When Congress passed the 1968 Gun Control Act, it was one of the first attempts by the federal government to address who was too dangerous to buy a firearm. In the 50 years since, our understanding of mental illness has become more nuanced, while federal regulations largely have not.
The bill, which still today forms the bedrock of federal gun regulation, disqualifies a person who “has been adjudicated as a mental defective or has been committed to any mental institution,” from purchasing a gun.
Paul Appelbaum, a professor of psychiatry at Columbia University, says this qualification is too simplistic.
“Either you were committed or you weren’t committed,” Appelbaum said. “[The law] just doesn’t necessarily have a lot to do with whether you’re safe to have a gun or not.”
Research shows that people with a mental illness are widely not violent. In fact, just 3 to 5 percent of violent crimes are committed by someone with a mental illness.
Alcohol and substance abuse are more closely associated with a higher risk of violence than mental illness is.
But today, as in 1968, conversations about gun control often include mention of mental illness.
“There are lots of people who are under acute stress, behaving erratically, making threats, using substances, whether alcohol or illegal substances, for whom we are able to say, you know, it’s a really bad idea for this person to have a gun right now,” Appelbaum said. “But most of those people are not mentally ill.”
In the 1960s, the public and some of the medical community believed people with mental illnesses were dangerous, said Jeff Swanson, a professor in the department of psychiatry at Duke University School of Medicine.
“At that time, commitment was a little easier and at a lower threshold based on a psychiatrist believing that someone really needed treatment and was not capable of making that decision on their own,” Swanson said.
‘Red flag’ laws
Though people committed for mental health treatment need not be violent, the 1968 law treated commitment as a referendum on fitness to buy a firearm.
Today, if a person is exhibiting signs they could harm themselves or others, a family member or law enforcement official can petition a judge to mandate treatment. That person’s firearms aren’t necessarily seized, but if the person is involuntarily committed, they are barred by law from purchasing guns.
Marcia Morey saw many commitment hearings during her 18 years as a district court judge in North Carolina. But she also heard many other cases, involving domestic violence or homicide.
“I can’t tell you the number of times I sat on the bench and heard testimony from a family member who said, ‘We saw the warning signs. He had access to a gun.’ And yes, there was a shooting. There was a murder,” Morey said.
Frank Wolfe / Courtesy LBJ Presidential Library
In April 2017, she was appointed to the state legislature as a Democrat representing Durham, North Carolina. After 17 people died in February 2018 after a gunman opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, she pushed to pass an Extreme Risk Protection Order (ERPO) bill, also known as a “red flag law.”
These laws allow a family member or law enforcement official who believes a person is dangerous and likely to hurt themselves or others to ask a court to temporarily seize that person’s firearms.
“What happened in the Parkland massacre, and the kids from Marjory Stoneman Douglas High School coming out demanding lawmakers do something, it just hit home to me after being a judge for so many years and watching cases in court,” Morey said. “I thought in North Carolina, we should address it.”
Red flag laws are controversial. Some believe they infringe on Second Amendment right and worry that courts could take away guns without due process.
Morey’s bill failed to make its way through the North Carolina State Legislature before the end of the session last spring.
No simple solution
Since the Parkland shootings, 13 states have built on federal gun regulations by passing red flag laws or ERPO bills and many more are considering them. Some of the bills up for debate in state legislatures around the country include language about mental illness, including North Carolina’s.
Appelbaum, however, is among the experts that say looking at mental illness is the wrong way to address violence and could further the stigma that people with mental illness are violent and dangerous.
“We are looking for simple categories of people who we think are at higher risk — sufficiently high risk — of violence, that we don’t want them to have access to guns,” Appelbaum said. “And we’re looking for simple dividing lines to constitute the boundaries of that category.”
Lawmakers should identify “a group of people who are acutely threatening and otherwise behaving in a way that indicates that they shouldn’t have a gun,” Appelbaum says. “The introduction of mental illness as a category in those statutes is gratuitous and unnecessary,”
Red flag laws are usually framed as preventing mass shootings or homicides, though there is little evidence to suggest that.
In reality, two-thirds of U.S. gun deaths are by suicide.
“If you look at how these red flag laws are actually being used,” he said, “at the few studies that have focused on who has guns taken away from them under these statutes, the majority of people who have guns taken away are suicidal rather than threatening others.”
Appelbaum says red flag laws may fill a gap in preventing gun violence, not as the sole solution but perhaps as part of it.
Correction 11/1/2018: An earlier version of this story omitted the word violent from the statistic, “3 to 5 percent of violent crimes are committed by someone with a mental illness.”
Guns & America is a public media reporting project on the role of guns in American life.