Guns

The Second Amendment and People Who Had Been Involuntarily Committed 20 Years Ago

|The Volokh Conspiracy |

From Judge Patrick Bumatay's dissent from denial of rehearing en banc today in Mai v. U.S. (9th Cir.), joined on this point by Judge Vandyke; you can ready the contrary view in the panel opinion:

[A.] Today, our court advances an extraordinarily sweeping view of government power. Against the text, history, and tradition of the Second Amendment, we hold that the government may forever deprive a person of the individual right to bear arms—if that person spends even one day committed involuntarily, even as a juvenile, and no matter the person's current mental health soundness. Of course, we only adopt this view for the Second Amendment. For other, more fashionable constitutional rights, we would not countenance such an abridgment….

By all accounts, Duy Mai is an American success story. Mai was born in a Thai refugee camp to a Vietnamese family and moved to the United States at the age of two. As so many immigrants have, Mai has flourished in this country. [Details omitted. -EV] … Mai has been a productive member of society for nearly 20 years.

But like most people, Mai has faced his share of challenges. At the age of 17, he suffered from depression, for which he was involuntarily committed to a mental health hospital for a little over two months total after a Washington state court determined that he might be a harm to others. But since Mai's commitment order expired in August 2000, he has not been re-committed and his medical record shows no reoccurrence of serious mental illness. He has no criminal history or substance abuse issues….

In 2014, Mai successfully petitioned the State of Washington to remove the state-law barrier [to possessing guns]. Mai submitted his medical history showing that he's been free of depression since at least 2010 and that, based on the opinions of multiple psychologists, he is not considered a significant risk of suicide or harm to others. Based on this evidence and declarations from his friends and family, the Washington court agreed that Mai doesn't present a substantial danger to himself or to the public and that the symptoms that led to his commitment are not reasonably likely to reoccur. Thus, today, under state law, Mai's right to possess a firearm has been fully restored.

[But] federal law … prohibits an individual who has been "committed to a mental institution" from possessing a firearm [so Mai sued] …. Without bothering itself with the text, history, or tradition of the Second Amendment, [our court's panel opinion] decided that, due to Mai's brief commitment, he was not a "law-abiding, responsible" citizen and, therefore, not protected by the Second Amendment's "core." In so ruling, the court compared Mai's past commitment to a conviction for domestic violence. The court also concluded that Washington's adjudication of his mental soundness and subsequent restoration of his gun rights—and Mai's present-day mental health status—were irrelevant to the constitutional analysis. Finally, with the help of studies from Sweden, Australia, Italy, and other countries, the court ruled that the permanent deprivation of Mai's fundamental right cleared intermediate scrutiny. We should've corrected the layers of errors in this decision through en banc review….

[B.] If operating on a clean slate, I would hew to Heller's and McDonald's fidelity to the Second Amendment's history, tradition, and text. The precise contours of such a review should be subject to further refinement; but we might, as Justice Scalia suggested in Heller itself, look to the original meaning …. Under this view, a law may only constitutionally prohibit the core right to keep arms in the home for self-defense if the prohibition falls within an exception understood to be outside of the Amendment's scope at the time of the Founding….

[S]cholars have "search[ed] in vain through eighteenth-century records to find any laws specifically excluding the mentally ill from firearms ownership." Such laws would be highly unusual in a context where regulations focused on use rather than ownership. Not until 1930 do we see laws specifically touching on gun ownership and mental health, after the ABA-approved Uniform Firearms Act prohibited delivery of a pistol to any person of "unsound" mind….

Given the paucity of Founding-era laws specifically prohibiting gun ownership by the mentally ill, we are better served by exploring the dominant thinking on mental illness in that period. On this, the evidence is clear: temporary mental illness didn't lead to a permanent deprivation of rights.

Influential philosophers of the day understood that rights attach with the attainment of "reason" and, correspondingly, the loss of rights persisted only through the loss of reason. This understanding accorded with a deeply rooted common law tradition recognizing that mental illness was not a permanent condition. Thus, an "insane" person

was one who "by disease, grief, or other accident hath lost the use of his reason." 1 William Blackstone, Commentaries *304. But "the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed" and at that point the person's rights restored….

These views on the mentally ill were reflected in historical practices and laws. Even as Virginia sought to ratify its constitution with a limitation on the civil rights of "lunatics," such limitation was only "during their state of insanity." ….

