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HB 512 does not require a check of your mental health

HB 512 is scheduled for a committee hearing on Monday afternoon. Opponents of HB 512 have been claiming that HB 512 requires a check of an applicant’s “mental health” before a probate judge will issue a Georgia weapons carry license. This has lead to various hysterical claims about the bill, none of which have any basis in the bill’s text. In fact, even a cursory reading of HB 512 reveals that there is no “mental health” check of an applicant at all.

HB 512 provides only for an inquiry into whether an applicant has been “involuntarily” hospitalized at a mental hospital or alcohol or drug treatment center within the last five years.

Persons who are involuntarily hospitalized due to mental health issues are barred by federal law from possessing a firearm or even ammunition. It is a felony. The inquiry in HB 512 is narrower in scope than the inquiry under current Georgia law, which provides for a check of any “inpatient” hospitalizations at such facilities, even if they were completely voluntary.

Current Law

Georgia law already provides for background checks relating to whether an applicant has been “hospitalized as an inpatient in any mental hospital or alcohol or drug treatment center,” and that inpatient status includes both voluntary and involuntary hospitalizations. The law also provides for a $3 fee to cover the cost of this background check. There is no time limit in current law for how long a probate judge may take to check into inpatient hospitalizations.

Due to the broad scope of Georgia’s current law, a soldier returning from Afghanistan, who voluntarily checks himself into a treatment facility because he is suffering symptoms of Post Traumatic Stress Disorder, would be ineligible for a Georgia weapons carry license three years later even when he is suffering no symptoms whatsoever. Federal law would not disarm this veteran, but Georgia law keeps him from receiving a Georgia Weapons carry license.

Under current law, not all probate judges make this inquiry, although more and more probate judges are inquiring into hospitalizations as a matter of routine. In addition, the standard form for firearms license applications inquires into hospitalizations, and every probate judge who receives a “yes” answer to those questions will perform the inquiry.

Federal Law

Under 18 USC 922(g)(4) and 27 CFR 178.11, a person who has been involuntarily hospitalized may not possess a firearm or ammunition. Doing so is a felony.

A person who voluntarily consents to mental health treatment is not disarmed by federal law.

Georgia’s licensing statute already declares that any person who is barred from possessing a firearm under federal law is ineligible for a Georgia weapons carry license.

How HB 512 Changes Georgia Law

HB 512 would make the inquiry into hospitalizations mandatory for probate judges. In many counties, especially the counties with the most population, there is already a hospitalization check, so nothing would change in those counties. There is a $3 fee in current law for this inquiry, and this would not change, either. What would change is that the scope of the inquiry would be narrowed from any hospitalization to involuntary hospitalization only. In addition, for the first time there would be a time limit on how long a probate judge may take to inquire into involuntary hospitalizations, solving an issue that some applicants were having, especially in DeKalb County, of waiting for months only to be told the probate judge was waiting on the hospitalization inquiry.

Some have posited that there may be a NICS exemption issue with the hospitalization inquiry. NICS exemption is the process by which a state’s license to carry a weapon is determined to be sufficient to permit the purchaser of a firearm to bypass the Brady background check. Because a NICS exemption requires that a state’s issuing authority check available records to determine if an applicant is eligible, it is necessary to check available records for an involuntary hospitalization. In addition, because Georgia law already requires that an applicant be eligible under federal law to possess a firearm, it is arguable that these involuntary hospitalization inquiries should have been mandatory all along.

If one is advocating for the right of insane persons, who have recently been involuntarily committed to a mental hospital, to bear arms, then it is possible to see HB 512 as an infringement, assuming such a person lives in a county that is not already performing this hospitalization inquiry.

Most Common Objections

  • Privacy – Opponents are objecting to HB 512 on the grounds that it invades medical privacy. An applicant who has not been involuntarily committed to a mental hospital, however, will not have any record. The inquiry will return nothing at all. It is difficult to see where this would be a problem for those who have not been involuntarily committed. Those who have been involuntarily committed to a mental hospital in the last five years are ineligible for a Georgia weapons carry license in any event, and would be committing a federal felony even to possess ammunition. It is difficult to imagine what sort of privacy is invaded for an individual like this who tries to apply for a Georgia weapons carry license.
  • Mandatory – Opponents object to what they call a “mandatory” mental health check. The only thing that HB 512 makes mandatory is signing a waiver that permits mental hospitals to report whether an applicant has been involuntarily committed.
  • New Fee – The $3 fee is already in Georgia law. Interestingly, opponents of HB 512 have not been specific about the amount of the fee, which they are calling “new,” and they have failed to disclose that many probate judges have been charging this fee for years. More importantly, the opponents of HB 512 are remaining silent on the fact that HB 512 will save applicants for renewal $45, or fifteen times the amount of the $3 fee. This is because the GBI recently raised its price (effective March 1) for fingerprint based background checks, and HB 512 removes the fingerprinting requirement for renewals. Opposing HB 512 on the ground of a “new fee” is literally a case of being penny-wise and pound foolish.
  • A violation of the right to bear arms – Opponents have been claiming that HB 512 is an infringement of the right to bear arms. As has been seen above, it is an infringement is a person has been involuntarily committed to a mental hospital. If one is advocating for the right of insane persons, who have recently been involuntarily committed to a mental hospital, to bear arms, then it is possible to see HB 512 as an infringement, assuming such a person lives in a county that is not already performing this hospitalization inquiry. It would be more accurate, however, to state that HB 512 removes a restriction on the right to bear arms from a person who voluntarily seeks help for mental or addiction issues.

What will happen if HB 512 Does Not Pass

They’ll do it anyway! More people will be denied licenses, the license will take longer - much longer - to issue, and the cost of the license will increase substantially. The irony of the argument being presented by the opponents of HB 512 is that Georgia law already provides for an inpatient hospitalization check. Increasing numbers of probate judges are requiring the waiver and performing the check as a matter of routine. The $3 fee is already being charged, and those who have voluntarily sought help for addiction or emotional issues are being denied licenses. In addition, the cost of a renewal license will be $45 more if HB 512 fails to pass. The lack of any time limit will also mean that a probate judge could wait for months on the hospitalization inquiry before issuing your license. Finally, if the ATF ever pays attention to the fact that Georgia is not always checking records of involuntary hospitalizations, it could revoke the NICS exempt status of the Georgia license.

Because the application already asks about hospitalizations, and it is a crime to lie on the form, one wonders whether opponents of the bill have ever applied for a Georgia weapons carry license. It would be helpful to become familiar with current law before pretending to know what is needed to modify it.

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