Loaded Legislation

Congresswoman Martha McSally says her legislation will strengthen background checks, but Gabby Giffords and Mark Kelly say it will make it easier for the dangerously mentally ill to get guns

When President Barack Obama laid out a series of steps to expand background checks, increase mental-health funding and take other steps to reduce gun violence last month, Southern Arizona Congresswoman Martha McSally was among those critical of his proposals.

McSally said that Obama should instead focus on the possibility that ISIS was recruiting Americans to commit acts of terror and support the legislation that she has put forward to help deal with mental health issues.

In a statement to the press, McSally said that "while the president's orders recognize we must better address mental illness, he should be working with Congress, not going around us. I've introduced a bipartisan bill to help our communities better identify and treat mental illness and help prevent the mentally ill from obtaining firearms. It has widespread support from the mental health community, social workers, law enforcement and Second Amendment advocates, to name a few. It also gets to the root of the problem and is the type of legislation that can actually move forward in a divided government, which is where our focus should be."

But the Obama administration has not embraced McSally's legislation—and neither have Democratic congressional leaders or several groups that are seeking stricter gun background checks. That's because they say the legislation will actually make it easier for mentally ill people to obtain guns.

"There are aspects of that legislation that we do not agree with, and that's why the president is not embracing that as a strong piece of legislation to reduce gun violence," says Mark Kelly, the retired astronaut and spouse of former Congresswoman Gabrielle Giffords. "It provides a path for people who are mentally ill to get permission to carry a gun earlier than what exists today. So that's a problem."

Kelly and Giffords—whose career in Congress was cut short after a crazed gunman opened fire at her Congress on the Corner event in 2011, killing six and wounding 13—now head up Americans for Responsible Solutions. They launched the political action committee and advocacy group to combat gun violence after the 2012 shooting in Newtown, Conn., where a madman shot his mother, stole her guns and killed 20 children and six adults at Sandy Hook Elementary School.

McSally's legislation, introduced as the Mental Health and Safe Communities Act of 2015, has won support from mental-health advocates and law-enforcement organizations for its provisions that create diversion programs aimed to provide treatment for the mentally ill rather thanincarceration, as well as training for first responders.

But critics say they have three main concerns about the legislation as they read it (although McSally's office disputes their interpretation):

• Critics say it would require the U.S. attorney general's office to remove the names of an unknown number of the more than 4 million people who had been added to the list of prohibited possessors for reasons related to mental health, provided their court orders have expired or they were released from involuntary confinement. Under the current law, those who want to have their names removed from the background-check list must petition a local or state court before their rights are restored.

• Critics say it would make it more difficult to add names to the background-check list in the future because it would narrow the legal requirements necessary to make the determination that someone belongs on the list. In some states, for example, a doctor's determination that someone needs to be involuntarily committed would no longer be enough to have a name added to the list of prohibited possessors.

• Critics say it would weaken the incentives for states to report the names of mentally ill people to the federal database of prohibited possessors.

"This irresponsible bill being pushed by the gun lobby would make it easier for people struggling with dangerous mental illness to get their hands on guns," says Mark Prentice, a spokesman for Americans for Responsible Solutions. "It would undermine the bipartisan steps Congress took in the wake of the tragedy at Virginia Tech to strengthen our criminal background check system. And its net effect would be to make our communities less safe."

Patrick Ptak, a spokesman for McSally, rejects those concerns, saying that critics of the bill distort its actual impact.

He says the legislation "represents a bipartisan effort that has the support of stakeholders from across the spectrum, including mental health advocates, law enforcement and Second Amendment supporters. It strengthens the current background check system and allows for evidence-based solutions to address underlying mental health shortfalls. And it's a solution that can actually move forward in a divided government."

Most people, no matter what side of the gun debate they fall on, would agree that people who pose a threat to themselves or others should not have access to firearms.

But while it's an easy call in some cases, it's a lot tougher to decide who actually should be labeled a prohibited possessor in other instances. Most people who struggle with mental illness do not pose a threat to themselves or others, and often those who do pose a threat do not get a proper diagnosis until it's too late. Beyond that, federal laws such as the Health Insurance Portability and Accountability Act (HIPAA) are designed to protect patient privacy, which makes some doctors reluctant to report mental-health issues to the proper authorities.

The current system of determining whether someone who is mentally ill should not be allowed to possess a firearm is based on a law that is nearly half a century old. Under the Gun Control Act of 1968, people who have been "adjudicated as a mental defective" or who have been "committed to a mental institution" are banned from owning a firearm. Those rather loose definitions are expanded in federal regulations that were written after the law was passed.

