Comments of the National Rifle Association Institute for Legislative Action in Opposition to Proposed Rule ATF 51P

NRA-ILA NATIONAL RIFLE ASSOCIATION OF AMERICA

INSTITUTE FOR LEGISLATIVE ACTION 11250 WAPLES MILL ROAD

FAIRFAX, VIRGINIA 22030-‐7400

Comments of the National Rifle Association Institute for Legislative Action in Opposition to Proposed Rule ATF 51P

Table of Contents

I. Meaning and Intent of The Gun Control Act’s Mental Health Provisions ............................. 2 A. Statutory Text .............................................................................................................................. 2 B. Legislative History ........................................................................................................................ 3 C. Case Law ...................................................................................................................................... 6

II. BATFE’s Current Regulations and 51P’s Suggested Changes .............................................. 12 A. Current Regulations ................................................................................................................... 12 B. 51P’s Expansion of the Current Regulatory Definitions ............................................................... 13

III. 51P Would Amplify Current Problems and Introduce New Ones ...................................... 14 A. Problems with BATFE’s Current Regulations ............................................................................... 14 B. 51P’s Aggravation and Expansion of Current Problems ............................................................... 17

IV. The GCA’s Mental Health Provisions are in Need of Updating and Clarification, but This is a Job for Congress, Not BATFE ................................................................................................. 19 A. The GCA’s Mental Health Provisions, and BATFE’s Regulations Implementing Them, Are the Products of Antiquated Attitudes Toward Mental Health ............................................................... 19 B. The Stereotype of Mental Illness Leading to Violence is Inaccurate ............................................ 21

V. NRA-‐ILA’s Recommendations ........................................................................................... 23 A. Let Congress Fix the Problems it Has Created ............................................................................. 23 B. The Way Forward to Reform ...................................................................................................... 24 C. Specific Comments on 51P .......................................................................................................... 25 D. Recommended Definitions ......................................................................................................... 27

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INTRODUCTION

On January 7, 2014, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) published in the Federal Register notice of a proposed rulemaking (hereinafter referred to by its BATFE docket number 51P) that seeks to amend the definitions of “adjudicated as a mental defective” and “committed to a mental institution” as those terms are used in the Gun Control Act of 1968 (GCA).1 These terms are significant because of the legal consequences that attach to receipt or possession of a firearm by, or sale or disposition of a firearm to, a person who falls within either category. The proposal, and the underlying statute on which it is based, are premised on the idea that such persons are too dangerous or irresponsible to safely possess or handle firearms.

The National Rifle Association Institute for Legislative (NRA-‐ILA) is a 501(c)(4) organization dedicated to protecting the fundamental, individual right to keep and bear arms for defensive and other legitimate purposes. As such, we strongly agree that the laws should seek wherever possible to prevent the possession or acquisition of firearms by dangerous individuals, and we have long recognized this effort may involve considerations of mental illness.2 Yet NRA-‐ILA is also the nation’s leading proponent of the Second Amendment as a civil right that protects the even more basic right to self-‐preservation against unjustified aggression. Therefore, to the degree the law seeks to impose categorical prohibitions on the possession and acquisition of otherwise lawful arms, NRA-‐ILA has the responsibility to ensure those categories have strong empirical support and are narrowly-‐tailored to those who actually present a demonstrably increased risk of violent or uncontrollable behavior.

We also believe that even carefully-‐drawn categories are likely in individual cases to lack justification because of circumstances specific to the individual, including the circumstances surrounding the original disability, as well as the individual’s success at rehabilitation or recovery. Individuals within a prohibited class should therefore have the opportunity for a case-‐by-‐case determination of their circumstances so they are not needlessly and unjustifiably deprived of their Second Amendment rights. This is especially so in the case of mental illness, where the disability may be based on an affliction which the individual cannot control but which is manageable with proper treatment, or which was situational and has since abated, and which imputes no moral guilt or blameworthiness.

NRA-‐ILA agrees in principle that the current mental health standards of the GCA are due for serious and critical reevaluation. As explained more fully below, much has changed about how mental illness is viewed and treated medically and handled legally since the GCA was originally debated in the mid-‐1960s. Many of the assumptions that underlie the GCA’s approach to this issue are no longer 1 79 Fed. Reg. 774.

2 See Editorial, The Mentally Ill, American Rifleman, Sept. 1966 at 20 (acknowledging that “man’s knowledge of the human mind is so limited that even those with a professional training in psychiatry can only surmise the causes of . . . violent actions” but endorsing laws requiring mental health professionals to report to law enforcement authorities patients who express violent intentions during psychiatric interviews or procedures).

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considered to be scientifically valid, and statutory provisions Congress enacted to provide for relief from disabilities are not widely available or working as intended. Because the GCA’s approach to mental health issues is itself fundamentally flawed, we do not believe that an administrative rulemaking is the proper vehicle for the needed reevaluation to occur. We also believe that on the merits 51P merely adds to the problems inherent in the underlying statutory scheme by extending prohibitions that already lack due regard for the importance of the rights affected and proper justification for their denial. Simply put, 51P is not a thoughtful or helpful attempt to address this important topic.

Even now, efforts are underway in Congress to bring together people with the relevant expertise and experience to institute serious reform of America’s fractured and dysfunctional mental healthcare delivery system.3 Reform of the GCA’s mental health provisions deserves no less serious and deliberate attention and should be the domain of elected officials who can marshal the proper evidence and expertise in properly conducted legislative hearings and investigations. When the rationale of a statute is undermined by later developments in science and medicine, as is the case with the GCA’s mental health provisions, the responsibility for a fix lies with Congress.

BATFE is a law enforcement agency and does not have the medical knowledge or sensitivity to the nuances involved adequately to tackle this issue. Its suggestions in 51P would simply expand the universe of prohibited persons, as well as its own jurisdiction. In so doing, the proposed rule would create further confusion, stigma for those afflicted with mental illness, and disincentives for voluntary mental health treatment. NRA-‐ILA accordingly opposes the adoption of 51P in its current form and believes that reform in this area is more appropriately addressed by Congress. If BATFE nevertheless continues to pursue amendment of the existing regulations, we would suggest a number of changes to its proposed language.

I. Meaning and Intent of The Gun Control Act’s Mental Health Provisions

Congress enacted the GCA at a time when mental illness was widely misunderstood. The evidence suggests that Congress shared the popular, although inaccurate, view that mental illness was indicative of an increased risk for dangerous or violent behavior. It also suggests that Congress understood the term “mental defective” – which today sounds crude and pejorative – in what at the time was its accepted use in law and medicine as referring to individuals with lifelong intellectual disabilities. In implementing Congress’ intent through rulemaking, BATFE should bear in mind that even to the Congress of 1968, mental illness was only relevant to the degree that it correlated with a propensity for violence, and “mental defective” was not a broad term referring to mental illness generally. Moreover, the GCA’s focus on “adjudications” and “commitments” indicates that Congress understood the deprivations it was imposing on Second Amendment rights necessitated a legal determination subject to the protections of due process, and not just the opinion of a single doctor or clinician.

A. Statutory Text

3 See, e.g., Helping Families in Mental Health Crisis Act, H.R. 3717, 113th Cong. (2013).

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The Gun Control Act of 19684 prohibits the sale or disposal of a firearm or ammunition to, or the possession or receipt of a firearm or ammunition by, a person who “has been adjudicated as a mental defective or has been committed to a mental institution.”5 Neither of these terms is defined in the Act itself, and the underlying federal and state laws concerning procedures that could potentially trigger these disabilities vary widely.6 As we explain below, however, “mental defectiveness” to the Congress of 1968 meant a lifelong intellectual disability, while “commitment” implied involuntary confinement within a public mental institution.

Nevertheless, the rationale of 51P seems to be that Congress intended to write a blank check for these terms to apply to any sort of determination made about a person’s mental status in an official proceeding. Indeed, 51P would have this rationale apply even if those proceedings would have been unknown to the Congress that enacted the GCA. BATFE’s rulemaking authority, however, is narrowly confined to “only such rules and regulations as are necessary to carry out the provisions” of the GCA.7 Its regulatory reach should accordingly be narrowly construed, and all doubts resolved against it.

The background information BATFE provides with respect to 51P is not illuminating with respect to congressional intent. The proposal notes that the current regulatory definitions of these terms were finalized on June 27, 1997. According to BATFE, what comments were received concerned only the definitions of “adjudicated as a mental defective,” and none took issue with its definition of “committed to a mental institution.”

