The Volokh Conspiracy
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"Second Amendment Rights of the Successfully Treated/Former 'Mentally Ill'"
An interesting article by New York lawyer David Z. Carl, from the June 2020 issue of the Nassau Lawyer (the journal of the Nassau [N.Y.] County Bar Association):
There are many situations where someone could be determined to have a "mental condition" prohibiting ownership of a firearm. Such situations are often where a person has a lifelong psychotic disorder and is involuntarily committed long-term to a mental health facility.
Suppose, however, a teenage girl is suffering from an eating disorder. Her parents take her to a hospital where two doctors determine that she needs mental health treatment (against her objection) and she stays in the hospital for a few weeks to get better.
Or perhaps, 20 years ago, a person was struggling with gender identity issues (which was previously categorized by the American Psychiatric Association as a mental disorder[1]) and was then involuntarily admitted to a hospital's psychiatric unit because he/she identified as the "wrong" gender [and, perhaps risked some self-harm related to that dysphoria].
What about a person who had experienced psychosis and hospitalization years earlier but has taken a fully effective medication for several years and has never had a single recurring symptom? That person now is a highly functioning professional and his mental health symptoms have been resolved by the medication.
In some states, the people in each of the above scenarios might now find themselves prohibited from buying a firearm. Anyone who has been "committed to a mental institution"[2] or has "been adjudicated a mental defective"[3] is prohibited, under Federal law, from possessing a firearm.[4] Nonetheless, they each might want a functional firearm for self-defense in their homes.
State and Federal Restrictions on a "Fundamental Right"
In 2008, in D.C. v. Heller, the Supreme Court declared that the right to have a functional handgun in the home is a fundamental right under the Second Amendment.[5] In 2010, the Court held in McDonald v. Chicago that this "fundamental right" is incorporated against the states by the Fourteenth Amendment's Due Process Clause.[6]
Although it declined to "undertake an exhaustive historical analysis…of the full scope of the Second Amendment," the Heller court declared "longstanding prohibitions on the possession of firearms by…the mentally ill" were "presumptively" constitutional.[7]
Since then, some federal Circuit and District Courts have explored the issue and decided that "presumptive" constitutionality might not mean "actual" constitutionality. These courts have based their reasoning on a combined interpretation of Second and Fifth Amendment rights.
Pursuant to 18 USC § 922 (g) (4) "It shall be unlawful for any person…who has been adjudicated as a mental defective or who has been committed to a mental institution… to [possess a firearm]."[8] The Code of Federal Regulations defines certain terms as follows:
"Committed to a mental institution: A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily…[9] …
"Mental institution: Includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general hospital.[10]
Despite the regulatory authority above providing that "committed to a mental institution" means a "a formal commitment …by a court, board, commission, or other lawful authority," the Second Circuit in U.S. v. Waters[11] upheld the conviction of a New York man who had been admitted to a mental health unit solely upon the evaluation of two physicians. Mr. Waters was subsequently convicted of being a prohibited person in possession of firearms. The Waters case, however, was decided fourteen years before the Supreme Court held the possession of a firearm is a fundamental right. Accordingly, the court never considered whether the absence of, or minimal elements of, due process available at that time, was enough to allow for the deprivation of a newly secured fundamental constitutional right.
Under the New York state statutes still in effect today (e.g., MHL § 9.27[12]) [the statute at issue in Waters] and MHL § 9.37 [13]an otherwise astute individual could theoretically seek representation and some type of hearing, but only after the individual had already been admitted without such a hearing or counsel for as many as 60 days at the behest of two (or fewer) physicians. No automatic hearing or assignment of counsel is required prior to involuntary admission to a mental health facility. If, perhaps, believing he/ she will soon be discharged, the individual never requests counsel or a hearing, the only available due process is effectively waived. The person is nonetheless deemed to have been "committed," which would require firearms deprivation. This seems to conflict with other cases, discussed infra, that require before-the-fact due process for deprivation of a constitutional right.
