One of the few public policy issues that most Republicans and Democrats agree on is that people who have been treated for mental disorders should not be allowed to buy or possess guns or munitions. Unfortunately, this all too rare public policy consensus, and the federal and state laws that it has generated, is based on beliefs born of prejudice: first that people with mental disabilities are inherently dangerous; and second that their presumed dangerousness must make them incompetent to use firearms safely and responsibly.
Throughout American history, highly dubious legal presumptions—both about dangerousness and mental incompetence—have been applied to persons with mental disabilities in order to unfairly deprive them of their fundamental rights and liberties. (See, Essay 1: “Legal History of Persons with Mental Disabilities: A Consistent Pattern of Invidious Discrimination.”) Little has changed in that regard, although due to sanism—which is analogous to racism—and greatly exaggerated fears of persons with mental disabilities acting dangerously (See, the next essay in this series, “Exaggerated Fear of Violence, Sanism, and the Scapegoating of Persons with Mental Disabilities.”), this type of prejudice is more entrenched than ever before.
The Right and Left Agree
The right and left arrive at their consensus about firearms and persons with mental disabilities based on very different world views. Yet, both views reflect a strong tendency in our society to marginalize individuals with mental disabilities. Most Americans readily embrace the conclusion that it is dangerous for anyone who has been treated coercively for a mental impairment to own or possess firearms without appreciating individual differences, or questioning the lack of empirical evidence and factual support for the belief itself. This muddled thinking has resulted in one isolated and highly stigmatized segment of the population—and almost no other—being deprived of their Second Amendment right to bear arms, based not on whether they currently are able to use guns safely and responsibly, but whether they are deemed dangerous as a result of unreliable impressions or predictions about what they are likely to do in the future.
Most of our gun control laws, including the dominant federal statute, lump mental patients and former patients in with convicted felons. A widespread presumption of dangerousness makes this policy decision seem like common sense, and thus inarguable. Yet, as we discover time and time again when we empirically test some of our most cherished beliefs, common sense often proves to be incorrect or misleading. Common sense also can lead to oppression when it is used to justify a tyranny by the majority.
A nation that blithely acts based on notions of common sense inevitably ignores or diminishes the scientific method, logic, empirical evidence, and statistics in order to leap to popular conclusions. Our flawed perceptions and biases about people with mental disabilities have generated some of the most compelling examples of this type of disconnect between belief and reality. America’s laws and policies on gun control, which target this particular population and no other, exemplify how common sense can turn out to be nonsense, or worse.
Republicans on the right tend to view the Second Amendment as inviolate. They believe or at least profess that no matter how much damage that easy access to rapid fire guns with large magazine capacities may cause in our society, every American has an absolute constitutional right to own and carry any type of firearm. In fact, there is a whole industry of Second Amendment protectors who work with gun manufacturers to safeguard our rights to gun ownership with inflammatory arguments and strong arm tactics. It is led by the incomparably effective National Rifle Association (NRA), which has managed to intimidate all but a relatively few politicians. Not surprisingly, the only individuals that the NRA has agreed may be restricted in owning guns are ex-felons and persons with mental disabilities. Supposedly, neither group has Second Amendment rights, although there are no original constitutional documents that I know of to support this politically convenient conclusion.
Democrats on the left tend to view the Second Amendment of the Bill of Rights as an historic relic. No sane society can allow its citizens and residents, including juveniles and other children, easy and indiscriminate access to rapid fire guns and munitions. The Constitution must bend with the times. Furthermore, are we really that certain that even originally the Second Amendment was supposed to apply to citizens in general, rather than just to our militias? From this community welfare perspective, depriving any significant population of firearms appears to be a good thing. Moreover, it is an even better thing to deprive people with mental disabilities of their Second Amendment rights because most people on the left, except perhaps those who share the views of the American Civil Liberties Union, are convinced that individuals who have been treated for mental disorders are particularly dangerous.
Thus, getting guns out of the hands of persons with mental disabilities is a very popular public policy and one that both the right and left can agree on. Yet, both sides of this political discussion are wrong, factually and in the conclusions that they draw from what they believe are facts. How our federal and state gun laws unfairly and unreasonably discriminate against persons with mental disabilities is detailed with more nuance, depth, and documentation in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), Chapter 5 Accusations Based on the Unknowable: Predictions of Dangerousness in Civil and Criminal Proceedings. (See, About the Book for more information) Brief copyrighted excerpts without the references are reprinted below with permission of the publisher and author, along with short reflections on this issue based on the book and other materials. Excerpts are in bold with italics.
