The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Second Amendment and people who had been committed to a mental institution 28 years ago


Under federal law, people who have been involuntarily "committed to a mental institution"—however long ago—are barred from possessing guns. Congress agreed that people with long-past mental problems might now be sane, and thus not especially dangerous, and provided for a means to apply for restoration of gun rights. But then in 1992 Congress ordered ATF not to spend any money applying the restoration program. And while it provided, in 2007, that people could get their rights restored by applying to a state that has a qualifying program for evaluating applicants' mental fitness, many states have no such program.

This case was brought by a resident of one such state that lacks a relief-from-disabilities program, Michigan. From the court's opinion, Tyler v. Hillsdale County Sheriff's Dep't (6th Cir. Dec. 18, 2014):

This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person "who has been committed to a mental institution," 18 U.S.C. § 922(g)(4), violates the Second Amendment. Twenty-eight years ago, Clifford Charles Tyler was involuntarily committed for less than one month after allegedly undergoing an emotionally devastating divorce. Consequently, he can never possess a firearm. Tyler filed suit in federal court, seeking a declaratory judgment that § 922(g)(4) is unconstitutional as applied to him. The district court dismissed Tyler's suit for failure to state a claim. Because Tyler's complaint validly states a violation of the Second Amendment, we reverse and remand….

Tyler is a seventy-three-year-old resident of Hillsdale County, Michigan. On January 2, 1986, a state probate court committed Tyler to a mental institution. Tyler alleges that he underwent an emotionally devastating divorce in 1985 and that he was involuntarily committed because of a risk that he might be suicidal.

Tyler submitted a 2012 substance-abuse evaluation containing additional information about his 1985 depression. In 1985, when Tyler was forty-five years old, Tyler's wife of twenty-three years served him divorce papers. Prior to filing for divorce, Tyler's ex-wife allegedly ran away with another man and depleted Tyler's finances. Tyler felt "overwhelmed" and "sat in the middle of the floor at home pounding his head." According to a mental-health evaluation submitted by Tyler, Tyler was crying non-stop, not sleeping, depressed, and suicidal at this time. Tyler's daughters became scared and contacted the police. [Tyler was then involuntarily committed. -EV] …

In 2012, Tyler underwent a psychological evaluation. Tyler informed the psychologist that he had never experienced a "depressive episode" other than his 1985 incident. The psychologist's report indicated that Tyler has no criminal history. The psychologist contacted Tyler's physician who also reported that she had not detected evidence of mental illness in Tyler. The psychologist determined that Tyler's prior involuntary commitment "appeared to be a brief reactive depressive episode in response to his wife divorcing him." The psychologist determined that there was no evidence of mental illness.

The court concluded—quite rightly, I think—that Heller's endorsement of restrictions on gun ownership by the mentally ill doesn't dispose of the case:

The Court's "assurance" that Heller does not cast doubt on prohibitions on the possession of firearms by the mentally ill does not resolve this case. For § 922(g)(4) prohibits firearm possession not just by the mentally ill but by anyone "who has been committed to a mental institution." … Heller's assurance that the state may prohibit the "mentally ill" from possessing firearms may provide solid constitutional ground for § 922(g)(4)'s restriction as to an individual "adjudicated as a mental defective," but it is insufficient—by itself—to support the restriction as to individuals who have been involuntarily committed at some time in the past.

The court then concluded that strict scrutiny (not intermediate scrutiny) was generally the proper test to apply to gun restrictions, outside those categories excluded from Second Amendment scrutiny by Heller. The court, however, "predict[ed] that the application of strict scrutiny over intermediate scrutiny will not generally affect how … circuits decide various challenges to federal firearm regulations"; this might seem surprising, but the court's explanation of this prediction on pp. 26-27 strikes me as quite plausible. And the court then applied strict scrutiny—here are some excerpts from the analysis, which focuses largely on the fact that Congress (1) chose to create a system for people with past mental commitments to regain their Second Amendment rights, but (2) then defunded the federal system and decided to rely on state choices whether to set up their own state systems:

At issue here is only § 922(g)(4)'s prohibition on possession by persons previously committed to a mental institution. Not all previously institutionalized persons are mentally ill at a later time, so the law is, at least somewhat, overbroad. But is it impermissibly so? Congress, in its efforts to keep firearms away from the mentally ill, may cast a wider net than is necessary to perfectly remove the harm. A "prophylactic approach thus obviate[s] the necessity for large numbers of individualized determinations." But is § 922(g)(4)'s net too wide? Are previously institutionalized persons sufficiently dangerous, as a class, that it is permissible to deprive permanently all such persons of the Second Amendment right to bear arms?

It is a difficult question but one that we need not answer in the first instance. Congress has already determined that the class of individuals previously committed to a mental institution is not so dangerous that all members must be permanently deprived of firearms. Congress created a relief-from-disabilities program in which individuals subject to a § 922 prohibition can regain their firearm rights by showing that they are unlikely to present a threat. Because this program extends eligibility to all persons subject to any § 922 prohibition, it alone might be insufficient evidence of Congress's determination that the previously institutionalized are not per se dangerous ….

Congress has chosen not to fund the program since 1992…. Congress's failure to fund the federal program precludes the judicial review under § 925(c) that would otherwise be available if the government denied his application on the merits. Tyler could apply for relief from a federally-certified state program, but he cannot obtain relief from his state program because Michigan has not created one. If Michigan had a program, Tyler could potentially obtain relief and regain his Second Amendment right because he is not dangerous.

Under this scheme, whether Tyler may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress's inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual's ability to exercise a "fundamental righ[t] necessary to our system of ordered liberty" cannot turn on such a distinction. Thus, § 922(g)(4) lacks narrow tailoring as the law is applied to Tyler….

[T]here is a non-zero chance that a previously institutionalized person will commit gun violence in the future, but that is true of all classes of persons. Although the government presents two examples of persons adjudicated as mentally ill who committed gun violence and cites one study in support of the claim that a prior suicide attempt is a "risk facto[r]" for suicide, it has offered not an iota of evidence that prohibiting the previously institutionalized from possessing guns serves its compelling interests. In addition to recognizing that many previously institutionalized persons now are not dangerous and thus that a total ban was not justified, Congress went further. For an entire class of persons, Congress effectively conditioned the ability to exercise a right "necessary to our system of ordered liberty" on whether they reside in a state that has chosen to participate in a joint federal-state administrative scheme….

Tyler alleges that he will not present a danger, and he presents evidence to support that claim. If he lived in a state with a government-certified program, he could potentially regain his Second Amendment right. Because he resides in Michigan, he can never possess a gun, unless Michigan chooses to join the federal program. What is at stake is more than just "influencing a State's policy choices." It is the protection of the Second Amendment. For these reasons, § 922(g)(4)'s mental-commitment prohibition's application to Tyler does not satisfy narrow tailoring….

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.

One of the panel members, Judge Gibbons, agreed with most of Judge Boggs's analysis (which was joined in full by Judge Siler), but concluded that there was no need to decide whether intermediate or strict scrutiny applied.