Proposed Rule2026-09156
Revising Definitions of “Adjudicated as a Mental Defective” and “Committed to a Mental Institution”
Primary source
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Published
May 8, 2026
Issuing agencies
Justice DepartmentAlcohol, Tobacco, Firearms, and Explosives Bureau
Abstract
The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") proposes amending Department of Justice ("Department") regulations to update the definitions of "adjudicated as a mental defective" and "committed to a mental institution."
Full Text
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<title>Federal Register, Volume 91 Issue 89 (Friday, May 8, 2026)</title>
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<body><pre>
[Federal Register Volume 91, Number 89 (Friday, May 8, 2026)]
[Proposed Rules]
[Pages 25166-25187]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-09156]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF-2026-0337; ATF No. 2025R-24P]
RIN 1140-AB04
Revising Definitions of ``Adjudicated as a Mental Defective'' and
``Committed to a Mental Institution''
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Bureau of Alcohol, Tobacco, Firearms, and Explosives
(``ATF'') proposes amending Department of Justice (``Department'')
regulations to update the definitions of ``adjudicated as a mental
defective'' and ``committed to a mental institution.''
DATES: Comments must be submitted in writing, and must be submitted on
or before (or, if mailed, must be postmarked on or before) August 6,
2026. Commenters should be aware that the federal e-rulemaking portal
comment system will not accept comments after midnight Eastern Time on
the last day of the comment period.
ADDRESSES: You may submit comments, identified by RIN 1140-AB04, by
either of the following methods--
<bullet> Federal e-rulemaking portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: ATF Rulemaking Comments; Mail Stop 6N-518, Office of
Regulatory Affairs; Enforcement Programs and
[[Page 25167]]
Services; Bureau of Alcohol, Tobacco, Firearms, and Explosives; 99 New
York Ave. NE, Washington, DC 20226; ATTN: RIN 1140-AB04.
Instructions: All submissions must include the agency name and
number (RIN 1140-AB04) for this notice of proposed rulemaking (``NPRM''
or ``proposed rule''). ATF may post all properly completed comments
received from either of the methods described above, without change, to
the federal e-rulemaking portal, <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
includes any personally identifying information (``PII'') or business
proprietary information (``PROPIN'') submitted in the body of the
comment or as part of a related attachment they want posted. Commenters
who submit through the federal e-rulemaking portal and do not want any
of their PII posted on the internet should omit it from the body of
their comment and any uploaded attachments that they want posted. If
online commenters wish to submit PII with their comment, they should
place it in a separate attachment and mark it at the top with the
marking ``CUI//PRVCY.'' Commenters who submit through mail should
likewise omit their PII or PROPIN from the body of the comment and
provide any such information on the cover sheet only, marking it at the
top as ``CUI//PRVCY'' for PII, or as ``CUI//PROPIN'' for PROPIN. For
detailed instructions on submitting comments and additional information
on the rulemaking process, see the ``Public Participation'' heading of
the SUPPLEMENTARY INFORMATION section of this document. In accordance
with 5 U.S.C. 553(b)(4), a summary of this rule may be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Commenters must submit comments by using one of
the methods described above, not by emailing the address set forth in
the following paragraph.
FOR FURTHER INFORMATION CONTACT: Office of Regulatory Affairs, by email
at <a href="/cdn-cgi/l/email-protection#29667b6869485d4f074e465f"><span class="__cf_email__" data-cfemail="39766b7879584d5f175e564f">[email protected]</span></a>, by mail at Office of Regulatory Affairs; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives; 99 New York Ave. NE, Washington, DC 20226, or by telephone
at 202-648-7070 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
The Attorney General is responsible for enforcing the Gun Control
Act of 1968 (``GCA''), as amended. This responsibility includes the
authority to promulgate regulations necessary to enforce the provisions
of the GCA.\1\ See 18 U.S.C. 926(a). Congress and the Attorney General
have delegated the responsibility for administering and enforcing the
GCA to the Director of ATF (``Director''), subject to the direction of
the Attorney General and the Deputy Attorney General. See 28 U.S.C.
599A(b)(1), (c)(1); 28 CFR 0.130(a)(1)-(2); Treas. Order No. 221(2)(a),
(d), 37 FR 11696-97 (June 10, 1972).\2\ Accordingly, the Department and
ATF have promulgated regulations to implement the GCA in 27 CFR part
478.
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\1\ Some GCA provisions still refer to the ``Secretary of the
Treasury.'' However, the Homeland Security Act of 2002, Public Law
107-296, 116 Stat. 2135, transferred the functions of ATF from the
Department of the Treasury to the Department of Justice, under the
general authority of the Attorney General. 26 U.S.C. 7801(a)(2); 28
U.S.C. 599A(c)(1). Thus, for ease of reference, this proposed rule
refers to the Attorney General where relevant.
\2\ In Attorney General Order Number 6353-2025, the Attorney
General delegated authority to the Director to issue regulations
pertaining to matters within ATF's jurisdiction, including under the
National Firearms Act, GCA, and Title XI of the Organized Crime
Control Act. ATF's jurisdiction also includes those portions of sec.
38 of the Arms Export Control Act pertaining to permanently
importing defense articles and services and the Contraband Cigarette
Trafficking Act.
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The GCA, at 18 U.S.C. 922(g)(4), prohibits any person ``who has
been adjudicated as a mental defective or who has been committed to a
mental institution'' from shipping, transporting, possessing, or
receiving any firearm or ammunition. Additionally, section 922(d)(4) of
the GCA prohibits any person from selling or otherwise disposing of a
firearm or ammunition to a person who he knows or has reasonable cause
to believe ``has been adjudicated as a mental defective or has been
committed to any mental institution at 16 years of age or older.''
Congress has not further defined the terms ``adjudicated as a mental
defective'' or ``committed to a mental institution'' as used in these
provisions.
In 1997, ATF issued a final rule titled ``Definitions for the
Categories of Persons Prohibited From Receiving Firearms,'' to
facilitate implementation of the National Instant Criminal Background
Check System (``NICS''). 62 FR 34634-02 (Jun. 27, 1997). NICS provides
a searchable database of federal, state, local, and tribal records on
persons who are legally prohibited from possessing firearms, including
persons prohibited under the GCA. The 1997 final rule therefore
included definitions for several terms used in the GCA, including
``adjudicated as a mental defective,'' ``committed to a mental
institution,'' and ``mental institution.''
Relevant here, the 1997 rule defined ``adjudicated as a mental
defective'' as ``[a] determination by a court, board, commission, or
other lawful authority that a person, as a result of marked subnormal
intelligence, or mental illness, incompetency, condition, or disease''
(1) ``[i]s a danger to himself or to others; or'' (2) ``[l]acks the
mental capacity to contract or manage his own affairs.'' The rule
further specified that the term ``shall include'' (1) ``[a] finding of
insanity by a court in a criminal case'' and (2) ``persons found
incompetent to stand trial or found not guilty by reason of lack of
mental responsibility pursuant to articles 50a and 72b of the Uniform
Code of Military Justice.'' As for the term ``committed to a mental
institution,'' the rule defined it to mean ``[a] formal commitment of a
person to a mental institution by a court, board, commission, or other
lawful authority,'' other than admission for purposes of
``observation'' or ``a voluntary admission to a mental institution.''
These definitions from the final rule are currently codified at 27 CFR
478.11.
Two aspects of ATF's creation and interpretation of these
definitions warrant further discussion. Prior to the 1997 final rule,
ATF published a proposed rule to solicit comments on its proposed
definitions for the various categories of persons who are prohibited
from receiving or possessing firearms under the GCA. See Definitions
for the Categories of Persons Prohibited From Receiving Firearms (95R-
051P), 61 FR 47095-01 (Sep. 6, 1996). In discussing the definition of
``adjudicated as a mental defective,'' the proposed rule explained that
ATF had looked at the Department of Veterans Affairs' (``VA'')
definition of ``mental incompetent'' when defining this statutory term.
See 61 FR 47097. The VA definition of ``mental incompetency,'' which
was first published in 1975,\3\ provides that ``[a] mentally
incompetent person is one who because of injury or disease lacks the
mental capacity to contract or to manage his or her own affairs,
including disbursement of funds without limitation.'' 38 CFR 3.353(a).
The 1997 final rule stated that the VA in a comment on the proposed
rule had ``correctly interpreted [ATF's] proposed definition of
`adjudicated as a mental defective' to mean that any person who is
found incompetent by the [VA] under 38 CFR 3.353 will be considered to
have been adjudicated as a mental defective for purposes of the GCA.''
62 FR 34637. Accordingly, in practice, such persons
[[Page 25168]]
are covered by ATF's current definition of the term.
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\3\ 40 FR 1241 (Jan. 7, 1975).
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In defining ``mental defective,'' the 1997 final rule also brought
many mentally ill (as opposed to intellectually incompetent)
individuals within the ambit of that term. For instance, in response to
the proposed rule, the Department of Defense (``DoD'') commented that
the Uniform Code of Military Justice had recently been amended to
include procedures for the commitment of military personnel found not
guilty for reason of lack of mental responsibility. DoD accordingly
recommended that ``[t]he definition [of `adjudicated as a mental
defective'] shall also include those persons found incompetent to stand
trial or found not guilty by reason of lack of mental responsibility
pursuant to articles 50a and 72b of the Uniform Code of Military
Justice, 10 U.S.C. 850a, 876b.'' As noted above, ATF added these
individuals to the definition of ``adjudicated as a mental defective''
in the final rule. 62 FR 34637. ATF also expressly included in the 1997
rule certain other categories of mentally ill persons, such as those
found insane in a criminal case and those determined, as a result of
mental illness, to pose a danger to themselves or others. Id.\4\
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\4\ In 2014, the Department published an NPRM, ``Amended
Definition of `Adjudicated as a Mental Defective' and `Committed to
a Mental Institution,' '' 79 FR 774-01 (Jan 7, 2014), which it
withdrew on September 11, 2025, without ever finalizing. See
Withdrawal of Rulemaking Actions, 90 FR 43948, Table 1 (Sept. 11,
2025). Relevant here, the proposed rule would have amended the
regulatory definition of ``adjudicated as a mental defective'' to
clarify that the term includes (1) persons who are found incompetent
to stand trial or not guilty by reason of mental disease or defect,
lack of mental responsibility, or insanity, as well as (2) persons
found guilty but mentally ill. But the proposed rule would not have
otherwise altered the operative definition of ``mental defective,''
so that the term would still have included anyone who lacks the
``mental capacity to contract or manage [one's] own affairs.''
Finally, the proposed rule also contained clarifications to the term
``committed to a mental institution.'' In support of these actions,
the 2014 NPRM cited floor statements from certain members of
Congress for the proposition that Congress ``intended that the
prohibition against the receipt and possession of firearms would
apply broadly to `mentally unstable' or `irresponsible' persons.''
79 FR 774-01, 775. But floor statements of individual members of
Congress are a weak form of legislative history. These statements,
moreover, expressed generic aims of implementing federal gun
control; they did not purport to be an analysis of the term ``mental
defective.'' See, e.g., 114 Cong. Rec. 21780 (1968) (statement of
Rep. Sikes) (``I know there is a need for sane legislation which is
intended to keep weapons out of the hands of criminals and mentally
irresponsible persons.''). ATF thus does not believe that the 2014
NPRM correctly interpreted the law when it tried to expand the
categories of those deemed ``mentally defective'' to encompass
anyone found ``guilty but mentally ill.'' The 2014 NPRM employed a
purposive approach to statutory construction that attempted, for
policy reasons, to expand the scope of the statute's plain meaning.
As explained further below, ATF proposes that mental illness
qualifies under ``mental defective'' only when the mental illness is
so severe that a person require guardianship.
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II. Proposed Rule
A. Discussion
As a result of congressional restrictions placed on the VA's use of
appropriated funds to report its incompetency determinations to NICS
pursuant to 18 U.S.C. 922(g)(4), ATF conducted a review of its existing
definitions of ``adjudicated as a mental defective'' and ``committed to
a mental institution'' at 27 CFR 478.11. A review of both the VA
competency process under 38 CFR 3.353 and the contemporaneous public
meaning of the term ``mental defective'' indicates that the current
regulatory definitions are not a correct interpretation of the statute
in all respects.\5\ First, ATF believes its current regulation defining
``adjudicated as a mental defective'' is overbroad because it
encompasses individuals who do not suffer from the kinds of mental
disabilities that fell within the term ``mental defective'' at the time
the GCA was enacted. Specifically, the regulation--at least as the 1997
final rule has been interpreted--encompasses individuals who have
narrow functional deficits, such as the inability only to manage
financial benefits. Those with isolated functional deficits are not the
kind of individuals who were understood to be mentally defective as
that term was used in the GCA. Nor are such individuals the kind of
irresponsible or dangerous persons who Congress sought to prohibit from
possessing firearms under sections 922(g)(4) and (d)(4).\6\
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\5\ When interpreting a statute, courts examine the ``ordinary,
contemporary, common meaning'' of the words when Congress enacted
it. Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 433-434
(2019).
\6\ See 114 Cong. Rec. 21657, 21791, 21832, and 22270 (1968).
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Second, ATF believes its current regulations also fail to properly
distinguish between ``adjudicated as a mental defective'' and
``committed to a mental institution.'' For example, in the 1997 final
rule, ATF accepted the DoD's comment that the definition of ``mental
defective'' should be adjusted to also include certain military
personnel who were ``found not guilty by reason of lack of mental
responsibility,'' and therefore necessarily committed. 62 FR 34637.\7\
But individuals who are involuntarily committed in that way should be
primarily disqualified based on the ``committed to a mental
institution'' prong of 18 U.S.C. 922 (g)(4) and (d)(4), not the
``adjudicated as a mental defective'' prong.\8\ Similarly, ATF
understands that individuals found by courts to be ``a danger to
[themselves] or to others,'' or found ``not guilty by reason of
insanity,'' will likely be committed to mental institutions. ATF's
current regulatory classification of these individuals as ``mental
defective[s]'' thus appears to improperly blend two different
disqualifications under 18 U.S.C. 922(g)(4) and (d)(4).
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\7\ The 1997 rule explained that DoD had noted that the Uniform
Code of Military Justice had recently been amended to include
procedures for commitment of military personnel found not guilty by
reason of lack of mental responsibility. See 10 U.S.C. 876b(b). DoD
apparently believed that these procedures fit better under the
``adjudicated as a mental defective'' prong than the ``committed to
a mental institution'' prong, but did not explain why.
\8\ In proposing to more clearly separate these two categories,
ATF recognizes that there may still be some overlap between them.
For example, in the military context, a servicemember who suffered a
significant and permanent brain injury could become mentally
defective within the meaning of the GCA. If the servicemember later
committed a crime and was judged to be permanently irresponsible for
his actions, he could also be involuntarily committed.
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This proposed rule would thus make two principal changes to ATF's
current regulatory definitions. First, the proposed rule would clarify
that the term ``adjudicated as a mental defective'' describes
specifically those individuals who, as a result of a serious global
intellectual deficit, cannot responsibly handle firearms. The rule
would make clear that individuals who present solely with isolated
functional deficits, such as the inability to manage their government
benefits, are not mentally defective within the meaning of the GCA.
Second, the proposed rule would more explicitly distinguish the
``adjudicated as a mental defective'' and ``committed to a mental
institution'' prongs of sections 922(g)(4) and (d)(4). ATF requests
comments on this proposed further distinction.
1. Little Analysis Supports the Current Regulatory Definition of
``Adjudicated as a Mental Defective''
The GCA prohibits the possession by, or disposition of a firearm
to, a person who is ``adjudicated as a mental defective or has been
committed to a mental institution.'' 18 U.S.C. 922(g)(4) (emphasis
added); see also 18 U.S.C. 922(d)(4). The use of the word ``or''
indicates a disjunctive: either adjudication as a mental defective or
an involuntary commitment qualifies. However, both ATF regulations and
some cases have failed to distinguish these separate prongs.
From 1968 until the passage of the Brady Handgun Violence
Prevention Act of 1993 (``Brady Act''), Public Law
[[Page 25169]]
103-159 (107 Stat. 1536), ATF did not attempt to define what
constituted adjudication as a mental defective or commitment to a
mental institution. Only when the Brady Act required the Attorney
General to establish NICS did ATF seek to clarify the categories of
prohibited persons, so that it could facilitate the implementation of
NICS. ATF did so by publishing the 1996 notice of proposed rulemaking,
described above, proposing various definitions for the statutory
categories of prohibited persons. See 61 FR 47095-01 (Sep. 6, 1996).
