Opinion

New York – -(AmmoLand.com)- The proposed New York mental health evaluation bill, like the Safe Act of 2013, before it, is facially unconstitutional. It likely would be contested on Constitutional grounds were it to become law, and it likely would survive attack when brought before New York’s anti-Second Amendment federal and State Court jurists.

So, with a plethora of anti-Second Amendment jurists presently sitting on State and Federal Benches, we would expect to see this unconstitutional firearms' measure passing Constitutional scrutiny in the State and Federal trial and appellate courts, as have so many other measures, were New York's mental health evaluation bill to come before New York courts, once challenged, after enactment. And, there is no guarantee the U.S. Supreme Court would even take up the case on a Writ of Certiorari. Even if the high Court did take the case up on appeal, resolution of high Court cases takes time and considerable sums of money to battle. Cuomo knows this.

Still, we can only hope that enough New York Legislators will seriously consider the dire ramifications of the New York mental health evaluation bill before voting to enact it sans debate. They may take their cue from Legislators in Virginia who, fortunately, have, voted to table the ludicrous, “assault weapons” bill, at least for a time, to give Legislators an opportunity to debate it before voting to enact it.

But, as for New York's mental health evaluation bill, the Arbalest Quarrel would like to give New York's Legislators a heads-up.

To fully appreciate the full extent of New York’s latest horror that anti-Second Amendment zealots, proponents, and fanatics would love to see enacted, we delineate below some of the specific problems with it.

Pertinent questions that can be legitimately raised about it; legal and ethical concerns that operate against it; and matters that ought to be addressed before the New York Senate and Assembly vote on it.

First , Cuomo has said the NY Safe Act is designed to prohibit “dangerously mentally ill” persons from purchasing a gun. Does not this bill expand the domain of people who can be denied possession of firearms? Keep in mind that Federal law already prohibits gun ownership and possession by individuals who have been voluntarily or involuntarily committed to a mental health hospital. Yet New York’s proposed amendment attempts to skirt Federal law by potentially prohibiting anyone who has even a scintilla of “mental health issues” from possessing a firearm. This is an implicit presumption of the bill.

, Cuomo has said the NY Safe Act is designed to prohibit “dangerously mentally ill” persons from purchasing a gun. Does not this bill expand the domain of people who can be denied possession of firearms? Keep in mind that Federal law already prohibits gun ownership and possession by individuals who have been voluntarily or involuntarily committed to a mental health hospital. Yet New York’s proposed amendment attempts to skirt Federal law by potentially prohibiting anyone who has even a scintilla of “mental health issues” from possessing a firearm. This is an implicit presumption of the bill. Second , would retired police officers come within the purview of the bill? If not, why not?

, would retired police officers come within the purview of the bill? If not, why not? Third , who would design the battery of mental health tests?

, who would design the battery of mental health tests? Fourth , how extensive would the mental health evaluation process be?

, how extensive would the mental health evaluation process be? Fifth , would the person who desires to obtain a firearm be responsible for remitting payment for the mental health evaluation process, or would taxes be raised on, and the costs borne by, the entire New York population to cover the cost of these new administrative procedures?

, would the person who desires to obtain a firearm be responsible for remitting payment for the mental health evaluation process, or would taxes be raised on, and the costs borne by, the entire New York population to cover the cost of these new administrative procedures? Sixth , what is the proposed cost for designing the evaluation process and implementing it? Wouldn’t it be advisable to do a feasibility study to ascertain the costs of designing, implementing, and administering this program before enacting the bill into law?

, what is the proposed cost for designing the evaluation process and implementing it? Wouldn’t it be advisable to do a feasibility study to ascertain the costs of designing, implementing, and administering this program before enacting the bill into law? Seventh , who would administer the tests: A psychologist? A psychiatrist? A team of mental health practitioners? An Administrator who has no mental health training, for example, a police officer?

, who would administer the tests: A psychologist? A psychiatrist? A team of mental health practitioners? An Administrator who has no mental health training, for example, a police officer? Eighth , how would a mental health practitioner determine the relationship between the mere desire to possess a firearm and the mental health acuity of the individual who desires to possess a firearm? In that regard, might not the mere desire to possess a firearm be construed as suggestive of mental deficiency? In fact, is this not the rationale behind the bill, evidencing its ulterior motive?

, how would a mental health practitioner determine the relationship between the mere desire to possess a firearm and the mental health acuity of the individual who desires to possess a firearm? In that regard, might not the mere desire to possess a firearm be construed as suggestive of mental deficiency? In fact, is this not the rationale behind the bill, evidencing its ulterior motive? Ninth , would mental health tests extend to and be permitted to probe a person’s present life situation in minute detail; and, if so, would not that infringe on the unreasonable searches and seizures clause of the Fourth Amendment to the U.S. Constitution?

, would mental health tests extend to and be permitted to probe a person’s present life situation in minute detail; and, if so, would not that infringe on the unreasonable searches and seizures clause of the Fourth Amendment to the U.S. Constitution? Tenth , suppose a person is presently seeing a mental health practitioner or had, at one time, seen a mental health practitioner; or, perhaps, a person is taking antidepressant medications or had, at one time, taken such medications associated with mental or emotional conditions. Would questions be directed to probe and elicit that information? If so, would that not illegally invade a person’s privacy and unlawfully impinge upon the sacred doctor-patient relationship? And, would not such an evaluation impermissibly intrude upon and undermine the treatment of the patient by his or her own physician or mental health practitioner if the patient is undergoing treatment?

