Admin Wants To Strengthen Background Checks It Has No Time To Enforce

Today from the White House, my emphasis:

Too many Americans have been severely injured or lost their lives as a result of gun violence.  While the vast majority of Americans who experience a mental illness are not violent, in some cases when persons with a mental illness do not receive the treatment they need, the result can be tragedies such as homicide or suicide.

The Administration takes a comprehensive approach to mental health issues by expanding coverage of mental health services so care is affordable, launching a national conversation on mental health to reduce stigma associated with having a mental illness and getting help, directing funds we have now to improve mental health facilities, and proposing more funds be used for efforts such as training additional mental health professionals.


Some states have reported that certain barriers under current law make it difficult for them to identify and submit appropriate information to the federal background check system regarding individuals prohibited under federal law from having a gun for mental health reasons.  Today, DOJ and HHS are taking steps that will help address these barriers.

  • Some states have noted that the terminology used by federal law to prohibit people from purchasing a firearm for certain mental health reasons is ambiguous.  Today, DOJ is issuing a proposed rule to make several clarifications.  For example, DOJ is proposing to clarify that the statutory term “committed to a mental institution” includes involuntary inpatient as well as outpatient commitments. In addition to providing general guidance on federal law, these clarifications will help states determine what information should be made accessible to the federal background check system, which will, in turn, strengthen the system’s reliability and effectiveness.
  • Some states have also said that the Health Insurance Portability and Accountability Act’s (HIPAA) privacy provisions may be preventing them from making relevant information available to the background check system regarding individuals prohibited from purchasing a firearm for mental health reasons.  In April 2013, HHS began to identify the scope and extent of the problem, and based on public comments is now issuing a proposed rule to eliminate this barrier by giving certain HIPAA covered entities an express permission to submit to the background check system the limited information necessary to help keep guns out of potentially dangerous hands.  The proposed rule will not change the fact that seeking help for mental health problems or getting treatment does not make someone legally prohibited from having a firearm.  Furthermore, nothing in the proposed rule would require reporting on general mental health visits or other routine mental health care, or would exempt providers solely performing these treatment services from existing privacy rules.

The tragedies which prompted this executive action would not have been prevented by “strengthened” background checks. Laws are already in place to deal with mental instability and regulate the deprivation of right if merited by mental instability. I wrote about this at length last year. There exists a process by which to prevent someone who is mentally unstable from purchasing a firearm (and possession is illegal if criteria is met):

Notes the Christian Science Monitor:

The ability to own a firearm is a constitutionally protected right, and depriving someone of that right involves a legal process. Under the 1968 law, a person must be declared mentally unfit by a court or have been committed to a mental institution to lose his or her right to possess firearms.

In 1993, the Brady Handgun Violence Prevention Actrequired the establishment of a national database known as the National Instant Background Check System (NICS), where the names of people ineligible to possess firearms are to be entered.

The case of Jared Lee Loughner is an excellent example of this. It was reported that every entity involved failed to follow their own procedures for dealing with Loughner. From my piece:

A dean at Pima Community College spoke with police about Loughner. Even after Loughner’s five separate run-ins with college police (pdfs), police saw no reason to act.

The police told Ms. Houston they would check Mr. Loughner’s history and if there was cause for concern, they would talk to him.

After looking into Mr. Loughner’s background and finding some “prior drug involvement but no warrants,” the police decided not to take any action.

“For now, this report documents the faculty’s concerns but does not in my opinion justify making contact with Loughner by police,” wrote Officer D. Simmons.

The admin is proposing above is a weakening of HIPPA laws and established criteria. This would not have prevented the previous tragedies and it won’t prevent future ones, especially when people choose not to follow the law, police their children, or enforce punishment for fraud on 4473s. They equate an outpatient facility with involuntary commitment.

For example, DOJ is proposing to clarify that the statutory term “committed to a mental institution” includes involuntary inpatient as well as outpatient commitments.

An erosion of privacy under HIPPA as a way to curtail firearm possession, a move to blanket “commitment to a mental institution” to include even seeking treatment—the problem isn’t lack of regulation, it’s that entities directed to follow and enforce refuse to do so.

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