Restoration of Gun Rights and Measuring Individual Dangerousness
This guest post does not necessarily represent the views of the Duke Center for Firearms Law. This commentary is cross-posted on the Wyoming Firearms Research Center Forum.
In 2025, the Department of Justice has taken several steps to revive the long-dormant process for individuals and corporations to seek restoration of gun rights as provided in 18 U.S.C. § 925(c). This culminated in the July 2025 New Proposed Rule for Relief from Disabilities, which set forth detailed provisions about how the process would be implemented and who would be potentially eligible. The public comment period closed on October 20, and I expect a final rule to be published early next year. From the standpoint of administrative law, I expect the final rule to be reasonably similar to the proposed rule, perhaps with a few tweaks. Agencies cannot deviate too much from a proposed rule when they later publish the final rule after the public comment period (see, e.g., the Fourth Circuit’s 1985 decision in Chocolate Manufacturers Association v. Block; the Supreme Court also briefly discussed this “logical outgrowth” test in Long Island Care at Home v. Coke). If the final rule is too different, and someone challenges the rule in court on that basis, a court may invalidate the rule and order the agency to start over with the rulemaking process.
There is much to discuss about the DOJ’s proposed rule, but here I want to focus on mental health screenings for dangerousness or risk of violence. The proposed rule includes tentative numbering for codification in the Code of Federal Regulations, and I will use those in the following discussion.
Those who are forbidden from possessing firearms under 18 U.S.C. § 922(g)(4), due to being adjudicated to have a mental impairment or have previously been institutionalized for a mental health problem, must include in their application “a current certification from a licensed mental health professional that the applicant does not pose a danger to the community if permitted to possess a firearm,” among other documents, including medical records. (28 C.F.R. § 107.1(d)(4))
Moreover, in the provision labeled 28 C.F.R. § 107.1(d)(11)(iii)(D), every individual applicant (but not corporations) must submit affidavits from three references, attesting (among other things) that the applicant “is not currently suffering from a mental health condition that would impair the applicant's judgment or behavior.” In addition, every applicant must also affirm, under penalty of perjury, that the applicant “Is not currently suffering from a mental health condition that would impair the applicant's judgment or behavior;” and that the applicant “Would not pose a danger to public safety, to family members, or to intimate partners if permitted to possess a firearm.” (28 C.F.R. § 107.1(d)(12)(iv) and (vii)).
There are seemingly two subsections inadvertently lettered (d), and I assume the latter will be renumbered (e) in the final rule and subsequent codification. It sets forth factors the Attorney General may consider in evaluating an application, such as (in subsection 9) “the applicant's mental health, including any abnormal behaviors or mental health treatment.”
To recap, those who lost their gun rights under 922(g)(4) due to mental health issues must submit a licensed mental health professional’s certification that the individual poses no danger to the community if their gun rights are restored. Also, note the omission of suicide risk here – suicide risk is not mentioned once in the proposed rule, unfortunately, though one might argue that it is implied in the other requirements. And every applicant, regardless of the basis for firearms disability (such as convicted felons under 922(g)(1)), must submit affidavits from three references attesting to the absence of mental health issues, as well as the applicant’s affidavit along the same lines (no mental health issue impairing judgment, and no danger to others).
What would the healthcare provider’s certification look like? And given that the applicant’s mental health is an important consideration in granting relief, what could an applicant submit to reassure an examiner in the Office of the Pardon Attorney, which will be reviewing the applications? I explore some possibilities in the following paragraphs.
“Best Practices” for Existing Evaluation Tools: HCR-20v3 and PF-10
There are two leading rubrics in the mental health profession for assessing an individual’s risk of violence, and the risk of firearms misuse specifically: the widely used and widely-accepted HCR-20v3 for risk of violence in general, and the more bespoke PF-10 for firearms-specific evaluations. The HCR-20v3 is a comprehensive set of professional guidelines for assessment (and clinical treatment) of violence risk, and an example of what mental health professionals call a “structured professional judgment” (SPJ). The HCR-20v3 is currently the most widely adopted SPJ evaluation tool for assessing risk of violence. The PF-10 expressly incorporates HCR-20v3 as the sixth of 10 domains for assessment, but also includes many other factors, such as experience and training in firearm safety, previous experience with gun violence, knowledge about the laws and regulations pertaining to firearms and ammunition, and so on. In other words, the PF-10 builds on the HCR-20v3 and is more comprehensive and tailored to the risk of gun violence specifically.
I expect that many licensed mental health professionals, if asked to certify the gun-readiness of a patient for purposes of a petition to restore gun rights, will use one or the other of these, though the HCR-20v3 is more well-known. For all applicants, or for lawyers assisting a client with an application, seeking a PF-10 evaluation from a mental health professional could provide solid evidence of mental stability and non-dangerousness, which could help bolster the applicant’s own affirmations in this regard, and it could also help prospective references feel more comfortable vouching for an applicant’s mental health in their affidavits. In fact, I hope in the future the DOJ will require a PF-10 as part of an application, just to cover all the bases.