, suppose a person is presently seeing a mental health practitioner or had, at one time, seen a mental health practitioner; or, perhaps, a person is taking antidepressant medications or had, at one time, taken such medications associated with mental or emotional conditions. Would questions be directed to probe and elicit that information? If so, would that not illegally invade a person’s privacy and unlawfully impinge upon the sacred doctor-patient relationship? And, would not such an evaluation impermissibly intrude upon and undermine the treatment of the patient by his or her own physician or mental health practitioner if the patient is undergoing treatment? Eleventh , how extensive would the mental health evaluation be? What would the test components comprise?

, how extensive would the mental health evaluation be? What would the test components comprise? Twelfth , would Government officials assess the statistical validity and reliability of those mental health evaluation tests that are devised, before their implementation, assuming new tests are constructed? If not, why not? And, who would assess the statistical validity and reliability of such mental health evaluation tests employed? Further, if Government officials make use of presently existing mental health tests of purposes of the proposed bill, wouldn’t those tests still need required scrutiny to ascertain their applicability to firearms ownership and possession?

, would Government officials assess the statistical validity and reliability of those mental health evaluation tests that are devised, before their implementation, assuming new tests are constructed? If not, why not? And, who would assess the statistical validity and reliability of such mental health evaluation tests employed? Further, if Government officials make use of presently existing mental health tests of purposes of the proposed bill, wouldn’t those tests still need required scrutiny to ascertain their applicability to firearms ownership and possession? Thirteenth , who would be responsible for maintaining the confidentiality of these new mental evaluative test records and, would the individual’s personal physician or mental health practitioner have access to them? Would the person being evaluated be able to obtain a copy of or at least be able to view his or her mental health evaluation records? If not, why not?

, who would be responsible for maintaining the confidentiality of these new mental evaluative test records and, would the individual’s personal physician or mental health practitioner have access to them? Would the person being evaluated be able to obtain a copy of or at least be able to view his or her mental health evaluation records? If not, why not? Fourteenth , what recourse would examinees have whose confidentiality is violated? Would examinees even know whether the records of their mental health evaluation had been misused, misplaced, hacked into, lost, stolen, or wrongly distributed or disseminated to individuals, Government agencies, private entities, academia, or the CDC, contrary to law or procedure? Would the New York State Government have a legal duty to inform the examinee of such loss or misallocation of sensitive, confidential, personal records? Would the examinee have legal recourse to obtain damages?

, what recourse would examinees have whose confidentiality is violated? Would examinees even know whether the records of their mental health evaluation had been misused, misplaced, hacked into, lost, stolen, or wrongly distributed or disseminated to individuals, Government agencies, private entities, academia, or the CDC, contrary to law or procedure? Would the New York State Government have a legal duty to inform the examinee of such loss or misallocation of sensitive, confidential, personal records? Would the examinee have legal recourse to obtain damages? Fifteenth , on what grounds might one appeal an adverse result, and what would be the costs of de novo review? And who would be required to bear those costs?

, on what grounds might one appeal an adverse result, and what would be the costs of de novo review? And who would be required to bear those costs? Sixteenth , what is the time frame between setting up an evaluation process and obtaining the results of an evaluation?

, what is the time frame between setting up an evaluation process and obtaining the results of an evaluation? Seventeenth , can the mental health evaluation be reviewed and overturned by one’s own physician or mental health practitioner? If not, why not?

, can the mental health evaluation be reviewed and overturned by one’s own physician or mental health practitioner? If not, why not? Eighteenth , why should a person who has received an adverse decision be required to go to Court to obtain a reversal of an adverse decision? Why isn’t there a mechanism for a less costly and time-consuming intermediate administrative appeal process as there exists, for example, in present New York City handgun licensing rules and regulations?

, why should a person who has received an adverse decision be required to go to Court to obtain a reversal of an adverse decision? Why isn’t there a mechanism for a less costly and time-consuming intermediate administrative appeal process as there exists, for example, in present New York City handgun licensing rules and regulations? Nineteenth , after the mental evaluation process has concluded, and a person has passed the mental health evaluation process, what are the post-administrative steps?

, after the mental evaluation process has concluded, and a person has passed the mental health evaluation process, what are the post-administrative steps? Twentieth, why must it be necessary for a person who has passed a mental health examination to be repeatedly required to take another mental health evaluation for every instance in which a firearm is purchased, exchanged, or disposed of? Would not this requirement be deliberately oppressive and also unnecessarily expensive, and unnecessarily administratively burdensome? Moreover, undergoing a mental health evaluation at all may work in ways that have negative unintended or intended consequences after the fact. Have such possible consequences been explored? If not, why not?

All sorts of negative results ensue from this New York mental health evaluation bill were it to become law.

The callous disregard for the principle of fundamental fairness and for the sanctity of Americans’ fundamental rights and liberties isn’t alone peculiar to anti-Second Amendment proposals of Radical Leftists like Cuomo. It is characteristic of all those who espouse the Collectivist vision of governance.

Implementation of New York’s recent Anti-Second Amendment mental health evaluation bill is unseemly, unconscionable, and demonstrably inconsistent with our Constitution and our heritage as Americans. The bill is extraordinarily bizarre, predicated on a phobic fear of anti-Second Amendment zealots that every American is potentially a psychopathic criminal or psychotic maniac. or that an American will be magically transformed into a raving maniac merely because that person happens to own and possess a firearm.

Upon perusal of New York’s mental health evaluation bill, one cannot but conclude it has been devised by fevered, paranoid minds that, may, themselves, do well to obtain a mental health evaluation from a clinical psychologist or psychiatrist, to get at the root of their own singular abhorrence of the Nation's Second Amendment and of their own peculiar, pathological fear of firearms.

About The Arbalest Quarrel:

Arbalest Group created `The Arbalest Quarrel' website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.

For more information, visit: www.arbalestquarrel.com.