With respect to the definition of ``adjudicated as a mental
defective,'' the 1996 proposed rule contained little legal analysis.
ATF simply recited that it had ``examined the legislative history of
the term, applicable case law, and the interpretation of the term by
other federal agencies.'' 61 FR 47097. Citing various floor statements
of individual members of Congress, ATF declared that ``[t]he
legislative history makes it clear that Congress would broadly apply
the prohibition against the ownership of firearms by `mentally
unstable' or `irresponsible' persons.'' Id. And citing a lower court
opinion, ATF further remarked that ``the GCA is designed to prohibit
the receipt and possession of firearms by individuals who are
potentially dangerous, including those individuals who are mentally
incompetent or afflicted with mental illness.'' Id.
This discussion was not a proper statutory analysis. As ATF itself
acknowledged in the proposed rule, federal law does not prohibit the
possession of firearms by individuals who are simply ``afflicted with
mental illness,'' id., which could cover over 23% of the adult
population.\9\ Instead, federal law prohibits the possession and
receipt of firearms only by persons ``adjudicated'' as a ``mental
defective'' or involuntarily committed. 18 U.S.C. 922(g)(4); accord 18
U.S.C. 922(d)(4). Nevertheless, neither the 1996 notice of proposed
rulemaking nor the 1997 final rule undertook any comprehensive analysis
of the meaning of the key term ``mental defective.''
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\9\ National Institute of Mental Health, Mental Illness
Statistics, <a href="https://www.nimh.nih.gov/health/statistics/mental-illness">https://www.nimh.nih.gov/health/statistics/mental-illness</a> [<a href="https://perma.cc/2MCC-YL5L">https://perma.cc/2MCC-YL5L</a>].
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2. Problems With the Definition of ``Adjudicated as a Mental
Defective'' as Applied to VA and Social Security Determinations of
Incompetency
Recent controversies concerning veterans and social security
recipients who have been disarmed because they were determined to
require assistance managing their benefits demonstrate the overbreadth
of the current regulatory definition of ``adjudicated as a mental
defective.'' The disarming of large numbers of veterans and social
security recipients shows that the current regulation both encompasses
too many people and fails to identify adequate procedural protections
necessary for an adjudication.
VA regulations at 38 CFR 3.353 outline the procedures and criteria
used by the VA to assess a veteran's mental competency or incompetency
to manage their VA benefits. The VA regulation provides that a rating
agency must not independently determine a person to be incompetent
unless the medical evidence ``is clear, convincing, and leaves no doubt
as to the person's incompetency.'' Further, the regulation provides
that ``[d]eterminations relative to incompetency should be based upon
all evidence of record and there should be a consistent relationship
between the percentage of disability, facts relating to commitment or
hospitalization and the holding of incompetency.'' Id. at Sec.
3.353(c). However, the regulation does not expressly indicate that the
VA as part of this competency evaluation assesses whether the person is
so impaired that they pose a danger to themselves or others, or
otherwise present a public safety threat. If the VA determines that a
veteran is not competent, the VA appoints a fiduciary to assist the
veteran with financial affairs. Id. at Sec. 3.353(b)(2). The
procedures set forth in the regulation also permit the veteran to be
reexamined after an initial determination of incompetency, if evidence
arises ``indicating that the beneficiary may be capable of
administering the funds payable without limitation.'' Id. at Sec.
3.353(b)(3).
Beginning in 2024, Congress prohibited the VA from using
appropriated funds to report to NICS a veteran deemed incompetent and
assigned a fiduciary without a court ruling that the veteran is a
danger to themselves or others. Congress has since continued that
prohibition at least through September 30, 2026.\10\ Because the
prohibition may expire, however, ATF decided to reexamine whether
persons who have been deemed incompetent only with respect to managing
financial benefits should fall under the definition of ``adjudicated as
a mental defective.'' Although ATF turned to the VA's regulations when
defining the statutory phrase in 1997, ATF now believes that the VA
process for determining mental incompetency under section 3.353 is
insufficient, standing alone, to support a determination that a person
``has been adjudicated as a mental defective'' within the meaning of
the GCA. This is in part because the VA ultimately makes determinations
only with respect to whether veterans are competent to manage the
financial benefits they have earned, and its assessments are not
intended to determine competency outside of the financial-literacy
context.\11\ In other words, the VA's competency procedure focuses
specifically on the ability to manage VA benefits.\12\ The VA's process
does not necessarily determine or even in all cases review whether
persons have sufficient intellectual capacity for other
responsibilities that do not involve navigating complex regulatory
schema, such as entering contracts, managing property, providing
consent, or taking proper care of themselves.\13\ Thus, the VA's
competency determinations provide neither a conclusion about nor any
definite insight into whether an individual should be considered a
danger to themselves or others based on their intellectual capacity (or
lack thereof), such that they should necessarily be restricted from
possessing firearms under the GCA. As its recent appropriations
restriction reflects, Congress is concerned about the extension of VA
competency determinations into the GCA context and the impact those
determinations have had on the ability of veterans to exercise their
Second Amendment rights.
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\10\ See Consolidated Appropriations Act of 2024, Public Law
118-42, sec. 413 (Mar. 9, 2024); Military Construction, Veterans
Affairs, and Related Agencies Appropriations Bill, 2026, Public Law
119-37, sec. 413, 139 Stat. 496, 625-26 (Nov. 12, 2025); see also
Continuing Appropriations, Agriculture, Legislative Branch, Military
Construction and Veterans Affairs, and Extensions Act, 2026, 139
Stat. 495 (2025).
\11\ See e.g., In re Estate of Dokken, 604 NW2d 487, 493 (S.D.
2000) (holding that, although the testator was found incompetent for
VA purposes pursuant to 38 CFR 3.353, he retained testamentary
capacity under state law).
\12\ See, e.g., 38 CFR 3.353(b)(2) (listing the outsourcing of
benefits management responsibilities away from the veteran and to a
responsible third party as the sole effect of a determination of
incompetency under this section); id. 3.353(b)(2) (explaining that a
``prior determination of incompetency'' should be reexamined if
``the Veterans Service Center Manager develops evidence indicating
that the beneficiary may be capable of administering the fun ds
payable without limitation'').
\13\ Additionally, as further explained below, the VA competency
determination generally does not result from an ``adjudication.''
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In addition to asking an inapposite question, VA incompetency
determinations have also exhibited
[[Page 25170]]
procedural limitations that cast doubt on whether they qualify as
``adjudicat[ions]'' under sections 922(g)(4) and (d)(4). A review by
the VA indicates that, in the vast majority of incompetency
determinations, there was no adjudicative process sufficient to support
a deprivation of fundamental constitutional rights. In particular,
although the VA has reported over 250,000 veterans to NICS since its
inception, it appears that most were determined to be mentally
incompetent by an in-house rating professional, not a judge or other
independent arbiter.\14\ Moreover, although a veteran can in theory
request a hearing before a final incompetency determination is entered,
such hearings are rarely held in practice.\15\ Therefore, beneficiaries
often lose their Second Amendment rights without an adversarial
proceeding when they gain a fiduciary to manage their VA benefits.\16\
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\14\ See Jordan B. Cohen, Cong. Research Serv., TE10109,
Correcting VA's Violations of Veterans' Due Process and Second
Amendment Rights, at 6 (Jan. 23, 2025) (``The VA employees tasked
with adjudicating whether a veteran is financially incompetent are
Veterans Service Representatives and Rating Veterans Services
Representatives and their training does not require them to have
legal or medical expertise.''); see also id. at 7 (``As of the end
of 2023, of the 270,851 active entries in NICS submitted by federal
agencies for having been `adjudicated as a mental defective' or
committed to mental institutions, 264,893 (97.8%) were submitted by
the VA, though all of these were not necessarily because a veteran
was determined mentally incompetent and needed a fiduciary to
collect benefit payments.'').
\15\ ``In FY2022, VA data indicates there were 135 hearings on
incompetency determinations, 24 of which resulted in a finding of
competency.'' Jordan B. Cohen, Cong. Research Serv., TE10109,
Correcting VA's Violations of Veterans' Due Process and Second
Amendment Rights, at 8 (2025). By contrast, the VA before FY2024
reported upwards of 10,000 individuals to NICS annually. See
Legislative Hearing on H.R. 472; H.R. 1041; H.R. 740; and H.R. 1391,
Before the H. Comm. On Veterans' Affairs, 119th Cong., at 28-29
(Feb. 25, 2025) (statement of Beth Murphy, Acting Principal Deputy
Undersecretary for Benefits, Veterans Health Administration, U.S.
Department of Veterans Affairs).
\16\ See generally Jordan B. Cohen and Madeline D. Moreno, Cong.
Research Serv., R47626, Gun Control, Veterans' Benefits, and Mental
Incompetency Determinations (2023); see also generally Lynn Sears,
Cong. Research Serv., IF13019, The VA Fiduciary Program, An Overview
(2025); Jordan B. Cohen, Cong. Research Serv., TE10109, Correcting
VA's Violations of Veterans' Due Process and Second Amendment Rights
(2025).
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The lack of adversarial proceedings creates problems under both the
GCA and the Constitution. Under the GCA, administrative determinations
are insufficient to constitute an ``adjudicat[ion]'' within the meaning
of 18 U.S.C. 922(d)(4) and (g)(4). Under the Constitution, there are
serious questions whether the Second Amendment and the Due Process
Clauses of the Fifth and Fourteenth Amendments permit individuals to be
deprived indefinitely of the right to bear arms based on a finding of
mental incapacity when no hearing to determine their incapacity took
place.
Nonetheless, the impact of VA incompetency determinations on
veterans' ability to own firearms has been significant. In 2025, the
VA's Acting Principal Deputy Undersecretary for Benefits, Veterans
Health Administration, testified to Congress that, in the year prior to
the appropriations restriction, the VA reported approximately 13,000
individuals to NICS.\17\ But she testified that in 2024, due to the
appropriations requirement that imposed a more stringent standard for
the VA's NICS reporting, the VA reported only three persons to NICS--
persons who were not simply deemed incompetent but who had been found
under judicial orders to pose a danger to themselves or others.\18\
This change indicates that too many veterans have been disarmed over
the years under ATF's overbroad definition of ``adjudicated as a mental
defective,'' often without formal adjudicatory proceedings.\19\
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\17\ See Legislative Hearing on H.R. 472; H.R. 1041; H.R. 740;
and H.R. 1391, Before the H. Comm. On Veterans' Affairs, 119th
Cong., at 28-29 (Feb. 25, 2025) (statement of Beth Murphy, Acting
Principal Deputy Undersecretary for Benefits, Veterans Health
Administration, U.S. Department of Veterans Affairs). However, this
13,000 figure is a snapshot in time and is fluid. The VA takes steps
to monitor and update the files it submits to NICS. If a file no
longer meets the requirements to be considered ``adjudicated as a
mental defective,'' then it is removed from NICS.
\18\ Id.
\19\ ATF notes, following its own review, VA independently
concluded that fiduciary incompetency determinations under 38 U.S.C.
5502 do not constitute lawful adjudications within the meaning of 18
U.S.C. 922(g)(4), as such determinations lack the judicial finding
of dangerousness or mental defectiveness that the statute requires.
Consistent with this conclusion, VA directed the removal from the
NICS Indices of records submitted solely on the basis of fiduciary
appointments, while retaining in NICS any records that had an
independent qualifying basis. VA's prior action thus reflects the
same legal distinction ATF's proposed rule would now formalize, and
supports the accuracy of ATF's proposed revised definition.
---------------------------------------------------------------------------
Similar problems also existed with Social Security regulations. The
Social Security regulations provide that benefits for purposes of
federal old age, survivors, and disability insurance (20 CFR part 404)
and supplemental security income for aged, blind, and disabled (20 CFR
part 416) may be made to a representative payee. Payments may be made
to a representative payee, in relevant part, when the beneficiary is
determined to be legally incompetent or mentally incapable of managing
benefit payments, or physically incapable of managing or directing the
management of his or her benefit payments. 20 CFR 404.210, 416.610. In
appointing a representative payee, the Social Security Administration
(``SSA'') considers court determinations that the individual is found
legally incompetent; medical evidence to determine whether the
beneficiary is capable of managing or directing the management of
payments through, for example, physician or medical professional
examinations; and statements from relatives, friends, and other people
in a position to know and observe the beneficiary, which would include
information helpful to deciding whether the beneficiary is able to
manage or direct the management of benefit payments. 20 CFR 404.2015,
416.615.
The beneficiary may submit additional evidence of the decision,
seek reconsideration of the decision, and request a hearing before an
Administrative Law Judge (``ALJ''). See 20 CFR part 404, subpart J;
part 416, subpart N. If dissatisfied with the ALJ decisions, the
beneficiary can request a review by the Appeals Counsel. Finally, if
dissatisfied with the Appeals Counsel decision, the beneficiary may
file an action for review in federal district court.
In 2009, the SSA General Counsel advised ATF that the SSA does not
adjudicate individuals as ``mental defectives,'' or commit individuals
to mental institutions, within the meaning of the GCA. Therefore, the
SSA did not need to establish a federal relief of disability program
under the NICS Improvement Amendment Act of 2007 (``NIAA''), which
mandated that federal agencies provide relevant records to the Attorney
General for inclusion in NICS. In 2010, ATF stated in a memorandum to
the Department's Office of Legal Policy that the SSA procedures fell
under the ``adjudicated mental defective'' provision of 18 U.S.C.
922(g)(4) and 27 CFR 478.11 because the SSA makes formal decisions with
due process that, due to a mental condition, a person is unable to
manage his benefit payments and appoints a representative payee. On
December 19, 2016, the SSA issued a final rule to implement the
provisions of the NIAA. 81 FR 91702 (2016). The final rule added a new
part to SSA regulations that established a program for identifying, on
a prospective basis, records for inclusion in NICS, procedures to
provide notice to the individuals affected, and a relief program.
Specifically, the SSA provision, 20 CFR 421.110, provided that SSA will
report to NICS those individuals, in relevant part, that the SSA has
determined ``based on a finding
[[Page 25171]]
that the individual's impairment(s) meets or medically equals the
requirements of one of the Mental Disorders Listing of Impairments
(section 12.00 of appendix 1 to subpart P of part 404 of this chapter)
under the rules in part 404, subpart P, of this chapter, or under the
rules in part 416, subpart I, of this chapter.'' 81 FR 91714. The SSA's
mental disorders listing codified as part of the SSA's regulations
includes various disorders including physical disorders, mental
disorders, and neurological disorders. However, Congress disapproved of
the SSA's final rule by joint resolution pursuant to the Congressional
Review Act, which resulted in the final rule having no force and
effect. Public Law 115-8 (Feb. 28, 2017).
The SSA determination suffers from the same flaw in the VA
adjudication. The SSA process does not necessarily determine whether
persons have sufficient intellectual capacity for other
responsibilities beyond whether the beneficiary can manage their own
affairs. Specifically, the determinations under 20 CFR 404.210 and
416.610 are specifically whether the beneficiary can manage or direct
the management of payments. These competency determinations provide no
insight into whether persons should be considered a danger to
themselves or others based on their intellectual capacity. Congress
evidenced their concern with the reporting of these adjudications to
NICS as indicated by the Congressional Review Act disapproval of the
SSA final rule that requires reporting of these records. As of December
2025, there is only one active entry in the NICS indices for an
individual that is adjudicated mental defective from the SSA.
3. Judicial Interpretations of ``Adjudicated as a Mental Defective''
and ``Committed to a Mental Institution''
The need to reevaluate the regulatory definitions for the
categories of persons prohibited from possessing or receiving firearms
under sections 922(g)(4) and (d)(4) is made more acute by the fact that
those definitions largely are not based upon relevant, reasoned
judicial decisions. In formulating the definitions for ``adjudicated as
a mental defective'' and ``committed to a mental institution,'' ATF
relied on four judicial decisions--two from the Supreme Court and two
from the courts of appeals. But at least as applied to the term
``adjudicated as a mental defective,'' the decisions that ATF cited are
either off-topic or contain little legal analysis. The first Supreme
Court decision, Huddleston v. United States, 415 U.S. 814 (1974), is
about whether a pawn redemption is an ``acquisition'' within the
meaning of section 922(a)(6) of the GCA. Id. at 815. Although
Huddleston recited some broadly-applicable GCA legislative history
(e.g., a congressional floor statement that ``[n]o one can dispute the
need to prevent . . . persons with a history of mental disturbances . .
