WaPo claims "loophole" allowing mentally ill to purchase guns

(AP Photo/Jae C. Hong, File)

After some initial confusion about whether or not the man responsible for the mass murder in Lewiston, Maine was prohibited from lawfully purchasing or possessing a firearm, both federal and state law enforcement now say that the killer was not barred from buying a gun, though a gun store rejected his attempt to purchase a suppressor earlier this year after he self-reported that he had been adjudicated as mentally defective or was committed to a mental hospital when filling out the Form 4473; apparently in reference to the roughly two-week stay at an Army hospital in West Point, New York after fellow service members reported him acting “erratically” during a field training exercise.


Now the Washington Post and reported Philip Bump claim that the killer exploited a “loophole” in current federal law, though that word only appears in the headline and not the body of the story. Rather than uncovering an actual “loophole”, what the paper is really pushing for is a change in statute that could turn tens of millions of Americans into prohibited persons.

Since the NICS system was implemented 25 years ago, about 2.3 million background checks have been denied by NICS. More than 465 million checks have been conducted.

About half the denials were because of criminal convictions. About 77,000 were denied because the applicant had an “adjudicated mental health” issue. This category of denial was bolstered after the Virginia Tech shooting in 2007, when it was learned that the shooter should have been prevented from buying a firearm because of his mental health status, but information about that prohibition wasn’t available to the FBI.

In the past seven years, there have been about 50,000 denials for “adjudicated mental health.” (The FBI publishes this data regularly, but archives of the cumulative figures are patchy.) In recent years, the rate of denials that occur each day has been higher. Over the past 12 months, an average of 21 people a day see an application denied for mental-health-related reasons.

The government has a specific definition of both “adjudicated as a mental defective” and “committed to a mental institution.” The former requires a formal designation that, because of “marked subnormal intelligence, or mental illness, incompetency, condition, or disease,” the person is “a danger to himself or to others” or is unable to manage their own affairs. (This includes determinations that someone is unfit to stand trial for a crime.) The latter includes “formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority,” but not a voluntary admission.

Card may not have met that latter standard.

“Maine does not require the reporting of individuals who have been committed through emergency procedures but who have not yet been granted a hearing,” WMUR reported. “It’s unclear at this time if Card’s stay at the mental health facility was voluntary or court-ordered.”

Card’s hospitalization was reportedly triggered not by state law enforcement but by commanders at Camp Smith, N.Y., just north of New York City. Card, a member of the Army Reserve, was stationed at the base this summer.

There doesn’t exist a bright line between “sufficiently mentally healthy to own a firearm” and “not.” States and the federal government are justifiably wary of restricting individual rights too ambitiously. But the Card situation shows some of the blurriness that exists — and the worst case of failing to limit an individual’s gun ownership.


If the paper is gonna claim there’s a loophole in the law, they should at least take the time to define it and offer a way to close it, but Bump and his editors have done neither. So what would Bump prefer the standard be, as opposed to an actual adjudication or an involuntary commitment? Should voluntary commitments also result in a lifetime loss of Second Amendment rights? What about receiving mental health treatment altogether?

That sounds like a really good way to prevent people from seeking help for their mental troubles in addition to being an incredibly low bar to becoming a prohibited person. According to the National Institute for Mental Health, about 23% of the adult population of the United States have been diagnosed with a mental illness of some kind, and more than 26 million Americans received mental health treatment within the past year; a definition that includes hospitalization, outpatient therapy, and use of prescription drugs to treat the mental health condition.

I’m sure that the editors of the Washington Post have few qualms about placing a quarter of the adult population on a “No Guns Allowed” list, but that would be an absolutely terrible idea as far as I’m concerned. The vast majority of people dealing with mental illness will never commit a crime of violence or do something to generate horrific headlines. That’s one reason why the process of denying someone who’s mentally ill depends on a formal designation, including an involuntary commitment, that indicates a serious problem in need of intensive psychiatric care. Honestly, even the current law goes too far for my liking. A lifetime loss of Second Amendment rights isn’t suitable (at least in my opinion) when mental illness can be addressed and alleviated, especially when it comes to situational conditions brought on or exacerbated by environmental stressors like a job loss or a failed relationship.


In the case of the man responsible for the murders and injuries in Lewiston, we don’t yet know if his confinement to a mental health facility was ordered or voluntary. But Maine also has a civil commitment law like every other state in the Union, and that was never invoked by either his family or law enforcement despite his family’s growing concern about his mental state in the months before the shooting. Instead of dreaming up some non-existent “loophole” that could turn 23% of American adults into prohibited persons, I suggest Bump and the Washington Post spend a little more time investigating why existing laws designed to identify and deal with dangerous individuals were ignored instead of being enforced.

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