Universal Background Checks and Dangerousness: Stigmitization, Racial Discrimination, and Gender Discrimination

Join Bilal Butt and staff at Millennial Speech & Debate Institutes this summer!  $1995 Resident, $495 Commuter
Highlights
*If universal background checks (UBCS) are going to reduce gun/firearm deaths, more individuals who are likely to use these firearms to either kill themselves or other individuals need to be integrated into the UBC database
*Determining who should be included is problematic because psychiatrists can’t accurately determine who is likely to be a danger to themselves and others
*Including more people in the database risks increasing discrimination against those with mental health problems as well as women and minorities, particularly Blacks
*Greater efforts to deny access to guns based on false determinations of dangerousness risks depriving individuals of their Second Amendment rights.
There are approximately 30,000 gun deaths in the US each year and approximately 20,000 of those are suicides (Wikipedia), (60%).
Of the remaining 10,000, some of the gun deaths will fall into a number of categories: mass shootings, domestic violence, and murders committed when people engage in criminal activity (robberies, selling drugs, gang activity, etc.).
The only way a universal background check (UBC) system can work to prevent individuals from using a gun to kill themselves or commit a crime is for there to be a set of names of individuals who should not permitted to own guns and then have the seller deny them a gun when they attempt to purchase one. These names of individuals who are put into a background check database  have previously committed crimes (usually felonies) and/or suffer from mental illness, and normally a mental illness that requires that the person be involuntarily committed or at least was determined by a court to be “mentally defective.”
One significant weakness of the current database is that it does not include many individuals who have committed felonies or who are mentally ill. As noted, this happens for a number of reasons – more conservative states opposes UBCs and are reluctant to provide the information, some doctors do not want to contribute information regarding patients’ mental health, and there is a lack of resources available for gathering and submitting the data.
I think it is arguably fair for the Pro to advocate strengthening the database as part of their advocacy for UBCS and will leave any debate about that for another post, but the reality is there are two categories of people who would more likely be included in any strengthened database system – criminals and the “mentally ill”– and that more of them would need to included in the background checks database for the UBC system to significantly reduce gun violence.
Including more criminals is not particularly controversial, as most people believe that those with criminal records, especially felonies, should be denied access to guns.
What becomes more difficult, and where the Con can start to generate offense, is when more people who suffer from mental illnesses are included.
Imagine this crossfire:
Con: At least 2/3 of gun deaths are due to suicides and mass shootings, correct?
Pro: Ah, sure…
Con: (quickly), And the only way to prevent this through UBCs is to run more background checks on people with mental illness and to deny them access to guns, correct?
Pro: Yes
(Pro asks some questions)…
Con: How would we determine who is mentally ill?
Pro: Ah…if their doctor says they are mentally ill…or..if a court says they are mentally ill..
Con: One follow-up: What if they have an eating disorder? Might they be denied a gun?
Pro: Ah…maybe
(Pro asks some questions)…
Con: Let’s get back to this issue I raised before….So, a doctor or court who thinks someone is mentally ill has to turn over all their medical records to a database?
Pro: Ah…yeah, maybe, for the good of America…
Con: How can they get rid of their record? Like what if they no longer have the mental illness? Do we keep it in their in case it comes back?
Pro: Ah…
Con: And I suppose you think that mental health illness diagnoses do not have any class, gender, or racial biases?….
Anyhow, you can basically see where this argument is going.
Of course, to win a debate on it, you need to develop a more concrete argument related to discrimination, but the Pro is very much in a double bind on this issue: Gun deaths cannot be significantly reduced without more mentally ill people who are a potential danger to themselves or others access to a gun. The word potential is important because individuals who have already used guns in the commission of a crime would already be covered by the criminal background system. And determining who is potentially a danger to themselves or others gets even more problematic.
As Garance France Rutta explained in 2013:

This is the great problem at the heart of efforts to turn improved mental health reporting into our primary form of gun control. More than half of Americansexperience one or more mental illnesses over the course of their lives, and around 26 percent of Americans over age 18 each year experience at least one, primarily anxiety disorders and mood disorders like depression. The overwhelming majority of them are no danger to anyone at all. But with so substantial a portion of the country going through bouts of one thing or another over the course of their lives, the idea that any federal database could capture enough information to encompass every one who might one day be a threat anywhere is akin to hoping for a government staff of precogs. And that’s not even getting into the highly problematic question of whether the government should mark millions of people who will never hurt anyone for a carve-out from the Second Amendment, and the privacy and stigmatization issues involved in cataloging harmless people who suffer from common mental illnesses in order to label them as potential threats in a federal government database. (https://www.theatlantic.com/health/archive/2013/09/why-mental-health-background-checks-are-not-the-solution-to-gun-violence/279781/)

