Could your guns be taken away if your family says you have a mental condition that makes you unable to safely own and use firearms? The California State Legislature attempted to answer this question through the passage of the “Gun Violence Restraining Order” Act. A successful action brought under this law by a gun owner’s family allows a judge to order that the person’s guns be confiscated for a minimum of twenty-one days.
Legislative interest in keeping firearms out of the hands of those who are mentally unstable is nothing new. The Brady Bill of 1993 sought to require gun sellers to conduct background checks of people desiring to purchase firearms, including checking for a history of mental illness. Although the Gun Violence Restraining Order Act is the first law of its kind in the United States, restrictions upon a person’s right to bear arms through restraining orders are already in place. Restraining orders of this kind are commonly granted in order to protect victims of domestic violence.
The Gun Violence Restraining Order Act was motivated by an incident in Santa Barbara, California, in which police were unable to confiscate a suspect’s arsenal before he murdered several people. In that case, the man’s family had expressed concern over his mental health prior to the tragic events. One of the recurring problems with conducting a background check for mental illness is that a mental illness has not been diagnosed by a physician and will not appear on the background check for that reason. This law has the benefit of placing the decision to take away a person’s weapons in the hands of those who have the most information about the situation. Who has better information than a person’s family members as to whether that person is fit to carry a firearm?
The Gun Violence Restraining Order Act is also in line with the requirements of the Due Process Clause. The right to keep and bear arms is a significant right and for that reason, the Due Process Clause requires that a person be able to have a say before that right is taken away. The law includes provisions that allow gun owners whose guns are confiscated by family members to defend their right to possess firearms by presenting the case for their own sanity in a judicial proceeding. The limited nature of the time restrictions also adds to its validity: an initial order lasts for twenty-one days and a subsequent order after a trial extends only up to one year.
While supporters of this law point to the fact that the confiscation of weapons is only for a limited time, opponents find that period to be longer than what is constitutionally allowed. The argument could be made that the right to bear arms contained in the Second Amendment cannot be subject to any time limits because time restrictions are not present in the text.
In addition, this legislation may lead to unintended harm. This law could deter a person who noticed signs of a potential mental illness from coming forward and reporting these symptoms. By reducing the likelihood that a mentally ill person will reveal these symptoms to medical personnel, the odds are increased that an untreated person will cause harm to themselves or others. Many individuals highly value the right to keep and bear arms and for that reason, when faced with a choice between keeping silent about one’s condition and thereby maintaining that freedom and self-reporting and having to surrender one’s firearms as a consequence, a gun owner may eagerly choose the latter.