Under federal law and the laws of most States, firearm rights can be restricted for a number of reasons including mental health conditions. For example, under federal law, it is a crime to sell, give or “otherwise dispose” of a firearm to a person known to “… have been adjudicated as a mental defective or has been committed to any mental institution.” See 18 U.S.C. § 922(d).
Most State laws go further and prohibit ownership, possession and control of firearms by those with mental illnesses. The laws vary from State to State. Some are relatively simple like the Arkansas statute that states: “No person shall possess or own any firearm who has been … adjudicated mentally ill or committed involuntarily to any mental institution.” See Ark. Code., § 5-73-103(a). Missouri’s statute is similarly brief stating, in part: “A person commits the offense of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and … is currently adjudged mentally incompetent.” See Missouri Rev. Stat. § 571.070.
By contrast, some State laws prohibiting firearm possession because of mental illness are quite complex. Take, for example, Alabama’s statute which prohibits persons of “unsound mind” from owning or possessing a firearm. A person of “unsound mind” means a person:
“(1) Found by a court, board, commission, or other lawful authority that, as a result of marked subnormal intelligence, mental illness, incompetency, condition, or disease, is a danger to himself or herself or others or lacks the mental capacity to contract or manage his or her own affairs.
(2) Found to be insane, not guilty by reason of mental disease or defect, found mentally incompetent to stand trial, or found not guilty by a reason of lack of mental responsibility by a court in a criminal case, to include state, federal and military courts.
(3) Involuntarily committed for a final commitment for inpatient treatment to the Department of Mental Health or a Veterans’ Administration hospital by a court after a hearing.”
Alabama Code § 13A-11-72(o). Hawaii also has a complex disability law that includes banning firearm ownership, possession and control if a person “… has been diagnosed as having a significant behavioral, emotional, or mental disorders as defined by the most current diagnostic manual of the American Psychiatric Association or for treatment for organic brain syndromes.” Haw. Stat. § 134-7. California is another example of a State with a complex and extensive statutory framework for restricting firearm rights for those with mental disabilities. See California Welf. & Inst. Code § 8100 et seq.
Further, some States incorporate specific time frames into their statutory prohibitions. In the above examples, no time frame is listed. But, North Dakota incorporates a three-year disability into its statute which provides, in part (emphasis added):
“A person who is or has ever been diagnosed and confined or committed to a hospital or other institution in this state or elsewhere by a court of competent jurisdiction is prohibited from purchasing a firearm or having one in possession or under control. This limitation does not apply to a person who has not suffered from the disability for the previous three years or who has successfully petitioned for relief under § 62.1-02.01.2.” See North Dakota Stat. § 62.1-02-01(c).
Further, some States – like Georgia – impose a ban on firearm rights where a person has been adjudicated not guilty of a crime “by reason of insanity.”
Importantly, one thing that is common to most statutes of this sort is the requirement of either an “adjudication” of mental illness or confinement to a mental health facility. This is a crucial legal protection since firearm rights cannot be taken on the basis of statements made by non-medical professionals. An “adjudication” by a court of law will require reports and testimony from mental health professionals.
Colorado is an exception to this tendency. In Colorado, family, household members or law enforcement officials can file a petition with a Colorado court to seek what is called a “temporary extreme risk protection order” (“ERPO”). There is no requirement that a mental health professional be involved in presenting the petition for an ERPO. If granted, the target of the ERPO petition must surrender their firearms and ammunition even though an ERPO is temporary. To make an ERPO permanent, the court will need to make an adjudication based on the testimony and reports of mental health professionals. But, that process can take weeks and months, and, in the meantime, the target of the ERPO petition has had his or her firearm right severely restricted.
Restoration of firearm rights that have been restricted based on mental illness
In some States, restoration of firearm rights may be automatic. Looking to the Missouri statute quoted above, the rights disability exists if one is “currently adjudged mentally incompetent.” Presumably, firearm rights are restored once that adjudication is lifted. But, likely, something like a court order will be needed that one is no longer adjudged as mentally incompetent.
In other states, a formal petition is needed to restore firearm rights. As can be seen from the North Dakota example listed above, many States specifically reference the statutory mechanism that can be used to restore firearm rights that have been restricted based on mental illness. Other states – like Arizona, the District of Columbia, Delaware and others – have similar references in their firearm rights disability statutes. In other states, the process and procedures for restoring firearm rights will be provided in other sections of the relevant codes and statutes.
Like the restrictions, the process and procedures for restoration vary from State to State. But, in general terms, under most restoration statutes, an affected person must file a petition with the appropriate authority – like a State court. See 11 Del. Code § 1448A(l) for an example. The petition must detail the basis for the firearm rights restrictions and then state the reasons that the restrictions should be lifted. In general, the reason for lifting restrictions that are based on mental illness is that the person no longer suffers from the mental illness. To help prove this, those seeking firearm rights restoration should include the following types of documentation:
- Reports and medical records from their treating mental health professionals
- Results of mental health examinations
- “Good character” letters from friends, family, employers, spiritual advisors and the like
- Employment records
- And more