And he continued (with other useful crossfire questions :))

Federal law since 1968 has prohibited possession of a firearm or ammunition by anyone judged by a court to be “a mental defective” or “committed to any mental institution.” But the federal government cannot compel states to report data, and some of them remain reluctant to collect or forward it on to the FBI. There’s also been real debate about who to report. Anyone involuntarily committed? Or just ones who’ve been held for more than 72 hours? What about people who check themselves in for treatment? What about people who need treatment but do not require hospitalization, because that’s not how treatment is delivered these days?

These arguments complicate the Pro’s ability to solve because they assume that we can predict who is dangerous to themselves and others, which is arguably a false assumption:

Michael Friedman, PHD, May 13, 2104, The stigma of mental illness is making us sicker, https://www.psychologytoday.com/blog/brick-brick/201405/the-stigma-mental-illness-is-making-us-sicker
In fact there is limited evidence of a direct link between mental disorder and dangerousness (Prins 1999) and evidence that clinical or actuarial techniques of risk assessment, which are disproportionately applied to poor and black people, are a remarkably inefficient way of predicting who will proceed to commit offences (HM Prison Service, 2002; Lewis & Webster, 2004; Mossman, 1994; Rice, 1997; Tolman & Mullendore, 2003). For example, Mossman (1994) identifies a number of limitations, including poor definition and measurement of harm, and misleading and confusing statistics. For instance, a risk assessment which always predicts a low risk of harm could be interpreted as being 95% accurate even if 5% of subjects assessed go on to cause future harm. In spite of the inaccuracy or rather the bluntness of such instruments of prediction regarding risk these assessments are being increasingly used to identify and contribute to a process of pre-emptive criminalisation whose aim is, in reality, simply the surveillance and control of surplus, potentially troublesome, populations with some mental health problems.

Another card:

David Weissbubb, 1998, LawAnd Mental Health, International Perspectives, p. books.google.com
Just as Martinson’s (1974)”nothing works” statement has fueled recent continuing debate about the limits of therapeutic ability (also see Gendreau, 1985), so has Ennis and Litwack’s (1974) clever title about “flipping coins” in the courtroom stirred up an abundance of controversy and polemic. One of the most able exponents of the view that prediction of dangerousness is an impossibility is Alan Stone. In a recent contribution (1985) he says: “It was my own view from the very beginning of my work in these two disciplines (law and psychiatry) that this was the wrong battlefield on which psychiatry should try to take a stand” (p. 14). Referring no doubt to the kinds of material discussed in the previous section he continues: “My review of the literature, both statistical and clinical, convinced me that we had no solid empirical grounds for making anything more than very short term predictions of violent behavior” (p. 14). By “short term.” Stone means assessing the patient’s current mental status and trying to anticipate how long that condition will persist. He puts his general position even more strongly with the statement: “I found the published studies of prediction woefully inadequate, poorly conceived, wrongly interpreted, and well below any acceptable standard of scientific research or even solid clinical experience” (p. 14). His position is that psychiatrists, with their use of unvalidated predictive power in the sphere of “dangerousness,” have come increasingly to accept the position of “agents of social control.” Stone would prefer to see emphasis placed more or less exclusively on therapeutic functions. He thinks that “the law made dangerousness the battlefield, and it has been our Waterloo in American psychiatry” (p. 15). And he points out that the current pleas to incarcerate only the “truly” dangerous (e.g., Moore, Estrich, McGillis, & Spelman, 1984) may seem wise enough, but it is important to remember that mental health professionals do not know how to identify such dangerous persons. He asks rhetorically, “Is it not a bizarre system of justice that is prepared to dedicate all of its resources to the confinement of those who cannot be properly identified?” (p, 17)…. Stone denies, on the basis of evidence of the kind reviewed in the previous section as well as that mentioned in the following three sections, that psychiatry and allied disciplines possess the necessary expertise to guide the courts and other related correctional and mental health agencies, He does not standalone. In a recent review Dickens (1985) highlights the fact that the American Psychiatric Association’s (APA) brief in the 1974 California superior court case of Tarasofft, Regents of the University of California (1974) was completely clear in pointing out psychiatry’s present lack of predictive ability, Tarasoff, as Dickens notes, poses a challenge to mental health professionalism in that “if practitioners wish for relief from legal liability for failure to predict dangerousness reliably, they must so define their professional skill as to exclude that predictive capacity and recognize the limitation this imposes on the scope of legitimate professional practice and claim to expertise” (p. 183). He argues that, in fairness, psychiatry should not have its cake and eat it too, Either it can produce the scientific basis for its practitioners’ predictive skill or it cannot. The matter is confused at the moment, with the APA itself admitting limitations in predictive ability (see especially Webster, Dickens, & Addario, 1985, pp. 98-103) and with individual practitioners testifying routinely and confidently on the assumption

