Q: Did President Donald Trump repeal a rule that aims to block some people with mental disorders from buying guns?
A: Yes. The Social Security Administration is no longer required to submit the names of certain mentally disabled beneficiaries to a federal agency that conducts gun background checks.
Is it true that President Obama passed a bill that prohibited mentally ill people from purchasing a gun and that President Trump rescinded this bill?
The deadly mass shooting in Las Vegas has again brought attention to legislation signed by President Donald Trump that eliminated a Social Security Administration reporting requirement regarding beneficiaries deemed to have a mental impairment.
FactCheck.org readers have asked about the measure, and comedian Jimmy Kimmel referenced it during the opening monologue of his nightly talk show on Oct. 2.
“President Trump … spoke this morning, he said he was praying for those who lost their lives,” an emotional Kimmel said. “You know, in February, he also signed a bill that made it easier for people with severe mental illness to buy guns legally.”
The late-night host was referring to H.J.Res. 40, which became law on Feb. 28.
That joint resolution didn’t affect all “people with severe mental illness,” as Kimmel’s comment may have suggested. It rescinded a Social Security Administration rule requiring the agency to report to the National Instant Criminal Background Check System disability applicants unable to manage their finances due to a mental health condition.
The rule applied to “a narrow group of people who have been determined by the Social Security Administration to lack the capacity, on the basis of a mental disorder, to manage their affairs, specifically their benefit payments,” wrote Lindsay Nichols, federal policy director for the Law Center to Prevent Gun Violence, in testimony to Congress in February 2017.
First, let’s look at how the background check system — which was launched in November 1998 — works.
Under federal law, individuals “committed to any mental institution” or “adjudicated as a mental defective” by a court, board, commission or other lawful authority are prohibited from purchasing or possessing a gun.
Adjudicated as a mental defective means people who — “as a result of marked subnormal intelligence, mental illness, incompetency, condition, or disease” — lack the mental capacity to manage their own affairs, or are a danger to themselves or someone else. It also includes people found insane by a court in a criminal case, or found incompetent to stand trial, or not guilty by reason of lack of mental responsibility.
States can report those individuals to the NICS database used by federally licensed firearms dealers to screen for prohibited gun buyers. As of Dec. 31, 2016, there were more than 4.6 million active records in the NICS database for people with “adjudicated mental health” issues, according to FBI data.
When a customer applies to buy a gun from a federally licensed firearms dealer, the seller initiates the required background check by phone or online. NICS then runs the would-be gun buyer’s name and other identifying information against several nationally held databases to determine if the applicant is legally permitted to buy a gun. In addition to mental health records, those databases contain criminal records, court records (such as warrants and protection orders), as well as immigration and naturalization records if the applicant is not a U.S. citizen.
The dealer can complete the sale if there is no match for the applicant in the system. But if there is a match, the gun purchase can be delayed for up to 72 hours while examiners review the case and determine if the person is indeed prohibited from purchasing a weapon.
The SSA’s final rule, which was issued in December 2016, was created to comply with the reporting requirements mandated by the NICS Improvement Amendment Act of 2007, which was signed into law in January 2008 by President George W. Bush. The law required federal agencies to report individuals prohibited from acquiring guns to the NICS.
After the 2012 mass shooting at Sandy Hook Elementary School, President Barack Obama issued a presidential memorandum advising the Justice Department to make sure that federal agencies were complying with the 2008 law by reporting relevant records to the national background check system.
As of December 2015, more than 3.5 million people were receiving benefits because of a mental disorder, according to Social Security’s annual report on the disability insurance program. Not all of them would have been reported to NICS for inclusion in its database – only those who met certain criteria.
The Obama administration estimated that the reporting requirement would cover “approximately 75,000 people each year who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent.”
Trump opposed the rule, the White House said, because it “could endanger the Second Amendment rights of law abiding citizens.” Other critics of the SSA’s rule included the National Rifle Association and the American Civil Liberties Union, two groups that are usually on opposite sides on gun-related issues.
In a Feb. 20 blog post, Vania Leveille, ACLU senior legislative counsel, and Susan Mizner, ACLU disability counsel, wrote that the rule was unfair and ineffective. “The thousands of Americans whose disability benefits are managed by someone else range from young people with depression and financial inexperience to older adults with Down syndrome needing help with a limited budget. But no data — none — show that these individuals have a propensity for violence in general or gun violence in particular.”
The rule included a method for affected individuals to petition for the ability to obtain a gun, provided they could demonstrate that they posed no threat to the public.
And even with the repeal of the reporting requirement, it’s possible that some beneficiaries with mental disorders would be reported to the NICS by another agency, Nichols told us by phone.
A total of 47 states have laws requiring or authorizing the reporting of some mentally ill people either to the NICS or a similar state database, according to the Law Center to Prevent Gun Violence. That includes 16 states that require the reporting of individuals who have been “appointed a guardian because they lack the capacity to manage their own affairs.”
There is “some overlap” in the reporting, Nichols said, but no one knows how much.
Las Vegas Sun. “At least 59 dead, 527 injured in mass shooting on Las Vegas Strip.” 2 Oct 2017.
“Jimmy Kimmel on Mass Shooting in Las Vegas.” YouTube video. 2 Oct 2017.
H.J.Res.40. Public Law No: 115-8. 28 Feb 2017.
Social Security Administration. “Implementation of the NICS Improvement Amendments Act of 2007.” Federal Register. 19 Dec 2016.
Social Security Administration. “Annual Statistical Report on the Social Security Disability Insurance Program, 2015.” Oct 2016.
Federal Bureau of Investigation. Active Records in the NICS Indices by State. 31 Dec 2016.
Federal Bureau of Investigation. About NICS. Accessed 5 Oct 2017.
Nichols, Lindsay. “Examining the Social Security Administration’s Representative Payee Program.” Written testimony before the U.S. House of Representatives Social Security Subcommittee to the Committee on Ways and Means. 7 Feb 2017.
NICS Improvement Amendments Act of 2007. Public Law No: 110-180. 8 Jan 2008.
Law Center to Prevent Gun Violence. Mental Health Reporting. Accessed 5 Oct 2017.
Krouse, William, et al. “Gun Control, Mental Incompetency, and Social Security Administration Final Rule.” Congressional Research Service. 13 Feb 2017.
Nichols, Lindsay, senior attorney, Americans for Responsible Solutions Foundation and the Law Center to Prevent Gun Violence. Interview with FactCheck.org. 4 Oct 2017.