Provision to new N.H. bill has reverse effect of intention

  • FILE -- In this Aug. 15, 2012 file photo a plastic replica of a bullet is used to quickly remove a magazine from an assault rifle in a demonstration at the California Department of Justice in Sacramento, Calif. The California Assembly Public Safety Committee approved a measure by Sen. Isadore Hall III, D-Compton, that would ban rifles with devices known as bullet buttons that allow a shooter to quickly switch out magazines. (AP Photo/Rich Pedroncelli, file) Rich Pedroncelli

Monitor staff
Published: 7/8/2016 11:34:08 PM

New Hampshire will start reporting certain people with mental illness to the federal gun background check system – the surprising result of a provision to a new state law that was intended to have the exact opposite effect.

The change comes from a single provision of the recently adopted Medicaid expansion law, Attorney General Joe Foster said Friday, that “expands the state’s authority to make reports” to the National Instant Criminal Background Check System, known as the NICS.

But Foster’s interpretation comes as a shock to lawmakers. Provision author Rep. JR Hoell said his intention was to keep people with mental illness from getting into the NICS.

“I am appalled at the misinterpretation,” said Hoell, a Dunbarton Republican and gun rights activist. “The (NICS) list is about those who are criminals, not those who are mentally disabled.”

Federal law prohibits people committed to a mental institution, or those who have been “adjudicated as a mental defective,” from owning a gun. But it does not require states to submit that information to the federal background check system used to vet prospective gun buyers.

New Hampshire is one of a handful of states that hasn’t reported. Since the NICS’ inception nearly 20 years ago, the Granite State has submitted two mental health records, according to Deputy Attorney General Ann Rice.

The new law, Foster said, requires the state report people who have been involuntarily committed to New Hampshire Hospital after a hearing, found not guilty by reason of insanity or found incompetent to stand trial and ordered to a mental health facility. Reporting will affect a “very limited group of individuals,” Foster said in a letter addressed to New Hampshire Supreme Court Chief Justice Linda Dalianis.

The state cannot and will not, Foster said, report people who seek mental health counseling and treatment, use medication to treat mental illnesses or commit themselves to New Hampshire Hospital, the state psychiatric facility.

“We recognize that the vast majority of individuals suffering from mental illnesses represent absolutely no danger to their families, their communities or themselves and there is nothing in this law that should deter individuals from seeking out treatment when and if they need to do so,” Foster wrote.

The law took effect April 16, and Foster said any adjudications made on or after that date should be reported by the courts to the NICS. The system is used by federally licensed firearms dealers to determine whether prospective buyers are able to legally buy a gun. Background checks are not required for sales at gun shows or over the internet.

The decision was met with questions from mental health advocates. Ken Norton, of the state chapter of the National Alliance on Mental Illness, asked how people will be notified during a hearing process that their names could be reported to the NICS. And the state, he said, should set up a way for people to get off. Lifelong bans are inappropriate, Norton said, because people recover from mental illness.

“We want to recognize there is an opportunity to save people’s lives that may be at higher risk for suicide,” Norton said. But it has to be balanced, he said, “without continuing to reinforce the discrimination against people with mental illness.”

Democratic Gov. Maggie Hassan said the “common-sense step” will prevent people who are a danger to themselves or others from buying guns.

“By ensuring that the federal background check system includes comprehensive information about individuals who are already prohibited by federal law from possessing a weapon, we can help make our communities safer,” she said in a statement.

Hassan touted the NICS provision of the Medicaid expansion bill Friday, but it’s unclear whether anyone understood the potential effect when it passed.

Hoell’s provision – a single paragraph in the nine-page Medicaid expansion bill – was added to the legislation as a floor amendment in February. It passed the House in a largely partisan vote – 133 Democrats voted against it. The provision was not removed by the Senate, and Hassan signed the entire Medicaid expansion bill into law in April.

Hoell and other representatives characterized it at the time as a way to prevent people with mental illness from being reported to NICS, unless compelled by a court.

The amendment says no state organization shall submit the name of any person to the NICS “on the basis that the person has been adjudicated a ‘mental defective’ or has been committed to a mental institution, except pursuant to a court order issued following a hearing in which the person participated and was represented by an attorney.”

“The language is clear,” Hoell said Friday, adding the governor skewed his amendment to push gun control. “It’s to prohibit the ability for anyone who sought psychological counseling to instantly have their name added to NICS, or anybody who was a mentally disabled, because they are not criminals.”

Rice declined to discuss the attorney general office’s interpretation, but she said the office has spent time doing the research.

“We have been looking at the language and trying to figure out what it is,” she said. “It’s important to understand that even if there wasn’t reporting on these things, these people would still be prohibited from owning a gun, under the law.”

(Allie Morris can be reached at 369-3307 or

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