As suggested by these quotes, the difficulty in predicting dangerous is not only a great defensive solvency argument for the Con, but it also also creates significant opportunities for offense.
First, as noted, it would lead to substantially greater stigmatization of the mentally ill. At the very least, many more people would have their mental health records dumped into a federal database that is searchable by anyone who engages in the sale of a gun. It may also make states more likely to search out the mentally ill and try to include them in the database. Individuals with many different types of mental illness would become more stigmatized, and stigmatization results in people being isolated from society.

Michael Friedman, PHD, May 13, 2104, The stigma of mental illness is making us sicker, https://www.psychologytoday.com/blog/brick-brick/201405/the-stigma-mental-illness-is-making-us-sicker
Research suggests that the majority of people hold negative attitudes and stereotypes towards people with mental illness. From a young age children will refer to others as “crazy” or “weird”; these terms are used commonly throughout adulthood as well. Often the negative stereotypes involve perceptions that people with mental illness are dangerous. This perception is fueled by media stories that paint violent perpetrators as “mentally ill” without providing the context of the broad spectrum of mental illness. This bias is not limited to people who are either uninformed or disconnected from people with mental illness; in fact health care providers and even some mental health professionals hold these very same stereotypes. These negative attitudes often manifest as social distancing with respect to people with mental illness. In particular, when people feel that an individual with mental illness is dangerous, that results in fear and increased social distance. This social distancing may result in the experience of social isolation or loneliness on the part of people with mental illness. This stigma and social distancing have the potential to worsen the well-being of people with mental illness in several ways. First, the experience of social rejection and isolation that comes from stigma has the potential for direct harmful effects. It has long been understood that social isolation is associated with poor mental and physical health outcomes and even early mortality – “the lethality of loneliness.” Further, social isolation predicts disability among individuals with mental illness. For example, a Swedish study of 53,920 women and men followed for 12 years found that social isolation predicted disability, and that this effect was particularly pronounced among individuals with mental illness. 

If people are isolated from society, their mental illness will likely increase. Increasing mental illness only increases the risk of suicides and other problems. Pro teams may claim they reduce suicides by taking away guns, but even if UBCs succeed in deny access to guns, people can commit suicide in other ways.
Second, denying people access to guns is not a harmless action. According to the Supreme Court in Heller v. DC, the Second Amendment protects the right of individuals to own a gun in self-defense. While individuals who are a danger to themselves and others can lose this right (all rights are not absolute and criminals lose aces to rights when they are in prison), but people do generally have the right to own guns: Held:    1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53. (Heller)
So while the Court also said that the mentally ill can be denied access to guns, people with any mental illness cannot be denied access to guns for an indefinite length of time, as that would deny them access to guns and their Second Amendment rights.
You can find a list of all psychiatric disorders here. Which ones justify taking away guns and for how long?
Third, mental health diagnoses, particularly determinations of “dangerousness” are filled with certain assumptions that psychiatrists and courts make, either consciously or subsconsciously.  The simply reality is that in all contaxts, Black Americans are more likely to be seen as dangerous:

