So what can the law do about gun violence? The US Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 3025 (2010) made it pretty clear that legal solutions to our nation’s firearm violence problem do not include “getting rid of the guns,” but do include preventing dangerous people from getting their hands on them.
So, the difficult question of whether our nation’s gun laws are capturing the right “dangerous people” remains crucial, and it invites a prior question: Whose criteria are we talking about?
Variations in law and policy among the states and between federal and state statutes mean that the same person with a severe mental illness might be disqualified from buying a gun in one state but not in another. Functional incapacity stemming from a psychiatric disorder may or may not lead to firearm disqualification, depending on how various applicable laws and policies define it in different contexts.
For example, on the one hand, the Social Security Administration assigns a “representative payee” to SSI beneficiaries with a psychiatric disability who are deemed incapable of managing their own money. Having a federally-assigned representative payee may be one indicator of mental incapacity, but it is not a disqualifier for gun purchase.
On the other hand, the Veterans Administration assigns what it calls a “fiduciary” to veterans with psychiatric disabilities who are deemed incapable of managing their VA benefits — and then proceeds to report to the National Instant Criminal Background Check System (NICS) all veterans with fiduciaries. At the state level, court-ordered guardianship of a person with a serious mental illness is typically considered a gun disqualifying (and NICS-reportable) “mental health adjudication,” but a court-assigned financial power of attorney is not.
The VA’s use of a fiduciary appointment as a putative indicator of mental incapacity sufficient to abridge firearms rights is controversial. Senators Burr and Webb recently re-introduced the Veterans Second Amendment Protection Act, a bill that would allow veterans with fiduciaries to keep their gun rights. The House already passed a version of the bill in 2011. This law, if enacted, would automatically restore gun rights to an estimated 127,000 veterans who have been reported to NICS because of having a fiduciary. Opponents of the bill contend that restoring legal access to firearms for veterans with psychiatric disabilities who are unable to manage their own finances would increase risk of those veterans harming themselves or others. While they argue, veteran suicides have surpassed the number of American war casualties in Iraq and Afghanistan.
To date, the only empirical evidence that gun restrictions on people with a history of mental illness might prevent firearm violence in the US population comes from a national evaluation of the Brady Act (Ludwig & Cook, 2000). That study found that gun purchaser background checks and waiting periods had no significant effect on homicide rates, but did reduce the suicide rate by 6 percent in people over age 55.
Advocates for the Burr-Webb bill should answer the question, “What would restoring gun rights to 127,000 veterans with psychiatric disabilities do for the veteran suicide problem?” The bill’s sponsors do not know the answer, but a little research could provide a clue. And if the VA policy is defensible, what does that imply for other jurisdictions’ analogous laws and policies regarding non-veterans with disabling psychiatric conditions?