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Federal Firearms Prohibition under 18 U.S.C. § 922(g)(4)


Astoundingly, in America today, psychiatric hospitalization can prevent you from ever owning a gun again... even if you sought treatment VOLUNTARILY.  This makes it very easy for an authoritarian government to disarm individuals who disagree with it – just call them crazy and lock them up, even for a minute. They would then fall afoul of the federal firearms prohibition under 18 U.S.C. § 922(g)(4) if they ever even laid a finger on a gun again (see below).  States with gun control therefore have a political incentive to commit gun owners, and the power to do so without due process.  

The FBI has a practice of entering the names of nonviolent psychiatric patients -- who have not been convicted or even accused of any crime -- into the National Crime Statistics database without probable cause, warning or due process.  This is a serious Constitutional rights problem created by the Brady Handgun Violence Prevention Act, and it is amazing that the law has been in place since 1993, and this problem has not yet seen the light of day.  Even the FBI would likely be relieved to have some clarity brought to this alarmingly opaque process.

New York is one of the 22 states that submit mental health information to the NICS Index through the offensively-named Mental Defective File and the Denied Persons File.  In accordance with regulations set forth by the Brady Act, specific information must be provided to the NICS Index, including supporting documentation to prove an individual was adjudicated as a mental defective or involuntarily committed for treatment.  So, if you are a former patient, your own mental health information may have been submitted to the FBI through one of these files.

The problem is that it is unclear from the wording of the Federal Firearms Prohibition, 18 U.S.C. §§ 922(g)(4) and 924(a)(2), whether it pertains only to persons currently committed, or those who have been committed at some time in the past.  There is no explanation in the law what constitutes a “board, commission, or other lawful authority”. The law does not specify what “observation” actually means, since prior to commencing “observation”, hospitals typically commit the patient and place him behind locked doors anyway.  The law effectively means that you may or may not be entered into the NICS database, depending on how the FBI chooses to interpret the tense of one sentence of the law, and it may or may not be permanent.  It is unclear from the wording of the law whether the State verifies whether the information about the patient that is submitted to it by the hospital is correct, or whether the FBI verifies whether the information sent by the State is correct.  It is unclear from the wording of the law how the FBI checks that the information meets the criteria for inclusion in the NICS Index.  There is no clear explanation in the law about whether or not a patient’s rights can ever be regained once they have been taken away, or how the patient might go about trying to reinstate them.  

These are glaring loopholes.  And, importantly, they affect not only your gun rights, but also your secret permanent record with the federal government, which can affect your ability to find employment, travel, and obtain professional licensure or financial services.  Even if you are fervently against guns, you should be able to see how being hospitalized against your will is potentially fatal to your career and social life. 

Patients' right to bear arms is only protected by state laws in 44 states, and some of the remaining states offer only partial protection of gun rights.  Importantly there is NO protection of your gun rights in California, Iowa, Maryland, Minnesota, New Jersey, and New York under these states' constitutions.  This means that if your gun rights are taken away because you have been detained in a psych ward, for whatever reason, there is no mechanism in state courts to reinstate your rights.  You can try to bring a case in federal court under the Second Amendment to the US Constitution, but if you were detained in a private hospital, it is nearly impossible to do that.

This implication of the mental health laws is a well-kept secret across the country.  

[this information is current to the best of our knowledge as of 2/14]