Restoration of Gun Rights and Mental Health

[Glenn E. Meyer]

Interesting and long article in the NYTimes about mental health and gun rights.

http://www.nytimes.com/2011/07/03/us...ef=todayspaper

The core is that:

1. After VT and Cho, restricting guns to the truly dangerous was imperative. Cho was not correctly reported

2. So reporting was enhanced.

3. However, many states still don't report as might be necessary.

4. The NRA got in the legislation a required mechanism to appeal, esp. as it applied to Vets and VA evaluatoins.

5. Some folks who appealed to get gun rights restored subsequently did bad things to others or themselves. The article indicates in some of these cases the restoration review was inadequate.

6. Mention was made that predicting violence is very difficult.

The overall piece was a touch biased against gun ownership by such folks but did have a reasonable analysis of the problem.

Again, it is a balance of risks and benefits. For example, thousands of vets get rights back but of course a few do evil.

I think this is a fascinating topic but please spare us the cliches and rants.

[Webleymkv]

It's a prickly issue that really has no perfect solution. How do you ensure that no one with a dangerous mental disorder have access to a firearm while at the same time ensuring that no one else's rights are unfairly impinged upon? The answer is that it cannot be done. A striking parallel is that of the criminal justice system: there is no way to ensure that every criminal is punished while every innocent person goes free.

I am inclined to come down on the side of the innocent and menatlly stable. The number of people who represent a danger to society are, statistically, a very small minority. Of the people who have gotten their rights restored, I suspect that the majority of them do not represent a danger to society. Ensuring public safety, unfortunately, require some restriction on personal liberty, the problem is determining the point at which one outweighs the other. I always lean more towards personal liberty (within reason of course) because I believe that people can and should be responsible for their own safety.

Now, I do agree that mentally-ill people need, if they clearly demonstrate that they are a threat to themselves or others, to have certain rights restricted. The problem is that there is, as far as I am aware, no clear black and white test to determine such a state. I am not a psychologist nor have I studied the subject extensively, but from the understanding I do have of it (a couple of undergraduate college courses) it is not an exact science. In my understanding, there are many different schools of thought within the field of psychology and one could easily recieve many different answers to the same question depending on what psychologist was asked and what school of thought he or she subscribed to.

There are, of course, extreme cases which are rather cut and dry such as Loughner who had previously made death threats against several people. More subtle issues like depression or the lack of a firm grasp of reality may be more difficult to ascertain. What is striking to me, however, is that people who do carry out acts of violence such as Loughner and Cho seem to usually send up more and more obvious red flags. Both Loughner and Cho would seem to have been fairly cut and dry cases before their nefarious actions.

[KyJim]

As I understand it, the most glaring problem relating to veterans is PTSD. I can certainly see where it might be necessary to temporarily restrict gun purchases in acute cases. However, who among us could go through a war up close and personal and not suffer from at least some symptoms of PTSD? The need to secure the rights of those who have fought for those rights outweighs the risks of a system which does not at least provide for a review process.

[youngunz4life]

but I thought it was correct for Congress to not grant LEOSA to honorably retired officers who retired under some form of 'mental condition'.

[JerryM]

While I agree that those who have mental problems should not own firearms, it is truly a sticky issue. It is too easy for a Dr or someone who is anti to cause a person to be turned down for a gun purchase based on the Drs personal prejudice.

I agree that there should be some sort of review for vets, but if they are suffering from a disorder such as PTSD they should not be permitted to own a gun until a good review by people who are competent to make such a judgment. I personally have know a person suffering from PTSD that I would not trust with a gun.

Jerry

[hermannr]

I have experienced mental health issues with people close to me, and I would like to point out a few things to consider.

One person in question: Female, 53 at the time, depression. Dr. gave SSRI type medication which she reacted to in an unpublished strange manner. (developed Catatonia, unable to speak or move voluntarily). Neurologist stated to me that he saw about 10% of his patients react to SSRI's in this manner (but it is not published as a possible side effect) (hospitalized for 14 days, and yes, in the psyc ward)

Anyway, they changed the med to another type of anti-depressant, and she had a different reaction...but almost as bad. Anyway, the medications were removed and within 3 months she was back to normal.

So, the question is: is this a "mental problem"? or is it a alergic "medication problem?" Does not matter as per the ATF, 14 days in a Psyc ward for any reason and you cannot own firearms.

If you read the warning labels on most anti-depressants you will say "may cause thoughts of suicide". So is a prescription drug induced suicide attempt "a danger to society"? (attempted suicide will also get you 14 days in the mental ward) How about other "mental" problems caused by a drug? (prescription or otherwise)

How about the guy that had a brain tumor that was certifiable "criminally insane" until they removed the tumor, (he committed murder), but totally normal after the tumor was removed. Or even Lyme disease can affect the brain. (and it is also cureable)

Just like "Domestic Violence", I do not think "one size fits all" with mental health issues. Are there DV and MH issues that should cause the ofender to be restricted from access to weapons (not just firearms)...yes, probably so, perminently? no so sure.

