RICHMOND, Va. – Virginia's governor said Tuesday he may be able to close the loophole that allowed a mentally disturbed Virginia Tech student to acquire the guns he used to kill 32 classmates and faculty last week.
Gov. Timothy M. Kaine said in a radio interview that changes in the reporting of people a court has ruled have mental problems into a background check database might be possible with an executive order.
Seung-Hui Cho had been ordered by a court to undergo psychiatric counseling after he was ruled to present a danger to himself.
But because Cho was treated as an outpatient and never committed to a mental health hospital, the court finding never made it into the database that federal law requires gun dealers to check before selling a firearm.
The law prohibits selling firearms to people judged to have mental disabilities.
Kaine said federal regulations on what must be reported about mental commitments by courts are vague, and their interpretations differ among states.
"Less than half of the states currently share information about mental health adjudication with the national database," Kaine said during an hourlong discussion of the Virginia Tech shooting on WTOP radio in Washington.
Though Virginia is among the most aggressive nationally in reporting such information, a civil order for Cho to undergo psychiatric evaluation was not entered into the database.
"We have been doing it, but in this case because he was not committed to an institution, that information was not given to the database, and that's one of the things that we're looking at very immediately," Kaine said.
An eight-member panel Kaine appointed to review last week's massacre will consider the issue over the next three months, he said. But Kaine said he is not inclined to wait that long.
"I don't know what the original thought was that we would report based on involuntary commitments ... but we wouldn't report based on orders to receive outpatient services. This is a very important issue and we're talking about it today and we're talking about it with the attorney general's office. Hopefully, we can administratively adjust that," he said.
Attorney General Bob McDonnell said lawyers are examining whether there's a way to address the disparity between the state and federal laws on background checks. But he's cautioned against a response by Congress that could infringe on Second Amendment gun ownership rights.
In response to follow-up questions after the broadcast, Kaine's spokesman, Kevin Hall, said the issue hinges on whether state or federal law compels a certain type of mental health finding to be incorporated in the database from which Virginia does its instant background checks for gun purchases.
If it does and Virginia has not been including it, the governor could, by an executive order, "explicitly instruct the State Police to comply with the law."
Administration officials, however, said it has not been determined whether the change can be made with a governor's decree or legislative action. The General Assembly does not reconvene in regular session again until January.