From this historical record a clear picture emerges: mental illness was considered a temporary ailment that only justified a temporary deprivation of rights…. Heller's observations about "presumptively lawful regulatory measures" does not change this analysis. Heller's reference to firearm prohibitions for the "mentally ill" as being "presumptively lawful," apply to those who are presently mentally ill. {As the Sixth Circuit held, "Heller's presumption of lawfulness should not be used to enshrine a permanent stigma on anyone who has ever been committed to a mental institution for whatever reason."} ….

[C.] [The following portions of the opinion were also joined by Judges Ikuta, Bade, and Hunsaker. -EV]

As I have shown, § 922(g)(4)'s application to Mai has no basis in the text, tradition, and history of the Second Amendment. But until our court agrees to apply such a test to Second Amendment claims under en banc review or the Court provides us with further guidance, we remain bound by the Chovan test…. First, we determine if the law "burdens conduct protected by the Second Amendment," "based on a historical understanding of the scope of the [Second

Amendment] right[.]" Second, we decide what level of scrutiny applies based on our assessment of "(1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law's burden on the right." …

The [panel] erred … by incorrectly identifying intermediate scrutiny as the proper standard. As we have recently explained, step two of Chovan "is a simple inquiry: if a law regulating arms adversely affects a law-abiding citizen's right of defense of hearth and home, that law strikes at the core Second Amendment right" [and must be subject to strict scrutiny].

Under this framework, the application of § 922(g)(4) to Mai strikes at the core Second Amendment right—and guts it. Indeed, § 922(g)(4) completely deprives Mai of the ability to possess a firearm, even within the home, where protections are "at their zenith." In any other context, laws that burden the core of a fundamental right are invariably analyzed under heightened scrutiny—e.g., restrictions on the "content" of speech rarely survive strict scrutiny, nor do laws that restrict "core" political speech. We should not treat the Second Amendment any different….

[The panel] evaded any form of strict scrutiny, despite admitting that § 922(g)(4)'s "lifetime ban" on Mai's Second Amendment right was "quite substantial," by minimizing the law's burden as falling on only a "narrow class" of individuals.

In doing so, the court seemingly pulls new doctrine out of its hat and magically transforms a fundamental right that belongs to an individual, into one that is class-based. Rather than face the total and permanent deprivation of the core Second Amendment right for Mai (and the class of people like him), the court refocused the inquiry on the size of the class. And ta-da!, the court holds, intermediate scrutiny applies. Like most magicians, the court refused to explain its act.

Because the law deprives only a "narrow class" of individuals their Second Amendment right, ipse dixit, it is analyzed only under intermediate scrutiny. Such reasoning is even more perplexing given that heightened scrutiny was originally announced as a method to protect the rights of "discrete and insular minorities." Today, according to the court, the fact that Mai belongs to a "narrow class" is, paradoxically, the very reason to lower the level of scrutiny applied to him. We should have corrected this jurisprudential sleight of hand.

Next, the court justified its decision to apply intermediate scrutiny by refusing to recognize Mai as a "law- abiding, responsible citizen." But its refusal to do so is baffling. Besides a brief involuntary commitment as a youth, nothing in the record shows that Mai is anything but a "law-abiding, responsible citizen." Instead, it shows that Mai is a person of advanced education and demonstrated professional achievement, with strong community and family support and no history of criminal activity or substance abuse.

Yes, he suffered from significant depression as a teen, but recent psychological evaluators and Washington state have concluded he is not currently mentally ill and presents no risk of violence to others or himself. Nor is that reasonably likely to change in the future. Washington, in turn, restored his right to possess firearms under state law.

But this court decided it knows better, holding that, "[r]egardless of [Mai's] present-day peaceableness," Mai is not a "law-abiding, responsible citizen" because of his brief commitment 20 years ago. The court, with no analysis, held that "[t]he same logic" used to prohibit a domestic-violence convict from possessing a firearm applied here—to a person like Mai. But a criminal conviction is not the same as mental illness. Unless pardoned, expunged, or set aside, a conviction always remains a conviction under the law. And, at least for felony convictions, there is historical support for a law resulting in forfeiture of property and rights. See 2 William Blackstone, Commentaries *377 (describing the possible punishments of serious crime as including "confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands for life: others induce a disability, of holding offices or employments, being heirs, executors, and the like")….

