ON JAN. 2, 2004, a man named Farron Barksdale murdered two officers in Athens, Alabama. Barksdale legally purchased a gun, despite the fact that he had been involuntarily committed to a mental institution at least twice. After this highly publicized incident, Alabama became the 21st state to share at least some or all mental health records with the FBI. In 1968, a federal law was passed prohibiting the sale of arms to those who have been involuntarily committed to a mental institution. However, the effect of this law has been diminished by various state privacy laws which refuse to share mental health records with the FBI -- some form of these laws exist in at least 29 states. Because of the lackluster response by states, a response perhaps motivated by budget difficulties, Rep. Carolyn McCarthy (D-NY) and Sen. Charles Schumer (D-NY) are proposing legislation to require states to provide mental health records and, in turn, providing federal compensation for the process. This legislation, long overdue, will undeniably save many lives without violating the spirit of the constitution.
There is no doubt that state privacy laws are allowing dangerous people to acquire dangerous weapons. CNN has reported numerous tragedies; for example, "In suburban New York, a schizophrenic walked into a church during Mass and shot to death a priest and a parishioner." Had this individual been checked for her mental health background, the innocent priest and parishioner (along with their friends and families) would have been saved. The question is then whether its constitutional to use mental health records to bar certain individuals from legally purchasing and owning firearms?
The first component of this question is one relevant to the Second Amendment and perhaps, the easier constitutional question. Because the nation has a long line of precedent upholding certain restrictions on the right to bear arms, the second amendment had traditionally never been absolute. This point is generally not contentious. According to CNN, even the NRA, often seen as the vanguard of Second Amendment rights, supports the concept of federally requiring states to hand over mental health records. With regards to the Second Amendment, it would be difficult if not impossible to argue that Schumer's legislation is an unorthodox or unconstitutional.
The second component seems to be the more publicly debated issue: does barring the mentally ill from their second amendment rights violate the Fifth Amendment? More specifically, are these individuals losing their rights without due process of law? The answer to this question is delicately dependent on the definition of mental illness. If there were a law barring all mentally ill individuals from purchasing weapons, then such a law, applying to at least 20 percent of Americans, would unequivocally deprive Americans of any due process of law. However, there is no law on the books, nor will there ever be a constitutional law on the books, that implies such disorder. The 1968 law that Schumer's legislation is seeking to better enforce, bans only those who have been involuntarily committed to a mental institution.
In response to the 1968 law, Michael Faenza, president of the National Mental Health Association, said "You're singling out people because of a medical condition and denying them rights held by everyone else." However, singling out people and denying them certain rights is not unconstitutional if these individuals have been given due process. For example, by committing a felony, an individual abdicates certain rights (by being put in prison, being barred from voting, etc). Given that individuals can only be involuntarily committed to a mental institution after a court proceeding, such individuals are given due process. This court process can constitutionally put mentally ill individuals in institutions -- to say that they cannot also prohibit such individuals from purchasing weapons is a stretch, and ultimately an altogether unconvincing argument.
As Americans, regardless of how we feel about the ACLU or the NRA, we have a civic obligation to continually reflect on our rights
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