The 1994 Assault Weapon Ban

#5, no gun if you've ever been treated for mental illness is EXTREMELY problematic. Not least of all because it would discourage people from seeking treatment, but also because it would require records of treatment for mental illness. Given how easily information is leaked these days, with "leaks" of medical and other personal information being counted in the tens of thousands of impacted individuals per episode, it seems a very bad idea.

It's also a bad idea because "treatment for mental illness" is very broad. I was treated for depression after a divorce, a transitory condition that vanished after a few years and my acceptance of my loss. My oldest boy is liable to be one of those kids our public "education" system demands be dosed with speed for ADHD. I work with a colleague who was treated for depression for several years before it was determined that she suffered from a thyroid problem.

So, those are some examples of cases of individuals impacted unnecessarily by the proposal to ban gun ownership for any person treated for mental illness. But the most important problem is that it would discourage people from seeking treatment. The idea to ban those who've beent treated for mental illness seems to spring from an ignorant and short-sighted definition of mental illness as "mentally-ill equals belltower shooter." It's stupid and discriminatory.

Buts let face it. Many of the mass shootings committed in the past 25 years have been by people who, while they have may not have met the legal definition of insanity, certainly seemed to exhibit signs of mental illness.

So what do we do about this. We could do nothing. That way no stigma attaches to mental illness, no one will be discouraged from seeking treatment (although I would be curious if you can cite any studies etc to support that argument) and we can tell the survivors of the victims of mass shooting "tough either your loved ones die or we place a stigma (nonownership of guns) and we choose to let your loved ones die.

We could ban all gun owneships which means the mentally ill as well. Doesn't seem real fair to the non ill folks.

Or we can ban the ownership or possession of firearms by the mentally ill (and their house mates) with perhaps a process for them to recoup those rights by presenting documentation from mental health professionals that they are not a threat and therefore shoulld be allowed to own guns.

Which solution do you choose? Or is their another way to address this you would like to share with us?

Mental health professionals will tell you that they are LOUSY at predicting who will and will not be violent in the future.  If we go down the "we think you will commit a crime so we're punishing you now" road, nobody is safe.

I know this is slightly off-topic, but it appears that we're already far down that road.  Did you know you can be arrested for trying to travel to Morocco?
http://rt.com/usa/news/alabama-muslim-morocco-wilson-952/

Keep in mind that laws cannot PREVENT crimes from happening, they can only allow us to punish those who break the law. 

How does someone "prove" they aren't a threat to anyone?  Dueling psychiatrists disagreeing over whether you will or will not harm somebody in the future sounds more than a little mystical.  How do they know, and what if they're wrong?  It all boils down to guesses that are just as likely to be wrong as right.

Glad you are joining us. Frankly a discussion without a dissenting or opposing view is dull as hell.

First, a general observation: your comment on this diary, as well as many on the prior diary, are based on a false premise to-wit: that the only available courses of actions in regards to assault weapons are (1) a reinstatement of the 1994 law with its warts and flaws included or (2) do nothing. That is simply not true. A third possibilty, among many others, is to improve on the 1994 law.

Now to specifics: In your first two paragraphs you are back to your false premise: that is, the definition of an assault weapon must be EXACTLY as it was defined in the 1994 law. Again, not true. As I point out,I offered my definition,followed by the 1994 definition. BTW, I did not write the 1994 law so the fact that my definition is different should not surprise you. Finally you are the only person thus far (that I am aware of) who is arguing any new law must be an exact copy of the 1994 one.

The private sale loophole. Of course it is a loophole and a problematic one at that. I would think all responsible gun owners ( and I include you and I in that group) recognize that certain people (felons, drug addicts, mentally ill etc) should not be allowed to own or possess firearms. The legal requirement for a background check to buy a firearm from a licensed dealer was enacted in 1993 (part of the Brady Law), specifically to prevent such people from buying guns. That meant that in 1994 the private sales exemption was a loophole to an existing law.