. from buying, owning, or possessing firearms''), and asserted that
there ``can be no doubt of Congress's intention to deprive the
juvenile, the mentally incompetent, the criminal, and the fugitive of
the use of firearms,'' the decision did not reach any holding related
to sections 922(d)(4) or (g)(4) in particular. Id. at 827-28. The
Supreme Court's decision in Barrett v. United States, 423 U.S. 212
(1976), is similarly off topic; that case was about the commerce nexus
required to convict someone of illegal possession of a firearm. Id. at
213.
Unlike the two Supreme Court cases, the two courts of appeals'
opinions cited in the 1996 proposed rule do specifically address the
relevant provisions of the GCA. Both decisions, however, are of little
assistance. In United States v. Buffaloe, 449 F.2d 779 (4th Cir. 1971),
the Fourth Circuit did no statutory analysis when it affirmed the
defendant's section 922 false statement conviction for ``purchas[ing]
pistols stating that he had never been adjudicated a mental defective
or committed to a mental institution.'' Id. at 780. In that case, the
Government proved the defendant had previously been acquitted by reason
of insanity and then committed to a mental institution as a
``criminally insane person.'' Id. In one conclusory sentence, the
Fourth Circuit held that ``[w]e agree with the district judge that [the
defendant] was adjudicated and committed within the meaning of 18
U.S.C. 922(d)(4).'' 449 F.2d at 779. The court did not explain what
``mental defective'' meant or why the defendant fell within the
category. The court effectively treated ``adjudicated as a mental
defective'' and ``committed to a mental institution'' as a unitary
phrase, not warranting separate analyses.
The second case, United States v. Waters, 23 F.3d 29 (2d Cir.
1994), involved a ``commitment,'' not an adjudication of mental
defectiveness. The defendant in Waters had a prior admission to a
psychiatric hospital, and the question presented was whether that
admission constituted a ``commitment'' within the meaning of section
922(g)(4). Id. at 31. The court ultimately concluded that it did, but
undertook no analysis of the term ``mental defective,'' which was not
at issue. Id. at 36.
Unlike the four cases ATF cited in its earlier 1996 NPRM, the
Eighth Circuit's decision in United States v. Hansel, 474 F.2d 1120
(8th Cir. 1973), thoroughly opined on the definition of ``adjudicated a
mental defective'' as used in the GCA. In Hansel, an individual
determined by the Board of Mental Health of Lancaster County, Nebraska
to be ``mentally ill'' was convicted for falsely certifying in the
course of purchasing a firearm that he had not been ``adjudicated a
mental defective.'' \20\ Id. at 1121-22. Because the term ``mental
defective'' is not defined in the GCA, and the ATF regulations had not
yet been issued, it fell to the court to consider as a matter of first
impression the meaning of the term and decide whether it had been
appropriately applied. Id. at 1123.
---------------------------------------------------------------------------
\20\ The Board of Mental Health had ordered the defendant
hospitalized, and so the government initially argued that the
defendant had also been ``committed to a[] mental institution''
within the meaning of the GCA. Hansel, 474 F.2d at 1121-22. But
``[t]he government conceded on appeal that the defendant was not
committed because there [had been] no compliance with [Nebraska
state law governing commitment procedures].'' Id. at 1122-23.
---------------------------------------------------------------------------
The Hansel court first considered trial testimony on the subject by
the doctor who had examined Hansel while he was temporarily in a state
mental hospital for observation. The doctor was asked if he was
familiar with the term and its meaning; when he responded that he was,
he was asked how he understood the term. The doctor stated that it
would be ``an impairment of intellectual abilities so it would be
synonymous with mental retardation.'' Id. at 1123. The doctor also
stated that Hansel, who had a mental illness, would not qualify as
mentally defective or deficient. Id. at 1123-24. The court also noted,
citing several cases and other legal sources, that the law has usually
distinguished between persons who are mentally defective or deficient--
which ``normally designates an individual of marked subnormal
intelligence''--and those who are mentally diseased or ill. Id. at 1124
(citing People v. Thayer, 121 Misc. 745, 202 N.Y.S. 633 (Ulster County
Ct. 1923); Interstate Compact on Mental Health, 5A Ark. Stat.
Ann.,Sec. 59-801; Herzog, Medical Jurisprudence, Sec. Sec. 561-585
(1931); 1 Wharton and Stille, Medical Jurisprudence, Sec. Sec. 1073-
1093 (5th ed. 1905); People v. Hoffmann, 255 App. Div. 404, 8 N.Y.S.2d
83, 85 (App. Div. 1938)).
The Hansel court also reviewed several standard and psychiatric
dictionaries to determine the meaning of ``mental defectiveness.'' The
court noted that Webster's Dictionary (1935) defined
[[Page 25172]]
the term as indicating ``marked subnormal intelligence'' or ``lack of
intelligence,'' and further described subnormal intelligence levels as
descending on a scale of ``moronity, imbecility, and idiocy.'' Id. The
court also quoted a psychiatric dictionary from 1960, more closely
aligned in time with the GCA and the Hansel decision, which defined the
term as meaning ``subnormal intellectually, feebleminded.'' Id.
The court also relied heavily on Encyclopedia Britannica (1972) as
well as findings of the Royal Commission on Capital Punishment (1953).
Encyclopedia Britannica, the Hansel court said, stated that ``mental
defectiveness, mental deficiency, and feeblemindedness are synonyms
which denote limitations of development of the personality, usually
including intellectual retardation.'' Id. Likewise, the court relied on
the Royal Commission's statement that `` `Mental deficiency' is
generally understood as meaning intellectual defect, or defect of
understanding, existing from birth or from an early age. In England,
`mental defectiveness' is defined by statute as `a condition of
arrested or incomplete development of mind existing before the age of
eighteen years, whether arising from inherent causes or induced by
disease or injury.' '' Id.
Following this historical review, the Eighth Circuit in Hansel
determined that the term ``mental defective'' as used by the GCA in
1968 denoted a ``person who has never possessed a normal degree of
intellectual capacity,'' as opposed to those who are mentally ill,
diseased, or insane, and thus potentially had ``faculties which were
originally normal'' before being ``impaired by mental disease.'' Id.
The Eighth Circuit added that, ``[i]f it is the desire of Congress to
prohibit persons who have any history of mental illness from possessing
guns, it can pass legislation to that effect, but we cannot read into
this criminal statute an intent to do so.'' Id. at 1125. Accordingly,
the court vacated the defendant's GCA convictions on the basis that he
had not been ``adjudicated as a mental defective'' (or ``committed to a
mental institution'') within the meaning of the statute. Id.
4. Meaning of the Term of ``Mental Defective''
The Hansel decision highlighted an important nuance in Congress's
use of the term ``mental defective.'' Congress could have used a term
that broadly included any mental illness. Or, it could have explicitly
mentioned both mental illness and mental defectiveness, which would
have been viable based on the terminology and psychological
understanding at the time. Notably, however, Congress did neither.
Hansel was decided not long after the GCA was adopted, and its
reasoning remains relevant. When interpreting a statute, ATF must
consider the words Congress used, or chose not to use, and must give
those words their true meaning.\21\ Therefore, ATF has reviewed
practical resources dated close in time to when the GCA was enacted to
define the term ``mental defective.'' Although the first edition of the
Diagnostic and Statistical Manual: Mental Disorders (``DSM-I'')
(published in 1952) did not use the term ``mental defective,'' the DSM-
I classified mental disorders associated with impairment of brain-
tissue function as either acute brain disorders, chronic brain
disorders, or mental deficiency (one of the synonyms for mental
defective listed by Encyclopedia Britannica). ``Acute'' indicated
situations in which the patient would generally recover from the
impairment, whereas ``chronic'' indicated the impairment was relatively
permanent. DSM-I at 15, 18. And similar to the Hansel court, the DSM-I
identified ``mental deficiency'' as describing those cases
``primarily'' involving ``a defect of intelligence existing since
birth, without demonstrated organic brain disease or prenatal cause.''
DSM-I, at 23.
---------------------------------------------------------------------------
\21\ See Duncan v. Walker, 533 U.S. 167, 174 (2001); see also
Cong. Research Serv., R45153, Statutory Interpretation: Theories,
Tools, and Trends, at 20-21, 51 (Mar. 10, 2023).
---------------------------------------------------------------------------
DSM-I further categorized mental deficiency as either mild,
moderate, or severe. ``Mild'' referred to functional or vocational
impairment with an expected IQ range of approximately 70 to 85.
``Moderate'' referred to functional impairment requiring special
training and guidance with an expected IQ range between 50 and 70. And
``severe'' referred to functional impairment requiring custodial care
with an expected IQ less than 50. Moderate and severe mental
deficiencies generally corresponded with the terms ``moron'' and
``imbecile,'' respectively, as used in the International Classification
of Diseases, Revision 6 (1948) (``ICD-6'').
DSM-I was updated in a second edition in 1968 (``DSM-II'')--the
same year Congress passed the GCA. DSM-II reclassified mental
deficiencies, as well as chronic brain disorders presenting with mental
deficiencies, under the general term ``mental retardation.'' Based on
these definitions, which all originated close in time to when the GCA
was drafted and passed, ATF believes that Congress--in choosing to use
the phrase ``adjudicated as a mental defective''--was primarily
intending to prohibit firearm possession by those who have sufficiently
subnormal intellectual capacity that they cannot act responsibly with
potentially dangerous instrumentalities.
Surveys of legal materials confirm that the contemporaneous legal
understanding of the term ``mental defective'' applied to those with
significant and longstanding intellectual disabilities. In 1954,
Kentucky's involuntary commitment statute defined ``mentally defective
person'' to mean ``a person with a defect in mental development at
birth, or at an early age, and which is of such a degree that he is
incapable of caring for himself or managing his affairs and requires
supervision, care, training, control or custody for his own welfare or
for the welfare of others.'' \22\ The term included ``idiot,''
``feeble-minded person'' and ``feeble-minded and epileptic,'' but it
did not include ```lunatic,' `insane' or `insane person,' and
epileptic,'' who fell within the category of those who were ``mentally
ill.'' \23\
---------------------------------------------------------------------------
\22\ S. Journal, Ky. Gen. Assemb., Reg. Sess. 1954, at 43,
<a href="https://heinonline.org/HOL/P?h=hein.ssl/ssky0089&i=55">https://heinonline.org/HOL/P?h=hein.ssl/ssky0089&i=55</a>.
\23\ Id.
---------------------------------------------------------------------------
In 1955, New Mexico's ``Act Relating to Mental Defectives'' defined
``mental defective'' as ``any person not classified as insane but
mentally underdeveloped or faultily developed, or mentally backward or
retarded, to the degree that he is incapable of managing himself and
his affairs, and requires supervision, care and control for his own
welfare, or for the welfare of others, or for the welfare of the
community.'' \24\ Similarly, in 1957, North Carolina in its commitment
statute defined ``mental defective'' as:
---------------------------------------------------------------------------
\24\ S. Journal, 22d Leg., Reg. Sess. (N.M. 1955), at 456-57,
<a href="https://heinonline.org/HOL/P?h=hein.ssl/ssnm0074&i=465">https://heinonline.org/HOL/P?h=hein.ssl/ssnm0074&i=465</a>.
a person who is not mentally ill but whose mental development is so
retarded that he has not acquired enough self-control, judgment, and
discretion to manage himself and his affairs, and for whose own welfare
or that of others, supervision, guidance, care, or control is necessary
or advisable. The term shall be construed to include `feeble-minded',
`idiot', and `imbecile'.\25\
---------------------------------------------------------------------------
\25\ Journal of the Senate, N.C. Gen. Assemb., Reg. Sess. 1957,
at 1168 <a href="https://heinonline.org/HOL/P?h=hein.ssl/ssnc0053&i=1218">https://heinonline.org/HOL/P?h=hein.ssl/ssnc0053&i=1218</a>.
Sources from other common-law jurisdictions accord. In 1911, New
Zealand passed ``An Act to Consolidate and Amend the Law Relating to
the Care
[[Page 25173]]
and Control of Mentally Defective Persons.'' \26\ That act defined
``mentally defective person'' as:
---------------------------------------------------------------------------
\26\ Mental Defectives Act 1911, 2 Geo. V No. 6 (N.Z.), <a href="https://www.nzlii.org/nz/legis/hist_act/mda19112gv1911n6240.pdf">https://www.nzlii.org/nz/legis/hist_act/mda19112gv1911n6240.pdf</a>.
a person who, owning to his mental condition, requires oversight, care,
or control for his own good or in the public interest, and who
according to the nature of his mental defect and to the degree of
oversight, care, or control deemed to be necessary is included in one
of the following classes:--
Class I:--``Persons of unsound mind''--that is, persons who, owing
to disorder of the mind, are incapable of managing themselves or their
affairs:
Class II:--``Persons mentally infirm''--that is, persons who,
through mental infirmity arising from age or the decay of their
faculties, are incapable of managing themselves or their affairs:
Class III--``Idiots''--that is, persons so deficient in mind from
birth or from an early age that they are unable to guard themselves
against common physical dangers and therefore require the oversight,
care, or control required to be exercised in the case of young
children:
Class IV--``Imbeciles''--that is, persons who though capable of
guarding themselves against common physical dangers are incapable, or
if of school age will presumably when older be incapable, of earning
their own living by reason of mental deficiency existing from birth or
from an early age:
Class V--``Feeble-minded''--that is, persons who may be capable of
earning a living under favourable circumstances, but are incapable from
mental deficiency existing from birth or from an early age of competing
on equal terms with their normal fellows, or of managing themselves and
their affairs with ordinary prudence:
Class VI--``Epileptics''--that is, persons suffering from
epilepsy.\27\
---------------------------------------------------------------------------
\27\ Id. at 14.
In 1913, the United Kingdom defined mental defective to comprise
---------------------------------------------------------------------------
the following four categories of persons:
(a) Idiots; that is to say, persons so deeply defective in mind
from birth or from an early age as to be unable to guard themselves
against common physical dangers;
(b) Imbeciles; that is to say, persons in whose case there exists
from birth or from early age mental defectiveness not amounting to
idiocy, yet so pronounced that they are incapable of managing
themselves or their affairs, or, in the case of children, of being
taught to do so;
(c) Feeble-minded persons; that is to say, persons in whose case
there exists from birth or from an early age mental defectiveness not
amounting to imbecility, yet so pronounced that they require care,
supervision, and control for their own protection or for the protection
of others, or, in the case of children, that by reason of such
defectiveness appear to be permanently incapable of receiving proper
benefit from the instruction in ordinary schools;
(d) Moral imbeciles; that is to say, persons who from an early age
display some permanent mental defect coupled with strong vicious or
criminal propensities on which punishment has had little or no
deterrent effect.\28\
---------------------------------------------------------------------------
\28\ Mental Deficiency Act 1913, 3 & 4 Geo. 5 c. 28 sec. I(1)
(U.K.), <a href="https://www.education-uk.org/documents/acts/1913-mental-deficiency-act.html">https://www.education-uk.org/documents/acts/1913-mental-deficiency-act.html</a>.
---------------------------------------------------------------------------
In 1959, Canada passed ``The Mental Defectives Act.'' That act
defined ``mentally defective person'' as ``a person in whom there is a
condition of arrested or incomplete development of mind existing before
the age of eighteen years, whether arising from inherent causes or
induced by disease or injury.'' \29\
---------------------------------------------------------------------------
\29\ The Mental Defectives Act, R.S.A. 1955, c. 199, sec. 1
(Alta.), <a href="https://www.canlii.org/en/ab/laws/hstat/rsa-1955-c-199/latest/rsa-1955-c-199.html">https://www.canlii.org/en/ab/laws/hstat/rsa-1955-c-199/latest/rsa-1955-c-199.html</a>.
As these sources make clear, the term ``mental defective,'' as it
was understood in the early- to mid- twentieth century, had a core and
a periphery. The core of the term was a person who had significant
intellectual disabilities, generally beginning from birth or an early
age. The term could also apply to those who acquired such infirmities
later due to age or disease, such as those who acquired intellectual
deficits because of dementia, stroke, or other permanent physical
causes. At the periphery, the term sometimes applied to those with
mental illnesses, where those illnesses were of a permanent or chronic
nature and were severe enough that the person required guardianship to
manage his own affairs.