B. Legislative History

BATFE’s proposal claims, “The legislative history of the Gun Control Act indicates that Congress intended the prohibition against receipt and possession of firearms would apply broadly to ‘mentally unstable’ or ‘irresponsible’ persons.”8 To bolster this argument, BATFE cites statements from the Congressional Record by several representatives. Yet the United States Supreme Court has rejected “reliance on the passing comments of one Member” and “casual statements from floor debates” as indicative of “the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.”9

4 18 U.S.C. §§ 921-‐931. 5 18 U.S.C. § 922(d)(4), (g)(4). 6 See, e.g., Advocacy Center Treatment, State Standards for Assisted Treatment: Civil Commitment Criteria for Inpatient or Outpatient Psychiatric Treatment, Jan. 2013, available at http://treatmentadvocacycenter.org/ storage/documents/Standards_-‐_The_Text-‐_June_2011.pdf.

7 18 U.S.C. § 926(a) (emphasis added).

8 79 Fed. Reg. 776.

9 Garcia v. United States, 469 U.S. 70, 76 (1984). See also Consumer Product Safety Commission v. GTE Sylvania, Inc. 447 U.S. 102, 118 (1980) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 311, (1979)) (“ordinarily even the

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Moreover, when placed in their proper context, the quotes BATFE offers do not support its interpretation of the statutory text. At most, they indicate a general concern about dangerous persons possessing firearms, but none of the comments address or even reference the terms used in the GCA itself. The terms the representatives use to express their concerns about the dangerously mentally ill show no precision or uniformity. To the extent they express a sense of consensus about the proper scope or limits of the legislation, they actually refute the approach taken by 51P and suggest only the most serious and disabling conditions are relevant.

BATFE first cites a July 17, 1968, statement by Rep. Robert Sikes. The agency contends that Sikes’ use of the term “mentally irresponsible persons” supports a broad interpretation of the underlying statutory language.

Sikes stated, “I know there is a need for sane legislation which is intended to keep weapons out of the hands of criminals and mentally irresponsible persons. There is a greater need even than this and we cannot expect to accomplish it with the legislation which is proposed here.”10 A sentence later, Sikes stated his opposition to what would become the GCA, noting, “I am prepared to support reasonable legislation to keep weapons out of the hands of the wrong people but I cannot support H.R. 17735.”11

Sikes’ avowed opposition to H.R. 17735, coupled with his stated support for “sane legislation which is intended to keep weapons out of the hands of criminals and mentally irresponsible persons,” indicates that his use of the term “mentally irresponsible persons” was not in reference to H.R. 17735. Rather, Sikes used the term in describing a hypothetical piece of legislation he could support, not the legislation actually before the Congress.

Later in his statement, Sikes remarked, “What is needed is tighter curbs on criminals or those who are mentally delinquent. It is criminals who should be curbed – not guns,” and he goes on to lament a criminal justice system that he believed was “coddling” criminals.12 This suggests that Rep. Sikes’ idea of “sane legislation” was that which would focus, not on firearms themselves, but on criminals and on those whose mental conditions expressed themselves in criminal activity. Apparently, he saw the focus on firearms in the GCA as misplaced, and nothing in the cited comments indicates that he endorsed the language actually adopted in Act, much less that he had an opinion on the contours of what was to become 18 U.S.C. § 922(d)(4) and (g)(4).

The remaining congressional history cited by BATFE likewise offers no evidence to support BATFE’s desired expansion of the prohibited person categories. If anything, the variety of terms used

contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history”).

10 114 Cong. Rec. H21780 (daily ed. July 17, 1968).

11 Id.

12 Id. at 21781.

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interchangeably by the representatives debating H.R. 17735 to describe the mentally ill persons to be prohibited suggest that the representatives used these terms haphazardly and gave little thought to their choice of words.

BATFE highlights some representatives’ use of the terms “mentally unstable” or “irresponsible persons” as support for 51P’s expansive definitions, but ignores other terms representatives used in reference to the mentally ill that suggest a narrower reading. For instance, Representatives James Corman and Frank Thompson, whom BATFE cites, used the terms “mental incompetents”13 and “mentally deranged,”14 respectively, to describe those the legislation would bar. In addition to the representatives BATFE cites, Rep. Joseph Minish used the terms “irresponsible” and “deranged” in the same statement to describe those that H.R. 17735 would target.15 Some representatives expressed an interest in keeping guns away from “lunatics,”16 “psychopaths,”17 and the “insane”18 during debate.

If anything, these statements suggest that Congress was focused only on extreme cases of psychopathology or profound incapacity, rather than more common forms of mental illness that would be swept in by 51P’s terms.

In any event, the representatives’ indiscriminate and varying use of language does not offer support for BATFE’s present position. Rather, it illustrates the folly of cherry picking phrases and terms to determine congressional intent, and makes clear the importance of relying first and foremost on the GCA’s actual text when interpreting the scope of the law. As the Supreme Court stated, “[t]o select casual statements from floor debates, not always distinguished for candor or accuracy, as a basis for making up our minds what law Congress intended to enact is to substitute ourselves for the Congress in one of its important functions.”19

To the extent the legislative history says anything useful at all about the GCA’s prohibitions on the mentally ill, it’s that the representatives who debated the Act did not have a uniform or sophisticated understanding of mental illness or of the type of mentally ill people who should be prohibited from having firearms. In general, the representatives saw a need to address firearm acquisition and possession by the dangerously mentally ill, but as is explained below, 51P’s expansive

13 Id. at 21832.

14 Id. at 21791.

15 Id. at 21799.

16 Id (statement of Rep. Minish).

17 Id. at 21837 (statement of Rep. Dwyer).

18 Id. at 21834 (statement of Rep. Gallagher).

19 Garcia, 469 U.S. at 76, n.3 (citing Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395-‐396 (1951) (Jackson, J., concurring)) (internal quotations omitted).

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definitions do not focus on dangerousness as a defining characteristic. This merely underscores the need for Congress to revisit the issue in a more deliberate manner and in light of modern science’s understanding of how and to what degree mental illness indicates a propensity for violence or dangerousness.

C. Case Law

BATFE cites only one case to support its interpretation of the GCA’s mental health-‐related prohibitions. That decision, however, is a district court case that is not binding in its own jurisdiction, much less anywhere else.20 Federal circuit courts have also weighed in on the GCA’s mental health prohibitions, a fact that 51P ignores altogether. At least one circuit has flatly rejected the reading of “mental defective” that is reflected in BATFE’s current regulation. Yet 51P would further expand the definition of that term, compounding the error. Courts are the ultimate authority on statutory interpretation, and their reading of a statute will prevail over an agency’s.21 Therefore, whatever deference might otherwise apply to BATFE’s interpretation of the GCA, it should not apply in the context of BATFE’s interpretation of the term “mental defective.” Similarly, while courts have differed on the scope of applicable “commitments,” no federal appellate court has adopted the broad reading of that term suggested by 51P, and the cases do not uniformly suggest that a broad reading is appropriate.

Examination of the GCA’s mental health provisions by federal courts began shortly after passage of the Act (and before any regulation was enacted concerning the meaning of its mental health terminology). In 1973, the Eighth Circuit evaluated the scope of the terms “adjudicated as a mental defective” and “committed to a mental institution” in United States v. Hansel.22 The court first accepted the government’s concession that the defendant had not been committed because, it concluded, an involuntary hospitalization for observational purposes is not a commitment.23 In determining the meaning of “mental defective,” the court followed the “familiar rule that criminal statutes are to be

20 See Am. Elec. Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2540 (2011) (“[F]ederal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court”).

21 See, e.g., Education Assistance Corp. v. Cavazos, 902 F.2d 617, 622 (8th Cir. 1990) (citing 5 U.S.C. § 706) (“While we may give deference to the agency's interpretation of the statute which gives it the authority to act … we have ultimate responsibility over questions of statutory interpretation and Congressional intent.”).

22 The defendant in Hansel was found by a mental health board to be mentally ill and was hospitalized for a period of observation that under Nebraska law could last up to sixty days. A doctor then found the defendant was not mentally ill, and he was released from the hospital after only two weeks. On appeal, the government conceded that the order for hospitalization was not a commitment within the meaning of the GCA, but still unsuccessfully argued that the defendant had been “adjudicated as a mental defective” due to the mental health board’s determination that he was mentally ill. 474 F.2d 1120, 1121-‐23 (8th Cir. 1973).

23 Id. at 1123.

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strictly construed” and gave to the term “its narrow meaning.”24 Based on expert testimony and the then-‐common understanding of the term, the court found that a “mental defective” is “a person who has never possessed a normal degree of intellectual capacity, whereas in an insane person faculties which were originally normal have been impaired by mental disease.”25 Critically, the court specifically considered and rejected the assertion – identical to 51P’s26 – that “mental defectiveness” is synonymous with “mental illness.”