Yet, such persons continue to obtain guns. How do they avoid the background check? (1) they steal guns (2) they buy them from private sellers (often at gun shows) - no background check, thus no problem and (3) they use a strawman, someone who can pass the check, to buy the gun from a licensed dealer, then obtain it from the strawman in a "private" transfer.   

As to the effectiveness of the 1994 law. You are correct, I did not discuss it in as much detail as I intended to - teaches me to write a diary after midnight.

First however a couple of facts. The 1994 law was aimed at reducing the use of assault weapons and HCMs in violent crime, not at all violent crime. Next the 1994 law required that a study of its effectiveness cover a period of only 18 months (a bit strange considering the span of the law was 10 years) beginning 12 months after its passage. Finally studies were hampered by the fact that pre 1994 there was not a definition of assault weapons or HCM and Police agencies did not keep such stats.

That said, the effectiveness was marginal at best. However I submit that well might be because of the flaws present in the law (which I detailed in this diary). However to me, any ineffectiveness of the 1994 law is an argument for removing the flaws and writing a more effective law, not an argument for doing nothing (which as certainly been ineffective).

Let me give you an example. When methamphetamine first exploded on the scene in Alabama, we passed a law making it illegal. That was not particularly effective. We then limited the amount of ephedrine (the key ingredient in meth) a person could buy in a 30 day period, which made the ban on meth more effective. Then we made the law even more effective by limiting where ephedrine could be sold and creating a data base to track people trying to buy ephedrine at multiple locations. Damn glad we didn't just say as to the original law "If it doesn't work, then what good is it?" and decide to do nothing.

As to your last paragraph. First to clarify, I am proposing that those sentences be in addition to any sentence for any other crimes committed at the same time.

Second, we criminalize the mere possession of all kinds of objects. For example drugs, burglar tools, stolen property - need I go on? Why should illegal guns be different?

Finally, I am a little confused as to your opposition to this one. You have repeatedly stated that 99.9% of all guns are legally owned by law biding people  (which is probably true). How would they be negatively impacted?

Now fire away my opponent. Hopefully others will join the discussion.

The problem with mandatory minimums is that they are a broad brush that takes cases away from judges and ignores circumstances.  If a person's intent was only to secure the weapon to prevent it being used by a third party, should the judge not take that into consideration when sentencing?  Mandatory minimums fill our prisons with people who don't need to be there.

I also oppose mandatory minimum sentences, for similar reasons.

What if the person found the "illegal" gun on his property and tries to turn it in?  He is subject to prosecution under the letter of the law, because he "possessed" it. Punishing the innocent is never a good idea.  Do we have so few criminals that we need so desparately to create more?

In all this debate, I feel like we have not settled on which aspect of the gun death problem we are addressing.  Mainly here it seems to be the mass murder deaths, which are a small fraction of the overall death rate (including to children) related to guns.  We might be able to reduce those, but because they are so rare, compared to the total homicides/ suicides, I wonder if it really makes sense to put such a huge policy focus on them.

If we successfully reduced or even eliminated these tragic mass shootings, leaving the majority of children who die by gun to continue dying, have we helped the situation overall or just kept ourselves from having to witness the suffering that dribbles out child by child?

If all effort is to focus on mass shootings, it does make sense to look at the common shooter profiles and try to limit access to guns for that group.  Would make zero sense (as another commenter said) to target everyone with a diagnosed mental illness, since 1/4 of us in this country have a diagnosis in a given year.  Mental illnesses are plural-- not all the same.  Makes more sense to limit access for people with specific diagnoses which are proven to be associated with higher violence rates.  Also already pointed out-- some may not have even encountered the mental health system prior to the crime.  So if you really want to do this effectively (not just do something symbolic), you'd need to require actual testing at the time of purchase and periodically afterwards.  We don't know how to predict which people will become violent though, so doing this right would require development and research on accurate testing methods.  In theory, if that could be done, I don't see a problem with it, rights-wise.  We test vision before giving a driver's license.