Elizabeth Hinton is a professor of History and of African and African American Studies at Harvard University and author of “From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America.”, October 4, 2016, Los Angeles Times, How a racist my landed Dwayne Buck on Death Row, http://www.latimes.com/opinion/op-ed/la-oe-hinton-duane-buck-future-crime-20161004-snap-story.html
Nothing in the world is easier in the United States than to accuse a black man of crime,” W.E.B. Du Bois wrote in 1932. Nearly 85 years later, the pernicious myth that black Americans are more dangerous than other races continues to shape our approaches to public safety, even as the best research indicates that unemployment and poverty, not skin tone, can best predict violence. For our society, the racist notion that color foretells future dangerousness is a moral problem of staggering proportions. For Duane Buck, it could mean death — unless his lawyers convince the Supreme Court on Wednesday to grant him a new trial. In 1996, Buck was sentenced to die for the murders of two people in Houston. His capital sentence was imposed after Walter Quijano, the defense counsel’s “expert” psychologist, testified that Buck’s race made him more likely to be violent in the future. As proof, Quijano cited an “an over-representation of Blacks among violent offenders.” Texas law requires juries to evaluate the ‘future dangerousness’ of defendants in order to impose the death penalty Because Texas law requires juries to evaluate the “future dangerousness” of defendants in order to impose the death penalty, Quijano’s suggestion convinced the jury that Buck posed an ongoing threat to society, which warranted his execution despite the fact that Buck had no prior convictions for violent crimes. (Moreover, Buck has been a model prisoner for more than two decades, contrasting sharply with Quijano’s assumptions about various acts of violence he might go on to commit.) As Buck himself summarized the dynamics of his case in an interview from prison: “Basically, because I’m black I need to die.” Buck’s observation — like that of Du Bois — speaks to a historical tendency that began almost immediately after emancipation. Whites refused to treat newly freed people as equal citizens, much less welcome them into society, instead regarding them as a distinctly dangerous population in need of control. As former slaves increasingly found themselves behind bars in northern prisons or ensnared in convict labor regimes in the south, policymakers and social welfare reformers analyzed the disparate rates of black incarceration as empirical “proof” of the “criminal nature” of African Americans. Although the problem of crime among poor white and immigrant communities also concerned elected officials and academics at the time, it was often explained as the product of socioeconomic factors rather than biological traits. By World War II, Irish, Italian, Polish, Jewish and other European ethnic groups had for the most part shed associations with criminality. But the perception that citizens of African descent are more dangerous than their counterparts endured. Indeed, this stereotype became even more pervasive after 1965, in the context of the civil rights movement and the newly declared “War on Crime.” In an attempt to prevent future unrest, police officials targeted low-income urban neighborhoods with increased surveillance. Meanwhile, the simultaneous rise of a statistical apparatus primarily concerned with measuring urban street crime — as opposed to white-collar crime or rural crime — further reinforced notions about black citizens and criminality. (If police flood black neighborhoods in an attempt to crackdown on even petty crime, of course they will find more black lawbreaking than white lawbreaking.) Racially biased “data” justified the expansion of the American prison system, sustained harsh sentencing practices, sanctioned racial profiling and informed decisions surrounding capital punishment in the late 20th century and into the 21st.

The problem particularly manifests itself in mental health diagnoses of dangerousness.

Dianna Wendy Fitzagobbin, University of Hertfordshire – School of Law, Institutional Racism, Pre-Emptive Criminalisation and Risk Analysis, 2007, http://uhra.herts.ac.uk/bitstream/handle/2299/1955/103448.pdf?sequence=1,
(DoH 1999) illustrates how ethnic minorities express general dissatisfaction with mainstream services (cited in Sashidharan, 2004). Sashidaran argues that General Practitioners continue to fail to diagnose mental disorders in black and minority groups. Thus black and ethnic minorities ‗follow aversive pathways‘ into mental health care, often via more coercive and inappropriate services (i.e. the criminal justice system) and face over or misdiagnosis (Sashidharan, 2004, p.13). It is, however, where the orientation of the mental health institutions is towards the identification and management of risk groups that, in a similar manner to stop and search in policing, blackness will come to be read as an actuarial indicator of likely dangerous mental illness and that this will feed back into the cultural assumptions and stereotypes of practitioners. In the area of mental health, as in criminal justice, there has been a steady shift in attitudes towards the mentally ill away from that of citizens in need of reintegration to that of a risk group to be managed and controlled. (Fitzgibbon 2004) Successive mental health inquiries following violent incidents and subsequent criticism of care of mentally disordered people in the community, has strengthened the association between mental disorder, risk and dangerousness (see Reith, 1998, Zito 1999). Arguably, the management of the potential risk to the public posed by people with mental health problems, has become the primary concern of mental health services (e.g. Petch, 2001). This is evident in the White Paper Reforming the Mental Health Act (Home Office 2000) where the focus on protection of the public reinforces a notion of the social exclusion of the mentally ill as a risk group in need of neutralisation and management: This second part of the White Paper sets out new arrangements for managing people who need to be detained and treated under Mental Health Act powers because of the high level of risk that they pose to others as a result of their mental disorder. The arrangements form part of the wider changes to the powers for compulsory care and treatment and the delivery of mental health services. (Home Office 2000 Part II: 5)…. This is because such blunt predictors are functioning less as a diagnostic tool than as the signifiers of group membership. Where the diagnosis of mental illness is subordinated to the management of dangerousness and risk, then aggregate indicators become important. If a mentally ill person is already a member of a risk group (poor, unemployed, etc.) then those group characteristics will reflect back and subtly influence the diagnosis of the dangerous mental disorder either to their self and the public. This is because one is no longer asking a simple medical diagnostic question ‗is this person ill?‘ (and in need of treatment) but how dangerous is this person given that they belong to a group whose aggregate characteristics include a higher than average level of dangerousness?‘ Race becomes incorporated into the criteria of indicators of risk group membership. Black people are more likely to be poor and unemployed and these factors are associated with mental illness and dangerousness. Therefore, in a similar way to criminality, race becomes a sign of dangerous mental illness. As Prins (1993) highlighted in his inquiry into the death of Orville Blackwood, there was a tendency to see black patients as ‗ big black and dangerous‘(Prins 1999:132). This was also a comment made in other inquiries into such cases as Christopher Clunis and David Bennett (Ritchie et al 1994, Blofeld, 2003).