In response to the government’s argument that Congress intended adjudications of mental illness to fall within the meaning of the prohibition the court stated, “If it is the desire of Congress to prohibit persons who have any history of mental illness from possessing guns, it can pass legislation to that effect, but we cannot read into this criminal statute an intent to do so.”27 This case, decided just five years after enactment of the GCA, is plainly incompatible with 51P’s conclusion that “Congress intended that the prohibition against the receipt and possession of firearms would apply broadly to ‘mentally unstable’ or ‘irresponsible’ persons.”28

The only case actually cited in 51P, the district court case of United States v. B.H.,29 ironically underscores Hansel’s narrow reading of the GCA’s “mental defective” language, even as BATFE invokes it as precedent for its broad reading of the GCA’s “commitment” language. In B.H., the court followed the Hansel decision’s narrow reading of “adjudicated as a mental defective,” even though a contrary regulation had been issued to implement the GCA after Hansel.30 The court rejected BATFE’s definition of “mental defective” as too broad and found that because B.H. was not found to have “never possessed a normal degree of intellectual capacity, … B.H. was not ‘adjudged as a mental defective.’”31

BATFE instead cites B.H. for the court’s conclusion that B.H. was “committed to a mental institution” based on an order of mandatory outpatient treatment. The court reasoned, “The statute only requires commitment to a mental institution, not commitment in a mental institution.”32 Yet this reasoning relies on a flawed and linguistically awkward reading of the GCA’s statutory text.

24 Id. (citing Yates v. United States, 354 U.S. 298, 310 (1957)).

25 474 F.2d at 1124.

26 See 79 Fed. Reg 777 (“The term [committed to a mental institution] includes an involuntary commitment for mental defectiveness, i.e., mental illness, to a mental institution.”)

27 474 F.2d at 1125.

28 See supra note 1.

29 United States v. B.H., 466 F. Supp. 2d 1139 (N.D. Iowa 2006).

30 Id. at 1146 (citing 27 C.F.R. § 478.11).

31 Id. at 1147.

32 Id.

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The B.H. court and 51P claim that if it had been the intent of Congress to limit the prohibition in 18 U.S.C. § 922(g)(4) to only cover inpatient commitments, then the GCA would read “who has been committed in a mental institution.” Yet changing these prepositions gives a completely different meaning to the phrase. The preposition “to” is most commonly used “for expressing motion or direction toward a . . . place, or thing approached and reached . . . .”33 The preposition “in,” on the other hand, is most commonly used “to indicate inclusion within space, a place, or limits,” e.g., “walking in the park.”34 Thus, the B.H. court’s and 51P’s reading of the phrase suggests not a commitment directing a person to a mental institution but commitment proceedings that themselves occurred within a mental institution. Clearly, this is not what Congress intended.

Moreover, the phrasing that the B.H. court and 51P suggests is unknown in federal case law as indicating an action of a court or other adjudicative body. A Westlaw search of all federal cases, as of March 25, 2014, revealed that the phrase “committed in a mental institution,” or derivations thereof,

occur in only three reported federal cases (five other unreported cases use some derivation of the phrase).35 In each of the reported cases, moreover, the phrase is not used to describe the action of a court in remanding an individual to a specific facility but the status of persons who are actually residing within the facilities as committed patients.36

The Eighth Circuit is not the only U.S. court of appeals to give a narrow reading to the meaning of “adjudicated as a mental defective” and “committed to a mental institution.” The Fifth Circuit also applied the rule of lenity in holding that:

[t]emporary, emergency detentions for treatment of mental disorders or difficulties, which do not lead to formal commitments under state law, do not constitute the commitment envisioned by 18 U.S.C. § 922. An essential element of that federal offense is either a formal adjudication that a person suffers a mental defect, or a formal commitment, which latter, in the instance of Louisiana, requires formal action by the state district court.37

33 Definition of “to,” Dictionary.com, http://dictionary.reference.com/browse/to?s=t (last visited April 7, 2014).

34 Definition of “in,” Dictionary.com, http://dictionary.reference.com/browse/in?s=t (last visited April 7, 2014).

35 Search phrase used was <(committed /1 #in /2 mental /1 institution)>.

36 Hunter v. Carbondale Area School Dist., 829 F.Supp. 714 (M.D. Pa. 1993) (referring to persons who are actually in the state’s custody as “patients involuntarily committed in mental institutions”); Woe v. Matthews, 408 F.Supp. 419 (E.D.N.Y. 1976) (same); Lynch v. Baxley, 386 F.Supp. 378, 383 (M.D. Ala. 1974) (referring to patients who “remain committed in Alabama’s mental institutions”).

37 United States v. Giardina, 861 F.2d 1334, 1337 (5th Cir. 1988).

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Not all U.S. courts of appeal agree that 18 U.S.C. § 922(g)(4) must be read this narrowly. The Second Circuit read the term “commitment” to apply to an involuntary hospitalization based on a procedure that required only the certificates of two physicians, accompanied by an application for admission.38 The Fourth Circuit read applicable “commitments” to include circumstances in which a patient (Midgett) declared incompetent to stand trial was remanded, with consent of his attorney and the prosecutor, to a state mental hospital for treatment to restore him to competency, without going through the state’s formal commitment process.39

Yet both courts specifically focused on the medical findings and procedural protections afforded to individuals in each process. The Fourth Circuit emphasized that:

(1) Midgett was examined by a competent mental health practitioner; (2) he was represented by counsel; (3) factual findings were made by a judge who heard evidence; (4) a conclusion was reached by the judge that Midgett suffered from a mental illness to such a degree that he was in need of inpatient hospital care; (5) a judicial order was issued committing Midgett to a mental institution; and (6) he was actually confined there.40

The Second Circuit, meanwhile, explained at length New York’s “rather elaborate procedural scheme for notice, hearing, review, and judicial approval of continued retention in a mental health facility."41 As described by the court:

In order to be involuntarily admitted to a mental health facility, one must be “mentally ill and in need of involuntary care and treatment.” N.Y.Mental Hyg.Law § 9.27(a). A person is “‘in need of involuntary care and treatment’ [if that] person has a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare and whose judgment is so impaired that he [or she] is unable to understand the need for such care and treatment.” Id. § 9.01 (McKinney 1988 & Supp.1994). In addition, the person must “pose[ ] a substantial threat of physical harm to herself or to others.” In re Jeannette S., 157 A.D.2d 783, 550 N.Y.S.2d 383, 384 (2d Dep't 1990) (mem.) (citations omitted). Section 9.27 allows for the involuntary admission of an individual based upon an application of a relative or other qualified person, and a two-‐physician certificate.4 A psychiatrist must examine

38 United States v. Waters, 23 F.3d 29, 35 (2d Cir. 1994).

39 United States v. Midgett, 198 F.3d 143, 146 (4th Cir. 1999).

40 Id. at 146.

41 Waters, 23 F.3d at 32.

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the person upon arrival at the hospital or mental health facility, and if it is found that involuntary treatment is appropriate, the person may be admitted. N.Y.Mental Hyg.Law § 9.27(e). Section 9.31(a) provides for a hearing for an involuntarily admitted patient upon request “at any time prior to the expiration of sixty days from the date of involuntary admission.” Such hearing would occur in the “supreme court or the county court in the county designated by the applicant, . . . or if no designation be made . . . where [the hospital or mental health facility] is located.” Id. § 9.31(b). Finally, § 9.33(a) requires that the director of a mental health facility obtain a court order authorizing the continued detainment of a patient within sixty days of the date of retention “if such patient does not agree to remain in such hospital as a voluntary patient.”42

The court further noted that “a patient [must] be given notice of her rights immediately upon admission” and that “upon the request of the patient or of anyone on the patient's behalf, the patient shall be permitted to communicate with the mental hygiene legal service and avail himself [or herself] of the facilities thereof.”43

The First Circuit, moreover, reevaluated what was initially its broad reading of 18 U.S.C. § 922(g)(4) following the United States Supreme Court’s decision in District of Columbia v. Heller, which recognized that the Second Amendment protects an individual right to possess firearms for self-‐defense and other legitimate purposes.44 In United States v. Rehlander, the court overruled a prior circuit precedent that held that a mandatory hospitalization relying only on ex parte proceedings was a “commitment” for purposes of the GCA.45 In light of Heller’s holding that the Second Amendment encompasses an individual right, the court found that more due process protections were required than those provided in the ex parte proceeding before the government could permanently deprive an individual of the right to keep and bear arms.46 “[T]o work a permanent or prolonged loss of a constitutional liberty or property interest,” the First Circuit stated, “an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required.”47 The court’s reasoning is particularly

42 Id.

43 Id. at 32 n.5 (internal quotation marks and citations omitted).

44 554 U.S. 570 (2008).

45 United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012), overruling United States v. Chamberlain, 159 F.3d 656 (1st Cir. 1998).

