unstable (say, by an ex-partner) so that police can confiscate their guns.

In contrast, those affected by the 2017 congressional action were individuals who themselves voluntarily filed with the SSA, pursued a claim through a multi-year process, and had the federal government determine that they were mentally impaired. These individuals are not losing their gun rights—they gave their rights up and are legally prevented from gun ownership under Section 922(g)(4).

Time to Close Gaps

There are other individuals who have been adjudicated to have a severe mental impairment whose names are also missing from the NICS database. The state of Idaho recently lost a lawsuit over a suicide that resulted from a state agency failing to report the victim’s name to the NICS database.

Congress should do more to ensure that such individuals are included as well; even so, the SSA has the single biggest data set of those adjudicated to be severely mental impaired in the country.

Congress needs to re-authorize the agency to cooperate with the FBI so that the background check system can function as it should.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Dru Stevenson is the Wayne Fischer Research Professor at South Texas College of Law Houston, where he teaches regulatory law and legal ethics. His research focuses on gun violence and the regulation of firearms. Follow him on Twitter at @DruStevenson.