The federal regulations say that a person is "adjudicated as a mental defective" if a court, board, commission or other lawful authority determines they are a danger to themselves or others, or cannot manage their own affairs. The laws surrounding how and when someone is found to fit that definition vary from state to state, but once someone is determined to fit that category, their name is supposed to be sent to the U.S. Justice Department so it can be added to the National Instant Criminal Background System, aka NICS.

While there are various incentives and penalties for states to ensure they are sending their names to the NICS database, there are also plenty of cracks in the existing reporting system, which depends on local courts to send information to a state office and then the state to forward the names to the feds. Perhaps the best-known example is the shooter in the 2007 Virginia Tech massacre, who killed 32 people and injured 17 before taking his own life. The shooter had a history of mental illness, but Virginia had never forwarded his name to the national database and he passed a background check.

As a result of that incident, Congress passed a law creating new incentives for states to report more names to the NICS background-check list. After the Virginia Tech shooting, the number of names added to the list grew from about 400,000 to more than 4 million today, according to the Law Center to Prevent Gun Violence.

Under the current system, names remain on the list even after people are released from a mental institution or a court order expires. People who are on the list can petition a local court to have their records cleared, which then allows them to request that the Justice Department remove their name from the list.

But the reforms that come to the background check through the Mental Health and Safe Communities Act would make several changes to existing laws that would create more stringent requirements to put names on the list and make it easier for those now on the list to remove their names.

McSally's legislation would provide new definitions in the law itself, which would sweep away some of the existing federal regulations. Her bill specifically exempts people who are admitted to a psychiatric hospital for observation or who check themselves in. And the legislation creates a new exemption for those whose "order or finding that has expired or has been set aside or expunged."

Critics of the bill say that means if a person has been released from a psychiatric institution following an involuntary commitment or if a court order determining them to be a danger to themselves or others expires, the state would not be required to forward their name for inclusion on the NICS list of prohibited possessors.

Ptak says critics misunderstand the legislation and that the goal is to provide a national standard for people who have been determined to be mentally ill to have their rights to carry a gun restored.

"Under the bill, once an individual's order has been expired or expunged, that person would no longer fall under the definition of mentally ill and would be eligible to petition a court or state program to have the federal government remove their record from NICS," Ptak says. "Currently, in some states, that is the status quo. In those states, an expired record is an avenue for an individual to petition for removal from the background check system."

The legislation is retroactive and states that the U.S. Attorney General's Office "shall remove" names from the list of prohibited possessors once it has been made aware that a court order has expired or someone has been released from a psychiatric facility. Critics of the legislation say this would allow someone who is mentally ill to have their right to carry a gun restored by simply petitioning the Attorney General's Office rather than going through a court hearing at the local level.

But again, Ptak says the critics don't understand how the legislation works.

"Currently, in order for a person to petition to have their name removed from NICS, they must petition a court or complete a state relief from disabilities program, which not all states offer," Ptak says. "The bill does not change that process. The Mental Health and Safe Communities Act provides the Attorney General and states one standard by which they can determine if a record belongs in NICS or not. This part of the bill simply states that the Attorney General must abide by the new definition."

The legislation also provides new protections to veterans. The Obama Administration has required the Veterans Administration to forward the names of veterans who have been determined to be unable to handle their own affairs to the NICS list; the new legislation would require a court hearing before that step could be taken.

Ptak says that provision was added to preserve the due process rights of veterans.

"Our country is founded on the principle of due process, and veterans, who have fought to protect our freedoms, certainly deserve those rights," Ptak says. "Our bill protects due process while helping ensure anyone prohibited from buying a firearm is prevented from doing so. It would stop firearms from going to anyone adjudicated to have a mental impairment or incompetency, to be a danger to himself or others, or who required involuntary patient treatment by a psychiatric hospital."

It's not just groups who are fighting for stronger background checks who argue that the legislation will make it harder to add names to the NICS list and easier to remove them. The National Rifle Association also says the legislation will limit the ability of the government to add names to the list of prohibited possessors.

In a statement on the NRA website in support of the legislation, NRA officials note the bill "would also significantly expand avenues of relief from firearm prohibitions (for) those who have their record expunged, those who are no longer subject to an order for treatment, and those who have been granted relief by a state program. The bill further requires the Attorney General to remove from NICS the record of any person who would not be considered prohibited under the new requirements of the bill."

The NRA's support is one reason why Kelly believes there's good reason to be suspicious about the bill.

