Wednesday, August 10, 2011

Discrimination and the Illusion of Safety

By Sherry F. Colb

In my column this week, I discuss the question whether it is legitimate to prohibit people diagnosed with serious mental disorders from possessing firearms.  I propose there that a prohibition of this sort is not justified and represents a form of invidious discrimination.  In doing so, I avoid offering my own view of gun rights and gun control, because I view that as a separate issue, in the way that questions of substantive rights are often distinct from questions of equality of access to whatever rights do, in fact, enjoy protection.  In this post, I want to suggest an independent flaw in safety-based policies that identify particular groups of people or circumstances as the threat to be addressed.  Such policies may offer the illusion of safety and thereby lull the population into a false sense of security.

Begin with policies that attempt to disarm people who suffer from mental illness.  Let us put to one side the discrimination objection.  If people who have been diagnosed with a mental illness cannot own firearms, does this reduce the number of mentally ill people with guns?  Perhaps.  On the other hand, it is also possible that such a policy will discourage people who suffer from mental and emotional pain from seeking psychological or psychiatric assistance.  Especially if a mentally ill person wants to keep his firearms, he may understand the ban as (yet another) reason to avoid a psychiatric diagnosis.

If this happens, then the person who might otherwise have sought help instead becomes an untreated mentally ill person in possession of a firearm, someone who could have been receiving support in the form of psychotherapy, medication, or both, but who is instead suffering in silence with weapon in hand.  This state of affairs would seem undesirable not only from the mentally ill person's perspective but also from the standpoint of public safety as well.  Stated differently, some number of mentally ill people will not have received a diagnosis or treatment for their condition and will therefore fall outside the ban, a number that may well be substantially higher in the presence of a ban.

Another problem with policies that attempt to ban gun ownership by the mentally ill is that even if they are successful at disarming their targets, they will leave many dangerous possibilities in place while making people feel that they are safe.  Tragic gun deaths occur in a variety of circumstances that have little to do with mental illness:  children gaining access to firearms, accidental shootings while handling a weapon, assailants wresting a weapon away from their victims, the mistaken belief that an intruder has entered the house, suicide, domestic violence, and the list goes on.  When a specific group of people is barred from owing a gun, people may move on to another issue (having addressed gun control), thus losing sight of the other possibilities.  Particularly if the main dangers of gun possession arise from something other than mental illness, an illness-based policy can become a costly distraction.

This problem is obviously not unique to gun control.  Air travelers are extremely familiar with the numerous indignities and inconveniences that they are asked to endure to help "make America safer."  I remember quite well my daughters' tears when a TSA agent confiscated their brand new Tom's of Main toothpastes from our carry-on bag, because the "Silly Strawberry" and "Outrageous Orange Mango" were not in regulation-size tubes.  I suspect that most readers can recall similar (or far worse) intrusions at the airport, including the nuisance of having to take off one's shoes or perhaps exposure to X-rays and the prospect of having one's naked body viewed through a scanner by a representative of the U.S. government.  We may tolerate such measures, however, because we believe that it helps ensure our safety from terrorism.  But does it?

It is difficult to know, but it is at least plausible to think that terrorists are capable of planning around the various rules erected to stop them.  If we profile people who look a particular way, terrorists can recruit people who look "less like a terrorist."  If TSA agents examine everyone's shoes, terrorists can find a different article of clothing to use as an explosive device.  If a terrorist cannot use a large container of liquid as a weapon, he can instead bring several smaller containers of liquid with him.  Whatever measures we take are going to be limited, almost by definition, and terrorists can learn about the measures and work around them.

To the extent that a great deal of time and money is dedicated to implementing existing security measures, moreover, we have fewer resources to dedicate to what might be a more effective security system.  I was pleasantly surprised, for example, when I visited Israel and, upon leaving, did not have to take off my shoes or surrender lotions or toothpastes.  I was not subjected to a body scanner or, so far as I can remember, even a pat-down.  Instead, I was questioned at length by highly trained professionals whose goal was to assess my demeanor and my behavior and to make assessments of my state of mind and my immediate intentions.  The Israeli system is not perfect, of course, and not every passenger is as happy about her experience as I was.  But given the realities that Israel faces and its apparent success at protecting air passengers, the decision to leave our shoes on our feet and invest money in training instead of body scanners could represent a wise policy choice that the United States might do well to consider.

We cannot entirely avoid our nature, of course, and when something happens in a particular way (e.g., an insane gunman kills people at a school or a shoe bomber boards an airplane), we will focus on the particulars of those events in our efforts to remain safe.  We viscerally learn self-preservation by experiencing trauma and subsequently avoiding situations associated with that trauma. When we enact legislation, however, it is useful to be aware of how such associational avoidance can go wrong.  One example of this phenomenon is the individual experience of Post-Traumatic Stress Disorder (PTSD), and some policies appear to mirror the behavior of a person suffering from PTSD.  As a nation, it would behoove us to attempt to act rationally in the face of danger rather than simply fighting the last war, as we may be biologically inclined to do.  If we do not reflect on the measures we take but simply "ban" people and activities that happened to coincide with prior traumas, we could be curtailing our own freedoms as well as others' equality rights without improving our safety and security in return.