In the wake of this week’s shooting in Minneapolis there’s no shortage of bad ideas being floated in the name of public safety, including one from Yale University professor Ian Ayers.
Ayers isn’t calling for some outlandish proposal like repealing the Second Amendment. Even if he supported that cockamamie idea he’s smart enough to know it’s not going to happen. Instead, Ayers is offering up an idea that’s even more dangerous because it does stand a chance of becoming law.
The professor wants to tweak existing laws in all 50 states that allow for a brief period of civil commitment to a mental health facility for the purposes of assessing someone’s mental state to include a “temporary” ban on gun possession, even if that individual is deemed not to be a danger at all.
For example, in California, anyone who’s committed on an emergency hold basis is prohibited from purchasing or possessing firearms for five years. Washington suspends gun rights for six months after an emergency hold. In these states, the names of those placed on holds are also entered into the FBI background checklist, and those individuals are blocked from buying guns during the period of prohibition.
These restrictions on mental health patients’ gun rights rationally balance the public’s interest in safety with the individual’s interest in liberty. First, the restrictions are temporary, lasting no more than five years. Second, the prohibitions are merely presumptive. Any affected individual is free under state law to petition for their gun rights to be restored if they can prove they are not a risk.
If this wasn’t a family friendly website I’d be quoting the three-word response that the Firearm Policy Coalition generally uses to terrible ideas like this.
Since that’s not an option, I’ll lay out my problems with Ayers’ idea. First, being committed for a 72-hour mental health hold is not, in itself, an indication that someone is a danger to themselves or others. In fact, if someone is released after that 72-hour period, it’s reasonable to believe that the mental health professionals who examined that person didn’t believe they needed inpatient care because they were dangerous. Why, then, should that trigger a five-year ban on gun ownership?
Secondly, the criteria for taking someone in for a mental health evaluation vary from state to state, but the bar is generally pretty low given that its purpose is to assess someone’s mental health. It’s not a determination all its own. In California, there were more than 120,000 mental health holds in fiscal year 2020-2021, while there were fewer than 3,000 “red flag” petitions granted in California in 2023.
California already has a “red flag” law on steroids with its five-year ban on gun possession for anyone taken in for a mental health evaluation. Not only is the bar much lower to place someone on a 5150 hold, the prohibition on gun ownership lasts longer than the one imposed through an Extreme Risk Protection Order, which generally lasts for a year.
It’s bad enough that Ayers wants to use California as a national model, but in his op-ed he goes even further.
Emergency holds are an obvious risk signal, but lawmakers should also consider other pauses on gun rights that could be activated by mental-health treatment. In the Manhattan case, press reports indicate that police found antipsychotic drugs at the shooter’s home. When a person has been prescribed serious antipsychotic medications such as Thorazine (chlorpromazine) to treat psychosis, there is an elevated risk that they will commit a violent act — especially if they stop taking their medication.
The Violence Project’s analysis found that 24% of mass shooters had previously taken psychiatric medication. Again, to be clear: The vast majority of people prescribed antipsychotic drugs do not commit violent crimes. But it is still reasonable to create a temporary, reviewable pause of gun rights tied to active treatment with specified antipsychotics. To protect liberty and avoid stigma, the pause should be (1) time-limited, (2) rebuttable through a rapid petition or possibly through a physician’s attestation that the individual is not dangerous, and (3) privacy-respecting, relying on minimal, purpose-built reporting (or voluntary certificates) rather than broad disclosures of medical records.
Ayers himself admits that the vast majority of people prescribed these drugs do not commit violent crimes, but he wants to subject every one of them to a ban on gun ownership unless they can demonstrate they’re not a danger. Ayers co-authored a book that’s supposedly about “fighting gun violence while protecting gun rights”, but I can’t see where rights are being protected at all here.
A brief, petitionable pause after emergency holds and during high-risk treatment better aligns the law with clinical reality and public safety. Congress and the states should act: add emergency holds to the background-check disqualifiers, close the concealed-permit loophole, and adopt treatment-contingent, due-process-protected pauses. These targeted reforms might not have prevented Wednesday’s tragedy in Minneapolis — but taking action to disarm the dangerous is our best chance to save lives.
Disarming the dangerous is one thing, but Ayers is admitting that what he’s demanding would mostly disarm people who pose no danger to themselves or others. And as much as he talks about “petitionable pauses” and due process, both the courts and mental health professionals have a vested interest in denying relief to the individuals who’d be subjected to Ayers’ gun ban. Why risk letting someone have a gun if they might do something bad with it, especially when there are no consequences for denying their request?
I have another idea: if someone is determined to be a danger to themselves or others because of a serious mental illness, they should receive in-patient treatment until they are deemed to no longer be a danger. Why take away their ability to legally possess a gun but leave them access to knives, gasoline and matches, and the illicit firearms market? It’s not the gun that makes them dangerous. It’s their mental illness. So why would anyone consider the problem solved if we just deny them the ability to lawfully purchase or possess a firearm?
Would that require expanding the number of in-patient beds and staff for these facilities? Absolutely. But if the goal is to remove the ability of dangerous people to do dangerous things, that’s a far better approach than Ayers’ “red flag” law on steroids.
Editor’s Note: It’s easy to claim respect for the Second Amendment, but that doesn’t make it so.
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