Most people agree that people who pose a clear and present danger to themselves or others should not be allowed to own firearms. Many also believe that there is a second amendment, and that words in the constitution must have meaning. We have to balance the interest of law-abiding citizens, even those with disabilities with the interest of public safety.

The sad thing is that our current gun policies do not do either sufficiently. As witnessed with the Virgina Tech shootings, people who clearly pose a clear and present danger are gaining firearms – sometimes legally. And according to gun rights advocates, people who should be allowed to obtain firearms are being discriminated against. This is all because of a 40 year old law that has not been modernized to deal with the changing science of mental illness and decisions by courts that have gutted parts of the Omnibus Crime Act of 1968.

The federal government prohibits any person convicted of a felony in any jurisdiction or judged a mental defective in any jurisdiction from ever owning a firearm. This sweeping provision enacted during a wave of crime in our country, and following the assassinations of Martin Luther King and Robert Kennedy was intended to keep guns out of the hands of the most dangerous criminals and seriously mentally ill people. The problem is existing laws and subsequent laws modified and distorted those definitions.

A Felony Isn't A Felony

Felony offenses can run the gambit of crimes. They can involve certain kinds of eves dropping, stealing money as a corporate officer, taking bribes, political corruption, or contempt of court. Not exactly nice things to do, but also not exactly crimes would prompt a person to physically injure a person. Misdemeanors do not contain this penalty, although certain state laws regarding domestic violence, and judge's orders might preempt this policy.

The solution, at least in state courts, was certificate of relief from disabilities. Parole offices and state courts in most, if not all states, are authorized to reinstate privileges lost by the conviction of a felony. These include gun ownership rights. Those who have completed their sentences are entitled to ask for such certificates, and they can be relatively difficult to deny in court. Persons convicted for federal felonies are unable to receive these certificates, due to Congress defunding this program in a crime prevention bill several years ago.

Mentally Defective or Mentally Ill

The other part of the law prohibits 'judged' mental defectives from owning firearms. Not only is this word dated, it also comes from an era of institutionalizing the mentally ill, sometimes by court order. Those mandated by a court to be in asylum are prohibited from owning a firearm ever. It was believed in 1968 that people so mentally ill to require a court order to seek treatment should never be allowed to own a firearm.

Contemporary standards make it difficult for people to be mandated to a in-patient psychiatric institution. The person must not only be mentally ill, but also pose a imminent threat to himself or others. More recently, more states have been allowing courts to mandate out-patient commitments for those posing an imminent threat, but not needing such high levels of scrutiny.

That begs an interesting question: Are those people mental defectives, as in the old standard of 1968? If a person is committed to outpatient treatment, we are as a society saying, that while they may pose a imminent threat without treatment, with treatment they pose no imminent threat to society. The imminent threat to other persons or the self, can be rectified by outpatient treatment.

While a person is successfully participating in the treatment, and has recovered enough, to be allowed by a court to end treatment, then they should be allowed to own firearms. Should the court decide later that the person once against poses a threat to society, then the person should be recommitted to either in-patient or out-patient care.

Mental hygiene care is more expensive then incarcerating people or living them out on the streets to hurt people. Yet, ultimately if we as a society care about public safety, and the welfare of individuals unable to care for themselves, then we need comprehensive mental health care for those too ill to take care of themselves. Indeed, that is far better policy then potentially depriving people of their gun rights under the constitution.

Conclusions

The Omnibus Crime Act of 1968 is outmoded, as 40 years have passed since it’s passage. We all agree that dangerous people should not be allowed to own or access firearms. Yet, we all know that they sometimes do gain such weapons. The reality is that such people should not be on the streets, but instead should be given comprehensive treatment to their illness, and help rebuilding their lives.

When people restore their reputation, and demonstrate a pattern of law-abiding actions, they should be able to own firearms or any other legal item they wish to own. At the same time, courts need to temporarily deprive individuals of that right they must have that power. They must also ensure that individuals will not engage in self-destructive behavior that may seriously harm themselves or others.