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Sunday, December 22, 2013

"When the Right to Bear Arms Includes the Mentally Ill"

So reads of the title of this article in the New York Times.  The Times notes that many states follow federal guidelines when it comes to restricting access to firearms to the mentally ill.  This means that in order for somebody to be barred from a firearms license, they need to be involuntarily committed or pronounced legally incompetent by a court.  This is a rare occurrence, which means:

As a result, the police often find themselves grappling with legal ambiguities when they encounter mentally unstable people with guns, unsure how far they can go in searching for and seizing firearms and then, in particular, how they should respond when the owners want them back.
The entire article goes into detail about specific cases of firearm confiscation and state laws that deviate from the federal approach to firearms and mental illness.  One thing that I felt the article did not go into very much detail about was how risk of suicide factored into policy discussions on firearm restrictions.  The article was overshadowed by themes of avoiding harm to others by mentally ill people, but I think that more attention should have been paid to any increased risk of suicide for those who are mentally ill who have firearms.  While the article noted that people with severe mental illnesses may be more likely to cause harm to others, there was very little discussion about harm to themselves.

What the article does do well is capture the difficult issues that firearm restriction policies for the mentally ill raise.  The Times notes that the issue is a "political quagmire":

Gun rights advocates worry that seizure laws will ensnare law-abiding citizens who pose no threat. In Connecticut, with its imminent-risk standard for seizure, the law sometimes “reaches pretty normal people,” said Rachel Baird, a lawyer who has sued police departments over gun confiscations. 
. . .
At the same time, mental health professionals worry that new seizure laws might stigmatize many people who have no greater propensity for violence than the broader population. They also fear that the laws will discourage people who need help from seeking treatment, while doing little to deter gun violence. 
Research has shown, however, that people with serious mental illnesses, like schizophrenia, major depression or bipolar disorder, do pose an increased risk of violence. In one widely cited study, Jeffrey W. Swanson, now a psychiatry professor at Duke University, found that when substance abusers were excluded, 33 percent of people with a serious mental illness reported past violent behavior, compared with 15 percent of people without such a disorder. The study, based on epidemiological survey data from the 1980s, defined violent behavior as everything from taking part in more than one fistfight as an adult to using a weapon in a fight.
Questions of politics that surround these firearm laws are difficult.  Defining how severe a mental illness must be to warrant restriction on firearm possession is a difficult question to ask, and one that involves far more expert input than lawmakers may be willing to carefully consider.

Moreover, the constitutional questions that this issue raises may be difficult -- at least if legislatures end up extending restrictions on firearm possession by the mentally ill.

Existing restrictions on firearm possession by the mentally ill would probably pass Second Amendment scrutiny under the Supreme Court's holding in District of Columbia v. Heller.  In striking down the District of Columbia's firearm regulation as a violation of the Second Amendment, the Court noted that its holding should not be read to threaten existing "longstanding prohibitions on the possession of firearms by . . . the mentally ill."

But this phrasing indicates that the Supreme Court is likely only considering "longstanding" provisions when making this statement, meaning that further restrictions could raise Second Amendment concerns.  Moreover, implementation of these restrictions may be so broad or poorly-defined that a regulation could be enforced in a manner that violates the Second Amendment.  See, for example, the case of In Re Hahn, where the Appellate Division of the New York Superior affirmed a denial of the petitioner's application for a firearm license due to bizarre behavior the petitioner had exhibited -- a result that I argued was based on an erroneous interpretation of Heller's exceptions to Second Amendment scrutiny.

While courts may correctly note that Heller leaves open restrictions on firearm possession for the mentally ill, problems will arise if the exceptions that Heller lists are defined in a vague or overly broad manner.

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