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.
In North Carolina, after receiving notice of certain judicial determinations or findings, the clerk of superior court in the county where the determination or finding was made must work through the Administrative Office of the Courts to cause a record of that determination or finding to be transmitted to NICS within 48 hours (excluding weekends and holidays).3 The judicial determinations or findings that trigger the NICS reporting requirement are:
- A determination that an individual shall be involuntarily committed to a facility for inpatient mental health treatment upon a finding that the individual is mentally ill and a danger to self or others.
- A determination that an individual shall be involuntarily committed to a facility for outpatient mental health treatment upon a finding that the individual is mentally ill and, based on the individual’s treatment history, in need of treatment in order to prevent further disability or deterioration that would predictably result in a danger to self or others.
- A determination that an individual shall be involuntarily committed to a facility for substance abuse treatment upon a finding that the individual is a substance abuser and a danger to self or others.
- A finding that an individual is not guilty by reason of insanity.
- A finding that an individual is mentally incompetent to proceed to criminal trial.
- A finding that an individual lacks the capacity to manage the individual’s own affairs due to marked subnormal intelligence or mental illness, incompetency, condition, or disease.
- A determination to grant a petition to an individual for the removal of firearm prohibitions pursuant to North Carolina or federal law.4
Records of involuntary commitment are accessible only by the sheriff or the sheriff’s designee for the purposes of conducting background checks and are otherwise confidential.5
State law allows a person involuntarily committed for mental health treatment to petition a court for a restoration of his or her eligibility to possess a firearm.6 If the court grants the petition, it must forward the order to NICS for updating of the record.7 State law requires that the clerk, upon receipt of documentation that an affected individual has received a relief from disabilities pursuant to state or applicable federal law, forward the order to the National Instant Criminal Background Check System (NICS) for updating of the respondent’s record.8
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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.
- N.C. Gen. Stat. § 14‑409.43 (recodified from § 122C-54(d1) ).
- N.C. Gen. Stat. § 122C-54(d2).
- N.C. Gen. Stat. § 14-409.42 (recodified from § 122C-54.1).
- N.C. Gen. Stat. § 14-409.42.