President Obama has released two new executive actions on background checks for gun purchases. The actions were posted on WhiteHouse.gov Friday afternoon and according to the Department of Justice and Health and Human Services, will make it easier for states to submit mental health information to the federal background check system known as the National Instant Criminal Background Check System or NICS.
“Today, the Administration is announcing two new executive actions that will help strengthen the federal background check system and keep guns out of the wrong hands. The Department of Justice (DOJ) is proposing a regulation to clarify who is prohibited from possessing a firearm under federal law for reasons related to mental health, and the Department of Health and Human Services (HHS) is issuing a proposed regulation to address barriers preventing states from submitting limited information on those persons to the federal background check system,” the executive action announcement states. “The Administration’s two new executive actions will help ensure that better and more reliable information makes its way into the background check system. The Administration also continues to call on Congress to pass common-sense gun safety legislation and to expand funding to increase access to mental health services.”
-Some states have noted that the terminology used by federal law to prohibit people from purchasing a firearm for certain mental health reasons is ambiguous. Today, DOJ is issuing a proposed rule to make several clarifications. For example, DOJ is proposing to clarify that the statutory term “committed to a mental institution” includes involuntary inpatient as well as outpatient commitments. In addition to providing general guidance on federal law, these clarifications will help states determine what information should be made accessible to the federal background check system, which will, in turn, strengthen the system’s reliability and effectiveness.
-Some states have also said that the Health Insurance Portability and Accountability Act’s (HIPAA) privacy provisions may be preventing them from making relevant information available to the background check system regarding individuals prohibited from purchasing a firearm for mental health reasons. In April 2013, HHS began to identify the scope and extent of the problem, and based on public comments is now issuing a proposed rule to eliminate this barrier by giving certain HIPAA covered entities an express permission to submit to the background check system the limited information necessary to help keep guns out of potentially dangerous hands. The proposed rule will not change the fact that seeking help for mental health problems or getting treatment does not make someone legally prohibited from having a firearm. Furthermore, nothing in the proposed rule would require reporting on general mental health visits or other routine mental health care, or would exempt providers solely performing these treatment services from existing privacy rules.
While it is important states are easily able to submit mental health information to the federal background check system, changes in HIPAA should come with extreme scrutiny and thought due to a high risk of changes in the law resulting in major privacy violations. Many doctors are already asking patients (and not just those with mental health problems) about whether or not they have a gun in their home, a fine line to walk.
In the executive action announcement, the White House also urged Congress to pass more gun control measures, some of which Democrats voted no on early last year.
While the President and the Vice President continue to do everything they can to reduce gun violence, Congress must also act. Passing common-sense gun safety legislation – including expanding background checks and making gun trafficking a federal crime – remains the most important step we can take to reduce gun violence.The vast majority of Americans support these critical measures, which would protect our children and our communities without infringing on anyone’s Second Amendment rights.
Always be wary of the phrase “common-sense gun safety,” especially when it comes from gun control advocates. No “common-sense” gun control law has ever reduced crime or mass shootings. If advocates have to tell you they aren’t infringing on your Second Amendment rights, they are probably infringing on your Second Amendment rights. Further, gun trafficking is already a federal offense.