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Updated: Nov 29, 2018

Mental health and mental health care reform are two of the hottest talking points on the topic of gun control and the Second Amendment. While defenders of the Second Amendment “have long tried to steer the national conversation after mass shootings to the mental health of people pulling the triggers rather than the weapons they used," those “defenders” have unknowingly been laying the wiring for a proverbial bomb that has the potential to be even more devastating to the Second Amendment rights of Americans than that of the efforts of outright gun control. Firearm-specific or feature-specific gun control is easier for a legislative body to resist as mental-health gun control reform is seen to be “common-sense.” These legislators that we have elected to defend our Second Amendment rights and many of the lobbyists that we have funded through financial contributions to certain large Second Amendment advocacy groups have obliviously allowed the conversation of gun control to be pushed to a point to where if the proposed mental health-related gun control measures are approved, the law would allow for the seizure of Second Amendment rights based on subjective, intuitive findings, as opposed to objective, empirical findings. The seizure of rights absent of due process is prohibited under the Fourteenth Amendment to the United States Constitution. Allowing such mental health-related gun control measures to be approved would allow for the process due under the law to consider subjective, intuitive medical opinions of mental capacity to be interpreted by magistrates that are largely unqualified to adjudicate mental health diagnoses as valid judgments; thus, allowing for deprivation of rights based on the adjudication of an unqualified authority.

The mental health talking point may have been brought up prior to the massacre at the Century 16 Cinema in Aurora, Colorado, but it was only as a minor talking point prior to that tragedy. The Aurora shooter murdered twelve and injured scores when he began firing indiscriminately during a screening of the film The Dark Knight Rises. His mental health’s role in the massacre was largely discussed and debated. His mother openly admitted that he had been diagnosed with “varying diagnoses on the schizophrenia spectrum.” However, the State of Colorado presented their case that despite his mental health diagnoses, he was of sound mind and fully aware of his actions and therefore legally culpable under the laws of the State.

Prosecutors were convinced of that opinion to the extent that they sought to make the Aurora shooter the fourth member of Colorado’s death row. The shooter plead not guilty by reason of insanity; however, given the substantial amounts of premeditation that went into the attack as documented in a composition notebook that was presented as evidence during the trial, it was concluded by members of the jury that he masterminded the attack while of sound mind, and the jury convicted him of twenty-four counts of murder and one-hundred-forty counts of attempted murder. His notebook detailed his analysis of the vulnerability of his target. The five pages that include an outline in which he described the methods of attack he wished to employ, hand-drawn diagrams of the facility, diagrams of individual theaters within the complex accompanied by his analysis determining theaters ten and twelve as the best targets, and his detailed plan-of-action show the amount of reconnaissance, scouting, and forethought that he put forward for the attack. While the jury agreed on his guilt, one juror was responsible for sparing him from Colorado’s death chamber.

The knee-jerk reaction to this event and events with similar circumstances has been to limit access to firearms for those diagnosed with mental illnesses. Joshua Horowitz opined “We are told that we must allow innocent Americans—including children—to be gunned down by homicidal maniacs with legally-acquired arsenals because this is ‘the price we must pay for freedom,’” in his article published by U.S. News & World Report. While many Americans shared Horowitz’s sentiments, situations involving the seizure of a citizen’s Constitutionally-guaranteed rights must be approached logically and based on facts, and cannot be approached emotionally and based on feelings. The Aurora shooter may have been homicidal, but he was not a maniac as evidenced by his situational awareness prior to the massacre. His work was not that of a madman. His last-minute call prior to the massacre to a mental health hotline made to “see if I should turn back” shows the conscious awareness of his intentions. This attack was the work of a man that had clear intentions, clear thoughts, and no conscience. The Aurora shooter’s heinous attack was not the result of a schizophrenia-related episode as Horowitz would lead his readers to believe.

To credit this massacre to a mentally-ill man does a great disservice to, and only goes to allow for further stigmatization of, those with diagnosed mental illnesses. There are many citizens within the population being treated for what psychiatrists deem as mental illness. That does not mean that those citizens are a danger to themselves or society. In fact, anyone that is considered a threat to society or themselves absent of a criminal act is generally institutionalized until that threat is considered treated. Only after the threat is considered absent are they released back into society.

