The truth about being deemed mentally ill and access to firearms
Recently, I contacted the City of Columbia, South Carolina, Police Department — South Region, in regard to what I thought would be a simple, affirmative question. That is, if somebody was involuntarily hospitalized for mental illness such as psychotic breakdown, Schizophrenia, or suicidal ideation, and if there had been a court order to both admit and discharge said patient from a mental health care facility (in other words, there were records, both legal and medical), could that person buy a firearm?
Surely this is exactly what everybody assumes, that the law states that the mentally ill cannot purchase or possess a firearm.
S.C. Code § 16-23-30 It is unlawful for a person to knowingly sell, offer to sell, deliver, lease, rent, barter, exchange, or transport for sale into this State any handgun to:
A person who has been adjudicated mentally incompetent; or
A person who by order of a circuit judge or county court judge of this State has been adjudged unfit to carry or possess a firearm.
S.C. Code § 44-23-1080 No patient or prisoner under the jurisdiction of the South Carolina Department of Mental Health is allowed access to firearms or dangerous weapons.
However, the truth is that this is not true. For at least two reasons: 1) A mental health care facility has no mechanism to report the involuntary commitment of a person, to the NICS (National Instant Criminal (Background Check) System, which is run by the FBI. Also because these patients/persons are often NOT criminals, there would be no reason to report; 2) HIPAA laws prevent health care facilities from sharing patient records or even basic information (like was the person even admitted to a mental health care facility) with law enforcement, much less a gun shop owner.
Long story short is, a person with SMI (Serious Mental Illness) CAN purchase a gun or weapon legally from a gun shop, as long as they do not have a criminal record, and thus would come up on the NICS database.
So, short of criminalizing mental illness, there must be some way that the extant law can be enforced. Because as it stands now, neither S.C. Code § 16-23-30, or S.C. Code § 44-23-1080 can be enforced based on the logistical and reporting impossibility of the mental health care facility to the NICS database. And based on the firewall that HIPAA puts around patient records that disallows law enforcement to know who has been diagnosed and adjudicated mentally ill, it is impossible to connect the dots in this crucial line of communication between the mentally ill, mental health care facilities, law enforcement, care givers, and the public.
In light of recent mass shootings in which at least two of the gunmen had previously been diagnosed with mental illness (church in Sutherland Springs, Texas, Nov. 2017)(Waffle House near Nashville, TN, April 2018), and arguably the school shooters at Sandy Hook, CT; Parkland, FL; and Santa Fe, TX all were in some way struggling with emotional, mental, and/or affective disorders — the issue of guns and mental illness is at the heart of the national conversation about gun access and gun control.
Maybe now is the time to address the absurd loophole between those with diagnosed and recorded mental illness, who have spent time involuntarily (or even voluntarily by checking themselves in) in a mental health facility or hospital, and the fact that they can still buy a firearm.