46 Id. at 50-‐51.

47 Id. at 45.

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applicable to the loss of firearm rights under 18 U.S.C. § 922(d)(4) and (g)(4) because in the majority of states the prohibitions are permanent with no possibility of having the rights restored.48

Regarding commitments, 51P seeks to expand the prohibitions of 18 U.S.C. § 922(d)(4) and (g)(4) beyond formal inpatient commitments (although how far beyond, as explained below, is not clear). Because of the severe deprivation on individual liberty that inpatient, long-‐term commitments entail, courts have required similar procedural protections in those cases to what is required in criminal cases.49 If the scope of 18 U.S.C. § 922(d)(4) and (g)(4) is expanded to cover commitments that do not require these procedural protections, then it will fall to courts on a case-‐by-‐case basis to determine if a specific procedure contains sufficient due process to work a presumptively permanent deprivation of the fundamental, individual rights protected by the Second Amendment.

As for relevant adjudications of “mental defectiveness,” BATFE has offered absolutely no support in text, legislative history, or judicial precedent for its extremely broad reading of this term. At best, 51P can be said to create its standards out of whole cloth. At worst, it flies directly in the face of existing federal appellate case law and will remain unenforceable in certain parts of the country where that precedent remains binding. Thus, 51P will lead to less clarity and uniformity in the application of the GCA, rather than improved clarity and uniformity, which is the supposed intent of the proposal.

On the whole, the picture that emerges from the legislative history and case law of the GCA’s mental health-‐related prohibitions indicates that they were not given careful consideration by Congress, and they have not been consistently applied (a point which 51P implicitly acknowledges).50 BATFE claims the intent with 51P is to “clarify, rather than alter, the current meaning of the terms.”51 Yet that

48 See infra note 68 and accompanying text discussing the unavailability of firearm rights restorations in many states due to lack of certification under the NICS Improvement Amendments Act of 2007.

49 See Addington v. Texas, 441 U.S. 418, 433 (1979) (holding that a clear and convincing evidentiary standard is required for an inpatient commitment); Heryford v. Parker, 396 F.2d 393, 397 (10th Cir. 1968) (holding that the right to counsel applies in formal commitment proceedings).

50 In addition to the federal cases already discussed, see State v. Buchanan, 924 A.2d 422, 424 (N.H. 2007) (holding that a finding of incompetence to stand trial was not an “adjudication as a mental defective”); Furda v. State, 997 A.2d 856, 888 (Md. Ct. App. 2010) (holding that an emergency commitment was not a “commitment” under the GCA); Gallegos v. Dunning, 764 N.W.2d 105, 110 (Neb. 2009) (holding that defendant who sought voluntary admission after being ordered to be involuntarily hospitalized for observational purposes was not “committed” for purposes of the GCA); Little v. Pennsylvania State Police, 33 A.3d 659, 666 (Pa. Commw. Ct. 2011) (holding that a court ordered hospitalization for observation to help in sentencing in a criminal cases was a “commitment”).

51 See supra note 1.

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proposal reflects the specious rationale that the less people have firearms, the better public safety will be served.52

Congress, however, expressed no such intent with the GCA, stating in its preamble:

Congress hereby declares that . . . it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-‐abiding citizens with respect to the acquisition, possession, or use of firearms . . . and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-‐abiding citizens for lawful purposes, or provide for the imposition by Federal regulation of any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title.

The mentally ill are not invariably disposed to criminal or antisocial behavior. Most can and do lead productive, law-‐abiding lives and safety and responsibly exercise the rights and responsibilities of American citizenship. Congress should therefore revisit the GCA’s mental health provisions and prescribe more definite rules, taking into account current empirical evidence and the state of the art in scientific understanding of mental illness and how it relates to a risk of violence.

II. BATFE’s Current Regulations and 51P’s Suggested Changes

A. Current Regulations

Currently, BATFE regulations define “adjudicated as a mental defective” as:

(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

(1) Is a danger to himself or to others; or

(2) Lacks the mental capacity to contract or manage his own affairs.

(b) The term shall include-‐-‐

(1) A finding of insanity by a court in a criminal case; and

52 This is precisely the insinuation 51P makes in suggesting that adjudications and commitments pertaining to minors should count: “Explicitly including such adjudications or commitments within the definition of these terms may result in state entities providing additional records to the NICS that may affect future NICS background checks and may have public safety benefits.” 79 Fed. Reg. 7776. Yet 51P contains absolutely no indication that Congress endorsed this view of the GCA or how it would in any sense contribute to public safety, other than simply resulting in more NICS denials.

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(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.53

“Committed to a mental institution” is defined as:

A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.54

“Mental institution[s]” include “mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general hospital.”55

B. 51P’s Expansion of the Current Regulatory Definitions

The proposals in 51P would expand these standards in a number of ways.

First, the “adjudications” relevant to the first definition would include not just “determinations,” but also “orders” or “similar findings.” The reason for including these additional terms is apparently to accommodate the expanded list of disqualifying events that would trigger the GCA’s disabilities, including findings of “not guilty by reason of insanity, mental disease or defect, or lack of mental responsibility by a court in a criminal case,” as well as “guilty but mentally ill by a court in a criminal case . . . .” Additionally, the term would include, “Those persons found incompetent to stand trial by a court in a criminal case.” Notably, the underlying charges in these proceedings, as well as the cause or duration of the “defectiveness,” would be irrelevant. All such occurrences would be included, whether or not the underlying charge reflected violent tendencies or the cause of the impairment was chronic or permanent. Apparently, a person could face a lifetime prohibition for having been found incompetent to stand trial for shoplifting or writing bad checks, even if competency was later restored.

Regarding “commitments,” the main difference would be that an involuntary commitment for “outpatient treatment” would expressly be included in the definition. Once again, the underlying reason for or circumstances of the commitment, or the standard of law under which it occurred, would be irrelevant to the determination. The current language stating that “commitments” do not include those in a mental institution for observation would be modified to exclude those in a mental institution

53 27 C.F.R. § 478.11. 54 Id. 55 Id.

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“solely” for observation or evaluation. Why “solely” was added is not explained. Seemingly, however, a person in a hospital for psychiatric observation who also happened to require medical treatment would no longer be excluded from the definition of “commitment,” no matter what the circumstances.

III. 51P Would Amplify Current Problems and Introduce New Ones

A. Problems with BATFE’s Current Regulations

BATFE’s current definitions of disqualifying “adjudications” and “commitments” raise a number of concerns. First, as is clear from the preceding discussion on the meaning of the statutory terms, and indeed from 51P itself, BATFE’s regulations are vague, inconsistent with the underlying statute and federal case law, and interpreted and applied inconsistently. Also, the myriad underlying federal and state procedures that can potentially trigger a disability under BATFE’s current definitions apply to a wide variety of circumstances, a number of which do not require or have any bearing on a person’s propensity for violence or take into account the duration of the mental impairment. These procedures also feature varying degrees of due process. By its express terms, moreover, BATFE’s definition of “adjudicated as a mental defective” includes a determination that a person is unable to contract or manage his affairs, even in the absence of any indication of dangerousness or of a grave, pervasive, and permanent disability. BATFE offers no justification for this.

The absurdity and injustice of BATFE’s current approach is well illustrated by the Department of Veterans Affairs’ (VA) untenable practice of reporting to the National Instant Criminal Background Check System database (NICS) as “adjudicated as a mental defective” all persons receiving VA benefits who are assigned a fiduciary to help them manage those benefits. The VA’s own website acknowledges this practice and the consequences of such an appointment for the beneficiary’s Second Amendment rights.56 To have a fiduciary appointed, a beneficiary does not have to be determined to be a danger to self or others or to be incompetent in any sense relevant to the person’s propensity for violence or ability to function generally. Rather, the person need only require assistance with managing his or her finances. Indeed, the VA’s website notes that fiduciaries are generally family members or friends and that appointment of a fiduciary does not affect other important rights, such as the right to vote or to enter into legally-‐binding contracts. It doesn’t even affect the person’s finances other than with respect to VA benefits. Simply put, whatever the “incompetency” might be that justifies a fiduciary appointment, it does not justify an across-‐the-‐board ban on the exercise of a fundamental right.

Legislation has been introduced that would address this issue.57 Yet while a version of this legislation has been passed by the House of Representatives,58 it has not been enacted into law.

56 See VA Fiduciary Program, http://benefits.va.gov/fiduciary/beneficiary.asp (last visited Feb. 10, 2014). 57 See Veterans Second Amendment Protection Act, introduced in the 113th Congress by Rep. Steve Stockman (R-‐TX) as H.R. 577, available at http://beta.congress.gov/bill/113th/house-‐bill/577/text. 58 See NRA-‐ILA Alert, Veteran’s Second Amendment Rights Bill Passes U.S. House, Senate Companion Bill Introduced, Oct. 14, 2011, available at http://www.nraila.org/legislation/federal-‐legislation/2011/10/veteran’s-‐second-‐amendment-‐rights-‐bill.aspx?s=Veterans+Second+Amendment+Protection+Act&st=&ps=.

