Second Amendment may preclude lifetime ban on gun possession by people who have been committed to a mental institution long ago

|The Volokh Conspiracy |

In D.C. v. Heller, the Supreme Court stated that bans on gun possession by "the mentally ill" are constitutional. But federal law bans gun possession not just by the mentally ill, but by anyone who "has been adjudicated as a mental defective or has been committed to any mental institution." Arlyn Johnson is being prosecuted under this law, because he possessed a gun after having been committed to a mental institution "in 1995 and 1997."

In Tuesday's United States v. Johnson (N.D. Iowa), a federal magistrate judge concluded that,

[A] statute that operates to deprive Johnson of a fundamental constitutional right for the rest of his life, based solely on brief mental health commitments two decades ago, does not appear to be "narrowly tailored to serve compelling state interests." If there was no more to the story, Johnson may well have a compelling argument that Section 922(g)(4) cannot constitutionally criminalize his possession of firearms.

But the court concluded that the federal statute doesn't actually impose such a lifetime ban on people in Iowa. Iowa law lets people who have been committed to a mental institution "petition for relief from the disabilities imposed" by the federal gun ban. (The federal 2008 NICS Improvement Amendments Act authorizes and indeed encourages such state relief-from-disabilities provisions.) Under the Iowa law,

The court shall receive and consider evidence in a closed proceeding, including evidence offered by the petitioner, concerning all of the following:

a. The circumstances surrounding the original issuance of the order or judgment that resulted in the firearm disabilities imposed by18 U.S.C. § 922(d)(4) and (g)(4).

b. The petitioner's record, which shall include, at a minimum, the petitioner's mental health records and criminal history records, if any.

c. The petitioner's reputation, developed, at a minimum, through character witness statements, testimony, and other character evidence.

d. Any changes in the petitioner's condition or circumstances since the issuance of the original order or judgment that are relevant to the relief sought….

The court shall grant a petition for relief … if the court finds by a preponderance of the evidence that the petitioner will not be likely to act in a manner dangerous to the public safety and that the granting of the relief would not be contrary to the public interest…. The petitioner may appeal a denial of the requested relief, and review on appeal shall be de novo [i.e., with no deference paid to the trial court's denial -EV]. A person may file a petition for relief … not more than once every two years.

Johnson, the magistrate notes, "had more than four years before the acts alleged in the indictment to file a petition, establish that he is not dangerous and obtain the restoration of his right to keep and bear arms." And "Johnson does not allege that Iowa's relief-from-disabilities procedures are illusory or unduly burdensome."

Because of this, Johnson isn't really facing a possibly unconstitutional lifetime ban on gun possession, and the legal scheme—coupled with the Iowa relief-from-disabilities provision—is "narrowly tailored when applied to him." But if a state doesn't provide such a relief-from-disabilities provision, then under the magistrate judge's reasoning a person who had been committed long ago, and seems not to be dangerous now, would indeed have a Second Amendment claim.

It will be interesting to see whether the district court adopts the recommendation; if so, then I expect this case to be quite important in this area of Second Amendment litigation.