Joe Doakes from Como Park emails:<\/p>\n
Never let a crisis go to waste<\/a>.<\/p>\n
Sen. Harry Reid wants expanded background checks:\u00a0 \u201cIs that asking too much? Couldn\u2019t we at least do this little thing to stop people who are mentally ill . . . from purchasing guns?\u201d Reid said on the Senate floor.<\/p>\n
Den. Joe Manchin (D-W.Va) specifically mentioned an effort aimed at keeping guns out of the hands of people diagnosed with mental illness.<\/p>\n
President Obama noted last week that once again, someone got a gun who shouldn\u2019t have had access to it.<\/p>\n
The South Carolina church shooter sparked the talk but he wasn\u2019t mentally ill, not according to existing law.\u00a0 So Democrats are using bait-and-switch tactics to argue for restrictions on people who have Not been diagnosed with mental illness but who act strangely, hold unpopular opinions or have few friends.\u00a0 After all, we must Do Something, before those lone-wolf weirdos snap and kill people.\u00a0 Sounds perfectly reasonable, right?<\/p>\n
One small problem:\u00a0 it\u2019s unconstitutional.<\/p>\n
The Second Amendment was adopted to ensure Congress would not regulate firearms, because the Founders feared an arbitrary and powerful central government like the one they\u2019d just thrown off.\u00a0 In the Founders\u2019 time, it was universally understood that children, felons and the mentally ill shouldn\u2019t have firearms and those limitations continue, under District of Columbia v. Heller<\/a><\/i>, 554 US 570 (2008).\u00a0 But who are \u201cthe mentally ill?\u201d<\/p>\n
Federal law prohibits ownership by a \u201cmental defective.\u201d\u00a0 There are court cases discussing whether \u201cmental defective\u201d is different from \u201cmentally ill\u201d for gun control purposes (mental defective might mean \u201cretarded but not dangerous\u201d and thus not be a disqualifying condition).\u00a0 Leaving aside that hair-splitting, Federal law defines \u201cmentally defective\u201d as having been adjudicated such or committed to a mental institution. 18 USC 922(g)(4).<\/a>\u00a0 The Code of Federal Regulations, 22 CFR 478.11<\/a>, further clarifies that \u201cadjudicated\u201d means a determination made by a court.<\/p>\n
Yes, but so what?\u00a0 Federal law, federal regulations, Congress can simply change them, right?\u00a0 That\u2019s where it gets tricky.\u00a0 There are a long line of Supreme Court decisions holding that when the government acts to deprive a person of a fundamental Constitutional right, that person is entitled to Due Process consisting of, at a minimum, notice of the charges and a meaningful opportunity to be heard before a neutral decider.\u00a0 That means a court must make the decision, after hearing, at which the burden is on the government and the accused has a chance to rebut the state\u2019s case.<\/p>\n