FINAL UPDATE: See comments below. I’m now not so sure the proposed Federal legislation is as well-drafted as it should be, based on similarities to HR 297.
UPDATE ON THE UPDATE: Michelle Malkin has a source within the Virginia mental health/justice system who says that because Cho was not hospitalized involuntarily, the Virginia statute did not require that he be reported to the Central Criminal Records Exchange, which I presume would have forwarded it to NICS. Her source notes:
Without more facts, I am not second guessing the decision of the Special Justice. Perhaps the code should be amended to require the report to be filed upon the finding of iminent danger to self or others, not just involuntary hospitalization.
SEE ALSO SailorCurt’s excellent comment to this post, below, with details of Virginia law. He points out that Virginia performs a state background check in addition to the Federal NICS check. Neither check flagged the shooter in this case, for the reason noted above.
UPDATE: Here’s the answer, the NICS system is indeed broken. If “something must be done” in the wake of this massacre, this Federal legislation seems like the best thing to rally behind. And it’s already supported by both the NRA and the Brady Bunch (and the NEA, sorry, it’s their writeup).
In short, according to the above link under the current system no state updates NICS with mental illness records. (!!!!!!!) The legislation would change that. Whan’s the last time you saw a bill supported by both Schumer and Larry Craig?
h/t: Volokh.
Original post below:
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Okay, I think everyone reading this blog is familiar with the Big Three conditions of Federal law that are supposed to prevent you from being able to buy a gun: 1) you’re underage; 2) you’re a felon; 3) you’re mentally ill.
So WTF????
VT Killer Ruled Mentally Ill by Court; Let Go After
Hospital Visit
Harassed Two Female Students; Concerns He Was Suicidal
By NED POTTER and DAVID SCHOETZ
April 18, 2007 — – A Virginia court found that Virginia Tech killer Seung-Hui Cho was “mentally ill” and dangerous. Then, the state let him go.In 2005, after a district court in Montgomery County ruled that Cho was either a danger to himself or to others — the legal criteria to obtain a detention order — he was evaluated by a state doctor and ordered to undergo outpatient care.
Read the whole thing; it shows in detail the repeated school – police interactions with this guy. Their process actually seems sound; VT was savvy enough to know that they will get more effective results using the state police 5150 system because it’s easier to get folks committed.
Unfortunately, something’s broken in the system when it allows former mental patients receiving outpatient therapy to obtain access to guns — there’s that Federal law again. Much of the ATFE gun-purchase form relies on our honesty in self-reporting, but come on — mentally ill folks are just not likely to intentionally flag themselves at the gun counter.
I mentioned in comments below how during law school, one of my classmates became suicidal after his live-in girlfriend broke up with him; after a few attempts he was committed to the county mental health hospital. Whenhe got out, with heavy antidepressant meds and a restraining order against him, he was still able to walk into a gun store and buy a gun. This was in 1994-1995 or thereabouts, so I don’t know whether or not the “instant check” system was completely operational in California at that time — but even if it wasn’t, under the old system there was a significant time period between purchase and delivery in which the State had to respond to the dealer’s request with an “all clear.” That obviously didn’t work in my friend’s case.
What am I missing here? Or is the system really as broken as I think?
BTW, I’m NOT in favor of expanding government’s authority to involuntarily commit people. Hell, it’s been abused in the private sector, too: see the Orwellian-named “Sector One” arm of the NME/PIA insurance fraud conspiracy for example. My point is that existing law seems to have been good enough to commit this dangerous individual, which should have flagged him so that buying firearms was impossible. Why did that not work?
I agree. Having a history of mental illness should be a dealbreaker. However, this would just make it difficult to get a hold of a gun, not impossible.
In the absence of guns altogether, the dedicated psycho would just use another means to achieve his ends. This kind of stuff will still happen, guns or no. Look at Japan.