[youngunz4life]

in my view, someday, in retrospect of longtime history(pretty much like 100yrs), "we'll" have a bad rap for the medication thing. some Dr's are so PRO it's ridiculous and many times it's the older fellows who love the 'technology' jumps if that is the right word. I have spoken as a 3rd party to multiple of these kinds that just didn't get the 'med thing'. One is supposed to do strict monitoring with many of these meds but let's be honest. as a society this doesn't happen. the commercials will add an interesting twist in a 100yrs too: all the side affects. I Love technology: computers, networking, star trek, whatever, but I am on the other side for this issue. My kids are going to be like me and my grandpa(I guess my dad too) no meds. I am not saying never but I am not afraid to say it. I have seen meds do some damage. damn, I probably was hyper, adhd, amongst other things but too many children are being medicated too quickly and incorrectly(in my opinion). some of these mamas rightfully have a hard enough time taking care of their family; they can't be a DR too or watch this stuff. then you put in the regular, possible experimentation of other depressants(alcohol, weed), stimulants(caffeine, tobacco/nicotine), etc it just can cause issues. live your life, feel your emotions. I do however respect the decisions of other parents who choose meds - they definately have their place. when it comes to vaccines I am 100% for flu shots and everything(another debate). it is just a TRICKY issue and has to have serious serious 'weigh-in time' or strict monitoring. it is nothing to fiddle with. PTSD is VERY real, but it can be treated and this is a very good thing. that is one VA disability that doesn't last forever many times due to this fact. Heck, I actually believe adolescents can get PTSD with problems with the opposite sex sometimes at this young, impressionable age. call it the bug or whatever but that is just one example of trauma whether your childhood abuse as another example, and so-on. my grandma's brother is 85 or 86 and was 17 in iwo jima I think. I guess he has good ptsd and I know this isn't possible, but his mind soaked up that experience more than anything in his entire life! Again, he was an adolescent or a better term is young adult like many soldiers.

[Aguila Blanca]

Originally Posted by hermannr

So, the question is: is this a "mental problem"? or is it a alergic "medication problem?" Does not matter as per the ATF, 14 days in a Psyc ward for any reason and you cannot own firearms.

No, this is not correct. You are only prohibited (under Federal law) if you are involuntarily committed to a mental institution. That means you are in there pursuant to a court order and you can't leave unless and until a judge says you can leave.

If you voluntarily check yourself in, you do not have to answer "Yes" to that question on the 4473 and you are not prohibited. If you are checked in by a doctor to treat a condition, but there is no court order involved, you have not been "involuntarily committed," you do not have to answer 'Yes" to that question on the 4473, and you are not prohibited.

There may be some provision in your state's laws that goes beyond this. There is nothing in my state's laws that differs from the Federal requirements.

[Eghad]

Would the Gifford case have been if this guy had been ordered to go before a judge? This guy obviously had some kind of problem over a period of years.

My understanding about mental health and guns is that if you go before a judge and receive "due process" and are adjudicated as being mentally incompetent/unsound then it should be reported to the national database. I am guessing that mechanism would be NICS and would have to be put in by the law enforcement agency that had jurisdiction of the incident that led to the hearing?

The question I have is if a law enforcement agency deems you as being a danger to yourself can they request a court hearing for a ruling on your mental status? I am guessing that is up to state law and not federal law.

[KyJim]

The question I have is if a law enforcement agency deems you as being a danger to yourself can they request a court hearing for a ruling on your mental status? I am guessing that is up to state law and not federal law.

I'm sure there's a lot of variance in each state. In my state, it is a staff physician of an acute care hospital who can order someone involuntarily admitted for up to 72 hours. Police are authorized to bring someone in whom they believe should be involuntarily admitted.

After that, there is a preliminary type court hearing followed by another hearing for lengthier commitments. Mental health experts assess the individual and report to the court.

[Aguila Blanca]

Originally Posted by KyJim

I'm sure there's a lot of variance in each state. In my state, it is a staff physician of an acute care hospital who can order someone involuntarily admitted for up to 72 hours. Police are authorized to bring someone in whom they believe should be involuntarily admitted.

Sure, police can suggest that someone be evaluated, but that's not the same as being involuntarily committed. The actual language on the 4473 reads:

f. Have you ever been adjudicated mentally defective (which includes having been adjudicated incompetent to manage your own affairs) or have you ever been committed to a mental institution?

