Finding accord among the many and varied people and interests with a stake in our ongoing national debate over guns and gun legislation sometimes feels impossible, especially in our culture of sharply divided partisanship, rhetorical hyperbole, and compromise-averse lawmakers and constituencies. The Sandy Hook Elementary massacre, the catalyst that most recently caused the gun control question – always more or less simmering beneath the crust of the political landscape – to boil over and become possibly the most hotly debated topic both on Capitol Hill and among the some 170,000,000 of the nation’s foremost internet-based constitutional scholars, demands definitive answers.
“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
We all know the words that make up this single, but debatably not-really-all-that simple, sentence. What they mean, however, few of us, it seems, can ever really agree upon. While Second Amendment scholars, politicians, and judges debate historical context, the framer’s intent, and even the placement of commas and their consequence (the version above is that approved by Congress; a slightly different rendition ratified by the states and authenticated by Secretary of State Thomas Jefferson, reads “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”), I’ve always felt the central debate centers on the question of, “What did they mean by ‘well-regulated’? What can, or should, we regulate with regard to firearms and their ownership, and how do we go about it in a way that respects the fundamental right ‘of the people to keep and bear arms” while protecting society from those who cannot be trusted to bear them responsibly?” Those questions of regulation are at the center of the most current debate.
That there are some people who should not, because of current or past criminal behavior, or that they are so afflicted by serious mental illness that precludes responsible gun ownership, be extended the gun rights given healthier or more responsible citizens is not widely disputed. An overwhelming majority of citizens - some studies indicate up to 90% - including gun owners and some gun rights advocates support background checks of prospective gun buyers/owners (exactly what these checks should constitute, or whether existing models should be expanded, remains hotly contested). A recent Pew Research Center poll found about 85% of Americans supported expanding the current background check system to include gun show and private owner-to-owner sales. A February survey conducted by Quinnipiac University revealed even broader support: 92% of respondents favored background checks for all sales, and that support only dipped by one percentage point when the results for firearm owners were tabulated. Now, it is also important to point out that, despite increased support for stricter background checks and strong enforcement of current or future gun laws, support for the Second Amendment remains strong, with around 70% or more of poll respondents consistently expressing support.
Clearly, in the minds of most Americans, support for the Second Amendment right to keep and bear arms is absolutely compatible with a desire for strong regulations not only on their use but on who gets to have them. You may or may not agree, but this is the political landscape in which the current debate is being waged, and will likely dictate its eventual outcome.
But when is someone “too mentally ill to have a gun?”
Their names and crimes lend them infamy:
Adam Lanza (Sandy Hook Elementary);
Wade Michael Page (Oak Creek, WI Sikh Temple);
James Holmes (Aurora, CO);
Jared Loughner (Tucson, AZ);
Steven Kazmierczak (Northern Illinois University);
Seung-Hui Cho (Virginia Tech).
These well-known killers represent only a handful of the American mass shooters of recent years. Before their rampages, how others considered them varied greatly, ranging from reasonably normal, well-regarded, and kind (Kazmierczak), to acutely peculiar, if more or less nonthreatening (Lanza, Holmes, and Page), to outright scary (Loughner and Cho). That each was deeply and dangerously mentally ill, able to emerge from some dark hell borne in their own psyche to slaughter innocents, became obvious only after they acted out.
And every one of them was legally eligible to purchase or access the guns they used without restriction.
That the “mentally ill” should be prohibited from purchasing, owning, or possessing firearms seems self-evident; in fact, as I’ve tracked commentary online, in particular that discussing specific acts of individual shooters such as Lanza, Holmes, and Loughner (being the most recent in our collective social memory) that “they never should have been allowed access to weapons in the first place” because of their obvious mental illness and history of bizarre and often threatening behavior is oft-repeated. This has been true in law enforcement-based forums, where most or all of the commenters either work, or are otherwise engaged, in law enforcement. Technically, selling firearms to the severely mentally is already illegal. But there are a couple glaring problems with what seems to be an obvious and simple answer.
First, many states submit almost no mental health data to the FBI’s National Instant Criminal Background Check System (NICS). Whether to participate or not is up to the individual states and only 27 authorize or require pertinent mental health data be reported. Of those that do authorize or require the reporting such data to NICS, most report only a very tiny percentage of patients. Individual states may also have reporting laws/rules by which they determine who can and cannot own or possess firearms. Expect filling the reporting gaps to be a part of any discussion in the gun control debate.
The second serious problem in trying to keep guns out of the hands of the mentally ill is how frustratingly vague or all-encompassing the definition might become. Generally, only those who have been adjudicated severely mentally ill by a court or involuntarily committed to a psychiatric facility can be found unfit and barred from getting a gun and, as most of us who work in or with law enforcement knows, the bar is set very high for either category. For the record, I’m okay with that; setting it too low potentially invites arbitrary and capricious declarations of unfitness, or involuntary detention and commitment, of the “everyday” mentally ill who pose no threat to themselves or others. Every neighborhood and community has its share of eccentrics, every family and social circle is touched by the mental illness of one or more of its members, but are they dangerous? Almost always the answer is “No.” And, statistically speaking, in any given year more than a quarter of all Americans will experience a diagnosable mental illness of some sort – and cops are not immune by a long shot. Should someone with an anxiety disorder, mild depression, or other disorder far afield from those common the truly dangerous be prohibited from keeping guns when their disease has never caused them to menace themselves or another? What if time on the trap range or a day pheasant hunting is what keeps them most grounded? Should we take away their shotgun?
Our fear is that, in the rush to figure out how to keep guns out of the hands of the truly dangerous, the rights and privacy of those who might suffer from mental illness but present no threat whatsoever will be trampled out of fear and overreaction. We are concerned about how vaguely the term “mentally ill” is tossed about in the current discussion, and that how mental illness is perceived and what it really is become confused. And we worry about the unintended consequences of poorly considered legislation, written by well-meaning if sometimes uninformed (or politically driven) lawmakers. Done wrong, it might drive those who could benefit most from receiving care away out of fear they might lose their privacy or certain rights. Many mental illnesses are very manageable - curable even - but patients need to be able to freely and confidently access care.
The extent and manner of the government’s prerogative to regulate guns and gun ownership is a debate that isn’t going away any time soon and how to do so with respect for the mentally ill among us is a crucial component of that debate. Law enforcement must be an active, informed participant in that discussion.
What do you think? We welcome your comments, opinions, and insights. How can law enforcement professionals help shape this important policy decision?