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Tue Nov 27, 2012, 04:44 PM

Fair way to remove mental health disqualification

Last edited Wed Nov 28, 2012, 09:56 PM - Edit history (3)

Maryland is reexamining our gun laws regarding mental illness, with a focus on whether we need to adjust our laws to better balance RKBA with the need to protect public safety. One of the big issues that's come up is what the process should be for removing a mental health disqualification for somebody who has been healed, or is otherwise not dangerous.

For background, 5-205 of the Public Safety Article states that:

"Unless the person possesses a physician's certificate that the person is capable of possessing a rifle or shotgun without undue danger to the person or to another, a person may not possess a rifle or shotgun if the person:

(1) suffers from a mental disorder as defined in 10-101(f)(2) of the Health-General Article and has a history of violent behavior against the person or another; or

(2) has been confined for more than 30 consecutive days in a facility as defined in 10-101 of the Health-General Article.
"


and 5-133 of the Public Safety Article states that:

"A person may not possess a regulated firearm (all handguns plus those long guns specified in 5-101(p)(2) of the Public Safety Article) if the person:

(6) suffers from a mental disorder as defined in 10-101(f)(2) of the Health - General Article and has a history of violent behavior against the person or another, unless the person has a physician's certificate that the person is capable of possessing a regulated firearm without undue danger to the person or to another;

(7) has been confined for more than 30 consecutive days to a facility as defined in 10-101 of the Health - General Article, unless the person has a physician's certificate that the person is capable of possessing a regulated firearm without undue danger to the person or to another;
"




It's important to create legal barriers to gun ownership for those people who suffer dangerous mental illness, but what do you do with a person who has undergone successful treatment and overcome a disqualifying condition? The present scheme has the great virtue of having an positive, objective (in terms of the state's action) means of restoring the right, but the severe weakness of relying on a certification that very few, if any, doctors will be willing to make. A doctor may be subject to civil liability if he makes a certification that later proves unsupportable, and it is extremely expensive and time-consuming for a patient to meet with a doctor as many times as it would conceivably take to convince them of his soundness of mind. Even if he did, the doctor suffers no penalty for refusing to make such a certification, and his reward is legal risk if he does. Removing civil liability is hardly an answer, since that invites abuse. (Note the many, many licensed physicians who will accept money to issue licenses to violate federal drug laws on the basis of "I had a headache, like, two years ago.")

I favor the approach used in North Carolina, Arizona, Iowa, Washington, and probably several other states: Basically, a disqualified person can request a hearing for the removal of the disqualification, and he can introduce a much wider selection of evidence to support his petition. Things like compliance with treatment, work and family history, and input from psychiatric professionals can be presented without creating a liability issue. This is all presented to the judge/panel, which then makes a decision on whether to restore the petitioner's gun rights. It's subjective, but it makes it easier for the petitioner to bring evidence to the table.

That's my favorite choice, but I'd like to hear from fellow DUers. What's wrong with this plan? What's right with it? What other choices are there?

26 replies, 2715 views

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Replies to this discussion thread
Arrow 26 replies Author Time Post
Reply Fair way to remove mental health disqualification (Original post)
Glaug-Eldare Nov 2012 OP
SecularMotion Nov 2012 #1
Eleanors38 Nov 2012 #2
Hells Liberal Nov 2012 #9
Eleanors38 Nov 2012 #25
ManiacJoe Nov 2012 #4
oneshooter Nov 2012 #5
Glaug-Eldare Nov 2012 #6
oneshooter Nov 2012 #8
Tuesday Afternoon Nov 2012 #10
discntnt_irny_srcsm Nov 2012 #20
ileus Nov 2012 #15
MicaelS Nov 2012 #22
Starboard Tack Nov 2012 #23
Eleanors38 Nov 2012 #3
Glassunion Nov 2012 #7
Tuesday Afternoon Nov 2012 #11
Glaug-Eldare Nov 2012 #13
Eleanors38 Nov 2012 #26
petronius Nov 2012 #12
Glaug-Eldare Nov 2012 #14
X_Digger Nov 2012 #16
Union Scribe Nov 2012 #17
Glaug-Eldare Nov 2012 #24
Atypical Liberal Nov 2012 #18
Glaug-Eldare Nov 2012 #19
trouble.smith Nov 2012 #21

Response to Glaug-Eldare (Original post)

Tue Nov 27, 2012, 05:09 PM

1. I think the desire to possess a firearm should disqualify you from possessing a firearm

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Response to SecularMotion (Reply #1)

Tue Nov 27, 2012, 05:18 PM

2. Hard-line, extremist prohibitionism fuels NRA activism. Everytime. nt

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Response to Eleanors38 (Reply #2)

Tue Nov 27, 2012, 06:56 PM

9. Amen, Eleanors38

 

Anyone who's paid attention knows that gun control is a losing issue on the national stage.