1. I haven’t checked federal law yet but I can tell you definitively that Virginia Law is very specific about who is “prohibited” by virtue of mental illness:
Under Virginia Law, you are prohibited from possession of firearms if you have been Acquitted of a crime by reason of insanity
Or have been Involuntarily committed
The perpetrator in this case met neither criteria. He had been adjudicated mentally ill but was not involuntarily committed. He voluntarily committed himself which does not preclude gun possession.
2. We need to be very careful about this issue.
Having a history of mental illness should be a dealbreaker.
How does one define a history of mental illness? Would any of the students at Virginia Tech who avail themselves of the free grief counseling being provided by the school be considered to have a “history of mental illness?” How about someone who has a bout of depression as a direct result of a traumatic life event? Someone who suffers chronic, but minor depression? Anyone who seeks psychological or sociological counseling?
We need to be VERY specific about what we define as a history of mental illness or we could be disarming many people whom shouldn’t be disarmed.
3. I’m not arguing that NICS can’t be improved…actually, I’m more partial to The BIDS system myself…but if we are stuck with NICS, it should work as well as possible.
However, the fact that Virginia doesn’t report mental health records to the feds didn’t have any bearing on this perpetrator obtaining his weapons. Virginia is one of the few states (13 I think) that perform a STATE background check in addition to NICS. That background check does include State Mental health adjudication records.
But, again, the perpetrator did not fit the criteria for denial of the purchase under the code of Virginia so the point is moot.
You added your update on the update while I was composing my comment. I guess Ms. Malkin already addressed the issue.
By the way, I’m a resident of Virginia, a Concealed Handgun Permit Holder and an activist with the Virginia Citizen’s Defense League. That’s why I try to stay on top of Virginia’s firearms laws.
Thanks, Sailor! One of the best things about the ‘net is being able to get input from people “on the ground” — like yourself in this instance. Writing from the left coast I’ll be the first to admit I know zip about Virginia law.
I am absolutely not in favor of expanding the Federal prohibition against gun possession to include a category as vague as “persons with a history of mental illness.” Persons involuntarily committed is another matter, which is what I thought was the case here.
Cho was not involuntarily committed, but I still think there is a loophole here. Considering the statistic we all know — that the vast majority of firearm deaths each year are suicides — then when a person has been determined (by a judicial authority in this case!) to be a danger to himself, he is absolutely the type of person common sense says should be reported to NICS so that he can’t get a gun.
Seems to me Virginia’s law needs to be amended — but, as you point out, amended carefully.
I’m going to have to respectfully disagree with you on this, Big D.
If a person is a threat to themselves or others, they need to be locked up and away, where they cannot get to a firearm, a knife, a gas stove, a length of rope or a car w/garage.
If someone is that badly off, it is safer for them and for everyone around them to be behind locked doors. There is no reason not to do so. Is their mental health situation their fault; not in most cases, but that is immaterial.
The mental health laws in this country have been too lax for far too long. Currently, we take the mentally unstable in, watch them for a few days and then send them out into the world with meds they hate to take. It then turns into a cycle of breakdowns, capture (hopefully before real harm can be done), confinement, observation, release; over and over and over again.
Just as with child molesters, if the mental illness cannot be cured, the person cannot be trusted to be amongst society and should therefore not be let out into it. Societies have mores. If a person is either unwilling to follow them (as in rapists, murderers, thieves) or unable to follow them (as in the mentally ill), then the government has a Constitutional Mandate to house them.
Lock them up. Period, end of sentence.
I don’t rightly care what a Senator from Idaho thinks about S-1706 / HR-3237. If he is not going to help get mentally ill people the help they really need, then his opinion means bunk to me.
In fact, now that I read more into S-1706 / HR-3237, it sounds more and more like HR-297 that I wrote about near the end of January. 297 would include Iraq War vets who swallowed the PTSD bait and quite possibly anyone who, as a child, was forced to take Ritalin.
Nope. No dice.
Now, if Larry Pratt could find something to like about S-1706 / HR-3237, then maybe I’d listen. Until then, any legislator who won’t write/support legislation that would lock away folks who cannot be trusted with firearms before writing/supporting up stuff like this is suspect.
