Federal law generally prohibits possession of firearms and ammunition by people who have been found by a court, board, commission, or other lawful authority to be a danger to themselves or others, or to “lack the mental capacity to contract or manage [their] own affairs,” as a result of their mental condition or illness.1 Federal law also generally prohibits people from possessing firearms if they have been involuntarily hospitalized or committed to a mental health or substance abuse treatment facility by a court, board, commission, or other lawful authority.2
No federal law, however, requires states to report the identities of these individuals when they become ineligible to possess firearms to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers. As a result, state record reporting laws are critical to ensuring the accuracy and effectiveness of the background check system.
Until 2014, Alaska had no law requiring the reporting of mental health information to NICS. That changed with the passage of H.B. 366, however. Alaska law now requires that, upon issuing an order that a person be involuntarily committed, a superior court must immediately transmit specified identifying information about the individual, if known, to the Department of Public Safety.3 The court must also report the statutory authority for the involuntary commitment; report whether the person was offered an opportunity to be heard and represented by counsel in the involuntary commitment proceeding; and report any other information required by the Department of Public Safety or by the U.S. Department of Justice for inclusion in the NICS database.4 This reporting requirement does not apply to individuals released before the expiration of a 72-hour commitment period.5
Upon receiving this information, the Department of Public Safety must transmit the information to the U.S. Department of Justice for inclusion in the NICS database.6 Information obtained or retained pursuant to this reporting requirement is confidential and is not a public record, though it may be used by the Department of Public Safety to determine whether a person is qualified to receive and hold a permit to carry a concealed handgun.7
Alaska also established a process in 2014 for a person who is prohibited from possessing a firearm or ammunition under federal law as a result of an involuntary commitment or an adjudication of mental illness or incompetence that occurred in Alaska to petition a court for relief from the firearm disability.8 In ruling on such a petition, Alaska law instructs the court to consider:
(A) the circumstances of the involuntary commitment or adjudication of mental illness or mental incompetence;
(B) the time that has elapsed since the involuntary commitment or adjudication of mental illness or mental incompetence;
(C) the person’s reputation and mental health and criminal history records;
(D) any conduct by the person that would constitute a “crime against a person” under Alaska law or a violation of Alaska’s firearm-related criminal statutes; and
(E) any changes in the person’s condition or circumstances relevant to the relief sought.9
The court shall grant the petitioner’s request if the court finds, by a preponderance of the evidence, that the person is unlikely to act in a manner dangerous to self or to public safety; and granting the relief is not contrary to the public interest.10
If the court grants the petition, the court must immediately transmit specified information, if known, to the Department of Public Safety, which must then, in turn, transmit the information to the U.S. Department of Justice so the record will be removed from the NICS database.11
- Federal law, enacted in 1968, still uses archaic and offensive terminology to prohibit firearm access by people who have been “adjudicated as a mental defective.” 18 USC 922(g)(4). Federal regulations define that term to mean:
(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.Federal regulation also expressly clarifies that this firearm prohibition applies to:
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to [specified articles] of the Uniform Code of Military Justice. 27 CFR § 478.11.
- Federal law generally prohibits firearm access by people who have previously been “committed to a mental institution.” 18 USC 922(g)(4). Federal regulations define this term to mean: “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.” 27 C.F.R. § 478.11.
- Alaska Stat. § 47.30.907(a).
- Alaska Stat. § 47.30.907(b).
- Alaska Stat. § 44.41.045(a).
- Alaska Stat. §§ 44.41.045(c), (d).
- Alaska Stat. § 47.30.851(a).
- Alaska Stat. § 47.30.851(b)(1).
- Alaska Stat. § 47.30.851(b)(2).
- Alaska Stat. §§ 47.30.907, 44.41.045.