So, while the law may hold that "once a convict, always a convict," tradition, history, and elementary psychology teach us that "once mentally ill, not always mentally ill." This is the distinction that the court ignores. Indeed, under the court's extreme reading of the law, any person falls outside of the Constitution's core protection if that person spends even one day in commitment—even as a youth! Nothing in the text, history, and tradition of Constitution supports this view. The proper inquiry would have recognized that the lifetime ban imposed by § 922(g)(4) on Mai is unequivocally a complete deprivation of his core right to home gun ownership. As such, the law is unconstitutional….

[D.] [The following portions of the opinion were also joined by Judges Ikuta, Bade, Hunsaker, Bennett, Collins, and Bress.-EV]

Even accepting the court's error and analyzing Mai's claim under intermediate scrutiny, we still got it wrong…. In justifying the "reasonable fit" between the government's objective here, the court relies on several ill-suited studies, many compiling data from foreign countries. One of the primary studies relied on by the court analyzed suicide risk after release from involuntary commitment, but offered no information about suicide risk for someone like Mai—20 years past his commitment and free of mental health issues. {Of the patients considered, 98% were considered for only a year following their commitment, and the remaining 2% were studied from 2.5 to 8.5 years post-commitment.} But undeterred, the court offers additional studies, perhaps even more inapplicable, such as a study focused on patients from Sweden {[which] involved all types of psychiatric diagnoses, not just depression},"community care" patients from Italy and Australia {[t]he court doesn't even define "community care," much less its relevance to Mai},an"[o]ut-patients" study with a meager 34 observations,and another study of predominately foreign patients (with some U.S. data from 1969)….

Many years ago, judges took a turn as pseudo- psychologists and waded into whether a woman's mental health may be balanced against her constitutional rights. That case is generally not treated kindly today. I fear the court goes down the same path.

Heller's endorsement of text, history, and tradition as the proper lens for evaluating the scope of the Second Amendment was not accidental. There, the Court emphatically disapproved of courts determining on an ad hoc basis whether certain individuals were undeserving of the full complement of fundamental rights. Duy Mai deserves better. Our Constitution deserves better….

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  1. The number of basic rights downgraded by courts over the years is truly amazing. Contracts, economics, privacy, property, guns … time after time, you see judges going out of their way to stretch something obscure into a way to limit rights and expand government power. This is nothing new, and the Second Amendment isn’t the worst example. But it sure is discouraging, and reinforces my belief that the rule of law is a convenient way to pretend that if “rule of law” is good, then more law is more good.

    1. Contracts, economics, privacy, property, guns …

      All fairly tame stuff in comparison to the new standard of excellence: how, when, and where we can breathe freely.

    2. I ask why the same doesn’t apply to Abortion?

      Whatever the standard is, apply it to women seeking an abortion….

      Both are Constitutional rights….

      1. As much as I personally think abortion should be legal, it seems to get more protection than the enumerated right to keep and bear arms, a pretty solid sign of how second class the Second Amendment.

      2. Or gay men doing the things they do to each other

  2. Also worth noting, perhaps, is Judge Vandyke’s dissent, which includes a discussion of the criminality of the University of Florida football team and Tim Tebow’s merits as a babysitter.

    1. Not just as a babysitter but as a ‘model citizen’ . . . this Vandyke clinger wants Tebow to raise his children (if not have his children).

      Because Jesus, presumably. Certainly not because professional-level talent.

      1. Hey, why not deny religious rights to the “mentally ill”?
        Let’s force them to be good Christians….

      2. Adding homophobia to your diatribe against others’ civil rights, kirkland? You did make it through your rant without a threat of oral rape, so there is that.

      3. No professional level talent? He did throw for over 300 yards beating the Steelers in the playoffs, that could have been a fluke of course. But I would think you would appreciate him as the player that popularized taking a knee in the NFL.

  3. I was very surprised to see Judges Bennett and Bade among the nine dissenting judges (8 of whom were nominated by Trump).

    https://californiaopencarry.com/status-of-my-federal-open-carry-lawsuit/

  4. “In so ruling, the court compared Mai’s past commitment to a conviction for domestic violence.”

