EDITOR’S NOTE: This is one of a series of articles on gun rights. Each addresses a common anti-gun trope.

“We should toughen our laws to keep the mentally ill from buying guns!”

As certain as the tide, a high-publicity shooting incident elicits demands for more gun control from the usual quarters. An increasingly response from the pro-gun side involves deflecting these demands with calls for greater attention to the mentally ill, and especially for ways to debar them from purchasing firearms. Both these demands are, among other things, perfect-solution fallacies, and we need to realize that even the most totalitarian societies are unable to prevent all bad things from happening. Heck, even prisons can’t prevent violent crimes within their walls. Yes, it behooves us to seek ways to minimize the harm done by bad people and by sick people, but we shouldn’t delude ourselves into believing that there’s a perfect solution.

Many arguments are presented as if there are no rules in existence. Fact is, however, there already exist restrictions against the mentally ill when it comes to gun purchases. These are stated, overtly, on the BATFE form that every gun purchaser must complete when buying from a licensed dealer. Question 11f asks:

Have you ever been adjudicated as a mental defective OR have you ever been committed to a mental institution?

and clarifies:

Adjudicated as a Mental Defective: A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) is a danger to himself or to others; or (2) lacks the mental capacity to contract or manage his own affairs. This term shall include: (1) a finding of insanity by a court in a criminal case; and (2) those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility.

Such a determination, made by the government, should find its way into the NICS database (which must be checked every time someone tries to buy a gun from a licensed dealer). So, we already laws prohibiting the mentally ill from buying guns and already have a system in place to implement the law.

But, the trope argues, it’s not enough, lets make it tougher.

How?

How does this get toughened?

As usual, the devil is in the details.

The proposals for toughening the law generally seek to expand the threshold for inclusion on the no-buy list to those who’ve merely interacted with the mental health system.

The problems with this approach are two-fold. First – would it be effective? Second – would it violate the rights of millions of people?

If the rules for inclusion in the NICS do-not-buy list get expanded, won’t that discourage people from seeking treatment for possible mental issues? Would anyone with the sorts of tendencies that might lead to some atrocity be increasingly paranoid, and elect not to seek help, thus exacerbating the potential for a bad act? Actions have consequences, laws affect behavior, and the idea that Big Brother will deprive you of your rights merely for talking to a doctor is certainly enough to dissuade many from doing so.

If psychiatrists and psychologists are pressed to report more people they consider risky to the government but who’ve done nothing wrong (yet), wouldn’t that violate patient privacy? What of basic due process protections? Can a right be abridged or denied based on mere suspicion or one person’s subjective conclusion, un-adjudicated in a court and without opportunity for rebuttal? This stands our entire system of jurisprudence and the foundation for our liberties on its head, and would foster an environment of paranoia, secrecy, and increased lawlessness.

If it’s made easier for the government to say, based on mere suspicion rather than court adjudication (as is currently the law), that John Doe cannot buy a gun, what’s to stop the government from using that power for political purposes? Haven’t we seen enough examples of government abusing its vast power for political ends? Doesn’t Lois Lerner serve as but one of countless cautionary tales? Government is already vastly powerful. Giving it the power to abridge rights in this fashion is a “nose under the tent” step to limitless power over the citizenry.

If such an expansion were to be implemented, do we apply it to Internet postings? Would a tweet about hating the President be sufficient to get someone on the do-not-buy list? It’s already illegal to make overt, substantive threats, so what’s to be gained by expanding government’s power over us?

Certainly, some would be quite happy to see such power granted to the government, but their desire would be born of a desire to see gun rights denied, rather than people protected from the mentally ill. In other words, it would be “anything that gets us further to banning guns.”

Advocates for toughening mental illness exemptions need to think this through before simply offering the trope up as a rebuttal or counterweight to the demands for assault weapons bans or other increases in gun restriction in the wake of a high-profile shooting. We can certainly have a debate about how to address the undiagnosed mentally ill in our society, and we should have that debate. But, we must frame that debate in terms of results and consequences, and we must rest that debate upon our foundation of fundamental, Constitutionally protected rights. It is philosophically and morally wrong to infringe upon the rights of all people when a scant few do bad things.

There’s a reflexive desire to “do something,” as proof that we care and want to fix a problem, but if “doing something” inflicts harm without help, or if it makes things worse, we need to temper that desire and manage that reflex. It’s natural to want to offer an alternative “do something” when some demand their form of action in response to a tragedy, but it’s the wrong way to debate the issue. It’s “thinking past the sale” in that it accepts that something that restricts liberty must be done.

So,

Gun rights lesson #461: Before offering up a call for tougher restrictions on the gun rights of the mentally ill as an alternative to the anti-gunners’ demands for more gun laws, take a moment to ponder the how, the what, and the effectiveness of what you’re proposing. Liberty and constitutional protections cannot be thrown out the window merely to deflect others’ demands for rights infringements.

• About the Author

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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