Submitted by Charlton Stanley, guest blogger
(Otteray Scribe)
What is mental illness? It’s a hot topic in the news recently, because of proposed gun control legislation. I saw a photo yesterday of people holding up a huge sign saying, “Keep guns out of the hands of mentally ill.”
There is far more to the demonization of the mentally ill than just the firearms issue. It spills over into the Federal Aviation Administration and the Department of Transportation. It is not just guns; it is airplanes and trucks as well. This brings us to the core question of, “What is mental illness?” The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) is the current handbook for classifying mental disorders. DSM-V is in the final stages of development and will be published in May 2013. That is only next month.
Which brings us back to the original question of what exactly is mental illness? In New York, a man’s home was raided, his Concealed Carry Permit revoked and guns confiscated because someone told the police he was taking an anti-anxiety medication. I have received emails in the past week from several friends about this issue. One of them is a vet, M→F transgendered. She is concerned about being able to renew her own Concealed Carry Permit (CCP). As a veteran and avid target-shooting hobbyist, she is well trained in gun safety and use. As a transgender woman, she is a target and prey according to FBI statistics. Hate crimes against LGBT people are at a 14-year high.
According to the DSM-IV-TR, “Gender Identity Disorder” is one of the mental illnesses. In the DSM-V, it is renamed “Gender Dysphoria.” While claiming it is not a mental illness, the fact that Gender Dysphoria is in the DSM-V in the first place makes it suspect in the eyes of many. Two days ago, she sent this excerpt from a local outlet:
The enforcement action started on March 29th when New York State Police asked the Erie County Clerk’s Office to pursue revoking the man’s pistol permit because he owned guns in violation of the mental health provision of New York’s newly enacted guns law called the SAFE ACT.
The allegation turned out to be untrue and his guns returned to him. As it turned out, the police, sua sponte, initiated the action. The only lawyer involved in the matter was the man’s own attorney.
Erie County Clerk Chris Jacobs said, “When the State Police called to tell us they made a mistake and had the wrong person…it became clear that the State did not do their job here, and now we all look foolish.”
Flaws in the mental health reporting provisions of the NY SAFE Act were blamed for the misunderstanding. The county clerk added, “Until the mental health provisions are fixed, these mistakes will continue to happen” (source: WKBW-TV)
The bigger issue is how come taking an anxiolytic prescribed by one’s family doctor disqualifying? It would be interesting to know just how many of those raiding officers, and their supervisors, are taking medication for anxiety, depression or sleep.
Is mild anxiety a reason to stigmatize someone, and possibly violate his or her civil rights? It gets better. The FAA Medical Examiner will not allow psychiatric medications for any class of Medical Certificate. If a psychiatric medication, it is an automatic disqualification. Several non-psychiatric medications are disqualifying as well. When Tagamet (cimetidine) was first released to treat ulcers and hyperacidity, it disqualified one from holding an FAA Medical Certificate in order to fly. I first heard about that from a friend who was an Aviation Medical Examiner at the time. He told me the FAA put Tagamet on the list because, “It acts on the central nervous system.”
What is mental illness? Some say it is anything that is in the DSM. However, as I have pointed out in court many times, the DSM is a handbook put together by a committee. Everyone has heard the old joke about what a committee produces: “An elephant is a mouse designed by a committee.”
The new DSM-V will be expanding the definition of ADHD. The definition of PTSD is supposed to be clarified in the final definition. Homosexuality was removed from the DSM-IV. If it was a mental illness, the why was it removed? The answer to that is simple. It is not a mental illness.
Let’s look at posttraumatic stress disorder (PTSD) as a single example of a single disorder. PTSD is classified as an anxiety spectrum disorder. Symptoms include feeling anxious, vivid dreams or memories of a traumatic event, and avoidance of situations that might remind one of the traumatic event. Those are called “triggers.” Some claim that only combat veterans can suffer PTSD. That is nonsense. The original trauma can be anything causing one to fear for their own life or safety, or that of others. No one knows how many Americans suffer from PTSD, but the NIMH estimates 7.7 million adults have diagnosable PTSD. That is about 3.5% of the population. 22% of Vietnam veterans returned with PTSD. My personal impression is that number is too low by a significant margin. Many people with PTSD have never been diagnosed. Why? Because they are afraid to talk to a doctor or clinical social worker.
How many rights should be taken from all those citizens and veterans, simply because they have PTSD?
