How one trip to the ER can steal your Second Amendment rights

By Marc Scaringi of Scaringi Law posted in Gun Laws on Thursday, January 7, 2016.

No one wants a violent person with a serious mental illness to own a gun. But state and federal laws have become so strict that one day of personal crisis can prevent an otherwise upstanding and law-abiding Pennsylvanian from buying or owning a gun forever.

I have been involved in several cases in which a one-time mental health issue emerges after someone looking to buy a gun fills out the standard ATF form and the State Police conducts the required background check. A decades-old involuntary mental health commitment not only stops the sale, but could open the person up to criminal charges for furnishing incorrect information.

Again, we're not talking about someone with ongoing problems, but a man or woman who years ago sought help - and many times doesn't even realized that their decision to get care was recorded as an involuntary commitment.

I've even had a case in which an estranged husband had his wife involuntarily committed. She was out within 72 hours and even had the records of her ill-advised commitment expunged. But years later it showed on the background check when she tried to purchase a firearm.

A low bar

Section 302 of Pennsylvania's Mental Health Procedures Act allows for the involuntary commitment of an individual who has threatened harm, including to themselves, and takes any action that could be interpreted as furthering that threat.

Sometimes, well-meaning family members believe a commitment is in their loved one's best interest, or law enforcement or county mental health services are involved. The person is frequently suffering a low moment -- reacting to a divorce, death, or personal or professional setback.

But once an emergency room physician conducts a brief exam, Pennsylvania law make the risk of involuntary commitment high - it can even rest on what someone claims you said. When in doubt, many physicians and mental health professionals err on the side of commitment.

Under Section 302, a person can be deprived of his or her freedom for up to five days, even after one cursory interview and exam. Worse, the officials involved cannot be sued if they are wrong.

Often miscommunication blurs the process. The confused subject might even agree to be hospitalized, believing the commitment is voluntary, only to discover years later that the incident was officially recorded as involuntary.

This distinction holds a lifetime of consequences, including nullifying an individual's Second Amendment rights.

Restoring rights

Attorneys can restore these rights, but the first hurdle to overcome may be one's own embarrassment. What goes into the official record as an episode of "severe mental illness" is often a situational depression or cry for help.

Until state and federal laws better reflect the subtleties of this serious issue, the only viable remedy is challenging the reason for the commitment. Attorneys can go to court to convince a judge that there wasn't enough evidence to justify the doctor's action.

Attorneys can also present strong character witnesses to testify to the client's well-being, call expert psychologists to testify to his mental soundness, and furnish the results of a full psychological exam as evidence.

When an involuntary commitment is overturned and the right to bear arms is restored, the original records of commitment are fully expunged, meaning it is as if it never occurred.

That's what happened with my client who was involuntarily committed by her estranged husband.

The long-term solution is a more sensible approach to the serious but complex subject of mental health. No one wants a truly disturbed person to access guns. Conversely, no one should impose a lifetime gun rights ban on someone who suffered a low moment and has been incident-free ever since.

It is in no one's interest to deter people from seeking help because they fear the loss of their Second Amendment rights.

Marc A. Scaringi is a Harrisburg attorney, radio talk show host and former candidate for the Republican nomination to the U.S. Senate in 2012. The Marc Scaringi Shows airs Sundays at 10 a.m. on WHYL 960 AM.