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Meanwhile, many who have borne arms on behalf of their country, and many who have been seriously injured doing so, are needlessly and shamefully being deprived of their Second Amendment rights.

The primary mechanism for enforcing the GCA’s mental health standards is the reporting of disqualifying information by federal and state agencies to the FBI’s NICS database. Following the 2007 rampage at Virginia Tech, Congress enacted the NICS Improvements Amendments Act of 200759 (NIAA) to improve states’ reporting of this information. Since that time, NRA-‐ILA has been instrumental in helping the states pass legislation to implement this law, which contains provisions aimed both at reporting disqualifying information and at providing relief from the resultant firearm disabilities for those so reported.60 Indeed, NRA-‐ILA is one of the few organizations (if not the only one) to have created model legislation for this purpose.

This experience has taught us a number of lessons concerning the practical problems with implementing BATFE’s mental health definitions through NICS. First, until recently, few states reported any records to NICS based on the GCA’s mental health disqualifiers because of privacy concerns and the practical difficulties of identifying, locating, and transferring relevant records.61 Second, states have a wide variety of legal procedures that may involve making a determination about an individual’s mental health status,62 and state officials are often unsure which of those procedures triggers the disabilities of the GCA and therefore should be reported. Third, legislation implementing the NIAA can attract opposition from pro-‐gun constituencies that believe, rightly or wrongly, that voluntary disclosure of mental health issues by persons to medical professionals could result in a loss of Second Amendment rights. Fourth, of course, are financial considerations, which can be somewhat offset by grants available to states that are compliant with the relief-‐from-‐disabilities provisions of the NIAA. A 2012 report by the

59 Pub. L. 110-‐180, 121 Stat. 2559 (2008).

60 A search of the term “NIAA” or “NICS Improvement Amendments Act” on NRA-‐ILA’s website, nraila.org, will reveal dozens of articles and alerts in which we demonstrate support for NIAA implementation legislation in the states.

61 We are aware of the pending rulemaking by the Department of Health and Human Services -‐-‐ published January 7, 2014, at 79 Fed. Reg. 784 -‐-‐ that seeks to clarify that the Health Insurance Portability and Accountability Act Privacy Rule does not prohibit states from reporting to NICS the names and certain identifying information of individuals subject to the mental health prohibitions of the GCA. NRA-‐ILA has not commented on that proposal, as we do not object to the reporting of prohibited persons to NICS, provided that the bases of the prohibitions are justifiable and sufficiently tailored to cover only legitimately dangerous individuals. Our focus, in other words, is on the prohibitions themselves, not on preventing prohibited persons from being reported. We also recognize that whether or not a prohibited person is reported to NICS, that individual remains subject to the legal penalties for illegal acquisition or possession of a firearm. Thus, although we have misgivings about BATFE’s current interpretation of the GCA’s mental health prohibitions, we endorse states enacting NIAA implementation laws so that prohibited individuals have an effective means of obtaining relief from firearm-‐related disabilities under both federal and state laws.

62 See, e.g., Treatment Advocacy Center supra note 6.

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United States Government Accountability Office detailed these and other barriers states have encountered in reporting to NICS persons prohibited because of disqualifying mental health histories.63

The main benefit of the NIAA from NRA-‐ILA’s standpoint is that it provides a means for persons subject to the mental health disqualifiers of the GCA to obtain relief from disabilities through filing a petition with a court or other adjudicative authority. Unless relief is available, the mental health disqualifiers of the GCA are effectively permanent. This is so even for persons who have never posed a risk of harm; or who have recovered; or who are being successfully treated, are functioning well, and pose no increased risk to themselves or others.

Nevertheless, obtaining effective restoration of Second Amendment rights can still be complicated and difficult, and the rules vary depending on whether the original disqualification arose as a result of federal or state action. For example, concerning records reported by the federal government, relief can be obtained a number of ways. It may occur because the original proceeding was set aside, the records thereof were expunged, the person was found by an adjudicative authority to no longer suffer from the underlying condition or to be rehabilitated, or the underlying finding lacked certain due process protections.64 Federal entities that impose disqualifying adjudications and commitments, moreover, are required by the NIAA to establish procedures for relief from the mental health disqualifiers of the GCA.65 Federal law also has another more general restoration provision for firearm disabilities imposed under the GCA,66 but petitions under that provision pertaining to individuals have for years been blocked by an appropriations rider that prohibits their consideration.67

If the person is prohibited because of an adjudication or commitment reported to NICS by a state entity, on the other hand, the only path to relief from the disabilities imposed by the GCA is through a state relief procedure implemented in accordance with section 105 of the NIAA and certified by BATFE. According to information NRA-‐ILA received from BATFE in February 2014, however, only about half the states have such a procedure. Making matters even more complicated, a number of states have mechanisms for relief from mental health-‐related firearm disabilities imposed under state

63 Gov’t Accountability Ofc., Rpt. No. GAO-‐12-‐684, Gun Control: Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks, July 2012, available at http://www.gao.gov/assets/600/592452.pdf.

64 See 121 Stat. 2559, 2562.

65 Id. at 2569-‐70.

66 18 U.S.C. § 925(c).

67 See Title II of the Consolidated Appropriations Act, 2014, Pub. L. 113-‐76, 128 Stat. 5 (2014).

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law that are not considered compliant with the NIAA. Persons who successfully navigate those procedures are accordingly safe from state prosecutions but not federal prosecutions.68

B. 51P’s Aggravation and Expansion of Current Problems

Were 51P to be enacted as written, it would only make these problems worse and introduce new ones.

As noted in the above case law analysis, a number of courts have already indicated that the standards BATFE seeks to impose are not supported or authorized by the GCA itself. Even if BATFE’s policy preferences were sound, they would still have to be authorized by Congress. BATFE cannot enlarge the bounds of a statute Congress enacted merely because it thinks doing so is a good idea.

Moreover, to the degree BATFE seeks to add “outpatient” commitments to the definition of the GCA’s disqualifying procedures, it is relying on a concept that was almost certainly unknown to the Congress that passed the GCA. The origins of outpatient commitment in the United States are often attributed to the 1966 federal appellate court case of Lake v. Cameron,69 which suggested that involuntarily hospitalized psychiatric patients had a right to be treated in the least restrictive alternative setting that met their needs. This led to additional lower court decisions in the 1970s that required courts to consider available alternatives to confinement to mental hospitals.70 Yet amongst mental health professionals themselves, discussions of outpatient commitment were rare before the 1980s.71 Specific statutory authority for outpatient commitment in the United States appears to have arisen in the mid-‐1980s.72 If outpatient commitment were not available or being regularly practiced in the United States as of 1968, the intention to use it as the basis of a prohibition in the GCA can hardly be imputed to the Congress that enacted that law.

Just how much outpatient treatment the new definitions would reach, moreover, is far from clear. Besides the fact that the laws on outpatient commitment in the United States vary widely,73 some sort of mandatory court-‐ordered counseling or treatment is common in a wide range of legal 68 See Tyler v. Holder, No. 1:12-‐CV-‐523, 2013 WL 356851 (W.D. Mich. Jan. 29, 2013) (quoting a letter BATFE sent to the plaintiff stating that his federal firearm rights may not be restored until his state “has an ATF approved relief from disabilities program in place”).

69 364 F2d 657 (DC Cir. 1966).

70 See Paul S. Appelbaum, Law & Psychiatry: Least Restrictive Alternative Revisited: Olmstead's Uncertain Mandate for Community-‐Based Care, 50 Psychiatric Services, Vol. 50, No. 10 (1999).

71 See Jeffrey L. Geller, The evolution of outpatient commitment in the USA: From conundrum to quagmire, 29 Inter’l J. of L. and Psychiatry 234 (2006).

72 Gerry McCafferty & Jeanne Dolley, Involuntary Outpatient Commitment: An Update, 14 Mental and Physical Disability Law Reporter 277 (1990).

73 See Treatment Advocacy Center supra note 6.

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proceedings, from custody disputes to diversionary dispositions for relatively minor and non-‐violent criminal offenses such as simple possession of marijuana or driving while under the influence. Notably, the proposed definition of commitment would include procedures not just based on mental illness, but “also … a commitment to a mental institution for other reasons, such as for drug use.”74 Because the current broad definition of “mental institution” would be carried over into the new rule, the proposal could encompass a wide range of court-‐ordered treatment for a wide range of circumstances, many of which would not require any finding of dangerousness or grave disability. As the example of the Department of Veterans Affairs illustrates, moreover, those who erroneously consider firearm possession a per se risk to public safety may well give the provisions a very broad reading.

