Politics & Policy

Red-Flag Laws Should Trigger Treatment, Not Just Gun Confiscation

Display at a gun store in Uniondale, N.Y., in 2013. (Shannon Stapleton/Reuters)
To seriously tackle the problem of mass shootings, we must get serious about tackling the problem of severe mental illness.

In the wake of recent mass shootings by Americans alleged to be mentally ill, President Trump has called for a national red-flag law that would preclude certain mentally ill individuals from owning or buying firearms. It’s a good idea, but for the seriously mentally ill, red-flag laws should also trigger treatment, not just gun confiscation.

It makes no sense to let people who are known to be seriously mentally ill and believed to be dangerous go without treatment, even if they have had their weapons taken away. It’s not compassionate. And it can be dangerous.

Forty percent of the seriously mentally ill have anosognosia, meaning they are unaware they are ill. Because they are unaware they are ill, they sometimes refuse treatment. Many become homeless, arrested, incarcerated, and needlessly hospitalized. Some, responding to their delusions, resort to violence that doesn’t involve guns. All of these outcomes could be avoided if they received treatment.

The red-flag law previously proposed by Senator Dianne Feinstein (D., Calif.), the Extreme Risk Protection Order Act of 2019, which is now being taken up by Senators Richard Blumenthal (D., Conn.), Lindsey Graham (R., S.C.), Joe Manchin (D., W.V.), and others, should be amended to provide a path to treatment for those who are identified as being too mentally ill to own guns.

New York provides a roadmap for how to do this. In 2013, it passed the New York SAFE Act. Among other provisions, the law required therapists to report to the county mental-health director the names of mentally ill people under their care who they believe to be dangerous and to possess guns. It then charged the county mental-health director with investigating the therapists’ reports and, if appropriate, instructing law enforcement to seize the guns from the individuals in question and enter their names into the federal NICS database, which would preclude them from making gun purchases. It further allowed for an appeals process through which the mental-health director’s determination could be challenged.

There are two unique twists in the New York law that should be added to any national red-flag law. First, therapists are required to report dangerous individuals who may have guns. Second, their reports go to NICS through the county mental-health director, rather than directly to NICS. Legislators put that extra step in as a way to force mental-health directors to become aware of and treat people in their counties who therapists believe are dangerous, hopefully keeping everyone safer.

In theory, the NRA should support these reforms, because they are narrowly focused and add an additional review step. The mental-health director who receives reports from therapists can elect not to pass on the names to NICS if he or she doesn’t concur with those reports’ judgment.

Mental-health advocates should like these reforms, too, because they trigger treatment. But some have objected. They claim that requiring therapists to disclose the names of people they believe are dangerous and may own guns will discourage future patients from coming in or being truthful. As I have written elsewhere, this argument doesn’t hold water:

Therapists who object to informing authorities about patients who threaten others would have no problem if they were the target. The overriding concern must be keeping the patient they are currently seeing alive and those around them safe — not some hypothetical future client. The far greater risk is to know someone has a serious mental illness, believe they are dangerous — despite their being under your treatment — and do nothing about it.

Congress should go even further than New York did and require individuals who are entered into NICS due to a mental disability to be evaluated to see if they meet that state’s criteria for civil commitment. Those who meet the criteria — typically a “danger to self or others” standard — would, after full due process, be hospitalized until they are no longer dangerous.

Gun-control advocates say red-flag orders and mental-health treatment won’t end all violence, and Second Amendment advocates say the same thing about gun control. Both are right. No one action will solve any problem as complex as this one. But by chipping away at who can own a gun, and offering treatment to the seriously mentally ill, we can reduce the tragedies that occur when we leave serious mental illness untreated and guns in the wrong hands.

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