Who with mental illness should not be allowed to have a gun?
That was the question debated by mental health experts, members of law enforcement, gun control advocates and gun violence researchers in a conference at Johns Hopkins University in Baltimore last month. "There are mental illness diagnoses that do increase your risk of violence," says Josh Horwitz, who organized the event and is executive director of the gun control group Coalition to Stop Gun Violence. "But identifying which [diagnoses] those are and who those people are is going to be difficult."
The consequences for trying to link a diagnosis to violent behavior became clear after it was revealed that Newtown shooter Adam Lanza was possibly autistic. The autism community came out in full force to debunk any report that tried to draw such a link. And recent research shows the risk of violent acts committed by those with mental health diagnoses as part of the total population was just 3-5 percent.
And yet the same question of gun access for those with mental illness will be posed to members of the Senate when they come back from recess Monday and consider legislation that asks for tougher gun background checks for those deemed mentally incompetent.
Few in the gun control debate agree on the answer to the question, but most say the current system isn't working.
Current federal law says any person who has been formally committed to a mental institution, such as by court order, or who has been adjudicated as a so-called "mental defective," cannot get access to a gun.
Those standards aren't condoned by mental health professionals, who say the term "mental defective" is deeply offensive, as well as not clearly defined. Gun control groups, meanwhile, say the law doesn't do nearly enough to keep guns away from people who shouldn't have them. And even gun rights groups have problems with the current system, with the NRA saying recently that states needed to do a better job at submitting names of mentally ill people to the National Instant Criminal Background System (NICS). The NRA is right that states haven't been great at compliance – almost 20 states submitted fewer than 100 mental health records to the database as of October 2012, according to research from the gun control group Mayors Against Illegal Guns.
So while there are problems with the current system, most groups involved in the debate disagree about how to fix them. And nowhere is that fight playing out more vigorously than at the state level.
The same concerns are playing out in New York, where legislation with a similar bent recently went into effect. The New York Safe Act of 2013 requires mental health professionals to report a patient to county governments if they believe he or she is "likely to engage in conduct that would result in serious harm to self or others."
When the bill was passed in January, New York Gov. Andrew Cuomo said that "people who have mental health issues should not have guns... they could hurt themselves. They could hurt other people."
The mental health community wasn't happy with Cuomo's broad-brush statement, nor with his legislation.
"The treatment providers themselves are saying [to this legislation]: 'Look, we are supposed to help people, enter therapeutic relationships," says Ron Honberg of the National Alliance on Mental Illness. "If we're responsible for making judgments about people who may be violent and reporting them to state police, then that's going to compromise the relationship."
Honberg says he also believes the legislation is "one more factor that could make people reluctant to seek help."
Some states had already instated tough gun control policies for the mentally ill before New York.
In California, if a person is placed on a 72-hour psychiatric hold in a facility, then that person can't purchase firearms for five years after they were admitted. That person is also reported to the NICS database.
In Georgia and Mississippi, gun rights are restricted not only for those involuntarily committed to a mental health facility, but also for people who brought themselves to the hospital.
Gun control groups disagree on which of these state measures has been effective. But New Yorkers Against Gun Violence executive director Leah Gunn Barrett says she thinks some state laws, such as the New York Safe Act, only codify a practice that mental health professionals were already doing.
"Mental health [professionals] are working with Albany to make any tweaks or corrections to the law that is needed," she says. "But the overall intent of the law is right — to keep guns from people who should not have them."
While this fight continues to play out at the local level, the Senate will return from recess to legislation proposed by Sen. Lindsey Graham, R-S.C., that would require better reporting of those considered mentally ill to the national database. Specifically, that includes people who have been criminally charged and found not competent to stand trial, people criminally charged and found not guilty due to insanity, and people committed to a psychiatric hospital.
"[The legislation] makes an effort for clarity for states about who they're supposed to report," says Honberg, who supports the bill. But perhaps more importantly, he says, "it's effort to try to link reporting to dangerousness, as opposed to generalized stereotypical assumptions about mental illness." Honberg is keen to point out that research shows mentally ill people are not violent.
That's a point many gun control groups can agree on. Horwitz suggests that this debate could move forward if the focus was shifted away from mental illness and onto other factors that research has shown to directly correlate to violence.
"Why don't we focus on people with violent misdemeanors, who are at much higher risk of recidivism? Or...alcohol problems, substance abuse?" he says, arguing that a mental health professional and a court should make a determination of dangerousness, not a diagnosis. "No one is saying if you have schizophrenia then you [automatically] shouldn't have a gun... There are just too many unchecked guns."
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This story has been updated to add context to Josh Horwitz’s quote.