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The recent attempted assassination of Rep. Gabrielle Giffords has once again focused the nation’s attention on the danger of the wide availability of firearms. The Supreme Court has ruled that gun restrictions may only be imposed on those deemed “prohibited persons” under the Gun Control Act of 1968. Although some are easily identifiable (e.g., children, convicted felons), one widely inclusive group is not – the mentally ill.

The current system designed to bar the mentally ill from purchasing or possessing firearms is ineffectual due to a lack of reporting and the existence of loopholes. What’s more, no state has developed the capacity to remove firearms from gun owners deemed dangerous post-purchase. As the nation has seen time and time again, categorical gun restrictions do not systematically keep firearms out of the hands of dangerous mentally ill persons. Moreover, these restrictions infringe on individual rights. Attempts to forecast violence not only frequently fail, but also force patients to disclose health status on purchasing forms, thereby compromising confidentiality designed to foster candidacy in seeking treatment.

The Supreme Court’s interpretation of the Second Amendment requires that Congress and the states regulate people, not arms. We argue that such an approach will always be problematic – both for the public and individuals. Nonetheless, we suggest four legal changes that the Court would likely uphold, and that may reduce dangerous use of firearms: (1) ban large-sized ammunition magazines, (2) withhold state funding for incomplete reporting or inadequate privacy protections, (3) ensure more rapid and reliable background checks, and (4) close purchasing loopholes.

Publication Citation

305 JAMA 2108 (2011)