It is also clear from these sources who was usually not considered
a ``mental defective.'' Mental defectiveness was generally separate
from mental illness. A finding of insanity or incompetence to stand
trial was not inherently sufficient to trigger a finding of mental
defectiveness, particularly when that insanity or incompetence was of a
transient nature and the person could otherwise manage his own affairs.
Part of the problem with ATF's present regulatory definition of
``mental defective'' may be that ATF's current interpretation of the
definition has strayed from the definition's original intent. As
mentioned, the current regulation defines ``adjudicated as a mental
defective'' to include persons for whom there is a judicial or quasi-
judicial finding that the person ``[l]acks the capacity to contract or
manage his own affairs.'' 27 CFR 478.11. The sources just discussed
indicate that, properly construed, this provision should have included
only those individuals who have broad functional deficits across
multiple domains such that they are substantially incapable of
contracting, managing money, and otherwise caring for their own
welfare. Contrary to ATF's statement in the 1997 final rule, the
provision should not apply to those who simply are incapable of
managing certain government benefits. In light of this confusion, ATF
believes it is necessary to revise and supplement the regulatory
definition of ``adjudicated as a mental defective.'' In particular, ATF
believes it is necessary to delete from the definition the ``[l]acks
the capacity to contract or manage his own affairs'' provision, because
that provision can too easily be construed as including persons with
isolated limitations in performing specific tasks, as opposed to only
persons with global functional deficits.
5. Properly Defining and Distinguishing ``Adjudicated as a Mental
Defective'' and ``Committed to a Mental Institution''
As explained in the background section, the 1997 final rule also
classified several other adjudications, beyond those involving capacity
to contract or manage one's own affairs, as adjudications of mental
defectiveness. Those include a finding of insanity in a criminal case;
a finding that a person is a danger to himself or others; and a finding
that a person is incompetent to stand trial or not guilty by lack of
mental responsibility under the Uniform Code of Military Justice
(``UCMJ''). 62 FR 34637.
The 1996 proposed rule contained no reasoning or textual analysis
in support of the conclusion that the term ``mental defective'' is
properly understood to include all of these concepts. In the proposed
rule, ATF stated only that it had reviewed ``the legislative history of
the term, applicable case law, and the interpretation of the term by
other federal agencies.'' 61 FR 47097. Based on this review, ATF
believed that a broad definition of ``mental defective'' was warranted
because ``Congress would broadly apply the prohibition against the
ownership of firearms by `mentally unstable' or `irresponsible'
persons.'' Id. Additionally, ATF added the UCMJ provision at the
request of the DoD, similar to the way it accepted in its final rule
the VA's view that a VA
[[Page 25174]]
incompetency determination would meet ATF's regulatory definition.
On further reflection, ATF is unsure that the 1997 final rule
correctly demarcated the difference between ``adjudicated as a mental
defective'' and ``committed to a mental institution.'' Although ATF
recognizes that usages of the term ``mental defective'' were not
perfectly consistent at the time of the GCA's enactment, its
predominant meaning referred to individuals who had significant and
longstanding intellectual disabilities rather than mental illnesses.
See Hansel, 474 F.2d at 1124 (``In law, a distinction has usually been
made between those persons who are mentally defective or deficient on
the one hand, and those who are mentally diseased or ill on the
other.''); see also Black's Law Dictionary 1137 (4th ed. 1951)
(``Mental Defect. As applied to the qualification of a juror, this term
must be understood to embrace either such gross ignorance or imbecility
as practically disqualifies any person from performing the duties of a
juror.''). As explained above, the statutory definitions in both U.S.
and other common-law jurisdictions also distinguish ``mental
defective'' from ``mental illness'' or ``insanity.'' It appears that
insane persons fall outside the traditional definition of ``mental
defective,'' except in certain severe cases where a person has a
permanent or chronic condition that requires guardianship.
One other textual clue suggests that ATF's current definition of
``adjudicated as a mental defective'' does not accord with the GCA:
under ATF's current definition, the ``committed to a mental
institution'' prong of the statute would be largely (if not entirely)
superfluous. Involuntary commitments generally require a ``lawful''
``determination'' that a person is insane or poses a danger to himself
or others, and ATF's definition of ``mental defective'' already
independently encompasses such findings.
ATF is therefore requesting comments on whether parts of the
definition of ``adjudicated as a mental defective'' should be moved to
the definition of ``committed to a mental institution.'' As explained
further below, ATF is proposing that, for persons who cannot
responsibly handle firearms due to mental illness, the triggering event
under the GCA should be an involuntary commitment to a mental
institution. That commitment may be triggered for the reasons
previously identified in the ``mental defective'' prong: a finding that
a person is a danger to himself or others, an acquittal by reason of
insanity, or a finding of incompetence to stand trial or acquittal by
reason of lack of mental responsibility under the UCMJ.
ATF is soliciting comments on both legal and policy questions.
Legally, ATF requests comments about the original public meaning of
``mental defective'' in 1968. With respect to policy, ATF is
particularly interested in whether this reorganization of the rule
would have any adverse impact on public safety. Specifically, ATF is
interested in whether there are individuals who are found not guilty by
reason of insanity or found in a proceeding to be a danger to
themselves or others but are not committed to a mental institution as
proposed by the definition. ATF also seeks comment on whether the
reorganization of the rule along the lines proposed above would permit
any mentally unstable persons to acquire firearms who could not do so
today.
6. The Second Amendment and 18 U.S.C. 922(g)(4)
The Second Amendment presumptively guarantees law-abiding U.S.
citizens the right to bear arms. New York State Rifle & Pistol Ass'n,
Inc. v. Bruen, 597 U.S. 1, 32-33 (2022). However, the Supreme Court has
concluded that this Nation's historical tradition of firearms
regulation allows the government to disarm individuals who present a
credible threat to the physical safety of others.\30\ Although the
Supreme Court has yet to squarely confront the issue, there are strong
arguments that our Nation's historical tradition likewise permits
disarming those who have such profound cognitive disabilities that they
cannot live independently, or require the appointment of a guardian,
because such persons cannot safely handle dangerous instruments like
firearms. On the other hand, though, restricting individuals' Second
Amendment rights solely based on their assessed inability to manage
their government benefits or other financial assets incorrectly assumes
that they lack mental capacity to responsibly possess firearms--and
often does so in the absence of any formal adjudication before a
judicial or other competent authority.
---------------------------------------------------------------------------
\30\ United States v. Rahimi, 602 U.S. 680, 700 (2024) (holding
that an individual who poses a credible threat to the physical
safety of others may be temporarily disarmed consistent with the
Second Amendment).
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B. Proposed Changes
In proposing the changes indicated below, ATF is guided by the
original public meaning of the statute. See Food Mktg. Inst., 588 U.S.
at 433-34. The need to examine original public meaning is more acute
because ATF's regulations no longer receive deference under Chevron
U.S.A. Inc. v., Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984). Previously, under Chevron, courts would defer to agency
interpretations of statutes that were permissible but not necessarily
the best. But in Loper Bright Enterprises v. Raimondo, 603 U.S. 369
(2024), the Supreme Court overturned Chevron. The court explained that
``[i]n the business of statutory interpretation, if it is not the best,
it is not permissible.'' Id. at 400.
Given Loper Bright, ATF has conducted an exhaustive review of the
original public meaning of ``adjudicated as a mental defective'' and
``committed to any mental institution'' in 18 U.S.C. 922(d)(4) and
(g)(4). ATF has also rejected previous interpretations of these
provisions that have elevated legislative history and legislative
purpose over the plain meaning of the statute.
1. ``Adjudicated as a Mental Defective''
This rule proposes to amend the definition of ``adjudicated as a
mental defective'' in 27 CFR 478.11 by revising the definition to have
two main components--one substantive and one procedural--and by
defining additional terms within the definition for more clarity.
Additionally, ATF proposes moving parts of the current definition of
``adjudicated as a mental defective'' into the revised ``committed to a
mental institution'' definition. Overall, these changes would ensure
more faithful adherence to the statutory language of 18 U.S.C.
922(g)(4) and (d)(4) and the congressional intent underlying those
prohibitions.
ATF proposes to restructure the definition of ``adjudicated as a
mental defective,'' which currently has two paragraphs. Paragraph (a)
defines a person as ``adjudicated as a mental defective'' when there is
``[a] determination by a court, board, commission, or other lawful
authority that [the] person, as a result of marked subnormal
intelligence, or mental illness, incompetency, condition, or disease''
``[i]s a danger to himself or others'' or ``[l]acks the mental capacity
to contract or manage his own affairs.'' Paragraph (b) provides that
the term ``shall include'' both ``[a] finding of insanity by a court in
a criminal case'' and ``[t]hose persons found incompetent to stand
trial or found not guilty by reason of lack of mental responsibility
pursuant to . . . the Uniform Code of Military Justice.''
In its restructuring, ATF proposes (1) breaking paragraph (a) into
four
[[Page 25175]]
paragraphs, each identifying a category of persons who will be
considered to have been ``adjudicated as a mental defective'' under the
revised definition; (2) replacing the existing paragraph (b) with a
definition of ``intellectual disability''; (3) moving the existing
contents of paragraph (b) into the revised definition of ``committed to
a mental institution''; and (4) adding a new paragraph (c) to define
the procedural requirements for a qualifying ``adjudication'' under the
statute.
Proposed Categories of Persons ``Adjudicated as a Mental Defective''
The proposal would alter the definition of ``adjudicated as a
mental defective'' to refer primarily to those conditions involving
intellectual disabilities. Substantively, paragraph (a) of the current
regulations would be revised under the proposed rule to provide that a
person is ``adjudicated as a mental defective'' for purposes of the GCA
if a court, board, commission, or other lawful authority has (1)
appointed the person a guardian because of an intellectual disability
or mental illness; (2) found the person to have a permanent physical
condition, such as dementia, provided the person has reached the
functional capability equivalent to that of a person with an
intellectual disability and has had a guardian appointed; or (3) found
the person to be incompetent to stand trial based on a mental disease
or defect where there is no reasonable possibility of restoring
competence.
The purpose of the proposed definition would be to identify those
who suffer from sufficiently subnormal intellectual capacity that, as a
categorical rule, they cannot be entrusted to responsibly handle
firearms--even if they do not have a documented propensity for
violence. Instead, these individuals have such profound and permanent
disabilities that they lack the cognitive ability to make mature
judgments. Congress determined that those who are cognitively incapable
of making responsible judgments across many functional areas cannot be
trusted to independently possess firearms.
The proposed categories in paragraph (a) would primarily tie a
person's status as ``adjudicated as a mental defective'' to a finding
by a court, board, commission, or other lawful authority that the
person has an ``intellectual disability.'' Accordingly, as discussed
below, ATF also proposes to define ``intellectual disability,'' as well
as to set forth what constitutes an ``adjudication'' for purposes of
section 922(g)(4). For physical conditions only, the rule proposes to
make clear that, under the proposed definition, the condition affecting
a person's intellectual capabilities must be permanent.
Although the proposed rule would generally separate its treatment
of intellectual disability (governed primarily by ``adjudicated as a
mental defective'') from its treatment of mental illness (governed
primarily by ``committed to a mental institution''), ATF acknowledges
that the line separating these two concepts is blurry, not bright. One
difficult case involves a person for whom a guardian has been appointed
due to extensive mental illness, but who has not been involuntarily
committed. ATF proposes that when a mental illness becomes severe
enough to warrant a judicial appointment of a guardian, that would
qualify a person as ``adjudicated as a mental defective.'' This case
shares an essential trait with the appointment of a guardian for
intellectual disability: a determination by a court that a person is
cognitively unable to make responsible decisions as an independent
adult. Such persons are the kind of irresponsible persons who Congress
decided should not be entrusted with firearms. And as explained above,
such persons were recognized at the periphery of various statutory
definitions of ``mental defective'' around the time the GCA was
enacted.
The proposed rule would also make clear that neither temporary
guardianship for a physical disability nor the appointment of a limited
fiduciary counts as an adjudication of mental defectiveness. The
concept of mental defectiveness describes a person who broadly lacks
the cognitive capacity to act as a responsible adult. Mental
defectiveness does not encompass an otherwise responsible person who is
temporarily cognitively incapacitated due to a transient physical
condition or who requires assistance in a single functional area (e.g.,
managing money).
Through paragraph (a)(3), the rule would also include in the
category of ``adjudicated as a mental defective'' those who have been
found by a court (or by the convening authority in a court-martial) to
be incompetent to stand trial based on a mental disease or defect where
there is no reasonable possibility of restoring competence. Some
defendants are never found legally insane because medical therapy
proves ineffective and so they never attain competency to stand trial.
Because such individuals have profound and longstanding cognitive
disabilities, though, ATF believes that such individuals fall within
the definition of ``mental defective'' irrespective of whether they
have been committed to a mental institution or found insane by a court
in a criminal case. Nevertheless, for this category, ATF recognizes
that most of these individuals will also likely be involuntarily
committed for treatment.
Persons will also be found incompetent to stand trial if they lack
``sufficient present ability to consult with [their] lawyer with a
reasonable degree of rational understanding'' or if they lack ``a
rational as well as factual understanding of the proceedings against
[them].'' Dusky v. United States, 362 U.S. 402, 402 (1960) (per
curiam). A person could be deemed temporarily incompetent for a variety
of transient physical or mental conditions. ATF does not believe that
the term ``mental defective'' was meant to reach those with temporary
physical disabilities or those who had a temporary mental condition
during which they momentarily did not understand the proceedings
against them or could not contribute to their own defense. Some
individuals, however, suffer from severe mental illness and are not
responsive to medical therapy. ATF believes that such individuals--who
are often indefinitely confined, but for whom a formal finding of
insanity was never made because they were never competent to stand
trial--fall within the scope of ``mental defective,'' irrespective of
whether they are involuntarily committed, because they broadly lack the
cognitive ability to live independently and to engage in responsible
adult behavior.
ATF also proposes moving three components of the current definition
of ``adjudicated as a mental defective'' to the definition of
``committed to a mental institution.'' These are: (1) individuals found
to be a danger to themselves or others; (2) individuals found insane in
a criminal case; and (3) individuals found incompetent to stand trial
or found not guilty by reason of lack of mental responsibility under
the UCMJ. To be clear, ATF is not proposing to eliminate these as a
basis for a firearms prohibition under 18 U.S.C. 922(g)(4) or
922(d)(4). ATF is merely requesting comment on whether individuals in
these categories are properly understood to be prohibited on the basis
of an involuntary commitment rather than an adjudication of mental
defectiveness.
Proposed Definition of ``Intellectual Disability'' for Purposes of
``Adjudicated as a Mental Defective''
The first category in the proposed new definition of ``adjudicated
as a mental defective,'' at paragraph (a)(1), involves persons who have
had a
[[Page 25176]]
guardian appointed by a court, board, commission, or other lawful
authority because of an intellectual disability. Similarly, the
proposed new second category, at paragraph (a)(2), encompasses persons
who, as a result of a permanent physical condition, have the functional
capacity equivalent to a person with an intellectual disability and who
have accordingly been placed in a guardianship. ATF is therefore
proposing to define ``intellectual disability'' (also known as
``intellectual developmental disorder'') consistently with the latest
psychiatric guidelines, in a new paragraph (b) within the definition of
``adjudicated as a mental defective.'' In new paragraph (b)(1), ATF
proposes to define intellectual disability as existing when a person
(1) has a full-scale IQ score (``FSIQ'') below 45 or (2) has a FSIQ
less than 69 and has limitations in multiple adaptive functioning
domains such that the person is incapable of living independently.
This part of the proposed definition focuses on individuals who
suffer from an intellectual disability severe enough that they require
guardianship and cannot live independently. This is in line with the
current DSM (``Diagnostic and Statistical Manual of Mental
Disorders''), which emphasizes the diagnostic significance of
functional disabilities, not just low performance on an IQ test. See
American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders, Fifth Edition--Text Revision, 34 (2022) (``DSM-V-
TR''). Like DSM-V-TR, ATF is differentiating between those with a mild
intellectual disability--who would not always be covered by ATF's
proposed definition of the term--and those with a more-limiting
moderate, severe, or profound diagnosis--who would necessarily be
covered by that definition. As the DSM-V-TR explains, individuals with
a moderate diagnosis can care for their own personal needs but require
extended instruction and ongoing support from others. Individuals with
a severe diagnosis require support for all daily activities and always
require supervision for the well-being of themselves or others. And
individuals with a profound diagnosis are dependent on others for all
physical care, health, and safety. DSM-V-TR does not provide an
intelligence quotient (``IQ'') score for each level of severity like
earlier DSM editions did.\31\ Rather, DSM-V-TR notes that IQ tests are
less reliable as the score gets lower and so instead bases intellectual
disability on both cognitive capacity (i.e., IQ) and adaptive
functioning, rather than IQ alone.
