To NICS or Not to NICS? Mental Health, Guns, and Background Checks

Apr 9, 2013

Here's one piece of legislation proposed by Attorney General Peter Kilmartin today as part of a package of gun safety bills:

"The bill creates a task force charged with making recommendations and possibly proposing legislation to support full participation in the NICS (National Instant Criminal Background Check System) Index and to act in an advisory capacity to the Relief for Disqualifiers Board.  The task force would conduct a review of different states’ approaches for compliance with NICS and work with a newly-created Firearms Task Force to make sure that definitions in chapters of state law related to mental health and substance abuse are consistent with those in firearms statutes.  The task force is required to report back to the governor and General Assembly before January 1, 2014."

We reported on Rhode Island's lack of participation in NICS (one of three federal databases that federally licensed gun sellers check before selling you a gun) and the benefits and challenges of participating.

One of the glaring issues was a lack of clarity on who exactly in state government was responsible for that participation. Sure, it's complicated: it involves collecting and sharing mental health records, in part, with a national database. It presents a legal, ethical, technical, and operational stew of questions. But from a public health perspective, though, the biggest question is: are background checks for mental health "red flags" worth it?

Here are a few of the issues:

One expert I spoke with, Lawrence Gostin, who heads the O'Neill Institute for National and Global Health Law at Georgetown university, thinks it's better to focus on the availability of guns than it is to focus on the people buying them. But he and others think that if a single red flag in a background check database kept a gun out of the hands of someone who planned to hurt someone (him or herself or others), it's worth it.

Others worry about the privacy issues: could a health care provider's sharing records about your mental health come back to haunt you in some way? Keep in mind, it wouldn't contain every single mental health-related record - just if you were ruled unable to care for yourself a danger to yourself or others or entered treatment for substance abuse, to name a couple of the specific instances. I've spoken to the architects of Connecticut's NICS plan, who told me these particular records can be secured and so private that even the potential gun seller and law enforcement wouldn't know what the red flag was about, just that it came up.

Those against background checks often say it's the dangerous people, the current or potential criminals, who obtain guns illegally or bypass background checks anyway, so why bother? Well, two recent mass murderers obtained their guns completely legally. We know that much. A red flag popping up somewhere, at some point-of-sale, might have made a difference. But no system will ever be air tight.

Finally, mental health experts and advocates have also been telling me that people with serious mental illness are not likelier to be violent. And the only way we know how to predict whether someone will become violent is whether he or she has been violent in the past. Other pieces of the three-database national background check system are supposed to contain criminal records, restraining orders, that kind of thing.

So, to NICS or not to NICS? Please weigh in!