Mental illness restriction on gun ownership violates 2A per federal court

[KyJim]

Eugene Volokh has posted about a U.S. District Court decision issued Monday where the court, on Second Amendment grounds, lifted the disability under 18 U.S.C. § 922(g)(4) ( adjudicated mentally defective) to possess firearms. https://www.washingtonpost.com/news...ically-committed-10-years-ago-when-he-was-15/. The decision is Keyes v. Lynch, 1:15-cv-457 (U.S. Dist. Ct., M.D. Pa. July 11, 2016) and is available here: https://www.washingtonpost.com/news...content/uploads/sites/14/2016/07/KeyesYox.pdf. As explained near the end of this post, this is an "as applied" decision.

The court found that the Pennsylvania procedure to lift a firearm ownership disability did not comply with federal standards and therefore based its ruling on the Second Amendment. The person in question had been involuntarily hospitalized for eight days when he was 15 years old for cutting himself and being found a potential danger to himself or others. In the ten years since that time, he had served with the Army in Afghanistan where he operated fully automatic weapons, grenade launchers, and other weapons. He is currently a Pennsylvania correctional officer authorized to carry firearms in the course of his employment (through an exemption in 18 U.S.C. § 922). He had never had a relapse and a psychologist opined he did not pose a threat to others and was mentally stable.

The district court recognized that Heller said restrictions on the "mentally ill" from possessing firearms were presumptively lawful but that the plaintiff had overcome that presumption. General statistics about possible relapses were insufficient given the above evidence. According to the district court, its decision appears to be the first holding that § 922(g)(4) violated the Second Amendment "as applied."

An "as applied" violation means that under the specific facts of the case, the statute violated the Second Amendment. The statute itself, however, remains constitutional on its face. Mr. Volokh expects the government to appeal.

 

[Evan Thomas]

I'm sure the government will appeal, but this is very good news nonetheless. There are way too many people on both sides of the gun rights debate who want to blame "gun violence" on mental illness and pass laws further restricting those who have it. It's another quick-and-dirty, politically useful non-solution to the problem, and I'm glad to see a federal court actually pushing back against the existing law, even if it's only in a single case.

 

[Old Bill Dibble]

The always unlooked at broader issue of the mentally ill and the role of mental illness in violence is something that we have failed to address in the US.

Branding people as mentally ill and sticking them in a civil rights jar is worse than doing nothing really. I wish there was some way the RKBA community could help address this issue.

 

[raimius]

From your description, it sounds as if this was a reasonable decision. An incident of mental illness decades in the past is not a good reason for the denial of civil rights, if the person in question has fully recovered.

 

[TrueBlue711]

I'm glad to hear that. I don't like the idea of a psychologist basically having the power to take my guns away. Each one is different too and one can say you're fine while another can say you're crazy!
Being in the armed forces, I brief to all my troops that if you need it, to go to mental health and get yourself BETTER. There's a stigma in the military (or at least the Air Force) that going to mental health will ruin your career and it's just the opposite. We're in a stressful career and going to mental health should be as painless as going to get a checkup. I need my guys with their head in the game. If there's an added fear of losing your guns just for going in for a check up, nobody would want to go and get their issues resolved. And that's when it'll fester and get worse.

 

[Aguila Blanca]

If there's an added fear of losing your guns just for going in for a check up, nobody would want to go and get their issues resolved. And that's when it'll fester and get worse.

You are still active duty, I gather?

The VA is doing their part to scare people off from seeking help, too. VA "Healthcare" routinely asks questions intended to help them pick up people who may be suffering PTSD. The problem is, once the VA decides you might have PTSD, they automatically report you to NICS as prohibited -- even though there has not been an involuntary commitment or an adjudication of mental deficiency.

I (unfortunately) use the VA for healthcare. I don't care if the morning of my appointment my wife left me, my dog got run over, I got fired from my job and I got tee-boned at a traffic light on the way to the hospital.

"Do you feel at all sad today?"

"Nope, not me. Never been better. Everything's great."

 

[44 AMP]

!!

... that going to mental health will ruin your career and it's just the opposite.

That's the company line. I would suggest that the real world is a bit different.

The military, even the Air Force, operates under government rules and generally with their own slant on government attitudes.