I agree with you, Phil, about locking up those who are deemed to pose a danger to themselves or others. Even homeless advocates in San Francisco have admitted that it’s the root of much of the “homeless problem.” However, at least in California, the law’s not going to change anytime soon. When I was working in the Capitol for the Governor’s aide who oversaw (and had written large chunks of) the Penal Code, he and I discussed this issue and the votes just weren’t there. That was ten years ago when we had a Republican majority in one house and a Republican governor. Now we have neither.
As Phil said:
“…would include Iraq War vets who swallowed the PTSD bait and quite possibly anyone who, as a child, was forced to take Ritalin.”
I would be concerned about anyone who has ever been prescribed low-medium doses of prozac. This kind of thing would disqualify every highschool teacher I had (my fault), cranky old hicks and several range officers and retired police I know.
Looking through HR-3237, section 102(c)(3) reads:
(3) APPLICATION TO PERSONS WHO HAVE BEEN ADJUDICATED AS A MENTAL DEFECTIVE OR COMMITTED TO A MENTAL INSTITUTION.–The State shall make available to the Attorney General, for use by the National Instant Criminal Background Check System, the name and other relevant identifying information of persons adjudicated as mentally defective or those committed to mental institutions to assist the Attorney General in enforcing section 922(g)(4) of title 18, United States Code.
That sounds at first glance like it expands existing law just far enough to cover the VT shooter, who was both adjudicated as mentally defective AND committed to a mental institution. Bottom line is that if the system is supposed to flag people, this guy should have been flagged!
However, I don’t know if the phrase “mentally defective” is a term of art or just something the Congresscritter’s staff made up. The last thing I’d want is some Orwellian situation where “mentally defective” would cover PTSD, ADHD, or simply having been prescribed an antidepressant.
Ah ha! Looked at the text of HR 297 to compare with the text above. Lo & behold, HR 297 also uses the terms “mentally defective” and “committed to a mental institution.” Here’s why:
“Section 3(2) MENTAL HEALTH TERMS- The terms `adjudicated as a mental defective’, `committed to a mental institution’, and related terms have the meanings given those terms in regulations implementing section 922(g)(4) of title 18, United States Code, as in effect on the date of the enactment of this Act.”
Okay, so according to this interesting case,
http://www.abanet.org/disability/publications/lawreporter/caselaw.shtml
the ATF defines “adjudicated as a mental defective” as “a determination by a court that a person, as a result of a mental illness, condition or disease (1) is a danger to himself or others; or (2) lacks the mental capacity to contract or manage his own affairs.” Well, that’s not so bad.
Here’s the bad part. In that particular case, the court ruled that according to Iowa law, “committed to a mental institution” INCLUDES outpatient treatment, because “[u]nder Iowa law, a formal order of commitment is a prerequisite to outpatient treatment, outpatient treatment continues only while the patient is under such an order, and the treatment does not end absent a court order terminating the commitment. See Iowa Code §229.13.” It’s unclear, but this may be the reason Larry Pratt is saying that HR 922 would cover PTSD.
In any event, the fact that the two bills use the same language, even though the terms are “terms of art” from existing statutes, makes me nervous. If HR 297 is bad, then perhaps HR-3237 is not so good.
“However, I don’t know if the phrase “mentally defective†is a term of art or just something the Congresscritter’s staff made up. The last thing I’d want is some Orwellian situation where “mentally defective†would cover PTSD, ADHD, or simply having been prescribed an antidepressant.”
The thing I worry about the most is having politics come into play to where they say something like “anyone who feels the need to carry a gun to protect themselves from the state should be declared paranoid and paranoid = mentally defective”
Being depressed was never really considered that scary until about a decade ago. Now people are told to seek counselling during the winter months for “seasonal depression” (aka-the winter blahs). HR-297 would cover this.
Bad mojo. Very bad mojo.
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