The New Hampshire Judicial Branch will not comply with the state attorney general’s recent request to start reporting people with mental illness to the federal gun background check system.
General Counsel Howard Zibel said in a letter last week that a new state law cited as cause for the change is “not sufficiently clear on its face for the judicial branch to begin the reporting that you request.”
The response adds fuel to an ongoing and controversial debate over people’s rights to buy and own firearms if they have a mental illness.
Under federal law, people committed to a mental institution, or those who have been “adjudicated as a mental defective,” cannot legally purchase a gun. But federal statute doesn’t require states to submit those records to a background check system used to vet prospective gun buyers.
New Hampshire is one of a handful of states that historically hasn’t reported mental health information to the National Instant Criminal Background Check System, known as NICS. State legislative efforts to require such submissions have failed in recent sessions.
In a major policy shift, Attorney General Joe Foster announced in early July that a little-known provision of the state’s newly adopted Medicaid expansion law requires courts submit certain mental health records to the background check system. He said the state must begin reporting people to NICS who are involuntarily committed to New Hampshire Hospital, found not guilty by reason of insanity or found incompetent to stand trial and ordered to a mental health facility.
The news sparked controversy and came as a shock to many Republican lawmakers, who said Foster’s interpretation was in direct contrast to the legislative intent. Republican Rep. JR Hoell, who authored the provision, said it was meant to limit reports of mental health records to NICS, not mandate them.
The attorney general also faced pushback from local advocacy organizations. Both state chapters of the American Civil Liberties Union and Disability Rights Center urged the judicial branch not to follow the reporting request.
The interpretation “conflicts the statute’s plain language and is inconsistent with the Legislature’s intent,” the groups said in a joint letter. “The Attorney General’s interpretation would also further stigmatize individuals who are suffering from mental illness and potentially deter some from seeking the critical medical care they need.”
Zibel cited that letter in his one-page response to Foster. The attorney general’s office can contest the judicial branch’s decision, Zibel said, by seeking a declaratory judgment in superior court.
“It’s the court that determines the intent of the Legislature in contested proceedings, where both sides can be heard,” he said.
Deputy Attorney General Ann Rice said the office is still considering its options. Foster was not available for comment.
It’s unusual for the attorney general’s office and the judicial branch to tussle but not unprecedented, said Albert Scherr, a professor at the University of New Hampshire School of Law.
Foster’s announcement in early July was applauded by Gov. Maggie Hassan and other Democrats, who said it was a step in the right direction to prevent people who are a danger to themselves or others from buying guns.
Still, it’s unclear whether anyone understood the potential effect when the provision passed. Nearly all House Democrats voted against the amendment’s addition to the Medicaid expansion bill.
The issue will likely face renewed scrutiny in the coming legislative session, but the tone of the debate will depend on which party seizes control of the Senate and House in November. Republicans currently lead both chambers.
Some lawmakers say the Legislature should first decide whether and how people can get off NICS in New Hampshire before it pushes for mandatory reporting.
Ken Norton, of the state chapter of the National Alliance on Mental Illness, has said lifelong gun bans are inappropriate, because people recover from mental illness.
(Allie Morris can be reached at 369-3307 or firstname.lastname@example.org.)