However, most gun deaths, including to children, are not due to deranged shooters, mass shootings OR assault weapons.  So most of the current talk about assault gun regulation, limits on clip size, and screening for mental illness is not going to be as important as addressing factors involved in the majority of deaths.

Where do you get the data that England's deaths by violence have increased to anywhere near ours?  I searched this database-- most recent year with both countries tabulated was 2009, so maybe it has changed, but other databases with total deaths don't suggest that http://data.un.org/Data.aspx?d=UNODC&f=tableCode%3A1

Children's Defense Fund has some reliable stats and some well-considered steps towards improvement. Even those who don't agree with their overall philosophy might consider reviewing it http://www.childrensdefense.org/child-research-data-publications/data/protect-children-not-guns-2012.pdf  Notice the table near the end showing legislation by state to protect children-- we have basically nothing in Alabama, so lots of potential action we could take.

And here is some data showing the type of weapons used in homicide-- mostly handguns http://www.nij.gov/topics/crime/gun-violence/welcome.htm-- notice about 70% of the homicides are gang-related!  I have an old high school friend who moved up North and became a preacher-- he says he is constantly preaching at funerals of children killed by gang bullets in his community.  I have seen really nothing in the press talking about those deaths, since the latest killings.  Why do we ignore these children?  Seems racism and classism are still huge factors.

The gang ownership of guns is largely illegal of course.  How would we stop the flow of guns into their hands?  Making them less common would be a start, but there are so many out there already-- some serious thought would have to be given to that problem.

Glad you joined the discussion. Perhaps you could share any expertise you have and shed some light on some questions.

You mention that some mental illness diagnoses carry a greater likehood of the patient committing violent acts than others. Which ones are those?

Since mental illness diagnoses often take some time to make, should a patient be prohibited from possessing or buying firearms until the diagnosis is complete?

In my profession, we zealously protect the confidentiality of any communication between attorney and client. However, there is an exception. If a client discloses an intent to commit a future crime, the confidentiality ceases to exist and the lawyer has a duty to disclose the communication. Is that true in the medical profession? In other words if a patient disclosed to a mental health professional (MHP) that they intended to murder, does there exist a duty on the MHP to disclose?

Along the same lines, what if a patient discloses they have dreams or visions etc of killing people?

Currently in Federal Law "mentally ill" is limited to those who have been (1) adjudicated mentally incompetent by a Court or (2) involuntarily committed to a mental institution. Is that defintion too broad or too narrow in your opinion?

If MHP can not predict which mentally ill people will become violent, how will they be able to devise a test for potential gun owners?

Final question: what should be the liability of a MHP who fails to report a potentially violent patient to the Federal Govt, therefore preventing their inclusion in the background checks for gun purchases if that person later commits a murder with a purchased weapon?

because I thought maybe by my showing the data that most gun deaths are not related to mental illness or assault  weapons we might look at different factors.  I wonder why people are so fixated on mental illness?  It must be the drama of these incidents!

Remembering that I'm just a pediatrician, not a psychiatrist, and that most of what I know about mental illness in adults comes about because I am a family member of someone who has a serious mental illness-- what I've seen on other-directed violence (as opposed to self-harm) mostly shows a link with schizophrenia and bipolar (type I, especially if with psychotic features) if untreated.  Here's an interesting discussion that suggests the main problems are probably with dual diagnoses-- the combination of bipolar or schizophrenia with addiction. http://www.health.harvard.edu/newsletters/Harvard_Mental_Health_Letter/2011/January/mental-illness-and-violence

If a patient discloses intent to harm another or self, docs (not just psychiatrists but all of us) are required to report that to the police, at which point commitment proceedings begin.  I wouldn't think a dream would be sufficient-- Lord have mercy, if any of us did half the things we dream about, we'd all be in jail or in the hospital!  Lots of patients with obsessive compulsive disorder have a fear they will harm someone, maybe even a mental image, triggering all sorts of compulsive checking-- but they are not going to actually do it.  Would have to be an intention/ plan before a doctor would report.

