Image: Jared Loughner
Jared L. Loughner, identified by U.S. federal law enforcement officials as the suspected gunman in the shooting of U.S. Representative Gabrielle Giffords and others in Tucson on Saturday, is seen in this undated high school yearbook photo from the 2006 Mountain View High School yearbook obtained from a classmate of Loughner's in Tucson, Arizona on January 8, 2011. REUTERS/Mountain View High School/Handout (UNITED STATESCRIME LAW - Tags: CRIME LAW IMAGES OF THE DAY) NO SALES. THIS IMAGE HAS BEEN SUPPLIED BY A THIRD PARTY. IT IS DISTRIBUTED, EXACTLY AS RECEIVED BY REUTERS, AS A SERVICE TO CLIENTS. NO THIRD PARTY SALES. NOT FOR USE BY REUTERS THIRD PARTY DISTRIBUTORS
NBC News
updated 1/18/2011 7:56:03 PM ET 2011-01-19T00:56:03

The tragic shooting in Tucson, Ariz., has already prompted several major gun proposals on Capitol Hill, including one to prohibit high-volume firearms and one to keep guns a minimum distance away from high-level government officials. But none of them address a wider problem with no easy government solution: how an obviously mentally unstable individual like Jared Lee Loughner, the alleged shooter, was able to buy a gun.

As the profile of Jared Lee Loughner continues to emerge, evidence is mounting that his deeply troubled mind was the prime cause of his rampage. His bizarre behavior led to his expulsion from community college and his rejection from the Army. But despite glaring signs of mental instability, Loughner was still able to legally purchase a Glock semiautomatic pistol.


The first crack Loughner fell through was in the mental health system. Federal law prohibits the purchase of guns by anyone “adjudicated as a mental defective.” But Loughner was never declared mentally ill by a court of law. As an adult, Loughner would have had to seek treatment on his own accord, but no one, including his parents, seems to have encouraged him to do so.

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Families of the mentally ill largely have their hands tied, said retired psychologist Liz Rebensdorf, whose son was diagnosed with paranoid schizophrenia in his late teens. Unless a mentally unstable person asks for help, there is little anyone else can do to help identify his condition, unless his behavior becomes threatening to others. And in some rare cases, family members actually hope the person does something so bad that they can bring in the authorities.

“I run support groups,” Rebensdorf said, “and one night I had 12 families represented and half of them were just waiting until something happens that’s fairly extreme so we can get the authorities in where we can perhaps get some access to mental health.”

Loughner had several run-ins with police but had never been convicted of a crime. That kept him from appearing in court, where he may have been ordered to seek treatment. In that case, he would have become legally barred from buying a gun in Arizona, where the law prohibits anyone who has “been found to constitute a danger to himself or others pursuant to court order.” 

But even if the court ordered him to receive treatment, there is a wider crack Loughner might have fallen through, which brings to mind the case of another mentally ill assailant: Seung-Hui Cho’s shooting spree on the Virginia Tech campus in 2007, where he killed 32 people after legally buying a gun.

Cho had, in fact, been court ordered to receive “involuntary outpatient treatment” in 2005. But he was still able to purchase two semi-automatic pistols, including a Glock 9-millimeter, the same gun used by Loughner. In this case, an almost two decades-old federal background check system failed to flag Cho’s record to gun dealers.

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Background check failure
In 1993, the “Brady Handgun Violence Protection Act” was signed into law following a campaign led by Jim Brady, who was press secretary to then-President Ronald Reagan when he, Brady, and two other men were shot in an assassination attempt on the president in 1981. The bill put in place the National Instant Criminal Background Check System (NICS), an FBI-run system that runs database checks on criminal and other disqualifying records.

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But Cho’s record didn’t make it into the system.

Virginia Tech prompted Congress to pass a bill in 2008, the NICS Improvement Act, to provide more financial incentive for states to submit records to the background check system. Since the shooting, the number of mental health records submitted to NICS increased significantly, but as of March 2010, 23 states have submitted fewer than 100 records to the system since its creation, and nine states have submitted none.

Arizona had no records in the NICS system before Virginia Tech. Since the shooting it has submitted 3,102 records. That is still a relatively small number, however, compared to New York’s, whose 151,094 records are still considered an incomplete tally.

“That’s only 42 percent of the records that should be there,” said John Feinblatt, chief policy advisor to New York City Mayor Michael Bloomberg. “We have a background check system that’s like Swiss cheese. There are more holes than cheese.”  

One reason the system is so porous, according to members of Congress who pushed for NICS improvement, is that states are not required to participate — something the National Rifle Association, the powerful pro-gun lobby, advocated for.

“By insisting the program be voluntary and be subject to annual appropriations, they knew that the program would have only a marginal restriction on the purchase of firearms,” said Rep. Jerry Moran, D-Va., speaking about the NRA’s influence on the legislation. 

Congress has also doled out only a fraction of the money it originally authorized for the program. Since 2009, almost $200 million has been approved for the system, but only $20 million was spent in 2009 and $10 million in 2010.

According to the Brady Campaign to Prevent Gun Violence, the NICS Improvement Act is phasing in penalties for states that do not comply with the program, beginning this year. The government will be able to withhold federal justice assistance funding, and in 2018, those penalties will become mandatory. Participating states will also receive more incentives, mostly funding to upgrade courts’ systems of automating and transmitting mental health records.

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“We can’t force them, but we can create penalties and incentives,” said Daniel Vice, the Brady Center’s senior attorney.

Gun control advocates are hopeful that further penalties will spur states to contribute more records to NICS, especially as it seems to be the last line of defense against mentally ill people trying to buy guns.

Once individuals like Cho and Loughner bypass NICS, legal purchase of the guns they seek is as good as assured.

Question 11.f
There is only one question about mental illness on the federal background check one fills out before buying a gun.

“Have you ever been adjudicated mentally defective OR have you ever been committed to a mental institution?” asks question 11.f on the three-page application.

The brevity of the application, and the ease with which one can simply check “no,” demonstrates the federal government’s reliance on other backstops to prevent the mentally ill from buying guns.

Far lengthier and more in-depth applications are required in many other walks of life, most with fewer potential life-and-death consequences.

For example:

— An application to set off fireworks at a wedding in Pima County, Ariz., is eight pages long — more than twice as long as the federal gun application.

— An application for a commercial drivers’ license in Arizona includes physical and written examination, after which one gets a learner’s permit, valid for only six months.

— Personality tests in the NFL are used to assess how players will respond in various situations, with questions like “Would you rather be a dog or cat?”

— Before even getting a job interview, applicants at Wal-Mart must complete a 65-question multiple choice assessment and are asked to grade themselves on statements like “My behaviors are often not as safe as they could be” and “I have difficulty understanding abstract ideas.”

These are only anecdotal examples of more rigorous tests of mental fitness than those Cho and Loughner were subjected to when they decided to buy a firearm. But they underscore the faults in the many lines of defense designed to prevent people like Cho and Loughner from buying guns.

And the interpretation of an individual’s Constitutional rights are also at play here, not just the right to bear arms, but also on the civil liberties front when it comes to mental illness and mental fitness. This is a challenge for both policy makers and society at large.

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