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Nevada Supreme Court building in Carson City. Public domain image.

Three years before 9/11, a movie called “The Siege” came out starring Denzel Washington and Bruce Willis. The plot involved escalating terrorist attacks world-wide. To stop the strikes in New York, the president declares martial law and sends the Army in to occupy Brooklyn. 

Willis plays General William Devereaux, who is tasked with heading the occupation. Before accepting his assignment, however, he tells the president’s chief of staff that the Army is a “broadsword, not a scalpel.” He warns, “Make no mistake. We will hunt down the enemy. We will find the enemy. And we will kill the enemy. No card-carrying member of the ACLU is more dead set against it than I am. Which is why I urge you – I implore you – do not consider this as an option.”

Devereaux accepts his assignment anyway. As promised, he employs his broadsword, leading to all of the waterboarding and killing and human rights violations one would expect in such a film. It was a bit over the top, but still a pretty decent think piece on the balance between freedom and security. It’s the sort of film that (sadly) couldn’t be made post-9/11, because one set of tribalists would have said it was un-American hippie peacenik poppycock and the other set would have said it was un-American racist poppycock to even suggest the existence of terrorist groups influenced by Islam. 

I’ve long forgotten most of the details of that movie (I had to use the Google machine to even remember the name), but Bruce Willis’s little speech always stuck with me. I think about it whenever we ask the government to step in and use its broadsword to solve a scalpel’s problem, which is depressingly often. The results are often not as dramatic as a late-‘90s action flick, but nevertheless, the best of intentions can lead to some terrible unintended consequences. Because public safety is often an emotional issue and emotions cloud our ability to think more than one or two steps ahead, the worst results come when we’re careless in our policy-making in that area.

Bruce’s imploring words also came to mind when I read about Nevada’s Supreme Court announcing its decision last week that participation in a mental health court does not count as being “adjudicated as mentally ill” for purposes of determining whether you can lawfully possess firearms. This is a good thing. We should be proud that our highest court a) is unafraid to protect our civil rights, and b) understands that weapon possession is, in fact, a civil right. 

But it still bears reflection — because the law the Supreme Court was addressing still exists. A person who has been “adjudicated as mentally ill” cannot possess a gun, and if the Legislature can abridge that fundamental constitutional right on such dubious and shifting grounds, nothing stops them from limiting others, as well. This is especially true as more and more people (mostly on the far left) argue that mere speech is incitement of (or in and of itself) violence, and that its limitation is therefore justified.

On the surface, not letting crazy people have guns seems pretty legit, and limiting this ownership restriction to people who have “officially” been found to be mentally ill provides some measure of protection for law-abiding gun owners. This is the same sort of thinking behind so-called red flag laws, which allow a friend or relative of a person to petition a court to remove his/her guns for a time, even without the chance for the gun owner to defend him or herself. 

But “mentally ill” is not the same thing as “crazy” — not by a long shot. Mental illness is like any other illness. There are vastly different degrees and severities of mental illnesses, most of which are perfectly manageable and put no one in any sort of danger. All of us suffer physical maladies of all sorts in our lives, and the same can almost certainly be said of mental maladies as well. As a society, we have (very correctly) worked hard to understand mental illness and to remove the stigma behind its diagnosis and treatment.

But then we have laws on the books which seem to say, “if you’re ever diagnosed with any mental illness, we’ll take your rights away.”  Keep in mind that it wasn’t that long ago that homosexuality was “officially” recognized as a mental illness. Or consider the history of dictatorships declaring incorrect opinions to be forms of unhealthy minds. That doesn’t just re-stigmatize mental illness; it provides a concrete reason to avoid seeking help.

That’s even true of people charged with a crime. Our mental health courts are just one type of the many specialty court options Nevada employs in order to give criminal defendants the option to address some of the underlying causes of their maladjusted behavior, in exchange for the chance at getting their charges deferred and ultimately dismissed. But you have to choose to participate. If that choice – which benefits both the defendant and society at large – can lead to later collateral consequences, including the erosion of your rights, why would you do it?  

Laws designed to keep guns out of the hands of the “wrong” people may very well exacerbate pre-existing mental health issues in our society by convincing people it’s not worth it to get help. 

We’re fortunate that our high court ruled in such a way as to remove that particular disincentive. But it’s the Legislature that really needs to do a better job in drawing those lines. And when those lines are drawn, it should be done with enough emotional sobriety to ensure that long-term consequences have been considered.

This is the case with any public safety policy, from how much leeway we give police in their ability to surveille or detain citizens suspected of committing crimes to the due process we provide anyone facing a loss of liberty because of a medical condition. It’s not that we shouldn’t allow police to investigate crimes, or the state to take action when a person’s mental health has deteriorated such that they are a threat to themselves or others. But when the government steps in to address these problems, it will always be more broadsword than scalpel — and there is always the risk that well-meaning but carelessly written laws will punish too many innocent people in the quest to make a safer society. 

A perfect balance can never be achieved. But at the very least, our lawmakers must be as cognizant as our judges of the need to strive for it.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected]

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