Dangerousness-Based Restrictions on the Right to Bear Arms
The primary reason why current restrictions on the rights of persons with mental disabilities to bear arms are so prejudicial and fundamentally unfair is that unreliable and outdated predictions of dangerousness are being used in order to justify the conclusion that any person who has been involuntarily treated in the past is unable to use firearms responsibly and safely now. Two misconceptions fuel the public debate over gun control and persons with mental disabilities. Together, they help explain why such a serious gaffe in logic is allowed to stand. First, is the notion that people with serious mental impairments are inherently dangerous. The second is that anyone who could commit a mass, single-event killing must be deranged due to a mental impairment…. In combination, these popular misconceptions… create an unreasonable political mandate about guns and persons with mental disabilities that is difficult…to counter with facts…. (Yes, admittedly the Navy Yard killer appears to have been experiencing a psychotic episode, but he is the exception. In other American mass killings—and arguably even in this one—there tend to be many equally or more compelling factors that more fully explain why these tragedies happened. Psychotic episodes by the perpetrators appear to be rare, since typically these massacres are carried out by well-organized, determined and educated men and older boys, who are so alienated from society that in order to act out their rage, they are willing to place themselves in situations where they know they probably will die.)
The primary legal gun control mandate in this country is the federal law creating an underused and mistake laden national system of background checks, and then making it a serious crime for persons who have been involuntarily committed to possess firearms or munitions. This statute is joined by state laws that either redundantly restrict or further restrict the rights of persons with mental disabilities. New York, for example, after the Sandy Hook massacre, mandated that mental health professionals…report patients who are likely to cause harm to themselves or others…so that law enforcement officials can initiate investigations and confiscate any firearms that they might have. Also, such investigations by law enforcement could lead to these patients being prosecuted under federal law.
There are several fundamental deficiencies with New York’s legislation, which also undermine many other laws that have been enacted that attempt to deal with dangerousness and persons with mental disabilities. To begin with, the best empirical evidence demonstrates that generally mental health professionals are incapable of reliably determining which of their patients are likely to harm themselves or others. Also, mental health professionals have pointed out that this statute is ill-conceived and jeopardizes the therapist-patient relationship, making it much more likely that patients will not be forthcoming when they are being treated. In addition, mental health professionals are likely to be over-inclusive in their predictions of dangerousness. This is because if they fail to identify patients as dangerous, who later cause harm to themselves or others, the therapists may be sued for a great deal of money and ostracized in their communities. While there is a relatively small likelihood that this eventuality would happen, the threat of a lawsuit and public shame are powerful incentives to over-report, just to be on the safe-side.
All of our gun control laws tend to be overly broad my wide margins in their targeting of persons with mental disabilities, as well as being highly discriminatory. Court decisions interpreting the federal law reveal, for instance, a consistent pattern of viewing any type of involuntary care for any amount of time as being enough to deprive former patients of their Second Amendment rights and sentencing them to prison terms. Moreover, the onus is placed on former patients to show that they are no longer dangerous, unless, as happens in many jurisdictions, such restrictions are viewed as permanent, which makes these individuals permanently dangerousness by legislative decree.
These gun laws assume… that merely because someone has been subject to some sort of broadly defined involuntary … treatment that person is likely to be a continuing danger to self or others. Thus, [unreliable] predictions of dangerousness that are part of most involuntary civil commitment proceedings to begin with are automatically extended…with regard to the issue of firearms…, whether or not there is any evidence that the respondent is likely to misuse a gun now. What remains particularly galling is that typically these former patients had to demonstrate a lack of dangerousness in order to be released from custody. Nevertheless, that critical fact is simply ignored. In its place is another legal fiction that favors government over individuals with mental disabilities by making their continuing dangerousness an “irrebutable” presumption. This is true even though the predictions of dangerousness, which led to their being forcibly treated in the first place, are inherently flawed. (See in subsequent weeks, Essay 5: “Predictions of Dangerousness and Other Legal Fictions Involving Dangerousness and Persons with Mental Disabilities.”)
Our gun control laws, as they are applied to persons with mental disabilities, are as unreasonable as they are unfair. Nonetheless, they are the only gun control provisions that an overwhelming majority of Americans support. Years ago, Richard Hofstader--Anti-Intellectualism in American Life (1963)— and Leon Festinger--When Prophecy Fails (1957)—independently developed brilliant constructs that together explain why such unenlightened thinking persists in the United States. Based on a strong anti-intellectual bias, we tend to embrace popular beliefs over empirical evidence, and we are woefully ignorant about statistics to boot; then, due to cognitive dissonance, even if overwhelming evidence proves the belief to be wrong, we tend to manufacture spurious arguments to support our discredited beliefs even more resolutely. Tragically, this duality of misperception has negatively influenced public policies on many critically important and controversial political issues, including gun control, tobacco use, global warming, abortion, and dangerousness. As my mother, Helen, would say if she were still alive, “this is a pretty sad state of affairs.”