And while the official policy is to provide, and encourage people who need help to get it "no harm, no foul", there will be a note made, somewhere.

Probably one that isn't in the "official" 201 file (or whatever the Air Force calls it). One that YOU won't ever see.

And not necessarily by the people directly in your chain of command.

The simple fact that you felt you needed help, shown by the fact that you sought help, is enough. And its something vitally important to know if your job involves a security clearance.

And, it doesn't have to be about mental illness, directly. ANY reason you seek counseling makes you a potential security risk. Counseling is private, and what you talk about is protected under Dr/patient confidentially, BUT the fact that you go to counseling is NOT, and MUST be reported to security clearance personnel. Then, THEY decide, if you are a risk, or not. And, trust me, somewhere there will be a file with notes in it.

I've personally seen this happen, though with a DOE subcontractor (at a DOD facility) not the active military. A fellow I knew, his job required a "Q" level clearance. Access to the site required a security badge. He was having trouble getting along with his wife. He went to the company provided counselor (FREE & confidential), The guy was not mentally ill, just stressed, and wanted someone to talk to.

HOWEVER, the fact that he went to counseling had to be reported to DOE. They pulled his clearance. Took his badge. They sent him to see their "approved" shrink. THEIR SHRINK gave him a clean bill of (mental) health.

It didn't matter, his clearance and site access were suspended anyway. FOR MONTHS. He was left in that wonderful govt. created limbo what many would call a Catch-22.

He was not fired. So, technically, he was employed. SO, he couldn't apply for unemployment. BUT he wasn't allowed to go to work (no badge, no clearance), so he didn't get paid. He couldn't transfer to a different job that didn't require the clearance (like a janitor) on site, because his site access was also suspended. SO, no work, no money and no public assistance allowed, either...

AND to add insult to injury, the rules stated that DOE had 90 days to respond about WHY they pulled his clearance, AFTER you filed the right forms. TO GET THE FORMS you had to go to an office that required a security access to get to.

After some months of this, his wife's father, (who also worked on the site and had HIS badge, and who agreed that it was the wife that was causing the trouble) got him the forms to file. In total it took over a year, but eventually he did get his clearance re-instated.

Trust me, when it comes to things like this, the company line (or company lie, if you prefer) is that counseling is private, and nothing bad will happen to you if you use it. Its totally, and PARTIALLY true. The counseling is confidential, and the COMPANY won't take any action against you for using it.

But the company (your chain of command) AREN'T the ONLY ones involved.

MENTAL ILLNESS is such a broad, limitless classification that its meaningless in law. And virtually meaningless in conversation, where "mentally ill" can mean anything at all that the speaker disagrees with.

Anti gun bigots think gun enthusiasts are mentally ill. Some people think anyone who volunteers for military service is mentally ill. Some people think anyone who doesn't support their candidate is mentally ill.

In the 1950s (which is still within living memory for some people) Homosexuality was listed in medical texts as a mental illness!

Mentally ill, today means whatever the popular attitude is.

There are recognized conditions that fall under the huge umbrella term "mentally ill". Some are actual physical illness. Some are just behavior patterns that don't "fit" well in general society.

The solution is, of course, piles of money. If you have lots of money, then you aren't mentally ill, you are just eccentric.

If you don't, then you are mentally ill, and need treatment, and no guns for you, for life, no matter what problem it is that got you shoved into that classification. OH, and you are considered mentally ill, for the rest of your life, no matter what the docs may say...

its not right, but it is sad the way the world works, I've seen it in action.

 

[jdc1244]

Mental illness restriction on gun ownership violates 2A per federal court

Actually not.

The court didn’t address the issue of rendering those adjudicated mentally ill as prohibited persons, it addressed the issue of due process.

From the linked article:

The court concluded that, though D.C. v. Heller said that bans on gun possession by the “mentally ill” were “presumptively lawful,” this presumption could be rebutted in some circumstances. In particular, if someone with a history of mental commitment can show “that he is ‘no more dangerous than a typical law-abiding citizen,’ or that he ‘poses no continuing threat to society,’” he is entitled under the Second Amendment to possess guns again.

Consequently, the court’s ruling concerns whether or not Yox was afforded appropriate due process, not the constitutionality of adjudicating those mentally ill as prohibited persons.