DANIEL VAUGHAN: Stripping gun rights from the mentally ill is unconstitutional and wrong

February 19, 2018

In the wake of tragedy, it’s natural to demand change. And as horrific as the shooting in Parkland, Florida, was for the nation to watch, it’s not rational to use that as a means to dismantle the rights of those most vulnerable.

There’s a long history of targeting the “mentally ill” in society, stripping them of rights, and exposing them to abuse — all because culture claims to know better. Mental illness restrictions are often poorly defined and broadly enforced. And before we start shifting laws to target those who are often unable to speak for themselves, it’s best to take a step back.

It might help to examine one of the laws brought up in debates. In 2015, the Obama administration issued a rule to the Social Security Administration that forced them to report “to the National Instant Criminal Background Check System disability applicants unable to manage their finances due to a mental health condition.”

In essence, if Social Security knew you were mentally disabled, they were expected to report your name to federal background check databases which would, in turn, deny weapon purchases. One of the first acts of President Trump was to sign a law overturning this rule and forbidding Social Security from taking this action. Overturning the rule drew bipartisan support.

Notably, disability rights advocates teamed up with the NRA, conservatives, and civil rights advocates to overturn the rule for two reasons. First, it was overbroad in the number of mental illnesses it encompassed, people with non-threatening problems like autism, agoraphobia, and others could be denied rights by merely designating a friend or family to help them with social security finances. These people aren’t a threat.

Second, the law set a dangerous precedent when evaluating whether or not people with mental illnesses could have rights stripped. As Ari Ne’eman, a former member of President Obama’s National Council on Disability, wrote for the highly liberal media outlet Vox:

Disability advocates are concerned with setting the precedent that needing help with financial matters implies a lack of capacity to exercise other rights. These concerns are rooted in discrimination people with mental disabilities face in other areas of life, such as parenting and voting rights. On these issues, people with mental disabilities often face an assumption of incapacity, forcing disability and civil rights advocates and attorneys to fight to overturn assumptions that a diagnosis or determination of support need in one area should lead to a loss of rights in an unrelated area.

The fear of losing rights isn’t a slippery slope fallacy, where people are needlessly fearmongering. The concern rests on historical fact.

In the now infamous 1927 case of Buck v. Bell, the U.S. Supreme Court upheld a law that allowed states to sterilize men and women they deemed “mentally feeble.” Justice Oliver Wendall Holmes, Jr. penned the opinion and declared “three generations of imbeciles was enough,” and it was in the public interest for the state to target and sterilize those it didn’t want to reproduce.

The woman Holmes declared “feeble-minded” was Carrie Buck, an 18-year old girl who was raped as a teenager. Because of her “feeble-mindedness,” she was declared a threat to the state and sterilized.

The Nazis closely mirrored their eugenics laws after the American statutes built by progressives. Buck v. Bell was cited as a defense by the Nazis in the Nuremberg trials.

Lest you think this was just a historical fact from the early 20th Century, doctors from the 1950’s to the 1970’s purposely infected mentally disabled children with viral hepatitis to study the effects. They brushed off the experiments on the grounds they were searching for a vaccination.

Which brings us back to the social security rule above, what it amounted to was stripping of rights without due process. You don’t have to go through a court proceeding to designate a friend to help you with finances. The government was willing to use that as a foundation to strip constitutional rights from people.

Any legislation seeking to strip gun rights from the mentally disabled has to deal with this situation. Just because you’re mentally disabled doesn’t mean a grant of fewer rights than the rest of society. You still have free speech, free exercise of religion, voting rights, full due process protections, and everything else granted under the U.S. Constitution.

Laws can’t force doctors to start reporting patients that should get denied rights. A private actor doesn’t have that level of power.

Doctors shouldn’t be forced to go to a court to declare patients mentally unfit for gun ownership either. That makes a person’s handicap public and subject to judgment. That’s a sure fire way to ensure people stop seeking help or treatment.

You also can’t unilaterally declare, as a Florida sheriff did, that people in treatment for mental illness should get systematically stripped of gun rights. If you can strip gun rights without due process, you can shred any legal right.

Tragedies are horrible, and it’s understandable to seek solutions. But stripping the rights of those who are often the weakest, in the name of public good, is wrong. Doing so without due process is unconstitutional.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.