Falling between the Atkins and Heller Cracks: Intellectual Disabilities and Firearms

Posted: 1 Mar 2013

Date Written: November 8, 2011

Abstract

The oft-quoted argument asserts that guns don’t kill people; people do. It is essential, then, that only people with the ability to own their criminal culpability should be able to possess guns.

Adults with intellectual disabilities not only have the same rights as other adults, but many state constitutions expressly assert that the rights are the same. However, we treat those same people differently, recognizing differences in cognitive capacity. The Supreme Court, reversing precedent that was only thirteen years old, did exactly that when it held that execution of persons with intellectual disabilities violated the Eight Amendment’s prohibition against cruel and unusual punishment. The Court acknowledged that such persons did not possess the same criminal culpability as others. This rationale similarly supported the Court’s determination that minors should not be subject to the death penalty.

When it comes to firearm possession and purchase, however, a divide exists between treatment of persons with intellectual disabilities and minors. Although the Gun Control Act of 1968 appears, at initial glance, to protect this population by prohibiting possession by certain “special risk populations,” upon deeper inspection, the Act fails to adequately address the needs and fails to adequately prevent persons with intellectual disabilities from accessing firearms.

This article argues that that we must work more effectively to prevent access to guns through an alternative avenue: criminalizing allowing a person with intellectual disabilities access to a firearm. Guns should not be possessed by persons with significantly limited cognitive and reasoning skills. Further, similar to child-access prevention laws, legislation should hold accountable those persons who improperly store their guns. By reviewing the Gun Control Act and its language and interpreting “mental defect” under the Act, this paper explores that term and how it has been used and applied. Comparing the justifications of Atkins and similar cases, this article advocates for adopting legislation similar to child-access prevention laws to protect persons with intellectual disabilities.

Keywords: gun control, intellectual disability, firearms

Suggested Citation

McCreary, Jana R., Falling between the Atkins and Heller Cracks: Intellectual Disabilities and Firearms (November 8, 2011). Chapman Law Review, Vol. 15, No. 2, 2011, Available at SSRN: https://ssrn.com/abstract=2226042

Jana R. McCreary (Contact Author)

Florida Coastal School of Law ( email )

8787 Baypine Rd.
Jacksonville, FL 32256
United States
904-256-1222 (Phone)

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