As decisions like Hansel and Rehlander indicate, neither Congress nor BATFE has endless discretion to enact gun control by invoking the shibboleth of mental illness as a proxy for dangerousness. Mental health professionals, as discussed below, refute broad generalizations about the dangerousness of the mentally ill. Constitutional problems are likely to arise where a lack of strong justification collides with marginal due process in the deprivation of a fundamental right.

Perhaps the most troublesome aspect of BATFE’s proposal, however, is the practical effect it could have on those in need of mental health treatment. Ironically, 51P could actually increase whatever dangers might be associated with untreated mental illness by creating disincentives for people to seek help for or reveal to care providers symptoms that might suggest mental illness. While the proposal, like the current regulations, specifically excludes voluntary treatment, a person might nevertheless fear that disclosing symptoms to a care provider or other confidant could lead to more drastic action that would trigger a reportable event. 75

Mental health professionals, law enforcement agencies, and public institutions such as schools and colleges are increasingly vigilant for signs of distress and dangerousness in individuals. Yet the perception of many, especially in the pro-‐gun community, is that this has led to overreactions to relatively harmless behavior. For example, certain states have recently introduced legislation in response to primary school “zero tolerance” disciplinary polices that ensnare students for harmless behavior that suggests the mere idea of a firearm. 76 Example have included drawing pictures of

74 79 Fed. Reg. 777.

75 “Broadening gun reporting criteria in federal and state law, however well intentioned, could have the effect of creating further barriers to the willingness of individuals to seek treatment and help when they most need it. An individual who believes that participating in mental health treatment could subject him or herself to placement in a database maintained by the FBI or the state police will be highly reluctant if not outright resistant to participating in such care. Solutions to gun violence associated with mental illness lie in improving access to treatment, not in erecting further barriers to treatment.” National Alliance on Mental Illness, Violence, Mental Illness and Gun Reporting Laws (March 2013), available at http://www.nami.org/Template.cfm?Section=NAMI_Policy_Platform&Template=/ContentManagement/ContentDi splay.cfm&ContentID=153162.

76 See H.B. 7029, 116th Leg., Reg. Sess. (Fla. 2014); H.B. 2351, 54th Leg., 2d Reg. Sess. (Okla. 2014).

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firearms, pointing “finger guns” at one another, wearing clothes with images of firearms or text from the Second Amendment, and even chewing food into what a school employee thought was the shape of a firearm.77 Also, recently enacted state laws seek to require mental health professionals to report what they consider dangerous individuals to authorities specifically so the authorities can determine if action against state-‐issued firearms licenses is warranted.78 The proposed rule would simply be one more reason for individuals who value their right to keep and bear arms to be wary of revealing any sort of mental distress to another individual, particularly a medical care provider.

Simply put, the rule retrenches and magnifies problems already presented by the existing statutory and regulatory scheme.

IV. The GCA’s Mental Health Provisions are in Need of Updating and Clarification, but This is a Job for Congress, Not BATFE

A. The GCA’s Mental Health Provisions, and BATFE’s Regulations Implementing Them, Are the Products of Antiquated Attitudes Toward Mental Health

Needless to say, developments in law and medicine do not track each other precisely, but the GCA’s mental health-‐related prohibitions are clearly relics of a bygone era and should be revisited by Congress in light of modern advancements in the understanding of mental illness and its treatment. In addition to the varying, inconsistent terms those who debated the GCA used to express their views on mental illness, case law from the period of the GCA’s enactment reflects a similarly dated outlook.

For example, terms that are today widely recognized as pejorative and demeaning were widely used by courts in the 1960s as legal and medical terms of art. The Supreme Court in 1961, for example, described the defendant in a murder trial as a “thirty-‐three-‐year-‐old mental defective of the moron class with an intelligence quotient of sixty-‐four and a mental age of nine to nine and a half years.”79 Expert witnesses for the state had appraised the man “as a ‘high moron’ and ‘a rather high grade mentally defective ….’”80 In 1966, the Court observed that the Georgia Constitution barred “idiots and insane persons” from office.81 A District of Columbia case from 1966 recounted, “the prosecutor inquired of Dr. Ruch whether appellant, with an I.Q. of 69, was an idiot, imbecile or moron.”82 Dr. Ruch, “answer[ed] in

77 NRA-‐ILA, A Return to Sanity? Lawmakers Push Back Against Zero-‐Tolerance Abuses, February 7, 2014, http://www.nraila.org/legislation/state-‐legislation/2014/2/a-‐return-‐to-‐sanity-‐lawmakers-‐push-‐back-‐against-‐zero-‐tolerance-‐abuses.aspx?s=a+return+to+sanity&st=&ps= .

78 See N.Y. Mental Hyg. Law § 9.46; 430 Ill. Comp. Stat. 65/8.1, 66/105.

79 Culombe v. Connecticut, 367 U.S. 568, 620 (1961)

80 Id.

81 Bond v. Floyd, 385 U.S. 116, 129 (1966).

82 King v. United States, 372 F.2d 383, 397 (D.C. Cir. 1966).

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the negative” and “explained that such terms usually connote a mental defect persisting since childhood, whereas in appellant's case the significant point is that there was a later decline from an earlier higher I.Q., probably on the basis of protracted use of alcohol and organic brain damage.”83 Somewhat ironically, the Supreme Court in 1968 found a jury instruction that pertained to a “perverted and deranged mental condition” lacked sufficient definiteness because “its wording would seem to eliminate a finding of insanity as to any persons other than idiots or persons under the impact of psychotic panic or complete hallucination.”84 The Court even chided, “The charge as given in this case appears to us little improvement on that given by Justice Tracy in 1724, that a man could escape punishment if he ‘doth not know what he is doing, no more than an infant, than a brute, or a wild beast.'”85

These cases, besides underscoring Hansel’s narrow reading of the term “mental defective,” clearly indicate that attitudes toward mental illness have advanced in the intervening years. Indeed, Congress itself has recognized this, and in 2010 passed a bill that updated references to what are now known as “intellectual disabilities” in federal health, education, and labor laws.86 The bill was called Rosa’s Law, in reference to a girl from Maryland with Down Syndrome.87 Her older brother explained to the media, “What you call my sister is how you will treat her. If you believe she’s ‘retarded,’ it invites taunting, stigma. It invites bullying and it also invites the slammed doors of being treated with respect and dignity.”88 A similar law, the “21st Century Language Act of 2012,”89 was enacted on December 28, 2012, and removed the outdated term “lunatic” and similar references from federal law.

In testimony to Congress, a mental health advocacy group similarly observed of the GCA’s mental health terminology:

the term “adjudicated as a mental defective” is both stigmatizing and incompatible with modern terminology used in the diagnosis and treatment of people with mental illness. No state official charged with carrying out the requirements of the Brady bill could possibly know what this means, as it is a term that has been obsolete for close to 40 years. We have received emails and other communications in the last

83 Id.

84 U.S. v. Smith, 404 F.2d 720, 725 (1968).

85 Id.

86 Rosa’s Law, Pub. L. 111-‐256, 124 Stat. 2643 (2010).

87 Madison Park, Congress eliminates the R-‐word, CNN health.com, Sept. 27, 2010, http://thechart.blogs.cnn.com/2010/09/27/congress-‐eliminates-‐the-‐r-‐word/.

88 Id.

89 Pub. L. 112–231, 126 Stat. 1619 (2012).

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few weeks from people who are incredulous that such a term would still be used in federal law. 90

B. The Stereotype of Mental Illness Leading to Violence is Inaccurate

Yet this is not just a question of hurtful semantics. Of even more importance is that the very broad generalizations the GCA and BATFE’s implementing regulations reflect about the link between mental illness and dangerousness (generalizations that 51P would expand even further) simply do not comport with modern scientific knowledge. The consensus of mental health professionals is that mental illness and mental disorders are not intrinsically linked to violence (whether gun violence or otherwise).

A comprehensive report from the United States Surgeon General in 1999 noted the progress that had been made to that point in understanding mental illness and debunked the common stereotype of mental illness as correlating with violence.91 The report noted that during the latter half of the 20th Century mental illness had “carried a great social stigma, especially linked with fear of unpredictable and violent behavior.”92 Well into the 1990s, this fear of violence persisted and worsened, even as the public became more sophisticated about other facets of mental illness.93 Yet according to the report, “the overall risk of violence is low” and centers around specific circumstances, including mental disorders coexisting with substance abuse disorders, as well as severe mental illness, such as psychosis, especially when the individual is non-‐compliant with treatment.94 “[T]o put this all in perspective,” the report stated, “the overall contribution of mental disorders to the total level of violence in society is exceptionally small,” and “most people should have little reason to fear violence from those with mental illness, even in its most severe forms . . . .”95

Following the horrific mass murder at Sandy Hook Elementary School in December 2012, the American Psychological Association convened a panel of experts specifically to study the issues of predicting and preventing firearm violence. The resulting report rejected broad generalizations, not just about mental illness and violence overall, but about mental illness and gun violence specifically:

90 Federal Gun Reporting Requirements and Their Application to People With Mental Illness: Hearing Before the Domestic Policy Subcomm. of the H. Oversight and Gov’t Reform Comm. 113th Cong. (May 10, 2007) (testimony of Ron Honberg, Director of Policy and Legal Affairs, The National Alliance on Mental Illness (NAMI)), available at http://www.nami.org/Content/Content Groups/E-‐News/20073/June7/Oversight_and_Govt_Reform_Testimony.pdf.

