The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This morning's 10-to-6 decision by the full U.S. Court of Appeals for the 6th Circuit, in Tyler v. Hillsdale County Sheriff's Department, concludes that people who were committed because of mental illness many years ago might regain their Second Amendment rights. Like last week's 3rd Circuit decision related to the Second Amendment rights of people who had felony convictions decades ago, this is a narrow decision, but an important one.
1. Clifford Tyler, now age 74, "was involuntarily committed thirty years ago following an emotional divorce," and stayed at the mental hospital for two to four weeks. He has since then apparently not had any mental-health problems. But federal law bans gun possession by anyone "who has been committed to a mental institution," and Tyler remains covered by that.
From 1986 to 1992, such people could apply to the Justice Department for relief from such a disability, but in 1992 Congress "defunded this program, noting that reviewing applications was a 'very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made.'" In 2008, Congress did give states a financial incentive to create state rights-restoration systems, and a state restoration would lift the federal disability. But while about 30 states have implemented such systems, Michigan, where Clifford Tyler lives, lacks such a system.
2. In D.C. v. Heller (2008), the Supreme Court majority opinion recognized that the Second Amendment secures an individual right, but said that this doesn't forbid "presumptively lawful" and "longstanding" bans on gun possession by "felons and the mentally ill." But 11 judges on the 6th Circuit held that "prior involuntary commitment is not coextensive with current mental illness," so that Heller doesn't justify a ban on gun possession by anyone who had ever been mentally ill.
At this point the those 11 6th Circuit judges split into three groups.
a. Five judges (Judges Julia Smith Gibbons, Eugene Siler, Deborah Cook, Helene White and Bernice Donald) took the view that the restriction could still be upheld if it passed "intermediate scrutiny," which here meant that it was a "reasonable fit" to the government interests in preventing crime and suicide. But they concluded that the government hadn't shown enough of a reasonable fit: The government did introduce studies that people with mental-health problems generally had greater risk of committing crime or suicide, but those studies didn't focus on people who had brief mental-health episodes many decades ago. Because of this, Tyler would be entitled to regain his Second Amendment rights, unless on remand the government can show either that (a) Tyler indeed "would be a risk to himself or others were he allowed to possess a firearm," or (b) there are more studies that generally show the enduring dangerousness of people with long-ago commitments for mental illness.
None of the government's evidence squarely answers the key question at the heart of this case: Is it reasonably necessary to forever bar all previously institutionalized persons from owning a firearm? But perhaps the biggest problem for the government is Congress's most recent answer to this very question: No, it is not.
From 1986 to 1992, federal law provided a relief-from-disabilities program whereby individuals prohibited by federal law from possessing firearms could "appl[y] to the Attorney General for relief from [their] disabilities." In 1992, Congress defunded this program, noting that reviewing applications was a "very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made." In 2008, Congress changed its mind. It authorized federal grants to the states for their help in shoring up the NICS instant background check system after a gunman with "a proven history of mental illness" killed dozens at Virginia Tech…. [This] is a clear indication that Congress does not believe that previously committed persons are sufficiently dangerous as a class to permanently deprive all such persons of their Second Amendment right to bear arms.
b. Five judges (Judges Danny Boggs, Alice Batchelder, Jeffrey Sutton, David McKeague and Raymond Kethledge) took the view that—once someone is found to no longer be "mentally ill" in the sense of being a continuing danger to himself or others—a ban on that person's gun possession is unconstitutional, with no need for "intermediate scrutiny" (or should at least be subjected to strict scrutiny, in Judge Boggs's separate opinion). Some of these judges also joined Judge Gibbons's opinion in concluding that the law would indeed likely fail intermediate scrutiny as applied to Tyler. To quote Judge Sutton's opinion,
No government may permanently deny rights based on generalizations stemming from classifications about any individual who once was institutionalized.
c. One judge (Judge John Rogers) concluded that, though the Heller "mentally ill" exception didn't apply to all people with past mental commitments, the prohibition on gun possession by such people did indeed pass intermediate scrutiny.
d. Five judges (Judge Karen Nelson Moore, Chief Judge R. Guy Cole Jr., and Judges Eric Clay, Richard Allen Griffin and Jane Branstetter Stranch) concluded that the "mentally ill" exception categorically validates the § 922(g)(4) prohibition:
In recognizing "longstanding prohibitions on the possession of firearms by … the mentally ill," the Heller Court was almost certainly referring to § 922(g)(4).
And even if intermediate scrutiny had to be applied, these judges concluded, the law passes intermediate scrutiny:
The government has also established that the permanent nature of the disability is substantially related to its compelling interests. In its motion to dismiss, the government presented evidence to the district court regarding the high rate of relapse for individuals who have previously been involuntarily committed. Given the strong potential for relapse, and the difficulty in determining which previously committed individuals will pose further danger to themselves or others, Congress permissibly chose a broad prohibition. The rationale behind this policy choice is illustrated by Congress's experience administering § 925(c)'s federal relief-from-disabilities program. Congress found that, under the program, "ATF officials [were] required to guess whether … a person committed to a mental institution can be entrusted with a firearm," and after "spend[ing] many hours investigating … there [was] no way to know with any certainty whether the applicant [was] still a danger to public safety." …
And that Congress has allowed some discretionary relief in states that participate in the new program "does not undermine [the] conclusion" that "the government has provided evidence demonstrating that § 922(g)(4), as enacted, is substantially related to achieving the government's compelling interest in preventing violence and suicide."
3. I suspect that, if the federal government asks the Supreme Court to review the case, the court will indeed agree to hear it; but I'm not sure whether the federal government will indeed ask for review here.
4. For those who keep track of such things, the five judges who signed on to the most Second-Amendment-protective position (see 2.b above) were 5-0 Republican appointees. The five judges in the middle (see 2.a above) were 4-1 Republican appointees. And the six judges who voted against the claimant (see 2.c and 2.d above) were 4-2 Democratic appointees.
Thanks to Michael F. Smith for the pointer.