Society cannot stop people bent on committing acts of evil from doing so. Based on his meticulous planning and preparation, The Aurora shooter was a person that was bent on committing acts of evil. He had been diagnosed with various mental illnesses; however, he was not deemed to be a threat to himself or society due to his mental illness – because he was not. He was a threat to society at his baseline mental status. However, there was no way of detecting that threat until he acted out.

Should a citizen’s mental health status not be perceived to be a threat to themselves or others such that they are trusted to live among society, they should be trusted to be fully functional members of a society that retain all of their rights as a citizen, including the right to keep and bear arms. The aforementioned Joshua Horowitz article is problematic in that it suggests that citizens whose mental illness that is treated, and who are therefore not considered a threat to themselves or others, should have their right to keep and bear arms taken away for precautionary purposes based on the actions of a minute minority of the demographic they represent. He blames the Aurora shooter's mental illness diagnoses for his acts, but that is not the case. It was shown in a court of law that the shooter’s actions were that of cold and calculated killer who, just before committing his act, knew that his actions were wrong based upon his call to a mental health hotline but proceeded regardless. Horowitz suggests that we, as a society, should take the right to keep and bear arms from those that commit no crime based on a diagnosis of a mental illness; however, he misses the point that those that are diagnosed with mental illnesses that present no threat to themselves or society are free to live in society because they present no threat to themselves or society.

The American Medical Association suggests similar actions as Horowitz; however, their language is vaguer. Their suggestions for firearm confiscation are not limited to just those that are deemed to have mental illnesses. The American Medical Association opened their suggested criteria to all citizens that could be deemed “high risk,” stating: “Delegates voted to support gun violence restraining orders that would allow family members, intimate partners, household members, and law enforcement personnel to petition a court to remove firearms from citizens who pose a high or imminent risk for violence. The new policy also requires states to have protocols or processes in place for requiring the removal of firearms by prohibited people, and requiring gun violence restraining orders to be entered into the National Instant Criminal Background Check System.”  Again, an entity is pushing for the removal of Second Amendment rights from those who have committed no crime whom they suspect to be a danger to themselves or society, but do not feel is a danger to the extent that institutionalization is necessary. In a truly free society, the only time that someone should have their Constitutional rights revoked is when either convicted of a crime, or it is determined that their mental instability calls for immediate in-patient treatment due to the citizen posing an imminent threat to themselves or society. These citizens that pose so much of a threat to themselves or society, to the extent that it becomes necessary to have their Constitutional rights revoked, should be institutionalized as they will procure the necessary tools to carry out their plans. Such “common-sense” laws will only keep a citizen from obtaining firearms legally and through licensed entities. As such, any laws created would not extend to private or black-market transactions. However, when the citizen is deemed to not pose a threat to themselves or society to the extent that they are released into society, their rights should be restored immediately as they are no longer considered a threat.

When one citizen’s liberty is violated, all of society’s liberty has been violated. Liberty should never be sacrificed in a free society. Benjamin Franklin famously penned “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” in his 1755 letter to the Governor of Pennsylvania. As it relates to the protection of the Constitutional rights of those whose mental health is questioned, the objectivity, or lack thereof, involved with diagnosing mental health disorders is problematic when the testimony of physicians is used as evidence in judicial proceedings as it offers no objective or empirical evidence. The adjudication of a citizen as “mentally defective” in a court of law has a permanent effect on the Constitutional rights of the citizen. Granted, most physicians are competent providers; however, there is the possibility that, at some point, one will misdiagnose their patient and therefore subject their patient to needlessly suffering the effects from the undue revocation of their Constitutional rights. Many will argue that is the unfortunate collateral damage that must be absorbed by a few to protect all of society; however, the same demographic would disagree with the notion that a wrongly executed prisoner is the unfortunate collateral damage that must be absorbed by few to protect all of society. Removing the Constitutional right to keep and bear arms from a citizen that poses no threat to themselves or society does not make a society safer; in fact, many would argue that it makes society more dangerous.

