U.S. Constitution, Fifth Amendment
In the past couple of weeks, I have engaged in a number of debates about Tuscon gunman Jared Loughner and guns, mental health, Loughner getting a gun, and gun control. Among those I have debated have been people who have urged that mentally ill people should be denied access to weapons, as if this is the first time something like Tuscon has happened. The debate has usually proceeded along these lines: the shooting was so tragic, how could a man so obviously disturbed get a gun, they should ban such people from getting guns, someone should have reported his problems, no mentally ill persons should be able to get a gun. There have been hints at banning glocks, high capacity magazines, and other gun control advocacy.
The fact that the people I have been debating are smart, articulate and passionate has never escaped me. However, there are so many assumptions being made by those I have been debating and some other very smart people in the general commentariat.
One of the biggest errors that has been made is looking at Loughner from a viewpoint of hindsight and the benefit of an investigation. Evidence has certainly come to light of his drug use, of his probable mental health issues, that Loughner was denied entry into the armed forces, that Loughner had issues at school, that he had a disturbing obsession with Rep. Giffords, various other run-ins with the law, etc. The list seems endless, but each of these incidents, when viewed by themselves, as the incidents must be considered at the time they occurred, does not reveal to any single participant anything particularly wrong or potentially dangerous (keeping separate Loughner's own private actions).
It is only when viewed in the aggregate, with hindsight, that we see a clear picture of what appears to be a truly disturbed young man. Many people express shock that all of these people who had dealings with Loughner didn't see his problems. Why should that be shocking? As a loner, most of Loughner's interactions with people would have been limited, discrete encounters where he might have seemed,at most, a little weird, but not really anything that would suggest he was capable of murder.
So with hindsight, we see a different person than those who interacted with him saw prior to the shooting. We now piece together his life with the benefit of a concentrated investigation that no one had the benefit of before. That he wasn't recognized as a potential threat before the shooting is not particularly shocking. What seems so obvious now is anything but as the events are unfolding.
Regarding the calls for prohibitions on people like Loughner getting access to guns, again, the benefit of hindsight sheds a very different light on matters. One of the comments I have heard is that there should be a way to prevent a mentally ill person like Loughner from getting a gun. Well, like most state, there is a law in Arizona that prohibits the sale to and possession of firearms by people who are a danger to themselves or others. Arizona's Criminal Code, Title 13 of Arizona Revised Statutes 13-3101 reads (in part):
7. "Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to himself or to others or to be persistently or acutely disabled or gravely disabled pursuant to court order under section 36-540, and whose right to possess a firearm has not been restored pursuant to section 13-925.Arizona Revised Statutes 13-3102 reads, in part:
A. A person commits misconduct involving weapons by knowingly:.....
4. Possessing a deadly weapon or prohibited weapon if such person is a prohibited possessor; or
5. Selling or transferring a deadly weapon to a prohibited possessor; or...
So as you can see, possessing or selling a deadly weapon to a prohibited person, which is defined as someone determined to be a danger to themselves or others is already banned in Arizona. The law is on the books.
So why wasn't Loughner on the list of prohibited persons is a legitimate question but one that has a simple answer: No one thought to ask a court for a determination that Loughner was a danger to himself or others.
No one asked, because, as stated above, there might not have been enough cumulative evidence to any one person (outside of possibly his family) to suggest that Loughner was dangerous. The Arizona criminal code made it a crime for Loughner to possess a weapon only after and therefore not before, a court issued an order that declared him a danger and proscribed treatment. But getting such a court order is not a simple or necessarily short matter. The reference in the prohibited possessors definition "pursuant to court order under section 36-540" entails some specific procedures and protections to avoid having people improperly classified a unstable when it should not apply. Here is what Arizona Revised Statutes 36-540 says,
A. If the court finds by clear and convincing evidence that the proposed patient, as a result of mental disorder, is a danger to self, is a danger to others, is persistently or acutely disabled or is gravely disabled and in need of treatment, and is either unwilling or unable to accept voluntary treatment, the court shall order the patient to undergo one of the following:
N. If a person has been found, as a result of a mental disorder, to constitute a danger to self or others or to be persistently or acutely disabled or gravely disabled and the court enters an order for treatment pursuant to subsection A of this section, the court shall grant access to the person's name, date of birth, social security number and date of commitment to the department of public safety to comply with the requirements of title 13, chapter 31 and title 32, chapter 26.
