The Washington Post published a letter to the editor this week which is drawing a lot of attention for good reason. It was penned by Lawrence Keane of Newtown, Connecticut (a name I’m sure you recognize) and he’s an officer with the National Shooting Sports Foundation. In it, he calls out a recent editorial in the paper which seeks new laws to force more transactions through the National Instant Criminal Background Check System. The problem, as the author notes, is that you’re not going to catch the actual crazy people who may be about to commit a gun related crime even if they’ve already been identified if the system doesn’t know who they are. A short bit of his letter:

The Oct. 12 editorial “Making moves on gun laws” missed the mark by calling for new regulations ordering private transfers of firearms to be processed through the National Instant Criminal Background Check System that retailers use to screen gun buyers. That dubious rule would exceed the president’s statutory authority and ignore the problems with the system.

The system is designed to keep guns out of the hands of people who are disqualified from possession by federal law. But it doesn’t always work because its database is incomplete. Six states have submitted fewer than 100 records of people who have been “adjudicated mentally defective” and are ineligible to purchase or possess a firearm. Even our nation’s capital appears to fail to report individuals in this category to the system.

Keane brings up an excellent point, and it’s one which has already been endorsed by the NRA. There are clear and accepted guidelines for establishing and identifying persons who have been properly found to be too mentally unstable or otherwise incompetent to exercise their Second Amendment rights even if they have not yet committed any crime. You can see a brief history of this and the applicable definitions published by NRA-ILA here.

Since 1968, federal law has barred the possession or acquisition of firearms by anyone who “has been adjudicated as a mental defective or has been committed to any mental institution.”[2]

The Bureau of Alcohol, Tobacco, Firearms and Explosives has issued regulations that define an “adjudication” as a “determination by a court, board, commission, or other lawful authority that a person is, 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.” This includes a finding of insanity or incompetency in a criminal case.[3]

Returning to the idea of the extreme care required in such determinations, the courts have gone on to specify that people who voluntarily commit themselves or seek help for a variety of psychological issues can not be placed in this category. (At least not from the federal level. More on that below.) But for those who have had the proper opportunity to protest such a classification and are found unstable, such information should be provided to the database and flag dealers if they try to make a gun purchase.

The problem is that the database is woefully incomplete and many states are not submitting names correctly. One study from a few years ago indicated that as many as half of such adjudications were never reported so a background check wouldn’t catch them. The National Center for State Courts indicates that as many as two million such records are missing or not reported. If the government is honestly concerned about addressing the mental health aspect of cutting down on gun violence, getting that fixed would be a far more productive measure than passing yet another law which would only impact the law abiding gun owner.

But sadly, we can’t even allow this laudable suggestion to move forward without a couple of caveats. The first is that the majority of crazy people we hear about who wind up shooting up some public place were never so adjudicated. In fact, for far too many lunatics, the first time we find out precisely how crazy they are is after they’ve already opened fire. There is no solution to that problem that I’ve heard, but it bears mentioning as a caution against thinking such a fix will be a panacea of some sort.

The second, and far more pressing concern, is that in the process of “fixing” the database the government may well go overboard so a tremendous amount of oversight would be required. For an example of of how they have already done this in the past on the state level we need look no further than New York. After the passing of the odious Safe Act, the state government got to work compiling a list of more than 34,000 names of persons who had their Second Amendment rights suspended for “mental health reasons.” But as the New York Times reported, those were not people who were properly adjudicated as defined above, or at least not all of them. In all likelihood very few of them were. (Emphasis added)

The database, established in the aftermath of the mass shooting in 2012 at the Sandy Hook Elementary School in Newtown, Conn., and maintained by the state Division of Criminal Justice Services, is the result of the Safe Act. It is an expansive package of gun control measures pushed through by the administration of Gov. Andrew M. Cuomo. The law, better known for its ban on assault weapons, compels licensed mental health professionals in New York to report to the authorities any patient “likely to engage in conduct that would result in serious harm to self or others.”

In that case, “licensed” professionals are not necessarily doctors. It can be therapists, psychologists (as opposed to psychiatrists) or others who perform counseling. And the names they must report are not people who were either forcibly institutionalized for dangerous behavior or adjudicated so in court. They just needed a suspicion and their names went on the list. Gun confiscations proceeded apace from there.

And that’s where we run into problems continually on this subject. Even when well meaning supporters of Second Amendment rights are willing to give an inch of ground for something reasonable like this, too many in the government are ready to take a mile or more. I’d dearly love to see how many of New York’s 34K long list of post-SAFE Act names are already in that national database even though they were never institutionalized nor given a day in court. Knock me over with a feather if there aren’t some in there. But good luck getting hold of that list… Andrew Cuomo won’t let anyone see it, even with a FOIA request from the press.

So this is a good idea being proposed by Keane, but we still have to proceed with caution. We’ve been burned on this too many times before.