All Commentary
Saturday, June 1, 2002

Alaskan Courtesy

The Alaskan Appeals Court Errs on the Side of Liberty

*Mary Pemberton, “Alaska Court: Mentally ill can keep concealed weapons,” Associated Press, January 11, 2002. All quotes are from this report.

Alaska is most often thought of as simply a snow-covered tundra far to our north. Rarely do Americans find themselves looking to that Arctic wilderness for reason to celebrate a renewed sense of personal freedom. But that all changed when a state appeals court overturned a lower court decision to suspend a man’s concealed handgun permit because someone said he was “crazy.”

The case began in 1998, when Timothy Wagner, a concealed-carry permit holder, went into the Alaska Mining and Diving store in Anchorage and told a clerk that a computer chip had been implanted in his head. Responding to this “public safety threat,” the state decided that Mr. Wagner was mentally ill and revoked his license. Naturally, the gun-control crowd was delighted, while the National Rifle Association (NRA) decided to fight the case in court. “We wanted to remove the potential for arbitrary and capricious decision-making on the part of the issuing agency,” said Brian Judy, the NRA’s Alaska liaison.*

Since the carry law was passed in 1995, the Alaska Department of Public Safety has issued over 18,000 permits. Under the law the state must issue a permit if an applicant answers a series of questions appropriately, such as whether he has been convicted of a felony. In 1998 an amendment removed the question pertaining to treatment for “mental illness” in the preceding five years; the application still requires disclosure of mental hospitalization or a finding of mental incompetence by a court.

So the law on this matter was clear. Mr. Wagner had not been deemed mentally incompetent or committed to a mental hospital. The court had no other choice but to restore to Mr. Wagner his right to keep and bear arms.

Of course, not everyone is celebrating this decision. Nancy Hwa, a spokeswoman for the Brady Campaign (formerly Handgun Control Inc.), laments that the court is “taking away the discretion of local law enforcement to make these decisions in the best interest of public safety.” Clearly Ms. Hwa’s knowledge of history is a little shaky. Under Jim Crow, local law enforcement had the discretion of making decisions in the best interest of public safety when it denied southern blacks the right to, among other things, vote, peaceably assemble, and, of course, own guns. (This was the origin of gun control in America.) In a modern-day version, the Brady Campaign wants another category of citizens deemed unfit to exercise basic constitutional rights—anyone who says something weird while in possession of a firearm.

Beyond the issues of state law, law-enforcement prerogatives, and absurd statements made by conspiracy theorists, there is a much larger point to be made here. The NRA did not challenge the basic issue of “mental competence” that was used to target Mr. Wagner. Only the most consistent libertarians contend that a law-abiding person declared “insane” should be free to own, and carry, a firearm. Nevertheless, that is precisely what needs to be addressed if another avenue toward regulating the Second Amendment out of existence is to be truly closed.

Mental illness is a highly subjective term. (See Thomas Szasz, “Mental Illness: Psychiatry’s Phlogiston,” Ideas on Liberty, November 2001.) It is obvious that the state’s ability to obstruct rights based on one’s unpopular, erratic, or seemingly irrational statements alone would be a truly arbitrary power. In discussing this topic, gun controllers evoke a general stereotype of a disturbed old man with a gun, when the truth is that a variety of behaviors have been labeled symptoms of “mental illness.” Homeschoolers, unschoolers, libertarians, constitutionalists, Islamic fundamentalists, feminists, abolitionists, runaway slaves, and gun owners, to name a few, have all at one time or another had their sanity questioned by their fellow citizens.

Leave Them Alone

The only role for government regarding “disturbed” persons is to leave them alone, until they violate the rights of another. The purpose of government is to protect people’s rights; it should ensure that everyone who wants to have a gun is free to obtain one, not twist itself into semantic contortions in an attempt to justify denying this right.

The only way we can know for sure that a person is indeed dangerous is when he commits an act of aggression or expressly threatens to do so. Until such time, he should be as free as anyone to exercise his rights. After that point, he should be incarcerated, and the question of his having or carrying a firearm becomes moot. If people are concerned that such a policy might place them in the company of sordid characters with guns, then they should be reminded that the measure of a free society is the lengths to which its citizens tolerate what makes them uncomfortable.

“Alaska seems more likely than many states to allow mentally ill people to carry guns in public,” said Luis Tolley, state legislative director for the Brady Campaign, in response to the court’s decision. “By establishing such a narrow definition, that is allowing an awful lot of people who are mentally ill to carry guns in public.” If saying something silly is the criterion for being rendered unfit for freedom, then the machinery of state is not large enough to accommodate the number of people who belong under supervision. The Alaskan appeals court saw straight through that fallacy and decided to err on the side of liberty.

Scott McPherson is a freelance writer in Fairfax, Virginia.

  • Scott McPherson is a policy adviser at the Future of Freedom Foundation, and author of Freedom and Security: The Second Amendment and the Right to Keep and Bear Arms. An advocate of the Free State Project, he lives in Portsmouth, New Hampshire.