The Balancing Act Between Mental Illness and Gun Rights

Editor’s Note: This is an update of the post “Second Amendment Rights and Mental Illness,” originally published on September 1, 2015. 

By Mariam Ahmed, JD/MSPP

In September 2015, we offered a glimpse of the current landscape of laws addressing mental health and gun violence. Many of the laws addressed public safety concerns that arose from active shooters with mental illnesses. At both the state and federal levels, government officials continue to debate the relationship between gun violence and mental health issues. Questions of safety and stigma continue to be asked, and are leading to changes in the laws. Here’s where we stand now:

In July 2015, Congress introduced the Safer Communities Act of 2015, but after being passed around four different committees, it was never released to the House floor for a vote. If the bill had passed, it would have further clarified who is restricted from possessing a gun based on their mental health and treatment.

After the bill died in committee, agencies such as the Department of Health and Human Services (HHS) and the Social Security Administration (SSA) have passed regulations to further define reporting and restriction requirements for people with mental illnesses. On January 4, 2016, HHS finalized a rule that modified the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The modification allows HIPAA-covered entities to release personal information to the National Instant Criminal Background Check System (NICS) if the person has a “mental health prohibitor” on their record that limits ability to possess, transport, receive, or ship a firearm under federal law. The rule went into effect on February 5, 2016.

On December 19, 2016, SSA also passed a regulation addressing mental health and NICS reporting. The finalized rule created a schedule for SSA to report to the US Attorney General and to the NICS any person who is receiving Social Security Disability Insurance for mental health concerns that are classified as a “mental health prohibitor”. The rule went into effect January 18 of this year, though compliance is not required until December 19, 2017.

It is important to consider that the above SSA regulation may be overruled before it can take effect. Congress has just passed a resolution stating its disapproval: H.J. Res. 40 states that Congress does not approve of the SSA regulation and if the resolution passes, the regulation will have no force or effect. The resolution passed in the House by a 235-180 vote on February 2, 2017, and in the Senate by a 57-43 vote on February 15. The bill was signed by the President on February 28.

Though the federal government is still deciding who is required to report to NICS, 31 states have laws requiring professionals to report patients with firearm possession limitations. The state laws will not be affected by the finalized regulations or the congressional bill though the HHS regulation does intend to help states better understand the HIPAA privacy limitations and allow for that understanding to influence state legislation.

Moving forward, it is unclear what will be the outcome in the debate about mental illness and gun possession. The ground seems to continue to shift, even daily, on the issue. We will stay tuned as the debate continues and the laws change.

Mariam Ahmed is a recent Law and Public Policy graduate from Drexel University. She was a 2015 summer intern for the Policy Surveillance Program at Temple University’s Center for Health Law, Policy and Practice.