    The Lautenberg amendment. Itself a hold-over from a time when the Supreme court was not treating gun ownership as a constitutional right, but instead a privilege, which could be revoked for light cause, the revocation even coming as a result of a guilty plea made when the only consequence would be a minor fine.

    I believe that the difference between a misdemeanor and a felony used to be precisely that the former could never cost you your rights. But that went out the window in the cause of gun control.

  5. Please do read form 4473 and see the current list of questions which I expect most libertarians would find abhorrent.

    If Biden and his ilk get into power, expect that form to double in size with many more questions. Still want to see Trump out of power?

    1. Anyone who can’t figure out how to complete that form in less than thirty minutes shouldn’t be allowed to drive a motor vehicle, much less own a firearm.

      1. Always interesting how some people just love restricting the freedoms of others, so much so that it’s a knee jerk response.

      2. Anyone who thinks the 4473 isn’t an infringement shouldn’t be allowed to judge what an infringement is.

        1. Any law that requires anyone to do anything is an infringement, but the question is whether it’s a permissible infringement. And even under the most expansive reading of the Second Amendment, only two things are protected: The right to keep, and the right to bear. There’s nothing in the Amendment that precludes the government from gathering information. So while I might quibble with a few of the individual questions, overall I don’t see how gathering information interferes with either keeping or bearing.

          I know, I know, the argument is that if they know where the guns are, it’s easier to confiscate them, and that’s nonsense on stilts. The government knows where the churches, synagogues and mosques are, but nobody seriously thinks that’s religious persecution just waiting to happen.

          1. Your claim that it’s “nonsense on stilts” would be a lot more credible if we didn’t have multiple examples of exactly that happening in other jurisdictions. To name just a few, New Zealand (1970s), Canada (1990s), Australia (1996), UK (multiple), Chicago long guns (1990s), California SKS (1990s). Even snopes.com concedes that gun confiscations are “made easier” by prior laws requiring gun registration.

            In the choice between an analogy and actual data, choose data every time.

            1. Neither New Zealand, Canada, Australia or the UK have either a Second Amendment or a political climate in which confiscation is politically impossible — in the US, you could equally as well propose mandatory babies for breakfast as gun confiscation. Yes, gun confiscations are “made easier” by registration, or would be if they were politically possible here. Chicago and California are both pre-Heller, so I doubt either one survives.

              The actual gun confiscation that the right has been scared shitless into believing is just around the corner would require a total and complete sea change in American politics. Such a sea change is extremely unlikely in the near future, and if it does come, it will mean a change in fundamental American values that you won’t be able to stop. In the meantime, your side is simply scaring yourselves around the campfire with boogeyman stories.

              And even if I’m wrong about all of that, as a matter of Second Amendment interpretation, gathering information infringes neither keeping nor bearing. At least not without a lot more.

              1. “Neither New Zealand, Canada, Australia or the UK have either a Second Amendment or a political climate in which confiscation is politically impossible”

                The Democratic party is, if you take them seriously, devoted to an interpretation of the 2nd amendment that would make it no legal obstacle to gun confiscation, either. An empty “right” to bear arms when your government orders you to in the military. THAT is the “2nd amendment” they claim to defend.

                Yes, it’s politically impossible. That doesn’t mean nobody wants to do it. It means we won’t let them.

                I compare it to a tug of war. The rope can be near the breaking point, with both teams straining for all they’re worth, and you’re, “Why are you straining so hard? That rope isn’t moving.”

                1. The number of Democrats who actually support confiscation is teeny tiny. Chuck Schumer doesn’t; he represents upstate New York which has lots of hunters.

                  1. Yeah, right. That’s why Hillary was praising Australia’s gun confiscation law 4 years ago.

                    1. I’ve heard Hillary quoted out of context by the right on so many issues over the years that I’d like to know exactly what she said, and in what context, before I commit myself.

                      I’ve been a lifelong Democratic activist and I can count on probably two hands the number of Democrats I’ve met in the last forty years who support gun confiscation. You could equally as well believe in Santa Claus or the Easter Bunny as believe that the Democrats will come for your guns. And even if the Second Amendment were repealed tomorrow, there is no public support for gun confiscation, and Democrats know it. Republicans aren’t going to repeal social security either, under the same principle.

                      This is just a ploy by the right to scare voters and raise funds.

