Taking Aim at Recent Legislative Proposals to Curb Gun Violence from Mental Illness: A Second Amendment Response

Abstract

The Consortium for Risk-Based Firearms Policy’s report “Guns, Public Health, and Mental Illness: An Evidence-Based Approach for State Policy” has furthered an important conversation at a critical time, because mental health and firearms law are emerging areas of American jurisprudence. Written by an attorney who has represented hundreds of patients alleged to be suffering from a mental illness, and who has represented numerous rehabilitated individuals in firearm rights restoration proceedings, this Article criticizes the Consortium’s Report for consistently seeking to redirect the restoration process away from courts into the territory of mental health professionals. Specifically, three of the Report’s principal recommendations should be reconsidered. First, the majority of federal circuit courts that have decided the issue have held that temporary detention does not impose a federal firearms disability; therefore, firearm rights restoration petitions that arise from temporary detention should not be subject to time-based jurisdictional limitations. Second, testimony of a mental health professional should not be a jurisdictional prerequisite for courts to conduct firearm rights restoration hearings. And third, the prospective removal of firearms from an individual with or without a warrant should not be imposed absent an order of involuntary commitment where the individual has received due process. These proposals reflect underappreciation for, and an occasional misunderstanding of, the practical and legal realities of firearms rights restoration proceedings. Moreover, their ability to withstand Second Amendment scrutiny is subject to doubt.

Keywords: mental health, involuntarily commitment, firearms disabilities, firearm rights restoration, due process, Virginia