A common theme in the past year regarding gun control has been mental health. The idea that we should restrict people who have “mental health issues” from owning firearms has been almost universally accepted, from the NRA to the Brady Campaign, and why not? It’s extremely difficult, if not impossible, to argue in favor of a dangerous person who has been adjudicated mentally ill being armed. It falls perfectly into the category of “common sense” restrictions. However, while I am not a mental health professional, it is in this author’s opinion that the term “mental health issues” as a basis for legislation is ripe for abuse.
The term “mental health issues” has a very large and nebulous definition. It’s a bit like the term “assault weapon”. What is an assault weapon? In the most literal sense, it is a weapon used while committing assault. That could be absolutely anything, from a firearm to a stick or even your fists. There is another, more specific term though: assault rifle. This is a rifle with the capability to go from safe, to semi-automatic, to fully automatic with the flip of a switch. As an example, an M16 used by our military fits the definition of an assault rifle. To own an M16 as a civilian is possible, yet it requires a very long and prohibitively expensive process. “Assault weapon” is a very vague term, and since the first assault weapon ban in 1994, the definition continues to expand to include more and more firearms based on cosmetic features. New York, California and Connecticut have expanded the definition substantially in just the past year.
Given that analogy, there is a very specific term in use that does make a person prohibited from owning a firearm. That term is “adjudicated mentally ill” or “adjudicated mentally incompetent”. To be adjudicated mentally ill or incompetent requires due process of the law. “The legal procedure for declaring a person incompetent consists of three steps: (1) a motion for a competency hearing, (2) a psychiatric or psychological evaluation, and (3) a competency hearing. Probate courts usually handle competency proceedings, which guarantee the allegedly incompetent person Due Process of Law. In Criminal Law a defendant’s mental competency may be questioned out of concern for the defendant’s welfare or for strategic legal reasons. The defense may request a competency hearing so that it can gather information to use in Plea Bargaining, to mitigate a sentence, or to prepare for a potential Insanity Defense. The prosecution may raise the issue as a preventive measure or to detain the defendant so that a weak case can be built into a stronger one.” This definition was taken from: http://legal-dictionary.thefreedictionary.com/Mental+Incompetency. According to question 11f on the ATF’s form 4473 (link to form 4473), which is the document one must fill out in order to purchase a firearm from a person or business that holds a Federal Firearm License, if you have been adjudicated “mentally defective/incompetent” then you are a prohibited person and may not purchase or possess a firearm.
The pertinent question to ask is this: what defines “mental health issues”? To be adjudicated mentally ill is well defined, codified and includes due process of law. “Mental health issues” has not been clearly defined and it covers a very large array possibilities. What are the standards to determine if someone has mental health issues that would turn them into a prohibited person? The obvious answer is people who have been diagnosed by a medical professional to be dangerous to themselves or society at large. That’s a pretty simple explanation. Then again, what if a seemingly healthy person is suffering from depression and admits to their doctor that they’ve had suicidal thoughts? Is this person to be considered mentally ill and a danger to themselves or others, simply because they have gone to their doctor asking for help in getting their life back on track? They could lose their right to keep and bear arms, simply for wanting help during a difficult time in their life. What about soldiers returning home from war that seek help for PTSD?
It’s possible for the definition of “mental health issues” to continue to expand to include more and more people, in the same way that gun control laws and the definition of “assault weapons” have expanded. This may prevent people who need help from seeking it, out of fear that they will lose their right to keep and bear arms. Isn’t that worse? For someone to knowingly want help and possibly need help, to avoid involving themselves in the system as it may have an impact on their civil rights could potentially have a severe impact. Threatening and punishing people for wanting help are not the answers we need.
Today, it is reasonable and logical to prevent people who have been adjudicated mentally ill from owning firearms. If a court says a person has to attend a mental health facility as an inpatient, it should be assumed that their 2nd Amendment rights will be restricted and, if a person is adjudicated in such a way, they can have a jury of their peers determine if the restrictions should be lifted. However, laws are currently being crafted that would expand that to outpatient treatment as well and, in Colorado, there is a law that is being debated on whether to remove that capability for a jury certification for either mental health or substance misuse. Once determined to be mentally ill (even if it isn’t accurate), a citizen may very well legally remain labeled so permanently, with no recourse for appeal. Read the bill here: HOUSE BILL 14-1253
The Speaker of the House of Representatives, John Boehner, agrees that those with mental health issues shouldn’t have guns. After the recent Fort Hood shooting, Speaker Boehner was quoted as saying “There’s no question that those with mental health issues should be prevented from owning weapons or being able to purchase weapons.” http://news.yahoo.com/why-does-john-boehner-want-keep-40-million-193629143.html. In hindsight, it’s hard to argue against the idea that the shooter at Fort Hood shouldn’t have had access to firearms. What about beforehand though? He was being treated for depression, anxiety and sleep disturbances. Are those signs that a person is dangerous and shouldn’t own firearms? There are many other people in America are being treated for depression and anxiety. Are they dangerous too? Should they all be prohibited persons?
The definition of “mental health issues” doesn’t necessarily have to come from legislation either. The Bureau of Alcohol, Tobacco, Firearms and Explosives, as well as Human Health Services are proposing changes to the definition of “mental health” in regard to Federal background checks for firearm transfers. In short, these executive departments could change the rules without any input from our own elected officials. They could do so unilaterally and without any redress. Read more: http://www.examiner.com/article/atf-and-hhs-propose-new-mental-health-background-check-gun-rules
The intentions of laws that address these issues in an attempt to reduce violent crime are good. The consequences of these laws are felt primarily by the law abiding though and may or may not have an effect on crime. Violent crime is at historic lows right now and firearm ownership is way up. Are the two correlated in some way, or is it coincidence? The fact is, crime is very complex and is affected by multiple factors. Mental health is also very complex and is constantly changing as professionals learn more. Consider this for a moment: homosexuality was once considered a mental health issue. Now apply that to the idea that people with “mental health issues” should be barred from owning firearms. It isn’t right, is it?
It’s easy for us as humans to seek a simple solution to prevent tragedies and having something tangible to point our finger at makes the solutions seem obvious. As citizens, lawmakers, judges, doctors and so on, we have to consider the law of unintended consequences. We have to think critically, rather than emotionally, about whom these types of laws will affect and what, if any, affect they will have on crime.