Clear and convincing evidence is a lower standard of proof than in a criminal context, which is reasonable doubt, but higher than the standard of proof necessary in a civil trial, which is usually preponderance of the evidence or a "more likely than not" standard. So under Arizona law, Title 13, chapter 31 dealing with guns and gun ownership, to be denied the right to own a gun is contingent on a court hearing and clear evidence of danger to oneself or others.
The only way a mentally ill person can be put on a list to prevent him from purchasing a firearm is for a court to conduct an evidentiary hearing, which involves the collection of documentary evidence and testimony (usually from more than one person). Only if the judge is satisfied by clear and convincing evidence that the person presents a danger to themselves or others and only if the judge enters an order for treatment can someone's right to or possess a firearm be prohibited.
In the case of Jared Loughner, some would have had to bring his case before the courts to make a determination that he was a danger to others. The courts cannot issue orders on case not properly before them and the police cannot be empowered to deny rights without a process.
So why all these legal hoops to jump through to prevent a shooting like Tuscon? Why can't some just make a complaint about a "crazy" person and the courts or police simply put them on the list of prohibited possessors?
The Fifth Amendment to the U.S. Constitution.
The 5th Amendment reads, in full:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.(Emphasis Added). The bolded and italicized text is what is important here. "No personal shall ... be deprived of life, liberty, or property without due process of law." If the government (including the police and the courts) wants to or must deny anyone, including those suspected of being a danger to themselves or others, their liberty or freedom there must be a proper legal finding and ruling. Governmental limitations on someone's rights that they would otherwise enjoy can only be imposed pursuant to due process of law, which means a court proceeding, following the proper rules of procedure and the protections all citizens enjoy, even those who are mentally deranged.
Like it or not, the default law of the land is that adult Americans and resident aliens are free to own weapons, including guns (subject to reasonable licensing and registration laws). That is the default position, that gun ownership is a freedom established in this country. If the state is going to take away that liberty, the state must followed a proscribed process of law. We cannot allow the government, the courts or any police agency and just as importantly, the emotional reaction of the public, to take away rights without giving a fair chance for a hearing.
What happened in Tuscon, while tragic, is not a failure of gun control. It is a failure, of so many people, to bring Loughner's problems to the attention of the court so that a court could determine, pursuant to procedure, if Loughner was a danger to himself or others. But such a failure is, for the most part, a blameless failure because we as a society are conditioned to "mind our own business" and "live and let live." But unless someone, family, friends, or an employer brings the problems to the attention of the authorities, then there is nothing that can be done. Unfortunately it sometimes takes a tragedy to see the full scope of someone's problems.
In order for Loughner to have been put on the prohibited possessors list in Arizona, five things would have had to have happened:
- Someone would have had to recognize or suspect that Loughner was a danger to himself or others.
- That someone would have had to report the concern of Loughner being a danger to someone to a proper authority, i.e. the courts, police or mental health agency.
- A proceeding would have to have been initiated by someone asking a court to determine, by clear and convincing evidence, that Loughner was a danger to himself or others.
- That a court actually found Loughner to be a danger AND ordered treatment of some kind, which would have put Loughner on the list of persons prohibited from owning a gun.
- That a legal gun seller would have adhered to the law and checked the prohibited possessors list.
Of course, all of this pre-supposes that Loughner would not have illegally obtained a weapon.
In summary, laws exist, even in Arizona, to prevent mentally ill persons from legally obtaining weapons. The problem is that in order to prevent such an occurrence there must be recognition of a problem, action taken on that recognition and then adherence to a due process of law to deny someone their rights to own or possess a weapon.
Policy debates about wide-spread gun ownership rights is a concern separate and apart from what happened in Tuscon. Gun control advocates can pursue legal and political channels to change that law, but right now gun ownership is a protected right. Denying that right to a specific individual, even one with mental health problems or impairments, requires the due process of law.
Emotionally, I feel for those who have suffered at Loughner's hand. I believe that we all do. But we are a nation governed by the rule of law, not the rule of emotion. We cannot allow the washes of emotion to dictate policy, for doing so enacts bad law, and actually creates a government no better than the whims of a tyrant. I know the law offers no comfort in a situation such as this, but we have laws to prevent the denial of rights based on arbitrary, if understandable, emotional considerations.
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