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Response to Hells Liberal (Reply #9)

Thu Nov 29, 2012, 02:41 PM

25. I have maintained steadily that gun-control is really prohibitionist culture war...

and what happens when an attempt to prohibit a dreaded thing, practice or status. Prohibitionists fixate on the very real people who possess, occupy or maintain some identity status, and to dread and hate them. Perhaps this is the real dynamic of prohibitionism: to find an excuse to condemn and punish (in some way) vast numbers of people who are loathed in the first place; the prohibition is secondary. Once this bad habit is learned well, the prohibitionist just will not give up on the self-created "moral high ground" they think they occupy, and will continue to exorcise/exercise their demons no matter the political costs and ineffectiveness of their "policy" measures. They become extremists.

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Response to SecularMotion (Reply #1)

Tue Nov 27, 2012, 05:41 PM

4. Well, that was an honest response.

I am not sure what that gains you though...

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Response to SecularMotion (Reply #1)

Tue Nov 27, 2012, 06:07 PM

5. Should that standard also apply to anyone that wants to own an automobile?

After all more people are killed and injured by automobiles than firearms each year.

As for the argument that vehicles were not "designed" to kill or maim, it fails. As a device that is not designed to maim or kill does so very readily. Of course there is a human in command of it, but the same holds true for a firearm.

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Response to oneshooter (Reply #5)

Tue Nov 27, 2012, 06:10 PM

6. SecMo's opinion is well-known

and a lot of us disagree. Oh, well. If everybody just fights over the first comment instead of the OP, I'm going to be sad.

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Response to Glaug-Eldare (Reply #6)

Tue Nov 27, 2012, 06:23 PM

8. THERE IS NO CRYING ON DU!!!!!

I did recommend this one for you.





































































































Feel better?

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Response to SecularMotion (Reply #1)

Tue Nov 27, 2012, 07:09 PM

10. Shades of Catch-22.

you win. go back to the front.

back/front.

I kill me.

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Response to Tuesday Afternoon (Reply #10)

Wed Nov 28, 2012, 11:49 AM

20. On your way...

...please keep your seat back forward.

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Response to SecularMotion (Reply #1)

Tue Nov 27, 2012, 10:08 PM

15. So anyone seeking the means to care for their family should be denied the best option?

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Response to SecularMotion (Reply #1)

Wed Nov 28, 2012, 12:37 PM

22. The truth at last.

SecularMotion

1. I think the desire to possess a firearm should disqualify you from possessing a firearm


It's always so refreshing when you Gun Prohibitionists finally out yourselves.

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Response to SecularMotion (Reply #1)

Wed Nov 28, 2012, 01:01 PM

23. You have a point, but it's taking it a little too far IMO

I think the desire to possess a firearm for the purpose of killing humans should disqualify. Anyone desiring to carry a gun in public should definitely be subject to periodical psyche evaluations and be subject to stringent licensing. None of that is going to happen, though, as long as SCOTUS upholds it's current position on 2A.

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Response to Glaug-Eldare (Original post)

Tue Nov 27, 2012, 05:20 PM

3. "compliance with treatment" is a good standard.

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Response to Eleanors38 (Reply #3)

Tue Nov 27, 2012, 06:16 PM

7. compliance with available free of charge treatment...

sounds better to me.

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Response to Glassunion (Reply #7)

Tue Nov 27, 2012, 07:10 PM

11. ooh, I like the way you think.

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Response to Glassunion (Reply #7)

Tue Nov 27, 2012, 07:15 PM

13. Would definitely be a step forward.

It's a cruel predicament -- people with serious mental illnesses have extreme difficulty holding a job, so they can't pay for treatment, so they can't get healed, so they can't hold a job... Good luck getting the free market to solve that problem for any but the luckiest patients.