When some of the most prominent mental health experts in the world cannot agree what mental illness diagnoses are, how are lawmakers, judges and law enforcement officers supposed to know? Is being transgendered a mental illness? How about homosexuality—oops, never mind, they took that out of the DSM-IV. There are many people with bipolar disorder walking around and you will never know it, especially if they are taking their medication. Should a person with well-controlled bipolar disorder be allowed to drive an 18 wheel truck, fly a light airplane, or own firearms?
It is interesting that the FAA has created a new class of aircraft, call Light Sport Aircraft” or LSA, which do not require an FAA medical certificate to fly. A light sport pilot may fly with a valid and current driver’s license. Glider pilots can exercise the privilege without a medical certificate.
This brings us to driver’s licenses. If a person, who is taking Xanax or some mild anti-depressant is not allowed to own firearms or fly a Cessna 172, why can they drive? An average automobile or pickup truck weighs almost two tons. They drive on two-lane roads at 55 or 60 mph. That means on a two-lane road, they are passing within two to four feet of each other with a closing speed of about 120 mph.
Just what is mental illness, and where is that bright line drawn for different activities and privileges of ownership? Think about it. Your physician has to give you a formal diagnosis in order to write a prescription for any medication. Almost any Primary Care Physician, especially family doctors, will tell you that a large percentage of their patients are receiving medications for diagnosed psychiatric conditions. The most common are depression and anxiety, either situational or endogenous.
Alcohol, in my opinion, is much more dangerous than any antidepressant or anxiolytic on the market. Yet, alcohol is legal in most areas. The individual is responsible for keeping their alcohol level under the legal limit, without any government official monitoring them. The rule for pilots is, “eight hours from bottle to throttle.” In other words, if you intend to fly, there should be at least eight hours between the last drink and flying. My rule was always 24 hours just to be on the safe side. Alcohol is involved in far more assaults, shootings, auto crashes, and suicides than any psychiatric medication I know of. That is because alcohol is a disinhibitor.
It is unfortunate that Congress saw fit to suppress data collection on firearms violence back in 1996. I see many pronouncements on violence related to firearms, but without real science, those pronouncements are meaningless. Last January, President Obama lifted the 17-year drought on data gathering. Some members of Congress and the NRA are demanding that the data not be used to promote or advocate any position on violence. Fine. That is the way data should be gathered—content neutral. That honors the null hypothesis approach to research. However the results of the data fall, it should be accessible to other researchers. It must not be buried.
Legislation and administrative rules that limit rights are already having negative effects on people with mental health issues. They do not get treatment, or ask their doctor for advice. Sometimes they lie. Sometimes a patient will show up, insist on paying cash, register under a John Doe alias, give a vacant lot as an address and use 888-88-8888 for a Social Security number. Most people who need mental health medications or treatment refuse to seek help. If anyone thinks that is a good thing, they are not paying attention.
As my father used to say, “Anybody with one eye and half-sense could have seen that one coming.”
HIPAA is supposed to keep your records private, but they are accessible with a court order. Alternately, any agency issuing a license or certificate can insist on the applicant signing a HIPAA complaint medical release form. Sign the form or you do not get your license. One must always beware the Law of Unintended Consequences.
Here are a few tidbits to chew upon. Please discuss. Where is that bright line?
Bron, no one has suggested that people should not be able to own firearms, and no one has suggested that the Founders believed that either.
“Bron, no one has suggested that people should not be able to own firearms, and no one has suggested that the Founders believed that either.”
Mike A,
You’re absolutely right, but it seems that little fact must be ignored in order to ensure that no legilation regarding firearms is ever passed. Another “slippery slope” argument, that may not hold water.
AY:
by Jove if the equipment were registered I am all for it. Cant have too much security, we could catch bad actors before they even got a plan down on paper.
Bron,
and there was no ‘possible, conceivable way the founders intended” either for the people to come up with the idea of or use of assault weapons, multi, multi purpose round chambers for the massacre of people, either.
Blousie:
the text is wrong:
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
http://www.law.cornell.edu/anncon/html/amdt2_user.html
Should read:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
So…. How do you feel about government surveillance in your home….. Would you be ok with the government monitoring your coming and going at your home? Just think about the smart TVs…..
Raff,
The Newtown shooting were done with/by registered guns….. I understand the public safety need…. But, how will another unwarranted (in my opinion) intrusion be beneficial to society as a whole….. Btw…. I am and never have been a part of the NRA…..
rafflaw:
at which school shootings were unregistered weapons used and which school shootings were the children using psychoactive drugs?