Forensic psychologists Gianni Pirelli and Sarah DeMarco developed the Pirelli Firearm‑10 (“PF‑10”) evaluation guide in recent years as a structured, firearm‑specific conceptual model, set forth in Pirelli’s coauthored books The Behavioral Science of Firearms: A Mental Health Perspective on Guns, Suicide, and Violence (2018) and Firearms and Clinical Practice (2022). The PF‑10’s purpose is to guide clinicians through ten domains relevant to firearm‑related risk, including firearm history, attitudes, mental health factors, and behavioral indicators. These domains reflect the unique intersection of mental health, legal compliance, and firearm‑specific behavior, factors that traditional violence‑risk tools may not directly address.
Application of the PF‑10 in Gun‑Rights Restoration Proceedings
The new restoration of firearm rights program will assess, along with other factors, whether a petitioner is likely to act in a manner dangerous to public safety and whether granting firearm access would be contrary to the public interest. Even the presumptively barred categories like homicide or sexual assault allow for theoretical exceptions if the petitioner can carry the heavy burden of showing exceptional circumstances and convincing evidence of non-dangerousness. More lenient categories like drug offenses under the five-year bar would still rely somewhat on evidence that the petitioner posed no danger to the community, though the burden is much lower. It seems likely that administrators reviewing petitions or courts reviewing denials of petitions would look for evidence of sustained stability, treatment adherence, insight, and long‑term behavioral change.
Because the PF‑10 is an SPJ model, it allows evaluators to synthesize a range of diverse clinical data, collateral information, and firearm‑specific behavioral evidence into a domain‑based analysis. In other words, there is room for professional judgment about how to weigh various factors that are present – it is not a rigid algorithm or a simple statistical “violence risk score.” In layperson’s terms, we might say that assessing the risk of gun violence for individuals is both an art and a science – more of a comprehensive, clinically grounded assessment than a narrow actuarial prediction. I think the PF-10 is a uniquely appropriate evaluation tool for restoration proceedings, where staff in the Office of the Pardon Attorney will either require or at least consider evidence of durable safety and rehabilitation. In cases where courts are reviewing denials of restoration petitions, I expect that judges will be looking for similar evidence. The PF-10’s structured format, reliance on established SPJ principles, and incorporation of empirically supported violence‑risk assessment make it likely to survive a Daubert challenge in court, and to be admissible as evidence under Rule 702.
Note that the PF-10 may be less useful for Extreme Risk Protection Order (ERPO) proceedings, because ERPO hearings operate under a different legal logic. ERPO laws are preventative, entirely forward-looking, and based on emergency situations: whether the individual poses an imminent and significant danger of misusing a firearm (hence, “extreme risk”). Such assessments are more focused on the short term, while gun rights restoration is a long-term proposition. Thus, I think the short-term ERPO assessments should probably focus on situational risk factors like recent threats, escalating behavior, substance‑related crises, or acute psychiatric symptoms. Evidence in ERPO hearings would more appropriately come from police reports (say, about responding to a call about a public disturbance), menacing social media posts by the individual, or testimony from alarmed family members.
Finally, it seems worthwhile to mention briefly a subsequent provision related to mental health--subsection (e) in the Proposed Rule (though likely to be renamed (f), as noted above). It provides:
In addition to meeting the requirements of paragraph (d) of this section, an applicant who has been adjudicated a mental defective or committed to a mental institution will not be granted relief unless the applicant was subsequently determined by a court, board, commission, or other lawful authority to have been restored to mental competency, to be no longer suffering from a mental disorder, and to have had all rights restored. Where an applicant was adjudicated a mental defective or committed to a mental institution in a state that has adopted a relief-from-disability program implemented in accordance with 34 U.S.C. § 40915, the state program shall be the exclusive means of relief, and the applicant may not obtain relief under this section.
The referenced statute provision, 34 U.S.C. § 40915, has long provided a path to gun rights restoration for those rendered ineligible by § 922(g)(4), but not for other sections of § 922(g). Congress enacted this provision as part of the NICS Improvement Amendments of 2007, and it allows state-level petitions for adjudication of mental fitness. A favorable mental health determination by a state court, board, or commission has the effect of negating a previous involuntary commitment or adjudication of mental impairment for purposes of firearms ineligibility under § 922(g)(4). The prior adjudication or commitment is then legally “deemed not to have occurred.” Thirty-three states and one territory have implemented a process for such petitions, and in those states, the Proposed Rule provides that “the state program shall be the exclusive means of relief, and the applicant may not obtain relief under this section.” This appears to render the AG’s new gun rights restoration program unavailable in most states (including FL, IL, NY, and TX, but not CA) to those disqualified under § 922(g)(4). At the same time, the types of mental health assessments discussed above would probably feature prominently as evidence in those proceedings.