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 laws in this area are critical to ensuring the accuracy and effectiveness of the background check system.
Massachusetts law states that Firearm Identification Cards (“FID”) and licenses to carry handguns may not be issued to applicants who have been committed to any hospital or institution for mental illness, or appointed a guardian or conservator on the grounds that he or she lacks the mental capacity to manage his or her affairs.3 Upon issuing the commitment order, the court must notify the person that he or she is prohibited from obtaining a FID or license to carry.4
In 2014, Massachusetts also enacted a law significantly improving the state’s reporting of mental health information to NICS. The law requires courts to transmit certain mental health records, such as records of involuntary commitments and the appointment of a guardian or conservator, to the state Department of Criminal Justice Information Services for inclusion in NICS.5
The Department of Mental Health must keep records of the admission, treatment, and periodic review of all persons admitted to facilities under its supervision.6 However, the records of the Department of Mental Health are “private and not open to public inspection” except for certain specified purposes.”7 The 2014 law allows the use of such information for the purposes of conducting background checks.8
In addition, the 2014 law requires the Department of Mental Health to transmit to the Department of Criminal Justice Information Services, within 180 days of the effective date of the law, identifying information about anyone known to the Department of Mental Health to have been, within the preceding 20 years, committed to facilities for mental illness or substance/alcohol abuse; or determined by a adjudicative body to “pose a serious risk of harm” as defined by the law.9
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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.
- Mass. Gen. Laws ch. 140, § 129B.
- Mass. Gen. Laws ch. 123, § 35.
- Mass. Gen. Laws ch. 6, § 167A; ch. 123, §§ 35; 36A; ch. 215, § 56C.
- Mass. Gen. Laws ch. 123, § 36.
- Mass. Gen. Laws ch. 123, § 36A.
- Act of Aug. 13, 2014, Mass. Pub. L. No. 284-2014, Section 98.