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.
The Wisconsin Department of Justice (“DOJ”) is required to promulgate rules to convey information in a timely manner to the NICS database regarding individuals ordered not to possess a firearm under:
- Wis. Stat. § 51.20(13)(cv)(1) (mental health commitments where the individual is found to be a danger to self or public safety);
- § 51.45(13)(i)(1) (treatment for and commitment of an individual incapacitated by alcohol or suffering from alcoholism);
- § 54.10(3)(f)(1) (individuals who have a guardian appointed for them); or
- § 55.12(10)(a) (order of protective services or protective placement).3
DOJ is also required to promulgate rules to convey information to the NICS database for cancellations of court orders for these mental health-related issues.4
Court clerks are required to notify DOJ when a court determines an individual is prohibited by federal law from possessing firearms because of any of the circumstances listed above, or subsequently restores the person’s eligibility to possess firearms.5 The clerk and DOJ may only disclose the information necessary to permit an accurate firearms restrictions record search.6 A 2014 law clarifies that this information may also be used in determining whether to issue or deny a concealed carry permit and in certain law enforcement investigations.
For general information on the background check process and categories of prohibited purchasers or possessors, see the Wisconsin Background Check Procedures section and the section entitled Firearm Prohibitions.
See our Mental Health Reporting policy summary for a comprehensive discussion of this issue.
- 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.[↩]
- Wis. Stat. § 175.35(2g)(d)(1). Wisconsin law allows individuals in any of these categories to petition a court for an order restoring the person’s eligibility to possess firearms.[↩]
- Wis. Stat. § 175.35(2g)(d)(2). See Wis. Stat. §§ 51.20(13)(cv)(2), 51.45(13)(i)(2)(c), 54.10(3)(f)(2)(c) and 55.12(10)(b)(3).[↩]
- Wis. Stat. §§ 51.20(13)(cv)(4), 51.45(13)(i)(4), 54.10(3)(f)(4), 55.12(10)(d).[↩]
- Id. See also Wis. Stat. § 51.30(4)(b)(28).[↩]