---------------------------------------------------------------------------
\31\ ``Intellectual functioning is typically measured with
individually administered and psychometrically valid, comprehensive,
culturally appropriate, psychometrically sound tests of
intelligence. Individuals with intellectual disability have scores
of approximately two standard deviations or more below the
population mean, including a margin for measurement error (generally
<plus-minus>5 points). On tests with a standard deviation of 15 and
a mean of 100, this involves a score of 65-75 (70 <plus-minus> 5).
Clinical training and judgment are required to interpret test
results and assess intellectual performance.'' DSM-V-TR at 42.
---------------------------------------------------------------------------
For individuals with an IQ of 45 or lower, ATF does not believe
that a separate inquiry into adaptive functioning is necessary because
adaptive deficits will be immediately apparent. Although DSM-V-TR does
not include a specific IQ range for each intellectual disability
diagnosis level, the previous DSM did, and they remain instructive for
ATF. See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, 40 (1994) (``DSM-IV'').
Under DSM-IV, diagnoses of moderate, severe, or profound intellectual
disability generally occur in individuals with an IQ of less than 50.
See id.\32\ The approximate mental age for those with a moderate
intellectual disability is six- to nine-years-old; those with a severe
disability have an approximate mental age of three- to six-years-old;
and those with a profound intellectual disability have a mental age of
3-years-old or younger. See Children's Health Issues, supra note 30.
Individuals in these categories usually require training and support
for daily living needs. ATF believes that such individuals, if placed
in guardianships or found incompetent to stand trial, are categorically
``adjudicated as [ ] mental defective[s]'' for purposes of 18 U.S.C.
922(g)(4) and (d)(4), given their cognitive inability to engage in
responsible adult behavior. While DSM-IV classified those with an IQ
under 50 as having moderate or greater intellectual disability, ATF
believes that setting the categorical IQ limit at under 45 would avoid
any troubling consequences from any margin of error in intellectual
testing.
---------------------------------------------------------------------------
\32\ See also Children's Health Issues--Levels of Intellectual
Disability (Merck Manual Consumer Version), <a href="https://www.merckmanuals.com/home/pages-with-widgets/tables?mode=list">https://www.merckmanuals.com/home/pages-with-widgets/tables?mode=list</a> (last
visited Dec. 3, 2025) [<a href="https://perma.cc/VL3Y-XTSD">https://perma.cc/VL3Y-XTSD</a>].
---------------------------------------------------------------------------
Persons with a mild intellectual disability generally have IQs
between 50 and 69 and may function age-appropriately. They may need
support, however, for complex living tasks. It is generally believed
that these individuals have an approximate mental age between 9- and
12-years-old. ATF's proposed definition of ``intellectual disability''
would not include individuals with mild intellectual disability unless
they demonstrate significant functional impairments across multiple
functional areas. This is more consistent with understandings of
intellectual disability than the current regulatory criteria, under
which functional inability in a single area (e.g., inability to manage
money) can result in a lifetime firearms disability.
To be clear, determining whether a person has an intellectual
disability is not achieved simply by conducting an IQ test. As DSM-V-TR
explains, whether an individual has an intellectual disability depends
on both intellectual capacity and adaptive functioning. Thus, under the
proposed rule, persons with an IQ between 46 and 69 would not be
determined mentally defective for firearms purposes unless there was
evidence that they also exhibited significant limitations in multiple
adaptive functioning domains, such that they were incapable of living
independently. Persons with an IQ of 45 or less would necessarily have
profound functional deficits, so, while the combination of the two
would still be applicable, additional evidence on those deficits would
not be necessary at that IQ level. As reflected in the four categories
in paragraph (a), however, ATF's proposed rule would not disqualify
everyone who tested with an IQ of 45 or below from possessing firearms.
Instead, the rule would prohibit only those found to be intellectually
disabled who also had guardians appointed or who were found incompetent
to stand trial. Those latter proceedings would also likely examine
functional deficits.
Because all intelligence tests have a margin of error, ATF believes
that an inquiry into adaptive functioning would help resolve marginal
cases where a person might test with an IQ between 46 and 69. For
example, an inquiry into adaptive functioning would demonstrate that a
person who tests with an IQ of 53 might actually have a true IQ below
46 if the person has significant limitations across multiple adaptive
functions. In such a case, the person who tests with an IQ of 53 but
shows significant limitations in multiple adaptive functions would
still fall within the definition of ``intellectually disabled.''
ATF also proposes to add a second paragraph, paragraph (b)(2), to
the definition of ``intellectual disability'' to address proceedings
where there is no explicit finding of intellectual disability according
to the modern diagnostic criteria discussed above. Under this
paragraph, a person would also be deemed intellectually disabled when
an
[[Page 25177]]
adjudicator makes findings that the individual has cognitive and
functional deficits that would be equal to or greater than those
described in paragraph (b)(1). This provision would prevent
determinations of mental defectiveness from depending upon findings of
fact that exactly mirror modern diagnostic criteria or other ``magic
words.'' A finding that a person has major adaptive limitations across
multiple functional domains as a result of significant subnormal
intelligence would still count as a determination that the person is
intellectually disabled, even if there was no explicit finding of IQ on
the record. For example, an adjudicator might find that, because of
subnormal intelligence, a person has multiple severe functional
deficits, requires constant guardian supervision, and, thus, cannot
live independently. Such adjudications would suffice to establish a
person's intellectual disability for purposes of the proposed rule even
though they do not mention a specific IQ number. This provision
reflects that the core of being intellectually disabled is exhibiting
severe functional limitations resulting from subnormal intelligence,
not a specific score on an intelligence test. Again, this definition of
``intellectually disabled'' aligns with the current medical and
psychiatric understanding of cognitive capacity. DSM-V-TR generally
pulls away from specific IQ ranges, focusing instead on the patient's
general functional ability in order to discern mild, moderate, severe,
and profound categories of intellectual disability. See DSM-V-TR at 31-
37.
ATF also proposes in paragraph (b)(3) to clarify that a
determination of mental defectiveness under the GCA must result from a
mental illness or defect, or from a permanent physical disability or
disease. Under the current regulatory definition, a person could be
declared mentally incompetent and trigger the firearms prohibition by
merely having a fiduciary appointed due to a temporary physical
condition. For example, persons in a coma for 60 days might require a
temporary fiduciary to manage their financial affairs only during that
time. However, records showing that the person had a fiduciary
appointed could cause the person to be prohibited from possessing a
firearm indefinitely. Likewise, individuals who need assistance in a
single functional area (e.g., managing money) are not categorically
persons who are ``mentally defective'' and unable to engage in
responsible adult behavior. Yet, under the current regulatory
definition, persons in these examples and others could be prohibited
from firearm ownership for life unless they applied for relief from
disability or underwent another state process to remove the resulting
prohibition. That could be true even if they did not suffer from any
mental illness or defect and were not ordinarily thought of as the kind
of persons who, because of subnormal intelligence, could not manage
their affairs and engage in responsible adult behavior. ATF believes
this understanding of ``mental defective'' is overbroad and was not
Congress's intent when enacting this provision.
The proposed rule would therefore make clear that a person who is
appointed a temporary guardian because of a temporary physical
disability, or who is appointed a fiduciary solely because they need
assistance managing their financial affairs, would not be ``adjudicated
as a mental defective'' for purposes of sections 922(g)(4) and (d)(4).
This revision would prevent, for example, people who require a
temporary guardian during recovery from an accident or illness from
being prohibited under the GCA. Accordingly, ATF is proposing to
include paragraph (b)(3) under the definition of ``intellectual
disability,'' which would state: ``An intellectual disability shall not
be deemed to exist solely because an individual has had a temporary
guardian appointed due to a transient physical disability or because an
individual has had a fiduciary appointed solely to assist with managing
their financial affairs.''
Proposed Procedural Requirements for Adjudications
Procedurally, ATF is proposing to establish, in a new paragraph (c)
in the definition of ``adjudicated as a mental defective,'' the minimum
due process requirements that an adjudication must adhere to for a
person to qualify as having been ``adjudicated'' as a mental defective
for purposes of the GCA. While ``adjudicated as a mental defective'' is
often found in conjunction with the second statutory prong--``committed
to a mental institution''--it is not statutorily required that both
occur for a person to be prohibited under 18 U.S.C. 922(g)(4) or
(d)(4). Due process requirements in mental health commitment
proceedings have been addressed by the Supreme Court, most notably in
Addington v. Texas, 441 U.S. 418 (1979). However, there is little case
law to explain what process is necessary for a person to be
``adjudicated as a mental defective'' without a subsequent commitment.
Under the current definition of the statutory term, this leads to
the possibility that persons could be found to pose a danger to
themselves or others or to lack the mental capacity to contract or
manage their own affairs without certain procedural standards that
should be met before their constitutional rights are impacted. For
example, as explained above in section II.A.2, many veterans for whom a
fiduciary was appointed to handle their VA benefits were deemed
prohibited persons under sections 922(g)(4) and (d)(4) of the GCA, even
though no formal competency hearing was conducted. In such cases,
disarmament resulted from an assessment by a single administrator.\33\
The prospect of a constitutional right being stripped away without
greater procedural protections raises concerns under the Second, Fifth,
and Fourteenth Amendments. In addition, the plain meaning of the word
``adjudication'' requires the opportunity for an adversarial process.
Accordingly, the proposed rule would identify the procedural
requirements necessary to be ``adjudicated as a mental defective,'' so
as to provide the same level of procedural protections for any Second
Amendment restriction under sections 922(g)(4) and (d)(4), whether or
not it stems from a formal ``commitment.''
---------------------------------------------------------------------------
\33\ See generally Jordan B. Cohen and Madeline D. Moreno, Cong.
Research Serv., R47626, Gun Control, Veterans' Benefits, and Mental
Incompetency Determinations (2023); see also generally Lynn Sears,
Cong. Research Serv., IF13019, The VA Fiduciary Program, An Overview
(2025); Jordan B. Cohen, Cong. Research Serv., TE10109, Correcting
VA's Violations of Veterans' Due Process and Second Amendment Rights
(2025).
---------------------------------------------------------------------------
ATF proposes that an ``adjudication'' within the meaning of section
922(g)(4) occurs when a court, board, commission, or other lawful
authority has provided individuals as to whom a determination is being
made with:
(1) An in-person or remote hearing before an unbiased adjudicator;
(2) An opportunity to hear opposing evidence, to present evidence,
and to confront adverse witnesses;
(3) Permission to be represented by counsel;
(4) An appointed counsel or a guardian ad litem when there are
reasonable grounds to believe that individuals lack a sufficient
factual or rational understanding of the proceedings to represent
themselves or act in their own defense;
(5) Adequate notice of the hearing; and
(6) In a civil proceeding, a determination based on at least clear
and convincing evidence.
These are basic procedural protections. Congress has specified many
of these protections in other
[[Page 25178]]
contexts relating to federal firearms laws, so ATF believes they are
likely also captured by the plain meaning of ``adjudicated'' in the
context of the GCA.\34\
---------------------------------------------------------------------------
\34\ See, e.g., 18 U.S.C. 921(a)(33)(B) (providing procedural
protections required for an individual to be considered to have been
convicted of a misdemeanor crime of domestic violence); 34 U.S.C.
10152(a)(1)(I)(iv) (conditioning criminal justice grants for state
``extreme risk protection order programs'' on states' implementation
of various procedural safeguards).
---------------------------------------------------------------------------
These proposed procedural protections are included to ensure that
the right to possess arms is not removed without due process. For a
proceeding to satisfy ATF's definition of ``adjudication,'' a court (or
other covered adjudicator) would be required to appoint counsel or
guardians ad litem if there are reasonable grounds to believe persons
are incapable of representing themselves. Persons do not have due
process if they lack a sufficient factual or rational understanding of
the proceedings involving them, such that they are incapable of
providing for their own defense or presenting evidence on their own
behalf. ATF seeks comment on this requirement, particularly on whether
any jurisdictions permit potentially incompetent persons to face
guardianship or other legal proceedings without either appointing
counsel or a guardian ad litem. ATF also seeks comment on whether any
jurisdictions permit competency or capacity determinations to be made
without hearings, including at the election of the individual involved.
The applicable standard of proof would vary depending on the nature
of the proceeding. In civil commitment proceedings, the Supreme Court
has required the state to prove the necessity of commitment by clear
and convincing evidence. Addington v. Texas, 441 U.S. 418, 433 (1979).
This is because ``the individual's interest in the outcome of a civil
commitment proceeding,'' which could result in the loss of liberty,
``is of such weight and gravity.'' Id. at 427. Although the term
``adjudicated as a mental defective'' does not require commitment, ATF
believes that clear and convincing evidence should be the general
minimum standard before persons are prohibited from exercising their
Second Amendment rights, and this is the standard generally employed in
adult guardianship proceedings.
In criminal proceedings, however, a lower standard of proof can be
more protective of the defendant. For example, in Cooper v. Oklahoma,
517 U.S. 348 (1996), the petitioner argued that a statutory requirement
that the criminal defendant prove his incompetence to stand trial by
clear and convincing evidence was a violation of due process. Id. at
353. The Supreme Court held that a state could not require persons to
prove their incompetency by clear and convincing evidence in order to
safeguard the fundamental right not to stand trial while incompetent.
Id. at 369. Thus, in a criminal proceeding, a person may face mandatory
commitment based on a preponderance of the evidence standard. See,
e.g., United States v. Shaway, 865 F.2d 856, 859-610 (7th Cir. 1989).
By making clear that the ``clear and convincing'' standard is for civil
proceedings only, this rule would not restrict application of the lower
standard of proof, i.e., preponderance of the evidence, in criminal
proceedings. This is necessary to avoid the anomaly that committed
persons in criminal proceedings could retain their firearm rights where
civilly committed persons could not, simply because criminal
proceedings have burdens of proof that are more friendly to the
defendant.
2. ``Committed to a Mental Institution''
ATF also proposes revising the definition of ``committed to a
mental institution.'' The current definition of ``committed to a mental
institution'' is ``[a] formal commitment of a person to a mental
institution by a court, board, commission, or other lawful authority.
The term includes a commitment to a mental institution involuntarily.
The term includes commitment for mental defectiveness or mental
illness. It also includes commitments for other reasons, such as for
drug use. The term does not include a person in a mental institution
for observation or a voluntary admission to a mental institution.''
ATF proposes revising this definition in two ways. First, the
proposed rule would add examples of qualifying commitments, including
those removed from paragraph (b) of the ``adjudicated as a mental
defective'' definition. The three examples from the ``adjudicated''
prong that would be moved into the ``committed to a mental
institution'' prong are: (1) individuals who are found to be a danger
to themselves or others; (2) individuals found insane in a criminal
case; and (3) individuals found incompetent to stand trial or found not
guilty by reason of lack of mental responsibility under the UCMJ.
Second, the revised definition of ``committed to a mental
institution'' would make clear that the commitment must be ``[a] formal
and involuntary commitment of a person to a mental institution by a
court, board, commission, or other lawful authority.'' This largely
follows the current definition, except for the inclusion of the word
``involuntary.'' The current regulation states that the term ``includes
a commitment to a mental institution involuntarily'' and ``does not
include . . . a voluntary admission to a mental institution.'' 27 CFR
478.11. Accordingly, the position of ATF and the courts has long been
that voluntary admissions of any kind do not qualify under the statute.
Consequently, ATF is adding ``involuntary'' as a core part of the
definition.
The definition would include a non-exhaustive list of examples that
qualify as involuntary commitments for purposes of 18 U.S.C. 922(g)(4)
and (d)(4). These include:
(1) Commitments resulting from determinations that individuals are
a danger to themselves or others based upon mental disease or defect;
(2) Commitments resulting from other reasons, such as for drug use;
(3) Commitments resulting from a verdict of insanity by a court in
a criminal case;
(4) Commitments resulting from a verdict of not guilty by reason of
lack of mental responsibility pursuant to article 50a of the Uniform
Code of Military Justice;
(5) Commitments resulting from a person being found incompetent to
stand trial under article 72b of the Uniform Code of Military Justice;
and
(6) Commitments resulting from a determination that a person is
incompetent to stand trial in a civilian criminal case, if the basis
for that determination is a mental disease or defect.
