Insane US gun laws fail to keep weapons from mentally ill

How can obviously insane and mentally ill people obtain guns? There should be a law! Well, there is. Sort of.

As one who has been in the realm of professional commentary for over 27 years and in the front lines of the debate – and I’m not exactly sure why there’s even a debate as to the urgency in stopping senseless murder – I find the issue that comes up constantly is how can we close, if not significantly narrow, the loopholes of gun laws that allow obviously deranged and sick people to get a firearm in the first place. Is there a law in effect, is it enforced, and if not, why not? And as we’ll see, 1) when this mental instability actually took place and 2) if it was of judicial record that are two critical observations. Let me explain.

There are indeed statutes already in place that address this very issue. Federal law makes it illegal to sell or give a firearm to anyone who "has been adjudicated as a mental defective or has been committed to any mental institution." And keep in mind that there are also state laws as to the possession of firearms by the mentally ill. But first, read the referenced portion of federal statute 18 U.S. Code § 922 and ask yourself where the confusion is.

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(4) has been adjudicated as a mental defective or has been committed to any mental institution;

And therein lies the rub: What to do with those requirements that seem to mandate that someone be adjudicated “mentally defective” or committed. Where’s the PC police when you need them? “Adjudicated” implies a formal finding and declaration by a court that a person is a threat to himself or to others and/or has been involuntarily confined for treatment or rehabilitation. It’s not enough that someone appear to be daft or odd or strange.

It’s also not enough that someone suffers from or experiences transient emotional or psychiatric episodes. Depression, PTSD, anxiety, postpartum depression or being on a spectrum all fall short of this mandatory adjudication requirement. And many argue that is a sound decision. After all, being able to deny someone the ability to possess a firearm merely because of an anecdotal exhibition of emotional or behavioral disquietude poses serious and significant constitutional and civil liberties issues.

Complicating the issue even more is the realization that the major force and motivator in the exhibition of criminally violent handgun behavior is in so many instances mental illness in the first place. Maybe not “adjudicate-able,” but certainly enough to satisfy the insanity defense for criminal prosecution purposes (I recently explored the mental health aspects of drug abuse and addiction). This then presents a rather circuitous analysis whether insanity or the gun itself is the cause of the crime and how, a fortiori, insane people shouldn’t have guns because they are more prone to use them because they’re insane (Adjudicated insane, that is).

Making the issue even more complicated - if that’s even possible - is the fact that incomplete and poorly kept and lost records often allow adjudications of incompetence and orders of confinement to remain inaccessible (now let me remind you that I haven’t even touched on the additional issue of gun ineligibility due to prior felony convictions and instances where guns are sold through private sales and gun shows).

READ MORE: Psychiatric drugs kill 500k+ Western adults annually, few positive benefits – leading scientist

And like it or not, we’ve a Second Amendment that may or may not have construed a militia as the sole means of necessary application, a subject of debate that promises to continue without surcease. And further note that we’ve legions of otherwise good people who, though not adjudicated incompetent or subject to involuntary commitment, are deemed odd or scary or peculiar (whatever those terms connote) and yet they and their advocates sincerely believe that they should still be able to enjoy whatever rights the Constitution provides them, notwithstanding their effect.

So, to perorate, laws are in effect that clearly address the issue. The question is how effective the laws are.

Lionel is an Emmy Award-winning lawyer, legal analyst and news decoder.