The Truth about the President's Executive Order on Guns and "Mentally Ill" People Prohibited from Buying or Possessing a Firearm

The anti gun mass media is misleading the public about the President’s Executive Order on guns, which may broaden the number of people with alleged “mental illnesses” whose names get permanently added to the FBI NICS “prohibited persons” gun purchase background check database. However, the biggest impact the misleading news seems likely to have is a chilling effect, persuading more and more people to avoid any and all interaction with the “mental illness” professions and industry.

The anti gun mass media news has been publishing misleading disinformation about the President's intent to change terminology definitions in administrative law - the code of federal regulations - regarding the prohibition of guns to "mentally ill" people. The news reports are extremely distorted and misleading, attempting to give the general public the impression that such changes to administrative law will prevent people who might commit mass shootings, or other crimes with guns, from obtaining guns. The truth is that even with the proposed administrative law changes in the presidential Executive Order, none of the people who have committed recent true mass shootings: James Holmes, Jared Loughner, Aaron Alexis, Adam Lanza, etc.; had interactions with the psychiatric profession that would have exceeded the proposed legal threshold for gun rights revocation created by the either the old or the new definitions of the legal terms at issue.

First of all, federal statutory law does not prohibit "mentally ill" people in general from buying, owning, or possessing, guns. However, the gun statutes in some U.S. states, notably New York, Hawaii, Massachusetts and a few others, include subjective and sometime capriciously applied prohibitions against people with any sort of "mental health" diagnosis from buying and/or owning firearms! Under federal statutory law, the prohibition against gun purchase, ownership, and possession, applies only to two specific categories of people: those deemed “mental defective” and those "committed to a mental institution", as defined in the federal firearm statute 18 USC § 922(d)(4).

Furthermore, the mass media is spreading the misleading and incorrect impression that general "mental health" medical records could be, would be, or are being, disclosed and submitted to the FBI NICS gun purchase background checks system. Such mass media assertions are an incorrect and misleading falsehood, at least with regard to federal law. Here are facts none of the news articles explains.

The federal firearm statute 18 USC § 922(d)(4) states that anyone who:

"has been adjudicated as a mental defective or has been committed to any mental institution"

is prohibited from buying, owning, or possessing, a firearm.

In addition, the - code of federal regulations - aka the CFRs, which are controlled by the White House, contain further, more elaborate definitions of the meaning of the phrases:

"adjudicated as a mental defective"

and

"committed to any mental institution".

The President's Executive Order would/will change 27 CFR 478.11 (see link) which would change the elaborated, administrative, definitions of the two phrases above that are contained in the federal statute 18 USC § 922(d)(4). It takes an act of Congress to change 18 USC § 922, which is federal statutory law, but the President has control of federal administrative law, which is intended to clarify statutory law, enabling him to change 27 CFR 478.11. The gun ban zealot President's intent is to broaden the scope of these terms as described by 27 CFR 478.11, thereby snaring more people as “mental defective” or “involuntarily committed”, whose names would be placed into the FBI NICS gun purchase background check "prohibited persons" database. The current version of 27 CFR 478.11 contains the following definitions:

Adjudicated as a mental defective.

(a) 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:

(1) Is a danger to himself or to others; or

(2) Lacks the mental capacity to contract or manage his own affairs.

(b) The term shall include—

(1) A finding of insanity by a court in a criminal case; and

(2) 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.

The primary change to the definitions above would/will be that they would broaden the definition to include - court ordered - "out patient" "mental health" treatment. The implications of this change could be significant. For example, this change could mean that a drunk driving or drugged driving prosecution that includes court ordered out patient alcohol treatment would lead to permanent loss of gun rights, and placement of that person's identity records into the FBI NICS background checks no guns database. The proposed new version of 27 CFR 478.11 would contain the following definitions, inserting a new definition of "committed to a mental institution", (emphasis added), as follows:

§ 478.11 Meaning of terms.

Adjudicated as a mental defective.

(a) A determination, order, or similar finding 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:
(1) Is a danger to self or others; or
(2) Lacks the mental capacity to contract or manage his or her own affairs.

(b) The term shall include—
(1) Those persons found not guilty by reason of insanity, mental disease or defect, or lack of mental responsibility by a court in a criminal case;
(2) Those persons found guilty but mentally ill by a court in a criminal case in a jurisdiction that provides for such a finding; and
(3) Those persons found incompetent to stand trial by a court in a criminal case.

(c) The term shall not include —
(1) Any person adjudicated by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply; or
(2) Any person who has been adjudicated and subsequently received relief from disabilities under 18 U.S.C. 925(c) or under a program authorized by section 101(c)(2) or section 105(a) of the NICS Improvement Amendments Act of 2007.

Committed to a mental institution.

(a) A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes an involuntary commitment to a mental institution for inpatient or outpatient treatment. The term includes an involuntary commitment for mental defectiveness, i.e., mental illness, to a mental institution. It also includes a commitment to a mental institution for other reasons, such as for drug use.

(b) The term does not include a person in a mental institution solely for observation or evaluation, a voluntary admission to a mental institution, or voluntary outpatient treatment. The term shall not include any person so committed by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply, or any person who has received relief from disabilities under a program authorized by section 101(c)(2) or section 105(a) of that Act or under 18 U.S.C. 925(c).

The proposed new text has been published in a Department of Justice BATFE memorandum available on multiple web sites. The memorandum is entitled, Amended Definition of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution” (2010R-21P).


A second Executive Order would change some aspects of the definitions in the code of federal regulations related to the HIPAA medical privacy statute and regulations regarding provision of information to the FBI NICS about the people defined in 27 CFR 478.11. The mass media disinformation machine uses the phrase: “mental health records", which is completely false and misleading. The Executive Order change would only clarify to state level courts and psychiatric institutions that federal law enables and requires them to submit notices of court adjudications and involuntary commitments to the FBI NICS gun purchase background database to deem such people "prohibited persons", in venues and jurisdictions where some state level governments have previously refused, citing conflict with HIPAA medical privacy. Together, the two Executive Orders are intended to broaden the scope of people who will be deemed "prohibited persons" in the FBI NICS gun purchase background checks database.

Every American should also take notice that the FBI NICS gun purchase background check database is one of the most big brother information repositories on citizens and other people currently maintained by the federal government. The FBI NICS database contains names, birth dates, social security numbers, mother's maiden names, and other identifying information, about everybody in the U.S.: citizens, known illegal aliens, legal aliens, and so on; with each identity record associated with zero or more record(s) of gun ownership prohibition events, such as involuntary psychiatric commitment, adjudications of not guilty by reason of insanity, felony convictions, domestic violence convictions, and so on.

In order for such a database to function as it advertised to the gun ban zealot political faction, it has to be that big brother oriented, with clear information on everybody, absolutely everybody, to prevent the few people the government has deemed prohibited from buying/owning guns from doing so. However, the FBI NICS system rejects just six (6) of each 1,000 persons who complete an ATF Form 4473 (ATF Firearms Transaction Record) as a requirement of purchase during the process of buying a gun from a federally licensed gun retailer. Notably, Americans purchased about twenty one million (21,000,000) new guns in 2013 alone, and have purchased about one hundred and eighty million (180,000,000) new guns since 1998, bringing the current number of lawfully owned guns in the United States of America to about 320,000,000, increasing an average of about 1.6 million new guns each month at the present time.