Wednesday, February 17, 2016

Are Second Amendment Rights Protected by the Americans with Disabilities Act (ADA)?

Blind woman learns to shoot
Picture from concealed nation

An Georgia television station raised a question about whether a person who is legally blind should be allowed to exercise their Second Amendment rights.  They asked if a person who is legally blind should be forbidden, by law, from carrying a weapon to protect themselves.  From
Her father, Sheriff Warren Wethington, taught her how to shoot.

He told Byfield he wants his daughter to be able to protect herself.

"The people who express their opinions that my daughter's not safe with a gun most likely have never held one, shot one or know anything about one," Sheriff Wethington said.

"I'm not a threat to society. I'm a law-abiding citizen, and just because I'm legally blind doesn't mean I shouldn't have a permit to defend myself," Bethany Wethington told Byfield.
Another person, referred to as Bunch, has a friend who does not want him carrying a pistol, because he cannot see well, even though he trusts him with a gun in his house.

I struck me that preventing a person from exercising their Second Amendment rights, because of a disability, might be a violation of the Americans with Disabilities Act (ADA).  I looked at the ADA website for hints.  From
§ 35.130 General prohibitions against discrimination

(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
That seems fairly straightforward.  But how about the claim that blind people are not issued drivers licenses?  First, drivers licenses are considered privileges, not a Constitutional right.  Second, there is a portion of the ADA that addresses the idea that a disability could make someone dangerous.  From
§ 35.139 Direct threat.

(a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.

(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
 It seems that such an assessment would not be too difficult.  We know that legally blind people have defended themselves, with firearms, in their homes.  We know that it is possible for them to do so in public. The burden should be on public entity to show, in each individual case, that there is a direct threat that cannot be overcome with a reasonable accommodation. 

It is not uncommon for people to be partially blinded in an initial attack, and still be able to defend themselves.

All of the legal cautions that are normally taught to people with normal vision apply to people who are legally blind, so I do not see anything special there.

I have not heard or read of any instances where people have been harmed because a legally blind person shot someone by mistake.  This seems to simply  be another form of prejudice about disabilities.  I suspect that legally blind people are well aware of their limitations, and have spent far more time on determining how to function with those limitations, than people without them have.  The National Federation for the blind issued a statement including this paragraph:
In recent days there has been much discussion about whether blind individuals should be permitted to own and/or carry firearms. The National Federation of the Blind, the oldest and largest nationwide organization of blind Americans, understands that guns are dangerous weapons and that anyone who owns, carries, or uses them must therefore exercise great care and sound judgment in doing so. Blindness has no adverse impact on a person’s ability to exercise due care and good judgment. State firearms laws must be applied in a nondiscriminatory manner to blind individuals. Recognizing that laws and regulations regarding the granting of permits to own and/or carry firearms vary throughout our country, our single position on firearms regulation is that a permit to own and/or carry a gun should not be denied to any individual solely on the basis of blindness.

I have not heard of ADA challenges to firearms permit laws that discriminate on the basis of physical disability; but I will not be surprised when one happens.

 ©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Anonymous said...

That describes services and benefits of that act that act can not have any effect on the constitutional right to keep and bear arms. the second amendment does not say excluding the disabled. It limits to the services and benefits to those provided by a public entity. there is no license or permit required or written into the second amendment.

Peter Bossley said...

I am legally blind and have carry licenses in 3 states. I was on NRA news here about this very topic:
In short, I agree with you and the NFB's position that blindness (of any type) should not itself be a disquallifier for firearms ownership or carry.
The very idea that we aren't capable of understanding our own limitations and making sound decisions within that framework is frankly insulting at the highest level. just my .02.

Anonymous said...

I was born legally blind in my left eye. I was sent to Vietnam with one good eye and I was awarded an expert badge for my M-14 qualification in basic training. I also qualified with every weapon I might come into contact with in Vietnam. I was an excellent shooter before I went in to the Army. I see well enough they wont be trying to take my guns from me and survive the effort.

Unknown said...

Are second amendment rights protected by the second amendment?

s88m88h said...

Are 2nd amendment rights protected by the second amendment?