Paragraphs (1), (3), (4), and (5) would be the provisions
transferred from the ``adjudicated as a mental defective'' prong to the
``committed'' prong. Again, ATF requests comments about whether this
transfer will have any adverse impact on public safety. ATF is
particularly interested to learn whether any individuals who would meet
the current definition of ``adjudicated as a mental defective'' on the
basis of being judicially found to be a danger to themselves or others
or being found not guilty by reason of insanity would not be
involuntarily committed to a mental institution.
Paragraph (2) would simply continue current practice without
change. Paragraph (6), which complements paragraph (5), is added to
prevent dissimilar treatment of analogous military and civilian
proceedings.
[[Page 25179]]
III. Statutory and Executive Order Review
A. Executive Orders 12866 and 13563
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits.
Executive Order 13563 (Improving Regulation and Regulatory Review)
emphasizes the importance of agencies quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This rule amends 27 CFR part 478.11 to update the definitions of
``adjudicated as a mental defective'' and ``committed to a mental
institution.'' ATF's aim is to both give effect to the statutory
language and to ensure that all persons falling under the ``adjudicated
as a mental defective'' prong receive due process before their Second
Amendment rights are affected. The proposed amendments to the
definition of ``adjudicated as a mental defective'' eliminate the risk
of persons losing the right to bear arms based solely on a
determination that they lack the mental capacity to contract or manage
their own affairs--a determination that, under past practice, was often
based on findings pertaining specifically to an inability to
independently manage financial affairs. The proposed amendments instead
focus on an individual's overall intellectual capacity and ability to
safely handle firearms. The proposed amendments would also more clearly
distinguish between the definitions of ``adjudicated as a mental
defective'' and ``committed to a mental institution.''
The Office of Management and Budget (``OMB'') has determined that
this proposed rule would be a ``significant regulatory action'' under
Executive Order 12866.
1. Need Statement
As discussed above, ATF believes its current regulation is
overbroad because it encompasses individuals who do not suffer from the
kinds of mental disabilities that fell within the term ``mental
defective'' at the time the GCA was enacted. Specifically, since the
regulation was first published in 1997, the term ``adjudicated as a
mental defective'' has been interpreted to encompass individuals who
have only narrow functional deficits, such as the inability to manage
financial benefits, as opposed to those individuals who have broadly
subnormal intellectual capacity such that they cannot responsibly
handle firearms.
For example, veterans deemed incompetent to manage their financial
affairs and assigned a fiduciary have been considered ``adjudicated as
a mental defective'' under the existing interpretation of that phrase,
absent any further assessment or finding as to whether they are a
danger to themselves or others.\35\ These VA competency determinations
frequently have no nexus to a person's ability to handle firearms
responsibly, and are in practice instead based largely on a person's
ability to independently manage their financial affairs. Thus, persons
have been denied the Second Amendment right to bear arms simply because
they are not financially responsible, even though they are otherwise
able to manage their own lives. But ATF has concluded that persons with
isolated functional deficits are not the kind of individuals who are
mentally defective as that term was used in the GCA. Nor are such
individuals the kind of irresponsible or dangerous persons who Congress
sought to prohibit from possessing firearms under section
922(g)(4).\36\
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\35\ See supra section II.A.2.
\36\ See 114 Cong. Rec. 21657, 21791, 21832, and 22270 (1968).
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Moreover, current regulations also fail to properly distinguish
between ``adjudicated as a mental defective'' and ``committed to a
mental institution.'' For example, in the 1997 final rule, ATF accepted
the DoD's recommendation to amend the definition of ``adjudicated as
mental defective'' to include certain military personnel who were
committed after being found not guilty ``for reason of a lack of mental
responsibility.'' 62 FR 34637. But individuals who are involuntarily
committed for that reason or because they have been found incompetent
to stand trial under the UCMJ should be primarily disqualified based on
the ``committed to a mental institution'' prong of 18 U.S.C. 922 (g)(4)
and (d)(4), not the ``adjudicated as a mental defective'' prong.\37\
Similarly, it is ATF's understanding that individuals found by courts
to be a danger to themselves or others, or found ``not guilty by reason
of insanity,'' generally are committed to mental institutions. ATF's
classification of these individuals as ``mental defective[s]''
therefore appears to have improperly blended two different
disqualifications under 18 U.S.C. 922(g)(4) and (d)(4).
---------------------------------------------------------------------------
\37\ As explained above, in separating these categories, ATF
recognizes that there may still be some overlap between them.
---------------------------------------------------------------------------
Thus, this proposed rule would make two principal changes. First,
the proposed rule would clarify that the term ``adjudicated as a mental
defective'' describes only those individuals who, as a result of a
serious global intellectual deficit, cannot responsibly handle
firearms. The proposed rule would provide a definition of
``intellectual disability'' in order to clarify the level of deficit a
person must generally possess in order to be considered a ``mental
defective'' under the GCA. The proposed rule would also make clear that
individuals who present solely with isolated functional deficits, such
as the inability to manage their government benefits, are not mentally
defective within the meaning of the GCA.
The proposed rule would also set forth several conditions that a
proceeding must meet to qualify as an ``adjudication'' within the
meaning of sections 922(g)(4) and (d)(4). Among other requirements, the
proposed rule would provide that in a civil proceeding the
determination of mental defectiveness must be made based on at least
clear and convincing evidence. ATF determined this change is necessary
because a higher evidentiary standard should be met before persons are
prohibited from exercising their Second Amendment rights.
Second, the proposed rule would more explicitly distinguish the
``adjudicated as a mental defective'' and ``committed to a mental
institution'' prongs of sections 922(g)(4) and (d)(4) by expressly
realigning to the latter certain qualifying commitments that ATF
understands to be currently encompassed by the former. Examples of
commitments that would transfer over because they fit better under the
``committed'' prong are: (1) commitments resulting from a determination
that an individual is a danger to themselves or others; (2) commitments
resulting from a verdict of insanity in a criminal case; and (3)
commitments resulting because the person is found incompetent to stand
trial or found not guilty by reason of lack of mental responsibility
under the UCMJ. The revised definition of ``committed to a mental
institution'' would also include other examples of commitments that are
already covered by the current definition.
ATF is also making clear that the term ``commitment'' requires
``[a] formal and involuntary commitment of a person to a mental
institution by a court, board, commission, or other lawful authority.''
And the proposed definition would codify the longstanding position of
ATF and the courts that a ``commitment'' under the GCA does not include
``a
[[Page 25180]]
voluntary admission to a mental institution.''
2. Benefits
The proposed rule amends the definitions in 27 CFR 478.11 to define
the terms ``adjudicated as a mental defective'' and ``committed to a
mental institution.'' The changes to the definitions will both give
effect to the statutory language and ensure that veterans (and other
affected persons) can retain their Second Amendment rights when a
fiduciary or limited guardian is appointed to manage their financial or
personal affairs. ATF estimates that the proposed rule would
beneficially impact a specific segment of the public by providing
qualitative benefits primarily to current and future firearm owners who
would otherwise be prohibited under 18 U.S.C. 922(g)(4) and (d)(4)
because they possess narrow functional limitations, on the basis that
they ``[l]ack the mental capacity to contract or manage [their] own
affairs.'' ATF does not have data on the entire subset of persons who
fall into this group, but must use the best available data to estimate
the size of this affected population.
The Brady Handgun Violence Prevention Act of 1993, Public Law 103-
159, requires federal firearms licensees (``FFLs'') to request
background checks on prospective firearm transferees. In 1998, the
Federal Bureau of Investigation (``FBI'') established NICS to process
these background checks. NICS queries three national databases for
possible matches when conducting a NICS check. These databases are: (1)
National Crime Information Center (``NCIC''), which contains records of
wanted persons, subjects of protection orders, and other persons who
pose a threat to officer and public safety; (2) Interstate
Identification Index (``III''), which provides access to criminal
history records; and (3) the NICS Indices, which contain information on
prohibited persons as defined by 18 U.S.C. 922(g) or (n) or state law.
The information in the NICS Indices is provided by federal, state,
local, and tribal agencies. As a result of the NICS Improvement
Amendments Act of 2007 (``NIAA''), Public Law 110-180 (122 Stat. 2599),
federal agencies are required to make available to NICS all records
that are relevant to determining whether a person is disqualified from
possessing or receiving a firearm under 18 U.S.C. 922(g) or (n).
Federal agencies satisfy this obligation by adding applicable
information to NCIC, III, or the NICS Indices. However, at the state
level, providing information to NCIC, III, or the NICS Indices is
optional unless otherwise required by state law or federal funding
requirements.
For purposes of this population size analysis, ATF focused on the
NICS Indices, which include the majority of records pertinent to
adjudications that would be affected by this rule.\38\ Again, records
submitted to the NICS Indices are categorized according to the federal
prohibitions under 18 U.S.C. 922(g) and (n), or in a catch-all file
that tracks state prohibitions and court-ordered firearm restrictions.
Records on persons adjudicated as mental defectives or involuntarily
committed to mental institutions are entered into the NICS Indices and
categorized under the 922(g)(4) prohibition. Documents relevant to this
prohibition include judgment and commitment orders; sentencing orders;
and records of judicial or administrative proceedings adjudicating
persons' inability to manage their own affairs, if the adjudication is
based on marked subnormal intelligence or mental illness, incompetency,
condition, or disease.
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\38\ The other two databases NICS queries, NCIC and III, consist
primarily of criminal records, so these databases are generally not
relevant to estimating the size of the population that will
primarily benefit from the proposed rule: persons with narrow
functional limitations who fall under the ``[l]acks the mental
capacity to contract or manage his own affairs'' element of the
current regulation. The NCIC and III do, however, supply data about
persons found insane in a criminal case, found incompetent to stand
trial, or found not guilty by reason of lack of mental
responsibility, so they still have some bearing on the overall
population of persons currently considered ``adjudicated as a mental
defective.''
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Of the 34,036,267 active records submitted to the NICS Indices as
of December 31, 2025, a total of 8,213,415, or 24 percent of all
records, were categorized as falling under the section 922(g)(4)
prohibition. Of the ten GCA prohibited categories, this prohibition
appears to be the second-largest source of records in the NICS Indices,
second only to the 16,063,869 records submitted under the prohibition
against firearm possession by illegal/unlawful aliens (18 U.S.C.
922(g)(5)). Nevertheless, the 8,213,415 number is an imprecise proxy
for the population affected by the proposed rule, as it includes
adjudications of mental defectiveness that would not be affected by
this proposed rule, as noted above, and also includes persons who were
entered into the NICS Indices because they were ``committed to a mental
institution'' (whether separately from or in addition to having been
``adjudicated as [ ] mental[ly] defective'').
The closest proxy for the population affected by the portion of the
definition ATF proposes to revise may therefore be the set of NICS
Indices data submitted by the VA. As discussed in the preamble, a
significant number of veterans currently fall under the ``[l]acks the
mental capacity to contract or manage his own affairs'' provision on
the basis of a single functional limitation--i.e., due to
determinations that they need a fiduciary to assist them with managing
VA benefits. By the end of December 31, 2025, there were 74,749 active
VA records in the NICS Indices that the VA believed triggered the
``adjudicated as a mental defective'' prohibition. However, this number
may still be overinclusive because these records could include some
individuals who would continue to qualify as having been ``adjudicated
as a mental defective'' under ATF's proposed revisions to the current
regulation, such as veterans appointed guardians as a result of an
intellectual disability or mental illness. In addition, an unknown
percentage of these records pertain to veterans who have not attempted
to purchase or possess firearms, and would continue not to even under
the proposed rule. ATF therefore does not have a valid set of data for
precisely assessing the number of individuals who would be affected by
the changes in the proposed rule. ATF welcomes public comment on
additional data sources or proxies to further estimate the affected
population of individuals, veterans or otherwise, who have been deemed
mentally defective by a court, board, commission, or other lawful
authority based solely on their narrow functional limitations, on the
grounds that they are unable to contract or manage their own affairs
within the meaning of ATF's current regulatory definition.
Regardless of the size of the affected population, they would
realize the proposed amendment's qualitative benefits in three ways.
First, and most broadly, the proposed rule would prevent persons from
losing their Second Amendment rights based solely on a determination
that they have certain narrow functional limitations. This expected
benefit is impossible to quantify or monetize but can certainly be
deemed valuable to an unknown proportion of current or prospective gun
owners who would otherwise qualify as ``adjudicated as a mental
defective,'' as well as persons who already have lost their firearms
rights on this basis under the existing definition.
Second, veterans in the affected population would realize a benefit
because the proposed amendments would enable the VA to fully assess
whether a veteran requires a fiduciary to
[[Page 25181]]
assist with financial matters without fear of negatively impacting a
veteran's Second Amendment rights. Additionally, such a change would
allow a veteran to seek needed assistance from the VA without fear of
permanently losing firearms rights, and would therefore potentially
increase veterans' willingness to be treated. That would ostensibly
improve their quality of life and that of their families who may depend
on their proper treatment. Similar benefits would accrue to non-
veterans who have had a fiduciary appointed for financial matters, but
who are otherwise able to act responsibly and manage other aspects of
their life.
Third, ATF expects the proposed rule would benefit certain at risk
or vulnerable persons affected by the current regulatory definition, as
it would obviate the collateral processes those persons encounter if
they are deemed to be prohibited. Because individuals who have been
appointed a fiduciary solely to assist with managing their financial
affairs or who have been appointed a temporary guardian due to a
temporary physical condition would no longer be considered
``adjudicated as a mental defective'' under the proposed rule, they
would be spared the financial burden of later applying for relief from
disability under 18 U.S.C. 925(c) or a qualified state relief
program,\39\ or otherwise going through a cumbersome process of having
their records updated and removed from NICS once they recover from
their temporary physical condition or no longer have a fiduciary to
manage their financial affairs. Thus, this third benefit would
constitute both a qualitative benefit as well as a quantitative cost
savings. In its recent proposed rule titled ``Application for Relief
From Disabilities Imposed by Federal Laws with Respect to the
Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession
of Firearms,'' 90 FR 34394 (July 22, 2025), the Department proposed a
new relief from disabilities process. The Department estimated that,
under this new process, applying for relief from a firearms disability
will take approximately 60 minutes.
---------------------------------------------------------------------------
\39\ See ATF, List of States with a Qualifying Relief of
Disability Program, <a href="https://www.atf.gov/media/21166/download">https://www.atf.gov/media/21166/download</a>
[<a href="https://perma.cc/GHQ3-9N7H">https://perma.cc/GHQ3-9N7H</a>)].
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Because affected individuals falling under ATF's current definition
of ``adjudicated as a mental defective'' would likely apply for relief
from disability in their personal capacity, ATF estimates that the
opportunity cost of applying for relief under section 925(c) would be
based on the value of their free time or ``leisure time.'' ATF
calculated the monetized value of that time using a standard leisure
wage formula. For an applicant's rate calculation, ATF relied on a
methodology developed by the Department of Health and Human Services
(``HHS'') \40\ for calculating the hourly leisure wage. Because HHS's
methodology relies on Bureau of Labor Statistics (``BLS'') data that is
updated monthly, we did not need to use an inflation-adjusted wage
rate.
---------------------------------------------------------------------------
\40\ U.S. Department of Health and Human Servs., Valuing Time in
the U.S. Department of Health and Human Services Regulatory Impact
Analyses: Conceptual Framework and Best Practices, at 40-41 (June
2017), <a href="https://aspe.hhs.gov/sites/default/files/private/pdf/257746/VOT.pdf">https://aspe.hhs.gov/sites/default/files/private/pdf/257746/VOT.pdf</a> (last visited April 29, 2026).
---------------------------------------------------------------------------
Accordingly, consistent with HHS's methodology, ATF used the BLS
median weekly income for full-time employees as the base for
calculating the hourly leisure wage. Based on this methodology, ATF
attributes a rounded value of $23 per hour for time spent by
respondents completing the application form. Because ATF does not have
data on the actual size of the affected population, ATF provides the
following cost savings estimate as an illustrative case. If, for
example, 10 percent of the approximately 74,000 individuals in the
accumulated set of VA records submitted to NICS were prohibited because
they had a fiduciary appointed solely to assist with managing their
financial affairs or were placed in a temporary guardianship due to a
temporary physical condition, and these veterans accordingly had to
later apply for relief from firearms disability under 18 U.S.C. 925(c),
that would be 7,400 veterans. This set of potentially affected persons
would currently accrue a total of $170,200 in monetized time burden
($23/hour * 1 hour * 7,400), which they would then save due to this
proposed rule.