                    2. Hillary: Australia-style gun control ‘worth looking at’

                      The law in question was a gun confiscation law, a compulsory “buy back”.

                    3. “I don’t know enough details to tell you how we would do it or how it would work, but certainly the Australia example is worth looking at,” Clinton said at a New Hampshire town hall on Friday.

                      Saying something is worth looking at is not the same as praising it. It’s saying it’s worth looking at. Especially when she starts out by acknowledging that she is unfamiliar with the details.

                    4. Riiight.

                      Hillary Clinton: “I was proud when my husband took [the National Rifle Association] on, and we were able to ban assault weapons, but he had to put a sunset on so 10 years later. Of course [President George W.] Bush wouldn’t agree to reinstate them…. And here again, the Supreme Court is wrong on the Second Amendment. And I am going to make that case every chance I get.”

                      The most over the top, restrictive gun law in the country, bar none: You could have a disassembled, non-functional gun, if you kept it in a safe, and had owned it before the law was passed. And Democrats went nuts.

                      Beta O’Roarke: “Hell, yes, we’re going to take your AR-15, your AK-47.”

                      Barak Obama: “I don’t believe people should be able to own guns.”

                      Feinstein: “If I could have gotten…an outright ban – ‘Mr. and Mrs. America turn in your guns’ – I would have!”

                      Rahm Emanuel: “We’re bending the law as far as we can to ban an entirely new class of guns.”

                    5. Saying something is worth looking at is not the same as praising it. It’s saying it’s worth looking at. Especially when she starts out by acknowledging that she is unfamiliar with the details.

                      She acknowledges that she’s unfamiliar with the implementation details, not with the goal (confiscation). Are you trying to out-Sarcastr0 Sarcastr0?

                    6. Beta O’Roarke: “Hell, yes, we’re going to take your AR-15, your AK-47.”

                      Barak Obama: “I don’t believe people should be able to own guns.”

                      Feinstein: “If I could have gotten…an outright ban – ‘Mr. and Mrs. America turn in your guns’ – I would have!”

                      Rahm Emanuel: “We’re bending the law as far as we can to ban an entirely new class of guns.”

                      Yes, but apart from the most recent Dem president, a Dem presidential candidate (and former rising star in the party), another Dem presidential candidate and former Sec. of State, one of the most senior Dem U.S. Senators, etc, etc…you’ve got nothing!

                    7. “Mr. and Mrs. America turn in…”

                      Wuz, in fairness, I think the context there is ‘assault weapons’, not all guns.

                      That’s not to say I don’t think Dianne would ban them all if she could, but quotes should be accurate and in context.

                      As Brett says, opposing Heller is a pretty good proxy for ‘want to ban all guns’, because a more or less total ban was what Heller overturned.

              2. Krychek, you’re just wrong. The UK had a political climate that made gun confiscation “politically impossible”. Over less than two decades, that climate changed and it went from impossible to accomplished fact. It is less likely in the US only because we do have a Second Amendment and, more importantly, we have folks who vigorously defend it from encroachment.

                Regardless, I note that you rather blithely skipped past the US examples where registration was in fact used for attempted confiscations. Granted, those examples weren’t ‘all guns’ but they gut your claim that ‘registration leads to confiscation’ is a “boogeyman story”.

                1. If that happens here, and I consider that a big if, it will be because American culture and ideals have changed, and left you behind. And the real issue then becomes does the country have the right to change its mind about what its core principles are. You want to have it so that your preferred core principles are cast in concrete and forever settled, but that’s just not the way history works. Nations change, cultures change, and when they do, the fundamental right to self governance kicks in. I’m an old man; I’ve seen a lot of changes, some of which I like and some I don’t, but I’m not foolish enough to think I can stop the ocean tide from coming in.

                  I don’t share Arthur Kirkland’s view that such a sea change is going to happen starting in January; I think he’s in the left wing equivalent of your right wing myopia. That kind of sea change takes generations and I don’t even see the seeds of it.

                  And your statement in your last paragraph is based on a correct assumption; I do not see banning one specific type of gun or magazine to be “confiscation” since there are still lots of other choices out there. For that matter, you can still get a gun in Canada, the UK, Australia and New Zealand. Just not every kind of gun you might want.

                  1. “I do not see banning one specific type of gun or magazine to be “confiscation” since there are still lots of other choices out there.”

