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.
Delaware requires the Delaware Psychiatric Center and any other hospital for the care and treatment of mentally ill individuals3 to submit to SBI, and to NICS as required by federal law, the name, date of birth and Social Security number of any adult who is involuntarily committed to such facility.4
Another provision of Delaware law requires every person in “responsible charge” of an institution housing persons declared not guilty by reason of insanity, declared incompetent to stand trial for criminal offenses, or involuntarily committed for mental illness, to transmit to the Delaware State Bureau of Identification (SBI) the names, dates of birth and social security numbers of all such adults.5 The institutions must also submit to SBI the names and photographs of such persons who are to be discharged from these institutions.6 This provision of Delaware law also authorizes the same reporting to NICS.7
For general information on the background check process and categories of prohibited purchasers or possessors, see the Delaware Background Checks section and the section entitled Delaware Prohibited Purchasers Generally.
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- 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.
- For the definition of “mental hospital,” see Del. Code Ann. tit. 16, § 5001(4).
- Del. Code Ann. tit. 16, § 5161(b)(13), (14).
- Del. Code Ann. tit. 11, § 8509.