In addition, the Department's proposed rule would require a $20
per-application fee to fully self-sustain the first year of the new
relief program's operation.\41\ As a result, assuming the Department
imposes this fee and all 7,400 potential applicants would have paid it
in the future, this would result in an additional future cost of
$148,000 in the first year that these potential applicants would save
due to ATF's proposed rule. Therefore, ATF estimates the total annual
costs saved (or quantifiable benefits) in the first year of this
proposed rule at $318,200. In reality, the costs saved could be greater
because ATF's estimate does not encompass the entire population
affected by the proposed rule, and instead is based only on data
pertaining to veterans.
---------------------------------------------------------------------------
\41\ 90 FR 34399.
---------------------------------------------------------------------------
ATF welcomes public comments on the population that might be
affected by the changes in this proposed rule; the quantifiable savings
that would result from a reduction in requests for relief from
disability; and the savings that members of the affected population
would realize over time.
3. Costs
Potential Public Safety Risks of the Proposed Rule
In addition to the benefits discussed above, ATF estimates the
proposed rule would also generate potential qualitative costs to the
public. The primary cost that ATF's proposed rule would introduce is an
increase in public safety risk. This could stem from persons who are
currently prohibited from acquiring firearms on the basis of narrow
functional limitations and happen to pose a danger to themselves or
others, but who may not have been evaluated on this second basis. Under
the proposed rule, however, this subset of possibly dangerous persons
would no longer necessarily be prohibited possessors. Nor does this
proposed rule require these persons, who are potentially suffering from
mental illnesses or other conditions affecting their competency, to
then undergo a mental health evaluation to determine if they can safely
handle firearms and thus automatically have their ability to purchase
firearms restored. The only way this subset of persons would be
prevented from acquiring firearms under this proposed rule is if they
are determined to fall into one of the specific categories laid out in
the proposed rule--a determination which might not be within the
relevant authority's remit to make even if the case supports such a
finding--or if they somehow independently meet one of the other
prohibited possessor categories under the GCA. In particular, under
ATF's proposed realignment of certain elements of the current
definition of ``adjudicated as a mental defective,'' a finding that a
person poses a danger to themselves or others is not independently
sufficient to prevent them from possessing firearms. Instead, the
proposed rule would raise the threshold for which persons are
adjudicated as mentally deficient or are formally and involuntarily
committed to a mental institution. As a result, some portion of these
dangerous persons, although adjudicated or committed, would no longer
be prohibited. ATF acknowledges that, while adjudications appointing a
fiduciary or limited
[[Page 25182]]
guardian do not typically address whether a person presents a danger to
themselves or others, an unknown-but-greater-than-zero percentage of
persons who require these forms of assistance also do pose a danger to
themselves or others. Currently, even if the relevant lawful authority
does not specifically adjudicate on that topic, such persons are not
able to acquire firearms after their adjudication and thus do not pose
a risk to public safety in that manner.
This public safety cost would be experienced by the general public
in addition to members of the affected population itself (i.e., those
who would no longer be subject to the firearms restriction as a result
of the proposed rule). This risk may be minimal, or may be considerably
greater (up to and including potential mass casualty events), based
upon the strength of state and federal processes regarding guardianship
and involuntary commitment.
ATF welcomes public comment on the degree to which persons
currently prohibited from possessing firearms under the baseline
criterion of those ``lack[ing] the mental capacity to contract or
manage [their] own affairs'' may pose a danger to themselves or others.
As discussed, this affected population would no longer be prohibited
from possessing firearms under the proposed rule unless they were
involuntarily committed, found permanently incompetent to stand trial,
or had a guardian appointed due to a severe permanent mental illness or
``intellectual disability'' as defined by the proposed rule.
The primary driver of the potentially increased public safety risk
is the specific definitional change as proposed. While the existing
definition may be overinclusive and onerous for those affected, ATF's
proposed solution runs the risk of overcorrecting in the opposite
direction and allowing relief to a greater segment of the affected
population than warranted, given the scarcity of the data. Restricting
individuals' Second Amendment rights based on the fact that they are
unable to manage their VA benefits or other financial affairs may
incorrectly assume that the individual poses some physical threat or
possesses subnormal intelligence, without any specific finding by a
judicial or other competent authority on those questions. However, the
correction that ATF proposes--amending the definition of ``adjudicated
as a mental defective'' to eliminate the prong on ``lack[ing] the
mental capacity to contract or manage his own affairs'' as a result of
marked subnormal intelligence, mental illness, incompetency, condition,
or disease--could exclude individuals (veterans and non-veterans alike)
who are now captured by that prong and indeed pose a danger to
themselves or to others.
ATF is proposing to amend the definition by instead requiring a
finding by a competent, independent authority that the individual
substantially lacks mental capacity in general. This change would
require that an adjudication affecting Second Amendment rights be tied
to a specific finding that a person has an intellectual disability or
mental condition of substantial severity, such that it would be likely
to affect their ability to safely handle firearms.
Therefore, for instance, the proposed rule would default most, if
not all, persons assigned fiduciaries by the VA (e.g., a large segment
of the VA's NICS Indices section 922(g)(4) entries) as not being
prohibited from owning and handing firearms on that basis, even though
some members of this pool could potentially be dangerous. Overall,
under the proposed rule persons who are adjudicated as requiring
assistance with their financial affairs would be able to possess or
acquire firearms. This would occur whether the persons are veterans or
non-veterans, unless there is a finding by a competent authority that
they exhibit severe limits to their mental capacity indicating they
lack the ability to safely handle firearms. There is a lack of
naturally occurring interface between this population and authorities
who could assess their total mental state under procedures that meet
the conditions of the proposed rule. As a result, ATF recognizes this
arrangement may be overbroad in its application and may result in
persons, whom the statute intended to be prohibited, obtaining and
potentially using firearms to harm themselves or others.\42\
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\42\ For example, suicide is among the leading causes of death
in the U.S., with almost 50,000 Americans each year dying by
suicide. More than 70 percent of suicides by veterans use a firearm,
while that figure is about 50 percent for the overall U.S.
population. Given that this population is at risk, narrowing the
prohibition and allowing automatic restoration of firearms across
the board could have a negative impact on this group and other
similarly at-risk groups.
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Potential Costs to States or Other Entities That Submit Records to
NICS, and Soliciting Public Comments on Such Costs
As mentioned above, the FBI established the NICS system and now
manages it. 28 CFR 25.5(a). FBI regulations provide that each data
source that submits to NICS is ``responsible for ensuring the accuracy
and validity of the data it provides to the NICS Index,'' and further
require each source to ``immediately correct any record determined to
be invalid or incorrect.'' Id. at Sec. 25.5(b). While federal agencies
are required to provide their relevant records to the NICS Indices,
states submit theirs on a voluntary basis. Id. at Sec. 25.4. Thus,
states or other sources that submit records to the NICS Indices are
responsible for maintaining the accuracy of the records they provide.
Participating states and other sources already incur costs, such as
paying employees and maintaining systems, to fulfill this
responsibility. These are sunk costs.
Many states have a unified court system such that, if mental health
information meeting the criteria for section 922(g)(4) is entered into
the system, it is automatically sent to the NICS Indices. To comply
with this proposed rule, states may need to review their previous NICS
Indices entries because records previously submitted to NICS may not
include language establishing that a person has a qualifying
intellectual disability or mental health issue warranting guardianship,
or that they otherwise meet the section 922(g)(4) criteria under ATF's
proposed revised definition. The extent to which previous entries would
no longer be accurate under the proposed rule will vary from state to
state. Records may need to be reviewed for lack of information because
such information was not collected initially, even if, in reality,
facts exist that would satisfy the section 922(g)(4) regulatory
definitions as revised. Further, state proceedings may need to be
reviewed to confirm that they fall within the proposed revised
definition of ``adjudicated.'' Some states may be able to perform this
review expeditiously, while other states may need additional time or
resources to review section 922(g)(4) records for accuracy under the
proposed rule's new criteria. States might also need to review for
compliance with the proposed rule any records that are appealed through
a qualified state relief program. This review process would be a one-
time cost to comply with this rule. Nevertheless, ATF does not believe
that this one-time cost that states and other sources may incur would
be substantial, as they would be unlikely to hire additional personnel
and the cost of maintaining records is a sunk cost since it is a part
of states' responsibility when submitting records to NICS.
However, ATF does not currently have sufficient information to
understand the scope of how each state or other source may deal with
extra work that would result should this definitional change go into
effect. ATF
[[Page 25183]]
is thus seeking public comment and information from states and other
sources on:
<bullet> The identities of the NICS Indices sources, such as
whether they are state agencies, local governments, federal agencies,
etc.; the scale and scope of these sources' records submissions to
NICS, especially section 922(g)(4) records; and similar information for
context;
<bullet> Whether the state or other source anticipates that their
records submissions--including their processes for submitting records--
would have to change as a result of implementing this proposed rule,
and, if so, in what ways or for what types of tasks. ATF requests
details and supporting data or bases for these estimates so it can
understand how processes, personnel, and systems might be impacted, and
to what extent;
<bullet> What the state or other source anticipates the additional
monthly or yearly cost in time or other expenses would be to come into
compliance with the proposed rule, and for how long, with supporting
data or bases for the estimate;
<bullet> Whether the state or other source currently utilizes any
automated systems to review records, how those systems or processes
work, and how they would need to change;
<bullet> Whether a state source receives federal grants for its
NICS submission processes and records, whether those grants would
include the transitional costs to implement this rule, and if not, the
extent of the anticipated shortfall;
<bullet> Any other changes the state or other source would need to
make to their records systems or processes and the costs they might
incur as a result, with details and supporting data or bases, so that
ATF can understand the anticipated impact of this proposed rule.
4. Regulatory Alternatives
ATF considered six alternatives: (1) continuing the status quo
without changing the existing regulatory definitions; (2) issuing
guidance to NICS and others who enforce sections 922(g)(4) and (d)(4);
(3) proposing a rule clarifying only that VA incompetency
determinations are not adjudications of mental defectiveness; (4)
proposing a rule providing that the appointment of a fiduciary or
guardian does not qualify as an adjudication of mental defectiveness
absent a finding of dangerousness; (5) requiring affirmative clearance
for certain persons to handle firearms; or (6) revising the existing
regulation in the manner described in this proposed rule.
Option 1: Continuing the Status Quo
This is also known as the no-action alternative, which ATF
considered. However, ATF believes that the existing definition of
``adjudicated as a mental defective'' is unnecessarily broad because it
has been interpreted to restrict Second Amendment rights based on
solely on a determination that a person lacks the ability to manage
certain personal or financial affairs. ATF deemed this interpretation
to be a qualitative burden on the public. As a result, ATF determined
that it must take some action to resolve these issues.
Option 2: Guidance
ATF considered issuing guidance to relevant components and
stakeholders (e.g., to FBI's NICS), that would set out updated
enforcement practices and would inform them that the appointment of a
fiduciary is insufficient to trigger the statutory prohibition in
sections 922(g)(4) and (d)(4). The contemplated guidance would request
that the components adjust their internal enforcement practices to
align with ATF's revised interpretation. ATF believes providing
guidance to the other components is an important option, especially in
the short term. ATF considers this to be a better option than issuing a
rulemaking insofar as it would inform other components of ATF's views
sooner, enabling them to begin adjusting their internal guidance and
practices much more quickly than if they had to wait for a regulatory
change. Guidance would also contain more detailed information and
explanations than would be appropriate in a regulation.
However, because ATF explicitly stated in the 1997 final rule that
the VA had correctly interpreted ATF's definition of ``adjudicated as a
mental defective'' to mean that persons found incompetent under the
VA's 38 CFR 3.353 provision will be considered to meet the definition,
ATF determined that guidance was an insufficient replacement for a
rulemaking to revise ATF's official interpretation of the term.
Moreover, as there are various sources of records to NICS, information
provided in guidance to the usually-targeted stakeholders, described
above, may not reach all the necessary parties. By contrast, formal
rulemaking allows ATF to ensure that all involved parties are made
aware of these changes, so there is consistent implementation of
section 922(g)(4). The notice of proposed rulemaking also helps to
solicit information from the public regarding the questions ATF
presented in the preamble so that ATF may provide more clarification in
the final rule regarding the difference between the ``adjudicated as a
mental defective'' and ``committed to a mental institution'' prongs of
the statute. If ATF merely issued guidance, its interpretation of
sections 922(g)(4) and (d)(4) could not benefit from commenters'
knowledge on these issues.
Option 3: Rulemaking To Alter the Weight of VA Processes
ATF considered proposing a rule stating only that VA proceedings
would not satisfy the statute for purposes of the ``adjudicated as a
mental defective prong,'' rather than a broader rule removing the
``lacks the mental capacity to contract or manage his own affairs''
provision from that definition, among other changes. That option would
achieve a similar result as the proposed alternative. However, ATF is
concerned that there are other competency procedures beyond those
conducted by the VA that would not have been captured by this approach,
yet should not suffice to make someone ``adjudicated as a mental
defective'' under the correct understanding of that phrase. ATF thus
rejected this alternative.
Option 4: Rulemaking To Require a Finding of Dangerousness
ATF also considered an alternative to correct the issues related to
veterans and similarly situated non-veterans by simply amending the
definition of ``adjudicated as a mental defective'' to make clear that
the appointment of a guardian or fiduciary alone is insufficient to
trigger that prong. Instead, ATF would have clarified that, to qualify
under section 922(g)(4) on that basis, persons would have to have
undergone a proceeding where they were found to be a danger to
themselves or others. This would better limit the fiduciary trigger to
persons who pose a public risk, and would not capture those who should
otherwise not have their firearms rights affected. However, this
alternative ultimately was not advanced over the proposed rulemaking
because ATF determined that there are some individuals who suffer from
an intellectual disability severe enough that they are incapable of
safely handling firearms, even if they are not formally found to be
dangerous to themselves or others. Thus, ATF determined that a person
placed in a guardianship on the basis of demonstrating substantial
intellectual deficits or as a result of mental illness should also
trigger the ``adjudicated as a mental defective'' prong of section
922(g)(4).
[[Page 25184]]
Option 5: Rulemaking To Require Positive Clearance To Handle Firearms
This alternative to the proposed rule would have required that
persons who lack the capacity to manage their own affairs and are
appointed fiduciaries would continue to be deemed mental defectives
unless an adjudicating authority also makes a specific finding or
determination that these persons do not have an intellectual disability
or mental condition that affects their ability to safely handle
firearms. Should the VA, or any other court, board, commission, or
other lawful authority determine that a person with an assigned
fiduciary is not a danger to themselves or society in general, and is
capable of safely handling firearms, the prohibition on receiving or
possessing firearms would not apply even though the person might need a
fiduciary or guardian for other purposes. This option was not
ultimately advanced over the proposed rulemaking because it is not
clear how lawful authorities would retroactively make such findings as
to persons who have been previously deemed to require such assistance.
ATF thus determined this option did not address its overarching
concerns about existing infringements of constitutional rights.
Option 6: Rulemaking Proposing Default Clearance To Handle Firearms
(Proposed Rule)
ATF also considered the option of defaulting in the other
direction, which means that all persons who have an adjudication solely
appointing a fiduciary or guardian are automatically deemed to still
have the capacity to safely handle firearms unless they fall into one
of the specific categories described by the proposed rule. ATF selected
this option and determined that, as noted above, the rulemaking as
proposed is necessary to revise the broader definition of ``adjudicated
as a mental defective'' contained in the current regulation. Revising
the definition so that it does not cover individuals solely because
they have been assigned fiduciaries or temporary guardians reduces
hardship on the affected population. ATF's proposal would require that
an adjudication affecting Second Amendment rights be tied to a specific
finding that a person has an intellectual disability or mental
condition of such severity that ATF believes it would be likely to
permanently affect their ability to safely handle firearms. ATF also
believes that certain minimum procedural standards must be satisfied
before a person's Second Amendment rights are affected, and thus the
proposed rule establishes certain procedural requirements for a
qualifying adjudication under sections 922(g)(4) and (d)(4). As
discussed in the preamble, ATF believes that this interpretation of
``adjudicated'' adheres more faithfully to the text of the GCA and the
congressional purpose underlying it. Additionally, this proposed rule
clarifies the definition of ``committed to a mental institution'' by
listing various types of qualifying commitments and reinforcing ATF's
longstanding position that a commitment must be formal and involuntary
to qualify.