Fourth, women are more likely to be diagnosed with mental health disorders

World Health Organization, no date, Gender and Women’s Mental Health, http://www.who.int/mental_health/prevention/genderwomen/en/
Gender bias occurs in the treatment of psychological disorders. Doctors are more likely to diagnose depression in women compared with men, even when they have similar scores on standardized measures of depression or present with identical symptoms. Female gender is a significant predictor of being prescribed mood altering psychotropic drugs. Gender differences exist in patterns of help seeking for psychological disorder. Women are more likely to seek help from and disclose mental health problems to their primary health care physician while men are more likely to seek specialist mental health care and are the principal users of inpatient care. Men are more likely than women to disclose problems with alcohol use to their health care provider. Gender stereotypes regarding proneness to emotional problems in women and alcohol problems in men, appear to reinforce social stigma and constrain help seeking along stereotypical lines. They are a barrier to the accurate identification and treatment of psychological disorder. Despite these differences, most women and men experiencing emotional distress and /or psychological disorder are neither identified or treated by their doctor. Violence related mental health problems are also poorly identified. Women are reluctant to disclose a history of violent victimization unless physicians ask about it directly. The complexity of violence related health outcomes increases when victimization is undetected and results in high and costly rates of utilization of the health and mental health care system.

For more, see Gender Disparities and Mental Health.
One impact to these arguments is that stigmatization of mental illness, racial discrimination, and gender discrimination are all wrong.   But there are additional implications.
One, as noted in the last card, people may become more reluctant to seek care/counseling for mental health problems if they have them, increasing the risk of suicides.
Two, if more women are wrongly subject to mental health diagnoses and then placed on background check lists, they may be less able to get a gun in self defense.
Three, if more minorities, particularly blacks, are denied access to guns, self-defense is not only generally more difficult but it makes it more difficult for them to defend themselves agains racists.

Nicholas Johnson, law professor, Fordham, 2014, Negroes and the Gun: The Black Tradition of Arms, Kindle edition, page number at end of card
To start, consider the self-defense foundation on which the black tradition of arms rests. Self-defense is a universal exception to the state’s monopoly on legitimate violence. State failure drives the self-defense doctrine through the imminence requirement. Private violence is justified where one faces an imminent threat of death or serious bodily harm to which the government cannot respond. The imminence requirement defines that space where the state, regardless of its motives and ambitions, simply cannot help. State failure within the window of imminence is a reality for everyone. But one might expect blacks to be particularly   sensitive to it. The window of imminence is often larger in black neighborhoods where various challenges stretch public resources. Certainly state failure is less galling today. Under slavery, Black Codes, and Jim Crow, the state was often just another layer of threat, and reliance on the state for personal security was more obviously an absurd proposition. Johnson, Nicholas (2014-01-14). Negroes and the Gun: The Black Tradition of Arms (p. 298). Prometheus Books. Kindle Edition.

Four, generally speaking, of course, many people could be deprived of gun ownership, threatening their Second Amendment rights.
While it is true the rate of gun violence in the US is too high and that UBCs might make a contribution to lowering it, the only way for UBCs to be effective at significantly reducing gun violence is to reduce the number of people, especially individuals who are likely to kill themselves or engage in mass shootings. If the Pro accomplishes that, it can only be by significantly expanding the number of people who are determined to be mentally ill and dangerous, which is likely to result in a substantial increase in discrimination and probably fail anyhow, as predictions of dangerousness are not likely to be accurate.