A. Relevant Laws:
-Under The Gun Control Act of 1968, 18 U.S.C. 922(g)(4), persons who were adjudicated as a “mental defective” or committed involuntarily to a mental institution were prohibited from receiving or possessing a firearm.
-Under the Brady Handgun Violence Prevention Act of 1993, federal firearms licensees were required to conduct a criminal background check or NICS (National Instant Criminal Background Check System) before transferring a firearm to a non-licensee. Part of this check was the required representation that the transfer to the non-licensee would not violate federal, state or local law. A written statement issued by the chief law enforcement officer had to confirm that the transferee had not been adjudicated as a mental defective or been committed to a mental institution. Consequently, any person who had been adjudicated a mental defective or been committed to a mental institution (FN1) was prohibited for life from possessing a firearm.
-In 2008, the NICS Improvement Amendments Act of 2007 (NIAA) was signed into law thereby providing a mechanism wherein a person who had been involuntarily committed could have firearm rights restored.
B.Restoration of Firearm Rights per NIAA
There are two paths to restoration of firearm rights:
1) Federal: 18 U.S.C. 925 (c) wherein the application is made to the United States Attorney General. The petitioner must show that the circumstances regarding the mental disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. This path to relief is currently illusory as it has not been funded and consequently no applications are being reviewed. (Jeffries v. Sessions at p. 17 (E.D. Pa. 2017)
2) State: North Carolina General Statute § 14-409.42 meets the criteria specified in NIAA (FN2) and courts can restore firearm purchasing rights to a person who had them previously removed because of a mental health adjudication or involuntary commitment. However, North Carolina’s statutory scheme has not been certified by the ATF. (see State Progress in Record Reporting for Firearm-Related Background Checks: by Becki Goggins, SEARCH and Anne Gallegos, National Center for State Courts February 2016 fn.8)
C. Conclusion
In the states who have enacted restoration relief laws, restoration of rights under state law will remove the bar to firearm possession. North Carolina currently has a legally sufficient program so a restoration of rights in state courts (FN3) will apply in both the state and federal jurisdictions. When firearm restoration relief is granted under a federal or state program which meets the requirements of the NIAA, or when certain automatic relief conditions are met, the mental health disability is “deemed not to have occurred” for purposes of the federal firearm prohibition.
Persons in states with no statutorily sufficient laws will not have their firearm restoration rights restored unless their legislature or courts (FN3) provide a remedy.
_______________________
FOOTNOTES
(1)“Adjudicated as a mental defective” means: a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease is a danger to himself or to others and lacks the mental capacity to contract or manage his own affairs. This term shall include a finding of insanity by a court in a criminal case or those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
“Committed to a mental institution” refers to the formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily and a commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
(2) In order to establish a relief from disabilities program, a state must comply with the NIAA requirements, as follows: 1. Pass state law or administrative order 2. Complete an application 3. Indicate the lawful authority that will consider the petition 4. Abide by due process 5. Create a proper record of the proceeding 6. Create proper findings 7. Allow for de novo judicial review of denial 8. Update state and federal records once made aware that the disqualifier no longer applies 9. Establish a written procedure to address updating requirements (recommended)
(3) There is currently a split in opinion between the sympathetic 6th Circuit and the hostile 3rd Circuit.