91 U.S. Department of Health and Human Services, Mental Health: A Report of the Surgeon General, National Institute of Mental Health, 1999, available at http://profiles.nlm.nih.gov/ps/access/NNBBHS.pdf.

92 Id. at 7.

93 Id.

94 Id.

95 Id. at 7-‐8.

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Although many highly publicized shootings have involved persons with serious mental illness, it must be recognized that persons with serious mental illness commit only a small proportion of firearm-‐related homicides; the problem of gun violence cannot be resolved simply through efforts focused on serious mental illness (Webster & Vernick, 2013a). Furthermore, the overwhelming majority of people with serious mental illness do not engage in violence toward others and should not be stereotyped as dangerous (Sirotich, 2008).96

The report also indicated that predicting an individual’s propensity for future violence is a daunting challenge even for mental health experts: “decades of research have established that there is only a moderate ability to identify individuals likely to commit serious acts of violence.”97 It also cautioned that static labels like “good guys” and “bad guys,” although intuitively appealing, ignore the reality that “‘good guys’ can become ‘bad guys’ and ‘bad guys’ can become ‘good guys.’”98

Another article by an M.D. and Ph.D. who both serve as professors at prestigious schools of psychiatry specifically examined the efficacy of laws to restrict access firearms among people with mental illness.99 The authors concluded:

The contribution to public safety of these laws is likely to be small because only 3%–5% of violent acts are attributable to serious mental illness, and most do not involve guns. The categories of persons with mental illnesses targeted by the laws may not be at higher risk of violence than other subgroups in this population. The laws may deter

96 American Psychological Association, Gun Violence: Prediction, Prevention, and Policy, at 4 (2013), available at http://www.apa.org/pubs/info/reports/gun-‐violence-‐prevention.aspx.

97 Id. at 5. See also The School Shooter: A THREAT ASSESSMENT PERSPECTIVE http://www.fbi.gov/stats-‐services/publications/school-‐shooter at 1 (“This [threat assessment and intervention] model is not a "profile" of the school shooter or a checklist of danger signs pointing to the next adolescent who will bring lethal violence to a school. Those things do not exist.”) (emphasis in original); Threat Assessment In Schools: A Guide To Managing Threatening Situations And To Creating Safe School Climates (May 2002) Secret Service and Dep’t of Education at 21 (“The use of profiles to determine whether a student is thinking about or planning a violent attack is not an effective approach to identifying students who may pose a risk for targeted violence… Reliance on profiles to predict future school attacks carries two substantial risks: (1) the great majority of students who fit any given profile of a ‘school shooter’ actually will not pose a risk of targeted violence; and, (2) using profiles will fail to identify some students who in fact pose a risk of violence, but share few if any characteristics with prior attackers.”)

98 Id. at 32.

99 Paul S. Appelbaum & Jeffrey W. Swanson, Gun Laws and Mental Illness: How Sensible Are the Current Restrictions? 61 PSYCHIATRIC SERVICES 652 (2010), available at http://ps.psychiatryonline.org/data/Journals/PSS/3912/10ps652.pdf.

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people from seeking treatment for fear of losing the right to possess firearms and may reinforce stereotypes of persons with mental illnesses as dangerous. 100

They also suggested that if categorical restrictions proved unhelpful in making a significant contribution to public safety, another less stigmatizing and potentially more effective approach would be to emulate states with statutes that allow firearms to be removed from persons in crisis situations, when the risk of violence is heightened, whether or not such persons have a mental disorder.101

Similar references abound in the psychological literature.102 While the scientific landscape is somewhat complex, it is clear that broad generalizations about mental illness and violence are unwarranted and unsupportable, if not the product of irrational prejudice. Casting a broad net over sufferers of mental illness in the hope of catching the dangerous few -‐-‐ as 51P would do in a way that intensifies current problems with the GCA and BATFE’s implementing regulations -‐ is simply not consistent with the fundamental rights protected by the Second Amendment.

V. NRA-‐ILA’s Recommendations

A. Let Congress Fix the Problems it Has Created

We do not expect this comment to resolve all the issues that surround mental illness and firearms. That is not our goal. Rather, we have endeavored more modestly to interject history, case law, and scientific opinion into the superficial and one-‐dimensional portrayal of this issue set forth in the

100 Id. at 652.

101 Id. at 654.

102 See, e.g., National Alliance on Mental Illness, Violence, Mental Illness and Gun Reporting Laws (March 2013), available at http://www.nami.org/Template.cfm?Section=NAMI_Policy_Platform&Template=/ContentManagement/ContentDisplay.cfm&ContentID=153162 (“There is widespread agreement that most people with mental illness are not violent.”); Gold, Liza H., Gun Violence: Psychiatry, Risk Assessment, and Social Policy, J. AM. ACAD. PSYCHIATRY & L. 41, no. 3, 337, 338 (2013), available at http://www.jaapl.org/content/41/3/337.full (“Most people with mental illness are not dangerous, and most dangerous people do not have a severe mental illness. Individuals with severe mental illness constitute only three to five percent of perpetrators of incidents of violence, not all of which involve guns. The relationship between violence and mental illness is complex, but much of the violence risk in the population of the seriously mentally ill is attributable to the comorbidity of substance use.”); Consortium for Risk-‐Based Firearm Policy, Guns, Public Health, and Mental Illness: An Evidence-‐Based Approach for Federal Policy (Dec. 11, 2013), at 4-‐5 (the “research evidence shows that the large majority of people with mental illness do not engage in violence against others;” that “mental illness alone very rarely causes violence,” and “[m]ost people with serious mental illness – which includes conditions such as schizophrenia and bipolar disorder – are never violent toward others, and are in fact more likely to be victims than perpetrators of violence.”); Lindsey Lewis, Mental Illness, Propensity For Violence, and The Gun Control Act, 11 HOUS. J. HEALTH L. & POL'Y 149, 153 (2011) (“researchers agree that mental illness alone is not the cause of violence”) and Richard A. Friedman, Violence and Mental Illness -‐-‐ How Strong is the Link?, 355:20 NEW ENG J. MED. 2064, 2065 (2006) (“because serious mental illness is quite rare, it actually contributes very little to the overall rate of violence in the general population; the attributable risk has been estimated to be 3 to 5% — much lower than that associated with substance abuse…”).

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three pages of 51P. Our hope is that BATFE will take seriously the inescapable fact that the picture is far more complicated than it is portrayed in 51P and realize that reform in this complex area, where law and science converge, is best left to the more thorough deliberations of Congress. The politics of this issue, moreover, are not cut and dried. Groups that feel solicitude toward the plight of the mentally ill and their desire to live with freedom and dignity are not necessarily disposed toward a broad reading of the Second Amendment. Groups that strongly value the right to keep and bear arms may not instinctively understand that the mentally ill are not necessarily “bad guys” and that they may have the potential to be “good guys” who can safely exercise their rights. With proper vetting of the issues through legislative investigation and hearings, achieving some agreement and progress beneficial to all concerned might well be possible through the political process. Congress, however unintentionally, has created a mess with the current mental health provisions of the GCA. Congress is therefore responsible for cleaning up that mess. BATFE’s attempts to do so, even if undertaken with good intentions, still have to remain grounded in the statutory scheme enacted by the peoples’ elected representatives. Given the inherent flaws of the GCA’s rationale on this issue, agency action should not proceed until Congress reforms and clarifies the statutory landscape. B. The Way Forward to Reform

While NRA-‐ILA does not represent itself as the ultimate authority on mental health, readily available evidence strongly suggests that legislatively categorizing some discrete segment of the mentally ill as predictably dangerous is a misplaced goal. As the above-‐cited studies indicate, the potential for violent behavior can arise suddenly (and conversely, dissipate over time), and individual circumstances may be more relevant than clinical classifications. Congress may therefore find that the time has come to abandon the GCA’s “classify, report, and ban” approach to mental health and instead focus on broader reforms. Such reforms could address swifter, more accurate, and readily accessible diagnosis and treatment for those who suffer from mental illness, and education for those, like teachers and police officers, whose work regularly causes them to interface with the mentally ill. As other articles indicate, however, this doesn’t mean that policymakers have to abandon legal solutions to the risks firearms can pose to those suffering serious or acute episodes of psychological distress. Individualized risk assessment is a developing field.103 Well trained state and local law enforcement officials (LEOs) can be given mechanisms through state laws to react to emergencies that arise in specific cases, and where they become aware of weapons that contribute to the risks, to see

103 See, e.g., FBI, supra note 97 at 21 (“Rather than trying to determine the "type" of student who may engage in targeted school violence, an inquiry should focus instead on a student’s behaviors and communications to determine if that student appears to be planning or preparing for an attack. Rather than asking whether a particular student ‘looks like’ those who have launched school-‐based attacks before, it is more productive to ask whether the student is on a path toward a violent attack, if so how fast the student is moving toward attack, and where intervention may be possible.”)

