Fair way to remove mental health disqualification [View all]

[Glaug-Eldare]

Last edited Wed Nov 28, 2012, 10:56 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.&quot

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?