Then we look at the back side to see what the question means:

6. The transferee of a firearm should be familiar with 18 U.S.C. § 922. Generally, § 922 prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who: has been convicted of a misdemeanor crime of domestic violence; has been convicted of a felony, or any other crime, punishable by imprisonment for a term exceeding one year (this does not include State misdemeanors punishable by imprisonment of two years or less); is a fugitive from justice; is an unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug, or any other controlled substance; has been adjudicated mentally defective or has been committed to a mental institution; has been discharged from the Armed Forces under dishonorable conditions; has renounced his or her U.S. citizenship; is an alien illegally in the United States or a nonimmigrant alien; or is subject to certain restraining orders. Furthermore, section 922 prohibits the shipment, transportation, or receipt in or affecting interstate commerce of a firearm by one who is under indictment or information for a felony, or any other crime, punishable by imprisonment for a term exceeding one year.

"Adjudicated" is self-explanatory. That must involve a hearing before a court of competent jurisdiction, and a ruling by the judge. Beyond that, it is a matter of state law as to whether or not any other party may "commit" someone to a mental institution against their will. Further, I suspect it's also going to be a matter of state law as to exactly what constitutes a "mental institution." Is being admitted to the local, general hospital for a weekend or a week for observation equivalent to being "committed"? I don't know ... and I suspect the answer will not be the same in all 50 states. KyJim's example is a good one for raising the question. If a doctor can order someone admitted for up to 72 hours at an "acute care" hospital -- is an acute care hospital a "mental institution"? I don't know .. but I doubt it. Is a 72-hour observation period being "committed"? I don't know but, again, I doubt it.

Remember, we are dealing with laws here. Laws use words, and words have meaning. Laws mean only what they say, nothing more and nothing less.

[Bartholomew Roberts]

In order to be a prohibited person you must be either:

a) adjudicated mentally defective; or
b) involuntarily committed to a mental institution beyond an initial observation period.

Where this gets sticky is in interpreting "adjudicated mentally defective." For example, Cho had been ordered by a Virginia court to undergo counseling and the reason the court gave was that Cho was a danger to himself or others. Under Virginia law, this was not disqualifying as the intent was only to commit Cho for a short period for observation. Since it was not disqualifying, it was never reported to NICS by Virginia.

However, under some court interpretations, someone who is committed for observation because they are a danger to themselves or others has been "adjudicated mentally ill" even if they have not received an adversarial hearing.

There are generally two processes involving being involuntarily detained - a temporary/emergency detention and actually being involuntarily committed to a mental institution. Under previous Supreme Court rulings, you must have an adversarial hearing for the latter. The former does not require an adversarial hearing but must be a limited (temporary) detention.

When looking at the issue of whether you are disqualified under 18 USC 922(g), courts have taken two different approaches. The First Circuit has said that because Congress also included the words "adjudicated mentally ill" they clearly intended to reach a broader group than just those who were committed via adversarial hearing. They further determined that it didn't matter that the state didn't intend to deprive someone of their firearms rights, it was what Congress said that mattered. This view is shared by ONE New York District Court, the Attorney General of Delaware and has been cited approvingly by the Sixth Circuit (even though the case in question was a temporary detention with adversarial hearing).

The Fifth and Eighth Circuit on the other hand take this approach: “[t]here is nothing in 18 U.S.C. § 922(h) [now § 922(g) ] which indicates an intent to prohibit the possession of firearms by persons who had been hospitalized for observation and examination, where they were found not to be mentally ill. The statute makes it clear that a commitment is required.” United States v. Hansel, 474 F.2d 1120, 1123 (8th Cir.1973)."

Under this approach, someone must be committed under a state statute intending to effect an involuntary commitment. If the state did not intend to reach that level, then the statute is not effective to deprive you of your Second Amendment rights.

Naturally, I am concerned anytime someone can be deprived of a fundamental right without having an adversarial hearing, although to be fair, in the few cases where such a result has been reached, it wasn't likely that an adversarial hearing would have changed the outcome of the determination.

[youngunz4life]

I guess he has good ptsd and I know this isn't possible, but his mind soaked up that experience more than anything in his entire life! Again, he was an adolescent or a better term is young adult like many soldiers.

more time should've been put in my wording(throughout my entire first post), but I have appreciated the other responses in this thread.

what I was trying to say in the above quote of mine was that the younger brother of my grandmother(may she rest in peace) had no ill effects(that I know of) from those harrowing days he spent in Iwo Jima back when he was a very young adult. He was in the thick of things and almost died multiple times he informed me. He also saw multiple people expire and had to do other things that can cause trauma(deal with dead bodies after the fact, be very fearful and adrenalized for long hours+hours, and so-on). He didn't suffer from PTSD, yet besides the negative effects that PTSD can cause, he seems to have impressed those days on his mind in a very solid plus possibly 'abnormal' manner.