                    First you establish you can ban an arbitrarily selected firearm, and confiscate it. Once you’ve done that, you’re just negotiating over how long the list is.

                    I refer you again to the Democrats’ reaction to the Heller decision. DC had the most over the top gun laws in the entire country: If you’d already owned a gun when the law was passed, you could keep it, if you kept it disassembled in a safe.

                    Democrats, who claim to only want “reasonable” gun laws, went absolutely nuts when the Heller decision was issued. Swore to overturn it.

                    Joe Biden: “Do you agree with the DC vs Heller decision in regards to protecting the individual right to bear arms that are in common use and which are utilized for lawful purposes?” Biden was asked.

                    “The answer is,” Biden said. “If I were on the Court I wouldn’t make the same ruling. Okay?”

                    Why on God’s green Earth would we not take that as defining what they meant by “reasonable”? They think DC’s laws are “reasonable”. The most extreme gun laws in the entire country, a de facto ban for everybody but the seriously politically connected.

                    If you don’t want guns banned, there’s nothing at all objectionable about the Heller or McDonald decisions.

                    1. C’mon Brett, no one is proposing banning all guns. Only a few, narrowly defined categories of guns have been proposed for bans:

                      “Pocket Rockets” – super small, highly powerful handguns only useful for muggers, i.e. handguns with a caliber greater than 30 or a barrel shorter than 4 inches

                      “Hand Cannons” – large, excessively powerful handguns only useful for defeating police body armor, i.e. a caliber greater than 30 or a barrel longer than 4 inches

                      “Assault Rifles” – rifles other than bolt, pump, or lever action with barrels shorter than 20 inches, only useful for mass shootings.

                      “Sniper Rifles” – bolt, pump, or lever action rifles capable of mounting a telescopic sight, or with a barrel longer than 20 inches, only useful for long range assassination.

                      Only excessively dangerous weapons like those, or similar ones, have been proposed for bans. Stop being paranoid.

                2. Be honest and amend the Constitution then. Workarounds are facially dishonest and anyone taking an oath to the Constitution has sworn falsely or betrayed their oath if they try to workaround it instead of amending it. (Not that dishonesty and lack of integrity are rare. They seem to be majority traits these days.)

              3. “The actual gun confiscation that the right has been scared shitless into believing is just around the corner would require a total and complete sea change in American politics.”

                Which is exactly why gun rights supporters are going to stay motivated and politically active. But claiming confiscation will never happen ignores that California is trying right now to confiscate > 10 round magazines from gun owners.

      3. It’s a six page form, over half of which are technical instructions. Precisely what other constitutional right requires filling out a form of this depth, detail and complexity? The right to vote? The right to buy a computer (in order to exercise free speech)? The right to freedom of assembly?

        Which other constitutional right can be denied to you for, for example, exercising your right to free speech by refusing to answer offensive questions about ethnicity and race (18a and b)? Which other constitutional right is conditional on confessions to crimes for which you have not even been indicted much less charged (21d, e and k)? Which other constitutional right requires a lawyer to be sure you’re answering correctly (21i as applied to veterans)?

        The issue isn’t how to figure it out. The issue is that it is (or should be) unconstitutional to ask for it in the first place.

        1. And if gun ownership were like any other constitutional right you’d have a valid point. The mere fact that Second Amendment absolutists have a fit of the vapors any time any gun regulation whatsoever is proposed is all the evidence one needs that guns aren’t like any other constitutional right. If they were, you wouldn’t be quite so fixated on it.

          I have a constitutional right to travel. I also have to prove that I know how to safely operate a motor vehicle before I can get a driver’s license. Cars are registered, and I can lose my license if I demonstrate that I am unable or unwilling to operate a motor vehicle safely. Yet nobody seriously thinks that any of that is a nefarious plot to confiscate cars and keep people from traveling. Get a grip.

          1. Gun ownership is like any other constitutional right.

            On the other hand, you do not have a right enumerated in the Constitution to travel. In particular, you do not have a right to travel by car.

            And again, silly analogies (confiscation of cars or churches) take a back seat to actual data and history.

            1. No, if it were like any other constitutional right, it would be just as restricted as other constitutional rights and that would not be controversial. Freedom of religion doesn’t mean I get to preach through a bullhorn under your bedroom window at midnight, or that churches aren’t required to have fire exits. Freedom of speech doesn’t mean I get to interrupt the President when he’s making the state of the union address. Other rights come with all kinds of exceptions.

