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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.

South Dakota law requires stakeholders to submit records to the National Instant Criminal Background Check System (NICS) identifying people who have become prohibited from possessing firearms due to their mental condition.

In South Dakota, reporting is a two step process – individuals at the courts and at mental health facilities report information to the state attorney general, and then the Attorney General reports all of these records to NICS.

Prosecuting attorneys are required to report to the attorney general the names and identifying information of people who have been found not guilty by reason of insanity and people who have been found incompetent to stand trial.3

If the “board of mental illness” orders someone to be involuntarily committed based on a finding that they pose a risk to self or others, the board must also report relevant identifying information about that person to the attorney general.4

The attorney general must report to NICS the names and information of people found not guilty by reason of insanity, people who have been found incompetent to stand trial, and people who have been involuntarily committed based on a finding that they are a danger to self or others.5

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  1. 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.[]
  2. 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.[]
  3. S.D. Codified Laws § 23-7-47.[]
  4. S.D. Codified Laws § 27A-10-24.[]
  5. S.D. Codified Laws § 23-7-48.[]