B. Executive Order 14192
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
requires an agency, unless prohibited by law, to identify at least ten
existing regulations to be repealed or revised when the agency publicly
proposes for notice and comment or otherwise promulgates a new
regulation that qualifies as an Executive Order 14192 regulatory action
(defined in OMB Memorandum M-25-20 as a final significant regulatory
action under section 3(f) of Executive Order 12866 that imposes total
costs greater than zero). In furtherance of this requirement, section
3(c) of Executive Order 14192 requires that any new incremental costs
associated with such new regulations must, to the extent permitted by
law, also be offset by eliminating existing costs associated with at
least ten prior regulations. This rule as proposed would be a
significant regulatory action as defined by Executive Order 12866.
However, because the economic impact would not impose costs greater
than zero, this proposed rule would not be an Executive Order 14192
regulatory action. This proposed rule revises the definition of a
current firearms prohibition to reduce the number of persons
inadvertently covered by the definition outside the statutorily
intended scope. ATF therefore expects this proposed rule, if finalized
as proposed, to qualify as an Executive Order 14192 deregulatory action
(defined by OMB Memorandum M-25-20 as a final action that imposes total
costs less than zero). As discussed in detail in section III.A.3 of
this preamble, ATF anticipates that some states and other sources of
NICS records might have to expend time to review and cull existing
section 922(g)(4) records they have submitted and adjust their
processes to ensure they do not submit records in the future that would
not comply with this proposed rule. However, ATF believes that the
costs that submitting organizations incur for these purposes would not
go up for most, as they are sunk costs. Therefore, ATF is soliciting
public comments on these topics and may revise its Executive Order
14192 assessment as a result.
C. Executive Order 14294
Executive Order 14294 (Fighting Overcriminalization in Federal
Regulations) requires agencies promulgating regulations with criminal
regulatory offenses potentially subject to criminal enforcement to
explicitly describe the conduct subject to criminal enforcement, the
authorizing statutes, and the mens rea standard applicable to each
element of those offenses. This proposed rule would not create a
criminal regulatory offense and is thus exempt from Executive Order
14294 requirements.
D. Executive Order 13132
As far as ATF is able to ascertain at this point, this proposed
rule would not have substantial direct effects on the states, the
relationship between the federal government and the states, or the
distribution of power and responsibilities among the various levels of
government. ATF believes that the costs that states and other sources
incur to submit records to NICS or review already-submitted records
would not go up for most sources, as the costs to review and maintain
systems are sunk costs. However, ATF does not know the specific aspects
of every single state or other source's records-submission and review
systems and processes or how each one might change. ATF also lacks
other relevant context, such as the extent to which these systems
receive federal grants, etc. Therefore, ATF is soliciting public
comments on these topics and may revise its federalism assessment as a
result. Please see section III.A.3 of this preamble for a detailed
discussion on this topic.
In accordance with section 6 of Executive Order 13132 (Federalism),
the Director has determined that this proposed rule could impose
substantial direct compliance costs on state and local governments,
preempt state law, or meaningfully implicate federalism. However,
unless ATF receives data from public comments that supports a
federalism impact, the information ATF currently has does not warrant
preparing a federalism summary impact statement.
E. Executive Order 12988
This proposed rule meets the applicable standards set forth in
[[Page 25185]]
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice
Reform).
F. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612,
agencies are required to conduct a regulatory flexibility analysis of
any proposed rule subject to notice-and-comment rulemaking requirements
unless the agency head certifies, including a statement of the factual
basis, that the proposed rule would not have a significant economic
impact on a substantial number of small entities. Small entities
include certain small businesses, small not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
The Director certifies, after consideration, that as far as ATF is
currently able to ascertain, this proposed rule would not have a
significant economic impact on a substantial number of small entities,
as defined above. This rule would not impose any additional costs on
small businesses or small not-for-profit organizations. However, it is
possible that this rule could have a significant economic impact on
small governmental jurisdictions with populations of less than 50,000
that might submit records to NICS. Therefore, ATF is soliciting public
comments to aid it in assessing this possibility and may revise its
assessment as a result. Please see section III.A.3 of this preamble for
a detailed discussion on this topic.
G. Unfunded Mandates Reform Act of 1995
As far as ATF is able to ascertain at this point, this proposed
rule would not include a federal mandate that might result in the
expenditure by state, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year, and
it would not significantly or uniquely affect small governments. ATF
believes that the costs that states and other sources incur to submit
records to NICS or review already-submitted records would not go up for
most sources, as the costs to review and maintain systems are sunk
costs. However, ATF does not know the specific aspects of every single
state or other source's records-submission and review processes or
systems or how each one might change. ATF also lacks other relevant
context, such as the extent to which these systems receive federal
grants, etc. Therefore, ATF is soliciting public comments on these
topics and may revise its unfunded mandate assessment as a result.
Please see section III.A.3 of this preamble for a detailed discussion
on this topic. ATF has determined that no actions are currently
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, but that some might become necessary based on public input.
H. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (``PRA''), 44 U.S.C.
3501-3521, agencies are required to submit to OMB, for review and
approval, any information collection requirements a rule creates or any
impacts it has on existing information collections. An information
collection includes any reporting, record-keeping, monitoring, posting,
labeling, or other similar actions an agency requires of the public.
See 5 CFR 1320.3(c). This proposed rule would not create any new
information collection requirements or impact any existing ones covered
by the PRA.
IV. Public Participation
A. Comments Sought
ATF requests comments on the proposed rule from all interested
persons. ATF specifically requests comments on the clarity of this
proposed rule and how it may be made easier to understand, as well as
on ATF's proposal regarding moving certain components of the
``adjudicated as a mental defective'' definition to the definition of
``committed to a mental institution.'' As discussed throughout section
II of this preamble, ATF seeks comment on:
<bullet> The public meaning of ``mental defective'' in 1968.
<bullet> Whether the reorganization proposed in this rule would
have any adverse impact on public safety.
<bullet> Whether there are jurisdictions where individuals may be
found not guilty by reason of insanity or found in a proceeding to be a
danger to themselves or others without being committed to a mental
institution as proposed by the definition.
<bullet> Whether the reorganization as proposed in this rule would
permit other mentally unstable persons to acquire firearms who could
not do so today.
<bullet> Whether individuals in the following three categories are
more properly understood to be prohibited on the basis of having been
involuntarily committed than having been adjudicated as mental
defectives. The three categories are: (1) individuals found to be a
danger to themselves or others; (2) individuals found insane in a
criminal case; and (3) individuals found incompetent to stand trial or
found not guilty by reason of lack of mental responsibility under the
UCMJ.
<bullet> Whether there are any jurisdictions that permit
potentially incompetent persons from undergoing guardianship or other
legal proceedings without either appointing counsel or a guardian ad
litem.
<bullet> Whether any jurisdictions permit competency or capacity
determinations to be made without hearings, including at the election
of the individual involved.
In addition, ATF requests comments on the costs or benefits of the
proposed rule and on the appropriate methodology and data for
calculating those costs and benefits. As discussed in section III.A.3
of this preamble, ATF seeks comment on:
<bullet> Additional data sources or proxies to further estimate the
population of individuals, veterans or otherwise, who have been deemed
mentally defective by a court, board, commission, or other lawful
authority solely because they possess a narrow functional limitation.
<bullet> Whether there is any additional information or comment on
the described affected population, i.e., persons currently prohibited
from possessing firearms under the baseline criterion of those
``lack[ing] the mental capacity to contract or manage [their] own
affairs,'' and the degree to which they may pose a danger to themselves
or others.
ATF also seeks comment and information on potential costs to states
and other sources related to maintaining and submitting records to
NICS. Please see section III.A.3 of this preamble for a detailed
discussion of this topic.
All comments must reference this document's RIN 1140-AB04 and, if
handwritten, must be legible. If submitting by mail, you must also
include your complete first and last name and contact information. If
submitting a comment through the federal e-rulemaking portal, as
described in section IV.C of this preamble, you should carefully review
and follow the website's instructions on submitting comments. Whether
you submit comments online or by mail, ATF will post them online. If
submitting online as an individual, any information you provide in the
online fields for city, state, zip code, and phone will not be publicly
viewable when ATF publishes the comment on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
However, if you include such personally identifying information (PII)
in the body of your online comment, it may be posted and viewable
online. Similarly, if you
[[Page 25186]]
submit a written comment with PII in the body of the comment, it may be
posted and viewable online. Therefore, all commenters should review
section IV.B of this preamble, ``Confidentiality,'' regarding how to
submit PII if you do not want it published online. ATF may not
consider, or respond to, comments that do not meet these requirements
or comments containing excessive profanity. ATF will retain comments
containing excessive profanity as part of this rulemaking's
administrative record but will not publish such documents on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. ATF will treat all comments as originals and will
not acknowledge receipt of comments. In addition, if ATF cannot read
your comment due to handwriting or technical difficulties and cannot
contact you for clarification, ATF may not be able to consider your
comment.
ATF will carefully consider all comments, as appropriate, received
on or before the closing date.
B. Confidentiality
ATF will make all comments meeting the requirements of this
section, whether submitted electronically or on paper, and except as
provided below, available for public viewing on the internet through
the federal e-rulemaking portal, and subject to the Freedom of
Information Act (5 U.S.C. 552). Commenters who submit by mail and who
do not want their name or other PII posted on the internet should
submit their comments with a separate cover sheet containing their PII.
The separate cover sheet should be marked with ``CUI//PRVCY'' at the
top to identify it as protected PII under the Privacy Act. Both the
cover sheet and comment must reference RIN 1140-AB04. For comments
submitted by mail, information contained on the cover sheet will not
appear when posted on the internet, but any PII that appears within the
body of a comment will not be redacted by ATF and may appear on the
internet. Similarly, commenters who submit through the federal e-
rulemaking portal and who do not want any of their PII posted on the
internet should omit such PII from the body of their comment and any
uploaded attachments. However, PII entered into the online fields
designated for name, email, and other contact information will not be
posted or viewable online.
A commenter may submit to ATF information identified as proprietary
or confidential business information by mail. To request that ATF
handle this information as controlled unclassified information
(``CUI''), the commenter must place any portion of a comment that is
proprietary or confidential business information under law or
regulation on pages separate from the balance of the comment, with each
page prominently marked ``CUI//PROPIN'' at the top of the page.
ATF will not make proprietary or confidential business information
submitted in compliance with these instructions available when
disclosing the comments that it receives but will disclose that the
commenter provided proprietary or confidential business information
that ATF is holding in a separate file to which the public does not
have access. If ATF receives a request to examine or copy this
information, it will treat it as any other request under the Freedom of
Information Act (5 U.S.C. 552). In addition, ATF will disclose such
proprietary or confidential business information to the extent required
by other legal process.
C. Submitting Comments
Submit comments using either of the two methods described below
(but do not submit the same comment multiple times or by more than one
method). Hand-delivered comments will not be accepted.
<bullet> Federal e-rulemaking portal: ATF recommends that you
submit your comments to ATF via the federal e-rulemaking portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the instructions. Comments will
be posted within a few days of being submitted. However, if large
volumes of comments are being processed simultaneously, your comment
may not be viewable for up to several weeks. Please keep the comment
tracking number that is provided after you have successfully uploaded
your comment.
<bullet> Mail: Send written comments to the address listed in the
ADDRESSES section of this document. Written comments must appear in
minimum 12-point font size, include the commenter's first and last name
and full mailing address, and may be of any length. See also section
IV.B of this preamble, ``Confidentiality.''
D. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director within the 90-day comment period. The Director, however,
reserves the right to determine, in light of all circumstances, whether
a public hearing is necessary.
Disclosure
Copies of this proposed rule and the comments received in response
to it are available through the federal e-rulemaking portal, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search for RIN 1140-AB04).
Severability
Consistent with the Administrative Procedure Act, the issues raised
in this proposed rule may be finalized, or not, independently of each
other, after consideration of comments received. ATF has determined
that this proposed rule implements and is fully consistent with
governing law. However, in the event this proposed rule is finalized,
if any provision of that final rule, an amendment or revision made by
that rule, or the application of such provision or amendment or
revision to any person or circumstance, is held to be invalid or
unenforceable by its terms, the remainder of that final rule, the
amendments or revisions made by that rule, and application of the
provisions of the rule to any person or circumstance shall not be
affected and shall be construed so as to give them the maximum effect
permitted by law.
List of Subjects in 27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Exports,
Freight, Imports, Intergovernmental relations, Law enforcement
officers, Military personnel, Penalties, Reporting and record-keeping
requirements, Research, Seizures and forfeitures, Transportation.
For the reasons discussed in the preamble, ATF proposes to amend 27
CFR part 478 as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for part 478 continues to read as follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C.
3504(h).
0
2. Revise, in Sec. 478.11, the definitions of ``Adjudicated as a
mental defective'' and ``Committed to a mental institution'' to read as
follows:
Sec. 478.11 Meaning of terms.
* * * * *
Adjudicated as a mental defective.
(a) Definition. Individuals are adjudicated as a mental defective
if they have--
(1) Had a guardian appointed by a court, board, commission, or
other lawful authority because of an intellectual disability or mental
illness;
(2) Been found by a court, board, commission, or other lawful
authority to have a permanent physical condition, such as dementia,
provided the individuals have reached the functional capability
equivalent to that of a person
[[Page 25187]]
with an intellectual disability and have had a guardian appointed; or
(3) Been found by a court (or by the convening authority in a
court-martial) to be incompetent to stand trial based on a mental
disease or defect where there is no reasonable possibility of restoring
competence.
(b) Intellectual disability.
(1) An intellectual disability exists when an individual has a
full-scale IQ score of 45 or below. An intellectual disability also
exists when a person has a full-scale IQ score of less than 69 and has
limitations in multiple adaptive functioning domains such that the
individual is incapable of living independently.
(2) In proceedings where there is no finding of intellectual
disability using the precise criteria described in paragraph (b)(1), an
intellectual disability exists if the adjudicator makes findings that
the individual has cognitive and functional deficits that would be
equal to or greater than those described in paragraph (b)(1) of this
section.
(3) An intellectual disability does not exist solely because an
individual has had a temporary guardian appointed due to a transient
physical disability or because an individual has had a fiduciary
appointed solely to assist with managing their financial affairs.
(c) Adjudication. For purposes of this definition, an
``adjudication'' occurs when a court, board, commission, or other
lawful authority has provided individuals about whom the authority is
making a determination with:
(1) An in-person or remote hearing before an unbiased adjudicator;
(2) An opportunity to hear opposing evidence, to present evidence,
and to confront adverse witnesses;
(3) Permission to be represented by counsel;
(4) An appointed counsel or guardian ad litem when there are
reasonable grounds to believe that individuals lack sufficient mental
competency to represent themselves or act in their own defense;
(5) Adequate notice of the hearing; and
(6) In a civil proceeding, a burden of proof based on at least
clear and convincing evidence.
* * * * *
Committed to a mental institution.
(a) Definition. A formal and involuntary commitment of a person to
a mental institution by a court, board, commission, or other lawful
authority.
(b) Included types. The term includes the following types of
commitments to a mental institution:
(1) Commitments resulting from determinations that individuals are
a danger to themselves or others based upon mental disease or defect;
(2) Commitments resulting from other reasons, such as for drug use;
(3) Commitments resulting from a verdict of insanity by a court in
a criminal case;
(4) Commitments resulting from a verdict of not guilty by reason of
lack of mental responsibility pursuant to article 50a of the Uniform
Code of Military Justice;
(5) Commitments resulting from a person being found incompetent to
stand trial under article 72b of the Uniform Code of Military Justice;
and
(6) Commitments resulting from a determination that a person is
incompetent to stand trial in a civilian criminal case, if the basis
for that determination is a mental disease or defect.
(c) Not included. The term does not include a person in a mental
institution for observation or a voluntary admission to a mental
institution.
Robert Cekada,
Director.
[FR Doc. 2026-09156 Filed 5-7-26; 8:45 am]
BILLING CODE 4410-FY-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.