A number of citizens who have been subject to violent crime, observed or were in a tragedy and members of our military pose frequent questions about how does treatment for PTSD impact their constitutional right to keep and bear arms. Does it preclude possession of a firearm? Could it? The answer is complex, but “it depends.” This blog post will outline the basic answers to these rhetorical questions1.
These same sets of questions are posed by individuals who suffer from depression and the analysis is generally the same as set forth in this blog post.
A good place to understand this topic is with epidemiology. This branch of medicine is the study of distribution and determinates of disease in a population (such as people across society or nation as a whole and then within certain specific groups, such as veterans who served in combat). Incidentally, as our wars (appear to be) winding down, members of the military, both men and women have much higher rates of PTSD than the general U.S. Population2.
PTSD is a mental disorder that falls under Anxiety Disorders, which includes under it panic and obsessive-compulsive disorders. Approximately 7.7 million American adults age 18 and older, or about 3.5 percent of people in this age group in a given year, have PTSD. PTSD can develop at any time, but frequently occurs after assaults, such as rape, mugging or domestic violence. Terrorism and natural or human caused disasters and accidents may also play a causal role in PTSD3.
As this relates to firearms, the question is when does a mental disorder rise to the level to prohibit the possession (including purchase, carry, take transfer of) a firearm. This is a complex question that is reduced to the opening questions in this blog post.
Under the United States Code, Chapter 44, which covers “Firearms”, it is illegal and a federal felony “. . . if person has been adjudicated as a mentally defective or has been committed to any mental institution” for he or she to possess a firearm4.
Obviously, a person who already lawfully owns a firearm may be subsequently not a lawful possessor and would have to lawfully dispose of their firearms, if so adjudicated or committed as set forth in this provision of federal penal code. The typical way this federal law is enforced is with new firearm sales and a question posted on the ATF Form 4473 (Revised, April 2012).
This is question 11.f., which states as follows:
“f. Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to other or are incompetent to manage your own affairs) or have you ever been committed to a mental institution?”
If your suffer from a PTSD diagnosis and fall into either of these categories, you would be an unlawful possessor of firearms, and would have to answer “yes” to this question. Failure to do so would be a crime in failing to improperly disclose this on an FFL and a separate crime in taking possession of a firearm if this actually occurred and you cleared the NICS check. This determination could be made by any state or federal body or medical doctor or police officer (i.e., involuntary commitment) and there is little clarification found in other legal resources.
However, there is an exception for having this disqualifier:
“A person who has been adjudicated as a mentally defective or committed to a mental institution is not prohibited if: (1) the person was adjudicated by or committed by a department or agency of the Federal Government, such as the United States Department of Veteran’s Affairs (“VA”) (as opposed to a State court, State board, or other lawful State authority); and (2) either: (a) the person’s adjudication or commitment for mental incompetency was set aside or expunged by adjudicating agency; (b) the person has been fully released or discharged from all mandatory treatment, supervision, or monitoring by the agency; or (c) the person was found by the agency to no longer suffer from the mental health condition that served as the basis of the initial adjudication. Persons who fit this description should answer “no” to Item 11.f. This exception does not apply to any person who was adjudicated to be not guilty by reason of insanity, or based on lack of mental responsibility, or found incompetent to stand trial, in any criminal case or under the Uniform Code of Military Justice5.”
In addition, with competent legal counsel, there are many ways to examine a particular fact situation to address whether a person is a prohibited possessor based on mental health. These are beyond the scope of this blog post.
Most state statutes closely track the federal language for prohibiting a person from possessing a firearm for mental illness. However, under the Commerce Clause, the federal government has not pre-empted the field of firearms, but it occupies concurrently with the states6. Indeed some states have stricter requirements and disqualify a person in a civil context from possessing (purchasing, carrying, and taking transfer of) a firearm if they demonstrate themselves to be a dangerous person of some type.
A hearing must be afforded to comport with due process, and the burden is on the state. How does or could this account for PTSD?
Supposed a person has severe PTSD and it acting irrationally. This person has never been diagnosed, let alone been committed or adjudicated as mentally defective to trigger the federal preclusion of a prohibited person. Under the state provisions civil provisions, if a state has such, a person may have their firearms removed and be prohibited from purchasing or possession firearms until a hearing.
The case is more apparent where the sufferer of PTSD commits a criminal act and the police officer has probable cause for arrest and confiscation of firearms (this may take a search warrant depending on the circumstances) 7.
A final point is that a person who never receives a PTSD diagnosis, but nevertheless acts in ways that might evidence a propensity for emotionally unstable conduct, lawful authority to purchase a firearms (including a handguns) notwithstanding (i.e., no pending felony charges or convictions or domestic violence) may not be able to obtain a license to carry a handgun in their state as handguns have always had more rigid requirements to obtain a license to carry a handgun.
The premise upon which this theory has withstood numerous constitutional challenges is the ease of concealability of a handgun that would not provide a police officer, bystander or targeted victim with the advanced visual notice that seeing a long gun in advance could.
This frames the complex issue that PTSD and possessing a firearm may raise. If this is a situation you find yourself in, there is no substitute for the advice and counsel of an attorney knowledgeable in firearms law. Failure to do so may result in arrest, conviction, and incarceration in a federal or state prison. This blog post was written by attorney Bryan L. Ciyou. It is intended for general educational purposes only. It is not a solicitation for legal representation nor practice in any state where any of the firm’s attorneys are not admitted.
- Second Amendment to the United States Constitution applicable to the states through the Due Process Clause as decide in McDonald v. City of Chicago 561 U.S. 3025 (2010) (This case and the seminal Heller (2008) cases are a product of the work of Alan Gura, attorney for the Second Amendment Foundation and Alan Gottlieb, founder of the Second Amendment Foundation)
- McDonald v. City of Chicago, 561 U.S. 3025 (2010).
- United States Department of Veterans Affairs, National Center for PTSD
- National Institute of Mental Health, The Numbers Count: Mental Disorders in America
- 18 U.S.C. 922(d)(4)
- NICS Improvement Amendments Act of 2007
- 18 U.S.C. § 927
- Fourth Amendment United States Constitution applicable to the States by the Fourteenth Amendment