In Adam Lanza Aftermath, We Need Better Gun Control, Not More

Northern Illinois University, Virginia Tech, Tucson, Aurora, and Newtown. The common denominator across all five tragedies: a deranged individual with a clear history of mental illness who managed, despite laws in place to prevent such individuals from purchasing or possessing guns, to do exactly that. 

Contrary to the reflexive anti-gun rants of Mayor Michael Bloomberg and others on the left, gun laws are already strict enough to prohibit the mentally ill from purchasing, possessing, or owning a gun. Laws related to magazine capacity or regulating types of guns (handguns, assault-style weapons, etc.) do not make it any less likely that a mentally ill individual can acquire a gun and use it to commit a horrible crime. 

Forty-three states, the District of Columbia, and the federal government have laws prohibiting the sale of firearms to mentally ill individuals. The only thing legislators should consider changing is the antiquated language in the statutes (e.g., Illinois makes it a crime for the “mentally retarded” to possess a gun). A better definition of what mental illnesses (e.g., those causing impaired judgment, hallucinations, and mood swings) prevent a person from possessing or purchasing a gun, given society’s greater knowledge of mental illness, would make compliance with the law easier.

Instead of blaming guns or gun laws, state and federal legislators should consider legislation to require that treating physicians must report to the FBI’s NICS (National Instant Criminal Background Check System) when they diagnose someone with a mental illness that disqualifies the patient from owning a gun. They would not be required to report specifics, just the person’s name and that they were so diagnosed.

The biggest impediments to such a disclosure requirement are physician-patient privilege rules. Such rules date to the earliest taking of the Hippocratic Oath, and are backed up by state and federal privacy laws. At the federal level, the Privacy Rule of HIPAA (Health Insurance Portability and Accountability Act) regulates the use and disclosure of Protected Health Information (PHI), any information concerning a person’s health status or types of care/treatment received. At the state level, individual states have similar laws, some more restrictive than the HIPAA laws. 

Doctor-patient privilege, especially for mental health professionals, is not absolute.  Therapists, psychologists, and psychiatrists already have a duty to warn and a duty to protect both their patient and others if they think their patient is a danger to himself or others. However, this rule does not sufficiently warn society that the patient shouldn’t have a gun. If the person has already acquired a gun before being identified by his doctor as a danger, then the community is already at too great a risk.

Federal and state medical privacy rules must be revised so doctors are: (1) required to report diagnoses of mental illness; and (2) are not so afraid of criminal or civil penalties for violating privacy rules that they abrogate their duties to warn and protect. Of course, the counter to this is that the disclosure of the diagnosis is an extreme invasion of privacy.  However, by limiting what information is accessible to outside parties, like gun retailers, patient privacy could be maintained. After all, to prevent these tragedies, a gun retailer does not need to know why he cannot sell someone a gun, just that he cannot sell someone a gun.

How much do you trust the information in this article?

Matt Fletcher

Chicago native. Criminal defense attorney.

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