"It's a piece of legislation supported by the gun lobby," Kelly says. "It allows more people to carry guns, and in this case, someone who is mentally ill."

Ptak points out that Kelly's group, Americans for Responsible Solutions, has been a political opponent of McSally, spending $2 million in the 2014 election cycle. The most high-profile ad accused McSally of opposing legislation to close the so-called "stalker gap" that doesn't provide an avenue for jilted boyfriends or girlfriends who threaten someone to have their names added to the background-check list.

McSally took great umbrage at the ad, saying that she did support closing the stalker gap because she was a victim of stalking herself, although she declined to disclose any details.

But now that she's in Congress, McSally has not supported legislation to close the "stalker gap" or introduced any of her own.

Ptak says that the status quo is good enough in Arizona, even if there are gaps in other states.

"In Arizona, anyone convicted of stalking is prohibited from obtaining firearms," Ptak says. "Rep. McSally's focus is on representing the views of her constituents, who want to see workable solutions, not just rhetoric, to better protect our communities and address mental illness."


McSally's legislation does have plenty of backers besides the NRA. It's also being supported by a variety of organizations that represent the mentally ill, law enforcement and pro-gun groups, including the National Alliance on Mental Illness, the Treatment Advocacy Center, the National Association of Police Organizations, the American Jail Association and the Council of State Governments Justice Center. Five Democratic members of Congress have signed on with 16 Republicans to give the bill some bipartisan support, although Democratic leaders are leaning toward supporting other mental-health legislation that does not include provisions to reform the background-check system.

Some of the underlying legislation in the Mental Health and Safe Communities Act was originally sponsored by Minnesota Sen. Al Franken, who focused on the programs for mental health. But when Cornyn added the language about background checks, Franken backed away from the legislation, telling Politico: "We have issues with some language in the bill, so I am not signing on as a co-sponsor."

McSally herself has put a lot of emphasis on the issue of mental health in recent weeks, including a roundtable discussion on how to improve services and a recent ride-along with Pima County Sheriff's deputies to see how much of their job involves dealing with mentally ill and drug-addicted people.

Neal Cash, the CEO of the Community Partnership of Southern Arizona, says he supports the legislation because it provides more funding for diversion programs designed to provide treatment facilities rather than jail cells for the mentally ill; assisted outpatient treatment, training for cops and other first responders; and more resources to help families intervene when someone has trouble with mental illness.

"When legislation is introduced, you know it's not the final product, but there are quite a few good things in this bill," Cash says.

But Cash adds he hasn't followed the debate over the issue of changes to the background-check system proposed by the legislation.

"My own feelings on guns and the mentally ill, I don't think that we've done anything in any kind of meaningful way," Cash says. "I'm not so sure that this bill could do anything that would make things better or worse. But I really haven't gotten that involved in it. ... I don't know that I really have the kind of expertise or insight to really comment much on that."

Frankie Berger, the director of advocacy for the mental-health advocacy group Treatment Advocacy Center, says something similar. Her group supports the legislation because it's "a really comprehensive look at decriminalizing mental illness. It's the first thing that we've seen that really has some teeth and could make a difference for people with severe mental illnesses."

But Berger added that she couldn't speak the parts of the legislation that deal with background checks.

"It's so far beyond our purview," Berger says. "We tried to look at it and we tried to look at the existing regulations and we tried to get our heads around it, but it's just so outside our scope, we've never commented on it one way or the other because there's seems to be many different ideas about what it would do or it would not do. ... We're hoping that it gets figured out by people who are experts on that."

Tucson City Councilman Steve Kozachik likewise says he supports the legislation because of the funding for mental-health programs—but he adds that his support comes with "a huge asterisk" because of the changes to the background-check program., which he hopes change as the bill advances.

Kozachik has tried to pass various gun-control measures with the Tucson City Council, including requirements that people report lost or stolen guns to the police, a lease requirement that all firearm sales undergo background checks at gun shows at the Tucson Convention Center and an ordinance that would require that police check for blood-alcohol content if an accidental gun discharge injures or kills someone. He's been met with pushback from state lawmakers who have attempted to pass laws to preempt his efforts. So when there was a chance to advance a conversation about mental health and background checks, Kozachik lent his support to McSally's effort.

"I have found it so difficult to find any level of middle ground in even engaging in conversation with people who are on the other side of this issue—and I would consider (McSally) to be on the other side of this issue," Kozachik says. "I do not support the thing wholeheartedly, but somebody has to take the first step on this issue or we're just going to all dig in and become entrenched and the conversation is not going to advance."