A social media post misleadingly claims that Republicans “voted to allow people with pre-existing mental illness to buy firearms.” The measure blocked the Social Security Administration from reporting to the U.S. background check system some disability beneficiaries who are unable to manage their finances. Federal law still prohibits people with certain conditions from buying guns.
The mass shootings in El Paso, Texas, and Dayton, Ohio, in a single weekend have reignited the debate over gun control, Second Amendment rights, and where mental health fits into the equation.
On social media, a popular post muddies that debate when referencing legislation signed by President Donald Trump in February 2017 relating to mental health and access to firearms.
“At the next mass shooting, remember…it was REPUBLICANS who voted to allow people with pre-existing mental illness to buy firearms, yet denied them health insurance to treat their pre-existing mental illness,” reads the meme shared Aug. 5 by a page called “Go Left.”
It’s not that simple.
The vote in question was on a 2017 House joint resolution, which we’ve written about before. It didn’t “allow” everyone with a “mental illness” to buy firearms: Federal law still prohibits someone “who has been adjudicated as a mental defective or has been committed to any mental institution” from buying or possessing a gun.
The law defines “adjudicated as a mental defective” as someone found by a “court, board, commission, or other lawful authority” — “as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease” — to be a “danger to himself or to others” or to lack “the mental capacity to contract or manage his own affairs.” It also includes people found insane by a court in a criminal case, found incompetent to stand trial, or who are “found not guilty by reason of lack of mental responsibility.”
The 2017 legislative measure did, however, block the Social Security Administration from going forward with an Obama-era rule that would have had the agency report to the FBI’s National Instant Criminal Background Check System (NICS) certain disability applicants — those with certain mental impairments whose benefits are handled by a representative.
The NICS is used to determine whether an individual can buy a firearm from a federally licensed dealer, and the rule would have informed the “FBI of the fact that the individual meets the criteria for inclusion in the NICS … due to a mental health prohibitor.”
Opponents of that SSA rule — including the National Rifle Association, the American Civil Liberties Union and many disability rights groups — argued that it risked violating the rights of some beneficiaries by unduly preventing them from being able to buy firearms. Some also questioned the range of mental disorders — including schizophrenia, anxiety, autism, bipolar disorder and eating disorders — that could have led to reporting to the NICS, if applicants were approved for disability benefits and had someone else managing their finances.
“The current public dialogue is replete with inaccurate stereotyping of people with mental disabilities as violent and dangerous, and there is a real concern that the kind of policy change encompassed by this rule will reinforce those unfounded assumptions,” the American Association of People with Disabilities wrote at the time. It also cited the “absence of any data suggesting that there is any connection between the need for a representative payee to manage one’s Social Security disability benefits and a propensity toward gun violence.”
Gun-control advocates who supported the rule, on the other hand, argued the repeal undermined efforts to improve the federal background check system. It was estimated that the rule would have affected 75,000 beneficiaries annually — and compliance would have started at the end of 2017.
It’s possible that some of those Social Security beneficiaries may still be reported, as we’ve explained, because laws in 47 states require or authorize the reporting of some with mental illness to the NICS or similar state databases used for background checks. According to the Giffords Law Center, 16 states “specifically mandate the reporting of individuals appointed a guardian because they lack the capacity to manage their own affairs.”
As of December 2018, the FBI’s background check system contained nearly 5.7 million “active records” for individuals with “adjudicated mental health.”
The social media post also makes reference to health care, claiming that Republicans “denied” people with mental illness “health insurance to treat their pre-existing mental illness.”
That may be a reference to unsuccessful attempts by Republicans to replace the Affordable Care Act. Republicans in 2017 introduced several potential replacements plans — which we’ve written about before. The bills did not provide the same level of protections for preexisting conditions as Obamacare, but the specifics of each plan varied.
For instance, one House proposal — the American Health Care Act — required insurance companies to offer coverage regardless of preexisting conditions but also allowed them to charge more in some cases. And it also would have let states decide on their own essential benefits, whereas the Affordable Care Act requires insurers to cover 10 essential benefits (including mental health services).
A Congressional Budget Office report on that proposal said that mental health was a service “likely to be excluded from” essential health benefits in some states and that out-of-pocket spending “could increase by thousands of dollars in a given year for the nongroup enrollees who would use those services.”
The National Alliance on Mental Illness said the replacement plan would “have a devastating impact on mental health coverage for the 60 million children and adults in our country who are affected by mental health conditions.”
For more on this, see “The Preexisting Conditions Debate Isn’t Over.”
“About NICS.” Federal Bureau of Investigation. Accessed 5 Aug 2019.
“Active Records in the NICS Indices by State.” Federal Bureau of Investigation. 31 Dec 2018.
Congressional Budget Office. “H.R. 1628 | American Health Care Act of 2017.” CBO.gov. 24 May 2017.
Gore, D’Angelo. “Trump Nixed Gun-Control Rule.” FactCheck.org. 6 Oct 2017.
H.J. Res. 40. Pub. L. 115 – 8. 131 Stat. 15. 28 Feb 2017.
Implementation of the NICS Improvement Amendments Act of 2007. Federal Register. 19 Dec 2016.
Krouse, William J., et. al. “Gun Control, Mental Incompetency, and Social Security Administration Final Rule.” Congressional Research Service. 13 Feb 2017.
“NAMI Deeply Disappointed In House Passage Of American Health Care Act (AHCA).” Press release, National Alliance on Mental Illness. 4 May 2017.
Robertson, Lori. “The Preexisting Conditions Debate Isn’t Over.” FactCheck.org. 2 Apr 2019.