Raff sez: “According to the FBI, background checks have resulted in over 700,000 gun purchases being denied in the last decade. Background checks can and do work and should be enlarged to include gun shows, at least.”
************************************************
Well, raff, there ya go. Background checks are in place for licensed dealers and appear to be working. All dealers with an FFL must do a background check. And BTW, it you go to a gun show and try to buy a firearm, you WILL fill out a Form 4473, pay the background check fee, and have a background check run on you. The “gun show loophole” does not exist. No gun show promoter will risk running afoul of the BATF by allowing a vendor who does not have an FFL to participate in the show.
http://www.atf.gov/applications/e4473/faq.html
AY,
It provides some safety for all of us. Gun owners and non-gun owners alike. The background check for any gun purchase would prevent some guns from getting into the wrong hands. I see registration as part of that process.
Bob,
When you have chance, could you read the following out of Cornell University Law School and tell me what you think of it (it’s relatively short and, I think, applicable to this discussion). I’d be interested in your views.
http://www.law.cornell.edu/anncon/html/amdt2_user.html
Raff,
Why should a gun have to be registered? What benefit will it give ordinary citizens?
Bron,
Once again you are suggesting that all guns are being taken or withheld from the public. Nothing could be farther from the truth.
Elaine,
I like the TV show idea, but we will have to get OS in on it!
Since the founders were well schooled in Locke and Sydney, it is my opinion one has to look at the Declaration and the Constitution from this perspective. Those men were pro-individual and Locke who had very much influence on Jefferson was probably the best of the 2 at least in my mind.
How it could it be any more clear? Life, Liberty and the Pursuit of Happiness is Locke in his second treatise. Man has a natural right to self-defense and to be secure in his person; to be free. Since man has no claws, no sharp teeth, no herculean strength he must use a weapon and his mind to protect himself from animals and from other human beings.
There is no possible, conceivable way the founders intended for the people to not be able to own firearms. It would have gone against every principle they held and would render the Declaration and the Constitution meaningless as a protection of our rights. There would be no possible way to protect them against government tyranny which is why those documents were written in the first place.
rafflaw,
“Bringing in Cain and Abel into this discussion is not fruitful when many people consider the Bible to be fiction. ”
I just got an idea for a new police series!
Law and Order: BVU (Bible Victims Unit)
😉
OS,
Bringing in Cain and Abel into this discussion is not fruitful when many people consider the Bible to be fiction. 🙂
It doesn’t matter that people can be killed with other instruments. We do and should try to reduce killings with any instrument, including guns. Who decided that in order for reasonable steps to be taken against gun violence that those steps must stop all murders with any instrument?
The measure that was killed in the Senate by the filibuster was a reasonable measure to make background checks more universal and more efficient in preventing guns getting into the wrong hands. According to the FBI, background checks have resulted in over 700,000 gun purchases being denied in the last decade. Background checks can and do work and should be enlarged to include gun shows, at least. http://www.fbi.gov/about-us/cjis/nics
Bob,
NATURAL RIGHTS AND THE SECOND AMENDMENT
Chicago-Kent Law Review
Symposium on the Second Amendment
Steven J. Heyman*
http://www.saf.org/LawReviews/HeymanChicago.htm
Excerpt:
INTRODUCTION
The Second Amendment is an enigma. Although many aspects of the Bill of Rights are controversial, disputes usually focus on such questions as how far particular rights should extend and how they should apply under modern circumstances. By contrast, there is no consensus on even the most basic meaning of the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[2] Instead, the scholarly literature is sharply divided between two opposing views. One position asserts that the Second Amendment was intended to guarantee an individual right to keep and bear arms.[3] The other holds that the right is one that belongs to the people collectively, and that the right is essentially connected with the establishment of “[a] well regulated Militia.”[4] [Page 239]
In resolving this debate, the most common methods of constitutional interpretation are of limited use. At least to modern readers, the Amendment’s language is ambiguous. The subject of the constitutional right, “the people,” can be understood either in a collective sense, to refer to the community as a whole, or in an aggregate sense, to refer to all of its members. The reference to the “Militia” points in a collective direction but is not conclusive on its own. As to the broader context of usage within the Constitution and the Bill of Rights, those documents use “the people” in both senses: sometimes collectively, sometimes individually.[5] Contemporary [Page 240] debates over the Amendment were sparse and generally unilluminating.[6] And, in contrast to most other provisions of the Bill of Rights, the Supreme Court has rarely addressed the meaning of the Second Amendment.[7]
Faced with these difficulties, constitutional scholars and historians often seek to understand the Second Amendment by situating it within a larger tradition or body of thought. Some scholars, on both sides of the debate, have discussed the Amendment’s background in the English legal and constitutional tradition.[8] Others have connected the right to arms with civic republican thought.[9] And still others, especially on the individual rights side, have argued that the Amendment reflects natural rights philosophy.[10]