              1. And right to bear arms doesn’t mean I can shoot you or even shoot through your bedroom window. Your analogies are crap.

                1. True, it doesn’t, but it also doesn’t follow that those are the only appropriate restrictions.

                  1. It follows that they are the only appropriate sort of restrictions.

                    Your freedom of speech is not restricted on the assumption that you mean to commit fraud or libel, and must be preemptively regulated. You can’t be prohibited from having an unlicensed printing press. While printer manufacturers have voluntarily (At least nominally so.) agreed to include invisible watermarks on the output of high end color printers to combat forging currency, it’s not illegal to own printers that lack this feature. The size of paper magazines or ink reservoirs is not limited. Dictionaries are not (yet) censored to eliminate hateful words.

                    All regulation of speech and print is after the fact. It is perfectly analogous to laws prohibiting you from wrongly shooting people, or having a range without adequate backstop.

                    Then when we come to guns, suddenly it’s reasonable to assume the law abiding citizen might, at any moment, become a mass murderer, and their firearms have to be restricted to inconvenience them should they go on a shooting spree?

                    No, that is NOT how you treat constitutional rights. It’s how you treat privileges.

              2. No, if it were like any other constitutional right, it would be just as restricted as other constitutional rights…

                Yes, because as we all know, there are very few local, state or federal laws that are restrictions on gun ownership/use.

          2. You justify one abuse of rights by citing another. Stop abusing rights instead.

  6. What is especially troubling here is that the ban on guns for the depressed is presumably supposed to protect them from themselves.

    Imagine someone with a brief, long ago episode of depression who is now at a high risk of harm from others – maybe a stalking victim, or a witness to a gangland hit, or whatever. We’re using something intended to protect them from themselves to prevent them from protecting themselves from others, even if the risk from the latter is much greater than the risk from the former.

    1. What I find troubling is that psychiatric diagnosis doesn’t come with much in the way of procedural protections. It’s a quasi-medical way to deprive somebody of their civil rights without all the inconvenience of a felony trial. Just convince this one credentialed guy that you’d be better off locked up for a few days, and hasta la vista, rights!

      Any other right they’d dare do that with?

      1. EXACTLY — and it was the NRA’s refusal to deal with that which led me to quit.

  7. And yet people wonder why no one talks honestly to a doctor anymore – – – – –

  8. My real concern with this decision is there is no way to demonstrate that you are no longer a threat. I’m fine with a rebuttable presumption that someone with a history of mental illness should not own a gun, with emphasis on the word rebuttable. But to say that once someone is on the list, they never have the ability to show they no longer belong on it strikes me as a fairly blatant due process violation. Especially here, where you have a state court decision that he’s no longer a threat.

    1. But a felon who gets a pardon….

      1. I don’t even know that I would support a flat ban on all felons owning guns, at least not without an individual right to show a lack of dangerousness. Is there any reason to think that someone convicted of tax evasion or Medicare fraud is at higher risk of committing gun violence?

        The rationale is that they’ve demonstrated a willingness to break the rules, which inherently makes them untrustworthy and more dangerous. If when he gets out of prison, Duncan Hunter wants to take his son hunting, I’d be fine with it.

        1. Can we get an edit function? My second paragraph somehow lost a line. It should say “and more dangerous, but I think that’s a bit too tenuous.”

          1. I say we all boycott partisan strife – wild-eyed lefties & zombie-undead rightist alike – until Management caves to our demands and gives us an edit function. After a few days of tumbleweeds rolling thru the comments sections here the Man will quickly accede to our just conditions. Think Lysistrata, if you want a classical precedent….

        2. As a gun-owning, CCW permit holding person who is generally liberal, I agree that felon disenfranchisement is overbroad. Cutting a bad check shouldn’t result in losing constitutional right for life, with no recourse (besides a full pardon).

          1. Count me in as a liberal who agrees with this.

            And this involuntary commitment thing seems out of like the 1960s stigmatization of mental health issues.

