Forward Motion

How should we respond to the Tucson shootings?

How did someone like Jared Loughner come to possess a firearm? How can we prevent such people from getting them in the future?

First, we have to devise better ways of identifying, guarding against, and treating unstable people who may become dangerous. Second, we must tighten regulations on gun dealers and citizens who keep guns.

The first part of the answer is subject to limits imposed by the Constitution’s Due Process Clause. The second part engages the Second Amendment. The due process question arises because any solution may entail deprivation, at least for a time, of a person’s liberty. The Second Amendment also intrudes: although a total prohibition of gun possession was held unconstitutional by the Supreme Court in the 2008 Heller case, the Court cautioned that the right to keep guns “was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” So the door is open to reasonable gun regulation.

As a historical and practical matter, identification and treatment of the mentally ill has long been a subject of state law, like the New York Mental Hygiene Law (Article 9), and proposals for improvement should therefore be directed to state institutions in the form of model statutory text. On the other hand, more than forty states have constitutional provisions that protect gun possession, which could make it difficult to enact stricter regulation, either by state constitutional amendments or legislation. New federal legislation is required in order to effect federal supremacy over state constitutions and statutes.

A new state statute should require every high school and college to appoint a mental hygiene officer (MHO). The MHO would receive complaints of bizarre conduct by a student. Such an officer would receive basic training in psychology to enable a preliminary determination that a reported student does manifest strange, perhaps dangerous, behavior. The MHO will not be concerned with mere lapses in deportment, which are handled by routine disciplinary procedures.

A prompt interview with the student may reveal disorders of thought that are clearly abnormal. Derailed or blocked thoughts, extraordinary long-windedness, marked illogic or gibberish are tell-tale signs. A drug habit may come to light. Severe abnormality—delusions, paranoia, threats—will require prompt action, particularly if the student seems to be a danger to himself or others. Any gun will be turned over to police.

The MHO would immediately inform parents and the chief school administrator of the interview, and the student could not return to school until the MHO is satisfied that appropriate steps have been taken. A conference with parents would explore their awareness and concern and determine the onset and duration of the student’s conduct. The MHO would report the results of his preliminary work to the school head and to a panel of psychiatrists who have agreed to assist in such cases. If danger is sensed, the police would be informed.

At least two psychiatrists would interview the student. If either is persuaded that the student is a danger to himself or others, the student could be committed to a mental-health institution for observation and treatment. The institution’s mental-health officer would have to confirm the justification for the commitment at the threshold. Legal proceedings—a hearing and judicial determination—would follow within a few days. The judge would have to be mindful of the imperfect predictive power of psychiatry; a strong case for commitment would be required. If the judge affirmed the order of commitment, the student’s progress would have to be reviewed frequently by a psychiatrist. At sixty-day intervals, the commitment would be reconsidered based on reports submitted to the court describing the student’s condition, with a psychiatric recommendation on future treatment.

If neither psychiatrist is persuaded of the presence of danger, but either believes that treatment for a serious mental condition is nevertheless necessary, the student would be remitted to his parents with that recommendation. Whether he may return to school is for the MHO and school head to decide after consulting parents. Alternative schooling should be made available.

What about firearms? We need common-sense revision of federal regulation of gun dealers and citizens who keep guns. The new statutory standard would provide that only hunting rifles and six-shot, long-muzzle pistols for home defense may be sold or kept. Rifles may be carried to and from hunting grounds and used only there. Pistols may not be carried outside the home.

Only responsible, licensed gun dealers may deal in such weapons. Licensure would depend on observing applicable rules; knowing violations could result in criminal charges. Dealers may sell weapons or ammunition only to persons bearing a current medical certification of mental competence. Dealers would have to keep a copy of the certificate identifying the purchaser, and file the document in a national computerized registry that any dealer could consult. Ammunition would be available only from licensed dealers, in limited quantities, with sales similarly registered. The identity of any student who has been ordered committed would also be filed in the national registry and available to any seller. Dealers would have to consult the registry before making any transactions in order to prevent sales to unsuitable customers. Violations would bring criminal sanctions. The millions of unlawful guns already in private ownership would have to be turned in to local police for eventual compensation.

Of course, such a federal statute would face strong opposition: most of the country broadly supports gun ownership. A 2005 law-review study by Fordham Professor N. J. Johnson shows that more than 40 percent of households have at least one gun, that private citizens own a quarter billion guns, and that 30,000 people die every year from gun violence (most are suicides).

The power of Congress to enact such a law derives from the Commerce Clause. It’s true that in the  2005 Lopez case the Supreme Court rejected the contention that the clause could support a federal ban on guns found within one thousand feet of a school—a substantial impact on interstate commerce was absent. But in this case, the Commerce Cause would be satisfied by the huge nationwide traffic in guns—and its grave consequences.

Obviously what I’ve outlined above may amount to nothing more than an aspiration. But the attempt on Congresswoman Gabrielle Giffords’s life by a probably deranged man ought to serve as a wake-up call to those comfortable with the status quo.

Related: Killings in Tucson, by the Editors
Will We Ever Have Sane Gun Laws?, by E. J. Dionne Jr.
Lay That Pistol Down, by Barry Gault

About the Author

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).

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