This argumentwhich has been advanced in varying forms by Randy Barnett, Stephen Halbrook, Don Kates, Nelson Lund, Joyce Lee Malcolm, and others[11]runs as follows. According to the natural rights tradition, which deeply influenced the American founders, individuals had an inalienable right to defend themselves against violence. It was to protect this right, among others, that society and government were formed. Within society, citizens had a right to defend themselves not only against private violence, but also against tyranny and oppression by the government itself. But this right could not be effectively exercised without arms. According to this view, the Second Amendment was intended, at least in part, to enable individuals to exercise their natural right to self-defense. [Page 241]
On its face, this view is a powerful one. Indeed, even Garry Wills, one of the most forceful critics of the individualist interpretation, concedes that arguments for “a natural right to own guns” “might be sound or strong,” though he denies that the Second Amendment was meant to secure such a right.[12]
The object of this Article is to challenge this understanding of the natural rights tradition. While that tradition did hold that individuals in a state of nature had a broad right to use force for self-preservation, that right was not an inalienable one. Instead, when individuals entered into society, they largely gave up this right in return for the protection they obtained under the law. And although the people retained the right to resist tyranny, this was a right that belonged to the community as a whole rather than to individuals. For these reasons, the natural rights tradition provides more support for a collective right than for an individualist interpretation of the Second Amendment…
CONCLUSION
In common with Locke and Blackstone, eighteenth-century Americans believed that the fundamental law of nature was the preservation of mankind. But this was a goal that could not be achieved by relying on private force, but only through the united force of the community. Americans further believed that, in a [Page 283] republican government, the people should retain as much control over this force as possible. In this way, they could avoid the dangers posed by a standing army and would also be in a position to resist the government if it should become tyrannical. These functions were performed through a well-regulated militia. It was in this context that the people had a right to bear arms, and it was this right that the Second Amendment was meant to protect.
Finally, let me say a few words about how we should understand the Second Amendment today. The idea of a universal civic militia seems very remote from the conditions of modern warfare. And we no longer rely on such a militia to protect us from tyranny. This should not be a subject of regret. Locke, Blackstone, and the American founders regarded armed revolution as a last resort. It meant the breakdown of the constitutional order and a return to the state of war, in which disputes could be resolved only through force. Instead, the founders sought to prevent tyranny primarily through such institutions as representative government, the separation of powers, an independent judiciary, and constitutional protections for individual rights. These institutions have worked so well that the notion of armed revolution has become anachronistic. This is a sign of strength, not weakness, in our constitutional system. In short, the right to arms has evolved from an “auxiliary right”[238] to an archaic one.
That is not necessarily to say that a citizen militia could not be revived.[239] But this can be done only by the people themselves, through their representatives in the state and federal governments. The right secured by the Second Amendment is a collective one which can be asserted only by the people as a whole. This cannot be done by judicial fiat, any more than the courts are capable of creating other basic social and political institutions. If the Supreme Court were to read an individual right to arms into the Second Amendment, the result would be precisely the opposite of what the founders intendedto entrust the use and regulation of force to the community as a whole.
I disagree with the Supreme Court’s view of the Second Amendment, but I am stuck with it like everyone else. I just happen to believe that dependent clauses are used for a reason.
Elaine: “Did I say that census reports created or destroyed “natural” rights? You were the one who brought up the subject of where Americans reside. I was responding to the comment you made.”
Yes Elaine; you made what’s called a ‘counter argument.’
And I countered in turn by reminding you of the permanency of natural rights; despite such things as the census.
Elaine: “Maybe Americans should be asked to choose which they NEED more–the right to own and bear arms or the privilege of owning and driving vehicles.”
Yes, that would be called a Constitutional convention per the 2nd Amendment. Which goes directly back to my original point that the keeping and bearing of arms is a right and not a privilege.
Bob,
Did I say that census reports created or destroyed “natural” rights? You were the one who brought up the subject of where Americans reside. I was responding to the comment you made.
This is the 21st century. People need what they need to survive…to make a living…to transport themselves…to get around in this world.
Maybe Americans should be asked to choose which they NEED more–the right to own and bear arms or the privilege of owning and driving vehicles.