The ability of courts to remove the Constitutional rights of citizens based on subjective and intuitive findings leaves the possibility of leading society down a dangerous path as it relates to human rights in this country. In states that have enacted or will enact “Red Flag” laws, family members or law enforcement are able to seek court orders to restrict a citizen’s access to firearms when the reporting party feels that the citizen may be a threat to themselves or society. Such laws leave the ability to allow for activist citizens with unpopular or extreme convictions to be unfairly targeted by those that seek to discredit or otherwise undermine their efforts. Many activists that hold such convictions are often label as “mentally ill” by those holding opposing convictions who make no effort to understand the premises behind the convictions of the citizens that they target.

“Red Flag” laws cause citizens to choose between their First Amendment rights and their Second Amendment rights. Such “Red Flag” laws are simply a backdoor to the seizure of Constitutional rights absent of a crime. “Red Flag” laws grant judges the discretion of disagreeing with a citizen’s Constitutionally-protected free speech while giving the judge the option to punish such speech by adjudicating the citizen as mentally defective, therefore revoking their Constitutionally-protected right to keep and bear arms. Given that mental health diagnoses are subjective and intuitive, the enactment of “Red Flag” laws grant judges far too much power.

“Mental Illness” is an extremely broad phrase. When a citizen is diagnosed with a mental illness, they run the risk of being adjudicated as “mentally defective,” allowing for the removal of their Constitutional rights. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (commonly referred to as “DSM-5”) covers a wide spectrum mental disorders; however, not all of those disorders present a danger to the citizen that suffers from the disorder or society. For example, DSM-5 allows for the diagnosis of Major Depressive Disorder upon the observation of symptoms associated for two weeks. Imagine that a citizen loses their job. They would be understandably upset. There is a likely possibility that they would present with the symptoms necessary to meet the criteria for a diagnosis of Major Depressive Disorder for longer than two weeks, even though what they are actually experiencing is what laymen would typically call “the blues.” Despite the temporary depression that the now-jobless citizen would be facing, they can be diagnosed with Major Depressive Disorder, which is a lifelong diagnosis that has the ability to cause a citizen to be adjudicated as “mentally defective.”

Imagine the citizen that once experienced “the blues” was diagnosed with Major Depressive Disorder, but now experiences no symptoms outlined in DSM-5, only much later winds up in court because someone believes that the extreme opinions that he espouses are evidence that he is a danger to himself or society. A psychiatrist testifies that the citizen in question has been diagnosed with Major Depressive Disorder. The judge then uses his discretion that the law granted him to adjudicate this citizen as “mentally defective,” even though a judge absent of medical credentials is an unqualified authority to make such a judgment. This citizen would then be barred from ever purchasing a firearm and would likely have his firearms confiscated. The worst part about all of this is that it is not necessary that he commit a crime in order for this to occur. All that must occur for this to happen is for someone to report him under the “Red Flag” laws.

Many will attempt to discredit this analysis as “gun nut conspiracy theories;” however, the hypothetical situations presented are not beyond the realm of possibility given the tactics employed by many of those with far-left political ideologies that typically identify as gun control advocates. The presence of activist judiciaries legislating from their benches is also a major cause for concern. If liberty can be unjustly infringed upon, then the language of the law that allows the infringement needs to be altered. Under the Fourteenth Amendment to the United States Constitution, it is stated: “[...]nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Such measures allow those with treatable mental illnesses to viewed and treated as second-class citizens under “Red Flag” laws and denying them the equal protection of the laws contrary to the law under the Fourteenth Amendment.

The slippery-slope effect that "Red Flag" laws can produce on the Second Amendment rights of citizens is tremendous. Citizens with treatable mental illnesses that are free to live among society still have an innate right to self-preservation. That right is intrinsic; it does not come from government. The Second Amendment did not grant the right to keep and bear arms for defense; it enumerated that right. Even had it not been enumerated, that right would still be retained by the People under the Ninth Amendment. The risk of gun-control activists colluding with activist judiciaries is far too great to allow for the rights of citizens to fall into the hands of the judiciary. For these reasons, subjective, intuitive testimony should never be considered admissible in a court of law, nor should medical opinions be interpreted by a judge or jury that is composed of those that would be considered an unqualified authority on the topic of the testimony when the judgment can lead to the revocation of Constitutionally-protected rights.

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