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those weapons are temporarily removed from the custody of high-‐risk individuals. Indiana and Connecticut, for example, already have laws that allow LEOs under some circumstances to seize firearms from individuals who are demonstrably dangerous.104 A similar law is being debated in Delaware.105

Needless to say, NRA-‐ILA’s view of these laws will depend on their specifics, including the adequacy of their due process protections and limits on the duration of the deprivation of rights. Nevertheless, focusing on individual cases and present circumstances may be a more effective and focused approach than Congress’ current categorical bans. This approach also has the support of a number of mental health experts and advocacy groups.106 It is additionally consistent with the view that was expressed by the NRA at least as far back as 1966, when it editorialized that the law should focus on individuals’ actual expressions of harmful intent.107 From a fundamental fairness standpoint, focusing on individual behavior and expressed intent makes better sense than classifying, stigmatizing, and depriving a large population of generally harmless people merely in the faint hope that a dangerous few will be stopped. C. Specific Comments on 51P

If BATFE, despite suspect statutory authorization and lack of a sound policy rationale, insists on going forward with 51P, here are NRA-‐ILA’s specific recommendations on that proposal. First, individuals who undergo “adjudications” or “commitments” as minors should not be subject on that basis to the prohibitions of the GCA. Federally licensed firearm dealers may not sell or dispose of firearms to minors in any circumstance,108 and minors are prohibited from possessing handguns in most circumstances.109 To the degree that BATFE seeks to apply the GCA’s mental health prohibitions to persons who are “incapable of managing their own affairs,” moreover, that is a legal fact in various contexts for most unemancipated minors,110 so applying that standard to them makes no

104 Ind. Code Ann. §§ 35-‐33-‐5-‐1(1)(a)(7); 35-‐47-‐14-‐1; Conn. Gen. Stat. § 29-‐38c.

105 H.B. 88, 147th Leg., Reg. Sess. (De. 2013).

106 See, e.g., Appelbaum & Swanson, supra note 99; Am. Psychiatric Ass’n, Access to Firearms by People with Mental Illness 1 (2009), available at http://ww.psych.org/Departments/EDU/Library/APAOfficialDocumentsandRelated/ResourceDocuments/200907.aspx; James L. Knoll IV, Mass Distraction: Equating Mental Illness With 'Evil', Medscape, February 14, 2013, available at http://www.medscape.com/viewarticle/779097.

107 See American Rifleman supra note 2.

108 18 U.S.C. § 922(b)(1).

109 18 U.S.C. § 922(x).

110 To cite just a few examples, minors’ contracts are generally voidable, e.g., Kan. Stat. Ann. § 38-‐102, and minors may be prohibited from: voting (N.H. Const. Pt. 1, art. 11; Ky. Const. § 145, both setting a minimum age of 18

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sense. BATFE has not produced any evidence, moreover, that mental illness in minors leading to adjudications or commitments is likely in most cases to persist or lead to increased risks into adulthood. Finally, minors facing adjudications or commitments are likely to have less of an appreciation of the serious collateral consequences involved and may not have the same wherewithal as adults to assert their due process rights (for example, to retain attorneys of their choice or to hire expert witnesses). BATFE should limit application of the term “mental defective” to the meaning it had to the Congress that enacted it. That is, marked, subnormal intelligence persisting from childhood into adulthood. BATFE may not expand a term that was used as a medical and legal term of art just because it believes Congress should have written the statute more broadly, especially where criminal liability is at stake. No procedure should be included that does not include specified due process protections, including the right to notice, the right to contest the determination at a hearing before a neutral adjudicative authority before it becomes final and reportable to NICS, the right to counsel, and the right to appeal the original determination. BATFE should omit from its “commitment” definition the broad catch-‐all of “other lawful authority,” as that does not imply a neutral, third-‐party arbiter and could be read to include procedures that occur without contemporaneous judicial oversight. No procedure should be counted unless the adjudicative authority has made a specific finding that the individual’s mental condition or illness presents a risk of harm to the individual or another. Congress’ concern was with those whose mental conditions posed a risk of violence or pervasively limited their ability to make rational decisions. The inability to contract or manage one’s affairs is not a sufficient proxy and has led to an unjustified loss of rights. No procedure should be counted unless the adjudication or commitment is based on marked, subnormal intelligence persisting from childhood into adulthood or on a mental illness, mental condition, or mental disease. Congress enacted a separate prohibition relating to substance abuse, so substance abuse treatment or counseling should not be subsumed into the mental health-‐related prohibitions. The same goes for treatment or counseling of other issues that are not attributable to intellectual disabilities or mental illness.

years); legally consuming or purchasing alcoholic beverages (those under 21 not allowed to purchase, possess, serve, dispense, or consume beer, wine or other alcoholic liquor; Idaho Code Ann. §23-‐949; likewise, purchase or consumption prohibited, Nev. Rev. Stat. § 202.020); marrying (Ala. Code §§ 30-‐1-‐4, -‐5, person under 16 years of age “is incapable of contracting marriage;” Tex. Fam. Code Ann. §§2.101-‐2.103, marriage license cannot be issued if either party is under 18); working (Wash. Rev. Code. § 26.28.060, persons under 14 generally prohibited from employment); getting a body piercing (Cal. Penal Code § 652 prohibits performing a body piercing, other than ear piercing, on someone under 18 years of age without a parent or guardian’s consent); walking the streets unhampered by daytime or nighttime curfews laws (Chicago, Ill. Code § 8-‐16-‐020, imposing curfew on those 16 years of age and under); or using a tanning salon (Chicago, Ill. Code § 8-‐16-‐024, person under 18 prohibited from using a tanning facility, even with the consent of a parent or guardian).

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D. Recommended Definitions

Based the above, NRA-‐ILA would suggest the following definitions to replace those in 51P: Adjudicated as a mental defective.

(a) A determination, order, or finding by a court or other adjudicative authority that:

(1) As a result of marked subnormal intelligence persisting from childhood into adulthood, a person is:

(i) A danger to self or others;

(ii) In a criminal case involving physical injury to or the threatened use of a deadly weapon against another person:

(A) Not competent to stand trial;

(B) Not guilty by reason of insanity;

(C) Not criminally responsible; or

(ii) Gravely and pervasively disabled and unable to function independently;

(2) First occurs at a hearing of which the person had actual notice and at which the person had a right to be present, to be represented by counsel, to present evidence, and to contest the evidence against the person; and

(3) Is subject in the jurisdiction in which it occurred to review or appeal and a petition for relief from firearm disabilities.

(b) The term does not include:

(1) A determination, order, or finding that is not based on marked subnormal intelligence persisting from childhood into adulthood; or

(2) Any person so adjudicated by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply, or any person who has received relief from firearm disabilities under a program authorized by section 101(c)(2) or section 105(a) of that Act or under 18 U.S.C. 925(c) or under any law of the jurisdiction in which the determination, order, or finding occurred.

Committed to a mental institution.

(a) A formal, involuntary commitment of a person to a mental institution by a court or other adjudicative authority that:

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(1) Is based on mental illness, mental disease, mental disorder, or mental condition;

(2) Includes a finding that the person is a danger to self or others;

(3) First occurs at a hearing of which the person had actual notice and at which the person had a right to be present, to be represented by counsel, to present evidence, and to contest the evidence against the person; and

(4) Is subject in the jurisdiction in which it occurred to review or appeal and a petition for relief from firearm disabilities.

(b) The term does not include:

(1) Voluntary mental health treatment or voluntary admission to a mental institution;

(2) Treatment or admission to a mental institution for reasons other than mental illness, mental disease, mental disorder, or mental condition;

(3) A person who is in or at a mental institution, whether on an inpatient or outpatient basis, for the purpose of observation or evaluation; or

(4) Any person so committed by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply, or any person who has received relief from firearm disabilities under a program authorized by section 101(c)(2) or section 105(a) of that Act or under 18 U.S.C. 925(c) or under any law of the jurisdiction in which the commitment occurred.