Under the rule, which the Obama administration made permanent on its way out the door, Social Security beneficiaries with psychiatric disabilities who are assigned a money manager for their disability benefits would be reported to the FBI’s background check database as people ineligible to purchase firearms. House Republicans voted last week to eliminate the rule, and their counterparts in the Senate are expected to follow suit.
The gun restriction rule is a well-meaning policy that gets some things right, notably its support of federal efforts to improve detection of risky people who should not have legal access to guns. But despite its good intentions, what the policy actually does is take away the gun rights of a large category of individuals without any evidence that they pose a risk of harm to self or others, and without legal due process protections commensurate with abridging a constitutional right.
All we really know about many people in the affected category is that they have been found unable to work full time due to a mental health problem and an examiner for Social Security has decided, with some input from a licensed medical or psychological consultant, that they need help managing money. The mental health conditions in question might range from moderate intellectual disabilities to depression, bipolar disorder or schizophrenia. Based on one person’s judgment call, arrangements are made to have the government’s check sent to a representative payee. But this isn’t an index for whether or not someone should be allowed to own a gun.
Research on the relationship between gun violence and mental illness shows that the vast majority of mentally ill individuals are not violent or suicidal. Our group at Duke recently published a study of approximately 82,000 people diagnosed with serious mental illnesses in Florida between 2002 and 2011. We found that those with serious mental health disorders with records in the public behavioral health system were no more likely than the general adult population in Florida to use a gun to harm others (about 213 vs. 217 gun crimes per 100,000 people per year), and they were only slightly more likely to die in a gun-related suicide (about 13 vs. 9 gun suicides per 100,000 people per year). Thus, people with mental illnesses are no more dangerous to others when they have equal access to guns.
Our study, like many others, found that mental illness substantially increases the risk of suicide in general. Many, if not most, people who die from suicide have suffered from a mental illness. But our data also show that they are less like to use a gun when they do end their own lives, and are more likely to use other means. While 48 percent of suicides in the general Florida adult population involved guns, only 20 percent of suicides in our study population of people with serious mental illnesses involved guns. The annual rate — 13 gun suicides per 100,000 people with mental illness — shows that gun suicide is a rare event in this population. Moreover, only a tiny fraction of all people with mental illness who are at risk of suicide are Social Security disability beneficiaries with representative payees. Thus there just isn’t evidence that reporting these particular individuals to the National Instant Criminal Background Check system will prevent suicides.
Last year, when the Social Security rule change was proposed, the Consortium for Risk-Based Firearm Policy, of which I am a member, studied the issue and prepared a comment. The Consortium includes some of the nation’s leading researchers, practitioners and advocates in gun violence prevention, public health and mental health. Our stated purpose is to advance evidence-based policy for reducing access to firearms by individuals who are at elevated risk of committing violence to themselves or others. We argued that the rule, in the form it was written, amounted to a substantially overbroad categorical prohibition, and we recommended an improved process that would incorporate additional findings specifically related to violence risk. But the Obama administration finalized the rule as it stood, against our recommendation.
When the government takes away people’s rights, usually they have a hearing, a chance to contest the proceedings, and legal representation. None of those is provided when a person is assigned a money manager by the Social Security Administration, nor would it be feasible to do so routinely. But when such a determination is later leveraged for a totally different purpose — suspension of a person’s Second Amendment rights — the lack of process becomes a legitimate civil rights concern.
Veterans Affairs has recently addressed the same problem in its policy of reporting to the FBI gun background check database the names of veterans with psychiatric disabilities who have been assigned a “fiduciary” to manage their VA benefits. When VA now considers assigning a fiduciary, the veteran in question is notified of the proposed determination and the supporting evidence, and is provided with an opportunity to request a hearing, be represented by counsel, and to contest the determination by presenting other relevant medical evidence.
In contrast, the Social Security policy simply assumes that people who have been determined to need assistance managing their disability benefits meet the definition of “adjudicated as a mental defective” in the 1968 Gun Control Act.
As the Supreme Court has made clear in the past, the Second Amendment to the Constitution confers an individual right to bear arms, but the right is “not unlimited.” If these rights are going to be limited or regulated in order to protect people and save lives, then they should be limited or regulated fairly, using evidence-based policymaking to balance risk to public safety and the rights and interests of vulnerable groups. Removing gun rights from people with mental illnesses based on a single criterion unrelated to violent histories only reinforces stigma around mental illness and exposes people struggling to overcome difficult conditions to unwarranted discrimination. And there’s no proof it makes anybody safer.
Politicians should support evidence-based policies that would improve the criteria for gun restriction, so that the criteria would identify more truly risky people, and fewer non-risky people. Restrictions could be applied to people with a history of violence or suicidal thinking who are not currently prohibited from guns in many cases: violent misdemeanants, respondents to temporary domestic violence orders of protection, people with multiple DUI convictions, or people detained in a short-term emergency hold during a mental health crisis. There is at least good indirect evidence that individuals with these kinds of background factors pose a substantially elevated risk of violence or self-harm.
In a society where guns are highly prevalent and the right to own them is constitutionally protected, solving a public health crisis that claims 35,000 lives every year (two-thirds by their own hand) is like a jigsaw puzzle. There are many causes of the problem, and many parts to an effective solution. Merely pointing the finger at “mental illness” will not solve this puzzle.
It is unfortunate that Republican lawmakers are using a rather heavy-handed regulatory tool — the Congressional Review Act — to repeal the gun restriction rule, rather than modifying it to reflect what the evidence tells us about mentally ill persons and violence risk. But, at this point, opposing repeal of a bad regulation in the hope of getting something better in the future is too much to expect of someone who cares more about science than politics. The outgoing Democratic administration dealt their friends a bad hand: The original rule was misguided and Congress is right to repeal it.