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Response to Glassunion (Reply #7)

Thu Nov 29, 2012, 02:46 PM

26. So noted.

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Response to Glaug-Eldare (Original post)

Tue Nov 27, 2012, 07:12 PM

12. I think that hearing approach is probably a good one - my opinion is that none of the

disqualifiers should be lifetime bans, although the method of removing the disqualification might vary. For mental health, a comprehensive and case-by-case assessment by a panel makes the most sense; for something like a felony conviction I think it could just be an automatic process, X number of years passing without another offense.

I agree that no/few doctors would be willing to certify anyone 'gun-safe', which is the same problem (among many) that proposals for psych evaluation prior to purchasing suffer from - it's too arbitrary, too time-consuming to do halfway decently, and places too much responsibility on practitioner who, while a professional, is perhaps not regularly trained in assessing fitness for gun-ownership in particular...

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Response to petronius (Reply #12)

Tue Nov 27, 2012, 09:12 PM

14. If we adopt such a scheme,

I'm curious exactly who would conduct the hearing. The nature of the case has more to do with medical condition than character or facts of law, so a typical District judge may be ill-equipped to make an informed decision. Perhaps members of the Mental Health Administration would be suitable.

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Response to Glaug-Eldare (Reply #14)

Tue Nov 27, 2012, 10:52 PM

16. Depending on the circuit and district, many judges hear a lot of opinions on mental health..

Competency, involuntary commitment orders, etc..

Doesn't mean they really can make an informed decision, but it kind of fits with some of their existing processes.

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Response to Glaug-Eldare (Original post)

Wed Nov 28, 2012, 01:30 AM

17. I've found legal definitions of mental disorders wildly vague

From the one you linked:

"Mental disorder" means a behavioral or emotional illness that results from a psychiatric or neurological disorder.
(2) "Mental disorder" includes a mental illness that so substantially impairs the mental or emotional functioning of an individual as to make care or treatment necessary or advisable for the welfare of the individual or for the safety of the person or property of another.


This could technically bar someone with hand-washing OCD from buying a gun. It's the weasel words like "or advisable" that cast the net far too wide. Definitions like this need to be reworked to focus on individuals with delusional or violent tendencies.

I'm glad that there may be a change so that people can get their doctor to clear them, though I like you wonder about the liability issue and how many doctors are willing to put themselves on the line by essentially assuring the community that someone--anyone--will be responsible with a weapon. Better for a judge or panel to do it like in the states you describe.

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Response to Union Scribe (Reply #17)

Wed Nov 28, 2012, 09:14 PM

24. Fortunately, that's not all:

Disqualification requires the person to have a mental condition described in 10-101, and have "a history of violent behavior against the person or another." Hand-washers are not disqualified. That's been assailed in the recent past, however. In 2011, the original version of HB 730 would've made ANY diagnosis of a DSM-IV mental condition a disqualifier. This would apply to people with anorexia, bulimia, insomnia, anxiety, hypochondria, erectile dysfunction, phobias, dyslexia, stuttering, attention deficit disorder, and transsexuals.

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Response to Glaug-Eldare (Original post)

Wed Nov 28, 2012, 08:55 AM

18. Are there any mental conditions that can be cured?

 

I'm not aware of any mental conditions that can actually be "cured". It seems like you have to stay on your medication and if you come off, you are back to the same condition again.

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Response to Atypical Liberal (Reply #18)

Wed Nov 28, 2012, 11:43 AM

19. "Cure" is generally inaccurate,

but it is very common for successful care to result in a patient being able to manage their condition independently, without further treatment. Few people (fewer professionals) would describe their condition as "cured," but it no longer impairs their ability to live a normal life.

For firearms, the standard in Maryland is tendency or risk of committing violence. Many, many patients who considered violence (including suicide) before treatment no longer do so after. You do raise an interesting question, though: Is a person who is dependent on medication for the treatment of their condition fit to possess firearms? In my opinion, that'd be a question for the panel to decide, weighing the consequences of coming off a medication schedule against the petitioner's history of adhering to that schedule.

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Response to Glaug-Eldare (Original post)

Wed Nov 28, 2012, 12:20 PM

21. It's certainly important that we keep guns away from psychos, felons, and drug addicts.

 

but we should be careful that we don't use vague language in our legislation that could be used to deprive people of their rights inappropriately. specifically, I think we should be mindful that not all depression is created equal. If you're taking elavil because you want to kill yourself, you don't need a gun. If you're taking elavil because you're depressed over the loss of a family member a month ago, it might not be appropriate to start stripping you of your legal rights. Maybe if you're still taking your antidepressants a year later.

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