Mental Health and the 2nd Amendment

In many of the recent mass shooting events, we’ve learned that the perpetrators were mentally unstable, and should not have had legal access to firearms.  Immediately after every such shooting, gun control advocates call for more and more restrictions on the sale, possession and use of guns.  Pro 2nd Amendment people point out that denying the law abiding citizen his rights guaranteed under the Constitution does nothing to prevent such tragedy, and urge better mental health care.  Identifying the mentally unsound, and providing them with health care is seen as a proper way to minimize the risk to society.

The problem is, it necessarily falls to the government to define who is mentally unsound, either directly, or via health care providers reporting patients to the state.

In a preternatural example of tone-deafness, an administration under fire for snooping into Americans’ privacy is now proposing to waive federal privacy laws so psychiatrists can report their gun-owning patients to the government.

The Department of Health and Human Service’s “notice of proposed rule-making,” floated by the White House in a Friday media dump, would waive portions of the federal Health Insurance Portability and Accountability Act (HIPAA) to allow psychiatrists to report their patients to the FBI’s gun-ban blacklist (the NICS system) on the basis of confidential communications.

The 1968 Gun Control Act bans guns for anyone who is “adjudicated as a mental defective or … committed to a mental institution.” Unfortunately, under 2008 NICS Improvement Act, drafted by Sen. Charles E. Schumer, New York Democrat, and its regulations, that “adjudication” can be made by any “other lawful authority.” This means a diagnosis by a single psychiatrist in connection with a government program.

In the case of nearly 175,000 law-abiding veterans, the “lawful authority” has been a Department of Veterans Affairs psychiatrist, who, generally, will take away a veteran’s guns by unilaterally declaring him incompetent and appointing a guardian over his financial affairs. Certainly, the findings can be appealed, but most veterans don’t have the tens of thousands of dollars to hire lawyers and psychiatrists to do so.

The CGA of ‘68, as noted, says anyone adjudicated as a mental defective. And therein lies the problem.  To a layman such as myself, that word implies the involvement of a judge, in a courtroom, wherein the state must prove its contention, and the presumption of soundness rests with the individual.

And yet, somehow, we’ve found ourselves in a situation where now instead, rights of individuals are decided by bureaucrats and physicians (often Veterans Affairs doctors), with the presumption that their sole opinion is determinative. The burden of proof falls upon the individual.

The loss of soldiers and veterans to suicide has been a tragedy. The Army has made strenuous efforts to identify soldiers at risk, and help them to find the tools to cope.  Theoretically, this effort extends to the VA.

But VA doctors (and indeed, many private mental health care providers) have an incentive to err on the side of caution. There is no upside for them to not declare a patient competent. Further, should a provider have a bias against guns (something a patient is unlikely to know before securing their services), they may be ideologically motivated to declare a patient unfit.

Most alarmingly, it is hard to not suspect that the current administration sees this regulatory scheme more as a method of gun control than of providing mental health care.  What’s more, even the most casual observer of the news will note that the default assumption of the political Left is that any objection to their political goals is prima facie evidence of mental illness.  Indeed, the Soviet Union infamously used the “diagnosis” of mental illness to banish political opposition to care facilities, very often conveniently located in Siberia.

The tragedy is, there are veterans who desperately wish to avail themselves of care through the VA, but cannot trust their own government. The very government that handed them an automatic rifle is seen as far too willing to seize their private property, and indeed, their entire financial independence. These guardians of liberty are forced to risk their own lives, to live with the possibility they may choose suicide, or surrender the very liberty for which they fought. Ironically, a civilian with repeated episodes of odd behavior has far more ability to preserve his gun rights than a veteran.