CONCORD - A pro-Second Amendment attorney says New Hampshire is failing to take advantage of a federal program that would help keep guns out of the hands of the mentally ill.
"I'm a pro-gun person, but it doesn't help anybody if someone who is illegal under federal law gains access to firearms," said Evan Nappen of Concord, legal counsel for Pro-Gun New Hampshire.
The National Instant Check System, or NICS, allows gun dealers to screen those who buy firearms. States are supposed to report not only felons, but also those barred under federal law from purchasing a gun because they have involuntarily been committed to a mental institution, found by a court to be a danger to himself or others, found not guilty of a crime by reason of insanity or incompetent to stand trial.
In 2007, a "NICS Improvement Amendments Act" was passed in the wake of the massacre of students at Virginia Tech University because, according to the U.S. Department of Justice website, information about the shooter's "prohibiting mental health history" was not available to NICS and "the system was therefore unable to deny the transfer of the firearms used in the shootings."
The 2007 law provided funding to states to help them improve their reporting systems.
The Justice Department reports that more than $50 million has been granted to 18 participating states since 2009. New Hampshire is not among them.
Nappen said that as far as convicted felons are concerned, the NICS system is operating well in New Hampshire.
But it is not working, he said, "when it comes to those who have been adjudicated with a mental health commitment."
The NIAA was designed to ensure that mental health information is available when a NICS check is done on a gun purchase.
"The law established that states could get large grants of funds for states to get their records up to speed and they'd have to have a program so that individuals can have their mental health records expunged if they were cured or no longer suffering from that problem," Nappen said.
"It had the effect of putting those adjudicated with the mental issues into the database and a program to have those removed if they were medically qualified, and there is quite a grid of what had to be accomplished to do that," he said.
"Currently in New Hampshire, there is no way for someone who has had a mental health commitment to have it removed," he said, "And my understanding is that the number of mental health adjudications listed is two," he said.
"Isn't it interesting that in the entire State of New Hampshire there are only two people that have mental health adjudications who are prohibited under federal law from purchasing firearms? I don't think that's really the case. All of these states are getting all this money, but New Hampshire has not applied into it to get a penny," he said. "This is shocking to me."
Assistant Commissioner of Safety Earl Sweeney said state law requires a NICS check to be run through the state police on purchases of handguns, but it is not required on purchases of rifles and shotguns.
"A person who is denied a handgun through the state system could quite possibly buy a long gun because they don't have to go through the state system," he said. "They just go directly to the FBI."
He also said the NICS check "is not infallible. If someone went in and presented false credentials to a gun dealer, unless he was really sharp, he might not recognize him.
"And of course," Sweeney said, "you can buy guns in a private sale, you can buy guns from an estate auction or you can steal a gun, so the NICS check is only one thing."
Sweeney said that when calls come into his department for a NICS check, "we don't know if somebody has just been released from the State Hospital or if somebody is in intensive treatment for mental health, because in most cases the federal HIPAA law, which governs health information privacy, prevents the mental health workers from reporting those things to the police.
"That law protects the privacy of persons who are undergoing treatment for mental illness and some might be reluctant to undergo the treatment if they felt their names were not being held in confidence," he said.
"And it really doesn't give us good information. All you've really got is a person who signed the application with a gun dealer and said, 'I'm not currently undergoing treatment for mental illness.'
"If you've been involuntarily committed, the federal law would prevent you from purchasing a gun anyway," he said. "You can't really depend on a NICS check for detecting possible dangerousness from mental illness."
Nappen acknowledged that since Newtown shooter Adam Lanza took the guns he used in the massacre from his mother, it would not have prevented the murders.
In fact, he noted, Connecticut has received $5 million under the NICS improvement law since 2009.
"But this would have stopped other murders and would arguably stop others from buying firearms," Nappen said.
On the other hand, he said, he has a client who "has been fine for 20 years," is one of the two people on the system can't get his name removed.
"This is a way for the state to help good people get their rights back and a way to stop people who are mentally defective from purchasing guns," Nappen said.