            1. 1960s? What you talkin’ about Willis? Nearly every scary news story about some bad bad man, when the evil & white angle can’t be pushed, falls into the ‘mentally ill because’ trope, it seems. That aside, the current ‘acceptance’ of mental illness is skin deep, pun intended, to some degree. People are ignorant, and tend toward hysteria; having a comfortable explanation for behaviors they dislike fits their dim worldview all too well I fear.

  9. Tying the right to possess firearms to the right to vote would put a lot more reasonableness in restrictions on both.

    1. That’s what I tell Democrats complaining about what they’re calling “disenfranchisement”: That I take their treatment of the RKBA as a measure of how they think enumerated civil rights should be treated, and will simply ignore any complaints they make about other rights being violated, unless the violation happens to be one they wouldn’t tolerate even in the case of the 2nd amendment.

      They want me to care that somebody has to show an ID to vote? Boo hoo. Talk to me about that when I don’t have to undergo an FBI background check to buy a gun.

      1. I don’t think the two are an apples to apples comparison. With voting, any security measures in place are merely to ensure that everyone who casts a vote has the right to do so, which essentially means confirming identity, address, and citizenship. With gun ownership, there is the added issue of whether someone is a danger to himself or to others, which requires a different analysis, and different security measures, altogether. You’re testing for different things.

        1. You’ve got that backwards: With voting, there are legitimate questions that need to be answered, because I don’t have a free floating right to vote, I have a right to cast my one vote, in one specific place; Nobody else’s, nowhere else.

          This inherently makes requiring me to prove who I am, and where I live, legitimate.

          The right to keep and bear arms has no such limits, it IS a free floating right, like freedom of speech. Background checks and the like are not inherent in implementing it, they’re an imposition the government requires of us in order to deny the right to some people.

          Now, denying rights to felons, if done as part of the sentence, is constitutionally legitimate. On conviction you can be locked up, denied the vote, have your property taken, even, yes, enslaved. (We don’t do it much today, except for prison labor, but the 13th amendment expressly permits it.)

          Traditionally, “felonies” were crimes you could potentially be executed for, so “just” taking away some of your rights was a lesser punishment, no big deal.

          But, the Constitution doesn’t require that felons be disarmed. That’s a choice, like disenfranchising them, and it’s a choice we didn’t used to make.

          And so, it’s not a choice that can justify infringing the rights of non-felons. Find a way to deprive felons of this right that doesn’t infringe the rights of the law abiding, or give up on doing it. Make convicted felons wear an identifying wrist band, or something. Don’t force us to prove we’re not felons.

          I think they should give up on doing it. When somebody walks out the door of the prison, they should have ALL their rights restored, clean slate. The idea that, by making it illegal for a felon to own a gun, you can actually KEEP them from owning a gun, is a fantasy.

          Stop inconveniencing everybody for a fantasy. Because that’s all it is.

  10. On the one hand, I regard the 2nd Amendment as a basically broken idea in modern society. The contrast between “shall not be infringed” and the arbitrary infringements imposed by federal law are a wonder to behold, as are the pretzels that American judges tie themselves in to maintain the status quo. They don’t want to declare heavy weapons constitutionally protected (imagine people exercising their right to keep and bear anti-aircraft missiles near a major airport) but at the same time they don’t want to allow bans on hand guns and hunting weapons. So they invent an arbitrary line and pretend that the 2nd Amendment was only really meant to apply to weapons below it, despite this being clearly counter to both the historical record and the plain meaning of the text.

    But on the other hand I have to agree that this particular judgement is a new level of double-think. The only way to keep guns out of the hands of the mentally ill is to ban them altogether. If handguns are a constitutional right then having been mentally ill in the past is no reason to abrogate a constitutional right.

    A mentally ill person can harm themselves and others in many ways. The only way to prevent this is to lock them up. Giving them a gun doesn’t actually make much difference. And yes, if the use of a gun for self-defence is a right then it is a right for everyone, including convicted felons who have been released and those who are currently mentally ill but not committed to hospital.

    1. So amend the Constitution then. It’s the honest answer and it’s the one gun opponents won’t even try (because their position is dishonest at its core).

      Amendments have language with specific meaning. Gun opponents prefer to use purposefully vague and deceptive phrases like “common sense”.

  11. The same liberals who throw a tantrum when a person is asked to show a $5 photo ID to vote, to wait 24 hours to kill her baby, or to drive to a neighboring county to get his sodomy license, have no issue with unlimited restrictions on guns.

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