A test-- well, as far as I know, there is not a good one that reliably predicts risk of violence.  So research would have to be done to produce it.

Your last question about a doc/ MHP reporting a patient with potential to become violent to the feds-- I am assuming you are talking here not about someone with a definite intention but, say, a person with schizophrenia and alcoholism.  Should they report such a person to the feds just based on a diagnosis?  Heck, no!! What an awful idea-- I think that would completely violate the 4th amendment, not that we haven't mostly ruined it already. Who is going to go to the doctor if they are afraid of winding up on a list? The great majority of those patients (if you see the link) will NEVER do anything violent.  Why should their privacy be violated by being on a list?

That's why I think that to pick up anyone who hasn't been declared mentally incompetent by a judge or actually committed, you'd have to find a way to test only people who actually apply for a gun.  The idea of a registry in advance of gun application, for people who have committed no crime other than being sick and who most likely will never commit a crime, gives me goosebumps. Most especially since mental illness is not the substantial cause of gun deaths in our country.

It's very hard to prove a negative.  Prove that I won't commit a crime.  Prove that I'm not crazy.  Hard to do... and if there is any question then we end up with battling shrinks and THEN what do we do?

We're talking about punishing people by removing their Constitutionally guaranteed rights... it might be nice if there were a certain degree of accuracy involved.  None of the proposals I've seen advanced offer any safeguards so that any conclusion reached by this "screening process" is as accurate as possible.  Inevitably, people will be denied their rights when they should not be. Equally inevitably, others will be allowed to own guns who should not be.

Mental health professionals will tell you that they are lousy at predicting who will and will not be violent, so the process is inherently flawed.

You said: "If a person was declined, they could appeal by getting a full psychiatric evaluation and submit it." - And how much would that full psychiatric evaluation cost me?  And if not me, then government will pick up the tab?  That means everybody else pays for it, and that's even worse.  What happened with having to PROVE somebody guilty of something before punishing them?  Antiquated concept, I know, but one I happen to believe in.

I don't disagree--ideally anything done as a screen would be highly accurate, and we'd need research to get there.

We already have regulation of the second amendment.  It even has the word "regulated" in it, as in "well-regulated militia."  Says nothing about a chaotic, free for all melee does it?

But I don't think approaching this as a mental illness problem is correct.  My fellow mental health advocates are jumping on this as an opportunity to get access, but I think they are mistaken.  We need to really seriously look at the big picture, and I am not sure any of us really understands it that well, including me.

You said: "ideally anything done as a screen would be highly accurate, and we'd need research to get there."

I disagree... we'll never get there.  We cannot today accurately predict who is and is not a danger, and there's no sign that we ever will. Any thought to the contrary is wishfull thinking.

Turn it around.  Make it up to the government to PROVE that the person whose 2nd amendment right they want to remove is a danger because of mental problems.  If they can't prove it, too bad.  That's sort of how our system is supposed to work... we don't punish people if we can't prove they've done something wrong! 

for other rights, like freedom of speech, religion, no unreasonable search/ seizure, etc.  This line of discussion forces me to say I don't see the 2nd amendment in the same light, and again I'd point to the phrase "well-regulated militia."  My guess is that if the framers imagined we'd be where we are, with our current social structures and weapons, they might have phrased it even more strongly.

We already have basic agreement that rights to some sorts of arms can be "infringed"-- we aren't allowed to keep nuclear weapons in our garages, for instance, or bioterrorism weapons.  We've agreed to certain restrictions on who can own the allowed arms.  But in the current form, neither limit is working very well.

So it may be that we ought to put a re-do of this amendment on the table. I know that idea is anathema to many, but at least we could discuss it. Possibly we need to re-envision gun ownership as being more like a driver's license, a privilege most capable adults could have but one that would require some proof of capability.  Since most gun owners say they want their weapons for personal protection, not for fighting a rebel war against the US government (not really likely to work, considering we don't have the massive weapon capacity of our federal government), that might get the end result most people really want.