Expert: Robert P. Firriolo - 2/9/2011

Question
Hi,

I've had a CC permit in New York (upstate) for 25 years. I had a small .22 for several years that I transferred to my brother when I moved out of the country for a while.

I'd like to purchase a small weapon for self-defense, but I'm hesitant. I'm a disabled veteran who has been seeing mental health practitioners for a few years now. I have been diagnosed with PTSD by the VA, but I am not a risk to myself or others.  

I know that there is a background check form to be filled out at purchase. I'm worried that my MH history will be an issue. What will I do to my "record" with NYS if I'm rejected?

A friend of mine whose son is a sheriff's deputy says that the at-purchase background checks are strictly searching for criminal records.  I have never even had a speeding ticket, but I'm concerned about opening a can of worms and getting my name on some kind of No-FLY list or that I'll never be able to purchase shells for my shotgun again.

Any help will be greatly appreciated.

Answer
First, thank you for your service. I would like to help you but I don't completely understand what you mean by, "What will I do to my 'record' with NYS if I'm rejected?" Voluntary treatment for mental health should not result in a rejection, and you are not required to disclose it.

Under federal law, one is prohibited from possessing firearms or ammunition if one has been "adjudicated as a mental defective" or was "committed to a mental institution." We can look at the federal regulations to see what those terms mean:

27 CFR 178.11 Adjudicated 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 others; or
(2) Lacks the mental capacity to 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, 876(b).

27 CFR 178.11 Committed to a mental institution

A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes a commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term
does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

27 CFR 178.11 Mental institution

Includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general hospital.


When somebody purchases a firearm from a licensed dealer and undergoes a NICS (or "instant" background) check, it should not matter whether that person is under mental health care treatment as long as the person was neither adjudicated as a mental defective nor committed to a mental institution. And the questions on the Form 4473 the purchaser must fill out will only ask about those two factors, as respects mental health. One does not need to disclose any other information about his or her mental health.