Yesterday the U.S. Court of Appeals for the 6th Circuit ruled that the federal ban on gun possession by anyone who has ever been "committed to a mental institution" violates the Second Amendment. This seems to be the first time a federal appeals court has overturned any of the disqualifications for gun ownership imposed by the Gun Control Act of 1968. Notably, the court applied "strict scrutiny" to the law, which it deemed appropriate because "the Supreme Court has by now been clear and emphatic that the 'right to keep and bear arms' is a 'fundamental righ[t] necessary to our system of ordered liberty.'" But it suggested that the ban also would fail under "intermediate scrutiny," the standard preferred by most courts so far.
The case was brought by Clifford Tyler, a 73-year-old resident of Hillsdale County, Michigan, who tried to buy a gun in 2011 but was turned away after failing the federally required background check. Tyler learned that he had permanently lost his Second Amendment rights because he had been forced to undergo psychiatric treatment in 1985 after an emotionally devastating divorce. His daughters were concerned that he might be suicidal, and a court ruled that he posed a threat to himself. Since then, according to Tyler, he has not experienced any more bouts of depression. A psychologist who evaluated Tyler in 2012 found no evidence of mental illness and concluded that the 1985 incident "appeared to be a brief reactive depressive episode in response to his wife divorcing him." Yet under 18 USC 922(g)(4), that one incident barred him from ever owning a gun.
In D.C. v Heller, the 2008 case in which the Supreme Court finally recognized that the Second Amendment protects an individual right to arms, it said "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." But the provision that stopped Tyler from buying a gun goes further than that, the 6th Circuit notes, since "the class of individuals constituting those ever previously mentally institutionalized is not identical to the class of individuals presently mentally ill." Because the proscribed category is overbroad, the court concludes, it is not "narrowly tailored" to serve a "compelling interest," as required under strict scrutiny:
Tyler's complaint validly states a claim for a violation of the Second Amendment. The government's interest in keeping firearms out of the hands of the mentally ill is not sufficiently related to depriving the mentally healthy, who had a distant episode of commitment, of their constitutional rights. The government at oral argument stated that it currently has no reason to dispute that Tyler is a non-dangerous individual. On remand, the government may, if it chooses, file an answer to Tyler's complaint to contest his factual allegations. If it declines to do so, the district court should enter a declaration of unconstitutionality as to § 922(g)(4)'s application to Tyler.
Other provisions of 18 USC 922 should be vulnerable to a similar challenge. Under 18 USC 922(g)(3), for example, anyone who is "an unlawful user of or addicted to any controlled substance" is forbidden to own a firearm. That provision covers more than 40 million Americans, including anyone who has recently taken a drug prescribed for someone else and anyone who uses marijuana, whether for medical or recreational purposes and regardless of the drug's status under state law. It is absurd to maintain that all of these people are "dangerous individuals" who cannot be trusted with firearms.
The provision barring unlawful drug users from owning guns "is most similar to the one at issue here," the 6th Circuit notes. Yet 18 USC 922(g)(3) has been upheld by at least five circuit courts, which emphasized that the ban is temporary and applies to "volitional conduct." True enough, but the criteria have nothing to do with violence or threats to other people, so it is hard to see how they are narrowly tailored to serve a compelling interest or even "substantially related to an important governmental objective," as required by intermediate scrutiny.