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The Mentally Ill and the Right to Bear Arms: A Balancing Act

April 25, 2017 | William J. Birnes, JD

On December 19, 2016, President Obama’s administration passed a regulation directing the Social Security Administration to provide “relevant records” to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS) for the purposes of identifying those receiving Disability Insurance on the basis of a qualifying mental illness.1

Those with a mental illness that renders them unable to manage their own affairs, or those who have been adjudged to be mentally ill with a propensity for dangerousness to self and others, would be precluded from purchasing a firearm. The result was an outcry, but not along the usual partisan lines.

In critical responses by what otherwise might be deemed strange political bedfellows, both the National Rifle Association (NRA) and the American Civil Liberties Union (ACLU) opposed the Obama era regulation on Constitutional grounds. The NRA argued that the rule violated an individual’s Second Amendment rights, while the ACLU argued that it was unconstitutional for the executive branch to act summarily as prosecutor, judge, and jury to deprive individuals with the identified illnesses of their Second, Fourth, Fifth, and Sixth Amendment rights. This set up an apparent conflict among the different constitutional protections and raised multiple issues: Does the Second Amendment’s prohibition against government infringement upon an individual’s right to keep and bear arms trump (a) the government’s obligation to provide for the general welfare and the states’ sovereign police powers, and (b) an individual’s right to due process of law when one agency of government summarily acts in a legislative and judiciary role?

The regulation was rolled back by a House of Representatives vote shortly after the new Trump administration took office. Although on its face, it seemed as if the House were giving guns to the dangerously mentally ill, the real argument involved the reach of executive agencies into the Bill of Rights so as to modify and restrict their application to certain individuals. Had not the House rolled back the executive order, this issue would have most likely reached the U.S. Supreme Court for a resolution.

Docs v. Glocks

In a corollary controversy, Florida in 2011 enacted into law the Firearms Owners’ Privacy Act (FOPA).2 FOPA, dubbed “Docs v. Glocks” by the press, restricted doctors and health care professionals in general from asking their patients or clients about firearms in their homes unless, very specifically and in “good faith,” a question about a patient’s or patient’s family’s gun ownership was “relevant” to the patient’s or family’s safety or care. The intent of the NRA-supported legislation, the physicians and physician interest groups argued in Wollschlaeger v. Florida,3 was really to prevent family practice physicians and pediatricians from discussing gun safety with families, and so raised the issue of a potential conflict between the health care workers’ First Amendment right to free speech against the patients’ Second Amendment right to keep and bear arms—both of which apply to the states under the Fourteenth Amendment.

As vehemently as FOPA’s supporters argued that Florida had the authority to regulate health care within its borders and to guarantee that medical practices not violate the individual’s Second Amendment guarantees, the Eleventh Circuit did not see it that way. The court held, in an 8-3 decision overturning an earlier holding of that court’s three-judge panel, that insofar as the FOPA restricted a doctor’s or health care practitioner’s inquiry about firearms in the home, that restriction amounted to content-related speech, thus requiring the strictest standard of analysis, and its restriction was violative of the First Amendment’s free speech clause.4

The decision provided support for the prerogative of medical practitioners to protect the health and safety of their patients by separating the claim of an “infringement” under the Second Amendment from a content-based infringement under the First Amendment, thus using a constitutional basis to skirt the issue of a state’s regulation of the advice given to patients by physicians.

The Lessard Case

In another case, a federal court in Wisconsin held that even an individual deemed mentally ill by a health care professional does not surrender his or her constitutional protections of due process.5 In setting aside Wisconsin’s involuntary commitment law, the court in Lessard v. Schmidt held that the plaintiff’s rights to due process under Wisconsin’s involuntary commitment law were denied her and, further, essentially held that there was no such thing as mental illness and set a new standard for “dangerousness." It stated that involuntary commitment required a finding that "there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others." In so doing, the court required that an individual facing a hearing for involuntary commitment be afforded the same constitutional rights afforded to a criminal defendant, including, but not limited to, Fourth Amendment protections against search and seizure, Fifth Amendment guarantees of due process, and Sixth Amendment guarantees of right to counsel. Included in this package of rights was also the right to remain silent in the face of an inquiry into an individual’s mental health, which was, in essence, a Miranda protection to the suspected mentally ill individual, along with an exclusion of hearsay evidence. The court believed that mental illness was simply a label enabling psychiatrists to “shoehorn” certain people into medical diagnosis to “line their pockets” with fees based on the American Psychiatric Association’s diagnostic codes, the DSM manual.6

The Tarasoff Decision

In the seminal case of Tarasoff v. Regents of the University of California,7 the Supreme Court of California held that a mental health practitioner, in this case working for the University of California, had a duty to warn and a duty to protect a potential victim from a potential perpetrator of a violent crime who posed a threat to the potential victim, even when disclosing that threat may be a violation of the doctor/patient privilege. Failure to warn or protect would make the practitioner liable for damages in negligence. The justices in Tarasoff ruled that “once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.”8 They held that victim Tatania Tarasoff would likely be killed by patient Prosenjit Poddar, and, like contagious diseases, such knowledge demands control, for which psychotherapists, like doctors diagnosing infections, have the power to do.9 The Lessard and Tarasoff cases both deal with the constitutional rights of the mentally ill and those likely to be harmed by a mentally ill individual. Lessard held that an individual with a mental illness doesn’t forfeit constitutional rights and is still guaranteed due process of law. Tarasoff holds that a mental health practitioner must use professional judgment in weighing the danger his or her patient may pose to another individual and thus, notwithstanding the protected nature of communications between doctor and patient, has an absolute duty to warn and protect that individual. These cases, as well as the recent Wollschlaeger “Docs v. Glocks” case in Florida, demonstrate that the American criminal and civil justice systems are in the throes of a struggle to determine the nature of individual rights versus the rights of the public for protection from the dangerously mentally ill.

Unfortunately, because of the closure of many state mental health institutions since the Reagan-era “mainstreaming” of the mentally ill (resulting in a cost-shifting from the public health budget to the states’ emergency services budgets), much of the burden of dealing with the dangerously mentally ill has fallen upon law enforcement and first responders. We must wait to see whether this new administration and, in particular, the new Secretary of Health and Human Services, can find a resolution to the plight of the mentally ill, including our military veterans suffering from PTSD.


1 Federal Register. Vol. 81, No. 243 (December 19, 2016), (20 CFR Part 421 [Docket No. SSA–2016–0011] RIN 0960–AH95).

2 Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026.

3 Wollschlaeger v. Governor, Florida, No. 12-14009, 2017 WL 632740 (11th Cir. Feb. 16, 2017).

4 Id.

5 Lessard v. Schmidt 349 F. Supp. 1078 (E.D. Wis. 1972); and 414 U.S. 473 (1974) on appeal from Schmidt after with the Court upheld the original ruling granting plaintiff Lessard injunctive relief against the State of Wisconsin.

6 Liebert, John A., M.D. and William J. Birnes, Ph.D., Psychiatric Criminology, Boca Raton, FL.: CRC Press, 2017.

7 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).

8 Tarasoff v. Regents of Univ. of California, 17 Cal. 3d 425, 439, 551 P.2d 334, 345 (1976).

9 Id. at 344.

About The Author

William J. Birnes, JD

William J. Birnes is a New York Times bestselling author, a National Endowment for the Humanities Fellow, a literary agent, and the Chairman of the Board at Sunrise Community Counseling Center in Los Angeles, and has worked as a writer/consulting producer for the History Channel. The views expressed in this article are solely those of the author and do not represent the view of Purdue Global Law School, including its parent companies, subsidiaries, and affiliates.