Decades earlier, in United States v. Hansel,[14] the Eighth Circuit Court of Appeals observed that Nebraska law provided a two-step procedure for determining when a patient was mentally ill and in need of hospitalization. If the County Mental Health Board made such determination, the individual could be hospitalized for up to 60 days; much like the time frame in New York. There was a second step available for keeping the patient beyond 60 days, but since Hansel was released after two weeks, this second provision was never invoked. The Court found that Hansel's temporary confinement did not constitute a commitment.[15]
Despite the equivalent length of 60-day hospitalizations in New York and Nebraska, the holding in Hansel is contradictory to the holding in Waters in that in New York, the initial 60 days of hospitalization, without due process, is sufficient to refuse an individual his Second Amendment rights. In Nebraska, only the holding of an individual after the 60 days is sufficient to refuse said rights.
Current Decisions
Now that the ability to possess a functional firearm is an individual right,[16] a once largely mundane area of law has surfaced as a hot topic. In United States v. Rehlander,[17] the State of Maine offered two categories of hospitalization. One offered due process, the other did not. The First Circuit Court of Appeals held that since possessing a firearm is a fundamental right, an admission without any adversary proceeding lacked the necessary due process procedures for permanent deprivation under Section 922(g)(4).
The Sixth Circuit Court of Appeals later made it clear en banc, in Tyler v. Hillsdale County Sherriff's Department, that § 922(g)(4) "applies only to persons who are involuntarily committed by an appropriate judicial authority following due process safeguards."[18]
This is highly significant, because in Waters: (1) there was no advance due process; (2) the admitted individual was permitted only an opportunity to attempt to contact counsel from the hospital; and (3) said individual had to request an optional (rather than mandatory) hearing at some future time. If, as held by the Sixth Circuit, due process is required as a prerequisite for the deprivation of firearm rights, the holding in Waters presumably could not stand.
In United States v. McMichael, for example, the United States District Court for the Western District of Michigan held that "a commitment [for the purpose of firearm rights-deprivation] does not occur until the completion of an adversary process that results in an adjudicative decision in favor of hospitalization."[19]
Moreover, in Wilborn v. Barr, the District Court for the Eastern District of Pennsylvania held that an emergency mental health examination lasting 120 hours or less directed by someone other than an authoritative body, where the individual did not have the right to counsel or an adversarial proceeding, could not support firearm deprivation.[20] If the logic of the Wilborn court is to be considered, the deprivation of rights by New York's provision for confinement up to 60 days without mandatory due process could be constitutionally suspect.
To be clear, the Second Circuit Court of Appeals has subsequently (and recently) held in an unpublished case that appellants admitted based on New York's strictly medical standard could be denied fundamental firearms rights. In Phelps v. Bosco, the Second Circuit cited to Waters in upholding the denial of a firearm to the appellant. The Court took care to note, however, that:
Phelps did not raise a constitutional challenge to the state's conduct on appeal. Such a challenge would present complex issues, whether under the Second Amendment or the Due Process Clause.…We therefore do not consider whether the state violated any of his constitutional rights when it reported his hospitalizations to the FBI or whether concern for these constitutional rights might change our interpretation of the word 'commitment' under New York's scheme…[21]
Finally, in Doe v. Evanchick, the Eastern District of Pennsylvania held that:
Although the Supreme Court in Heller articulated that prohibition on the right to own a gun by the mentally ill is presumptively lawful, a temporary emergency commitment to a mental institution is not sufficient to consider the individual 'mentally ill' for the purposes of the Heller mental health exception. Thus, an individual committed under [Pennsylvania law] still retains a protected liberty interest in the right to bear arms.[22]
Curiously, though, the court denied the Plaintiff's contention that Pennsylvania lacked sufficient due process safeguards as Pennsylvania provided a mechanism for reinstatement of Second Amendment rights post-deprivation. The court held that the post-deprivation remedy was sufficient to satisfy due process requisites.[23]
Possibilities for Restoring Rights
One could argue that New York also offers post-deprivation remedies, as it offers a potential Certificate of Relief from Disabilities (restoring firearms rights) for individuals who have been committed without due process in accordance with the "NICS Improvement Act of 2007."[24] This remedy, nonetheless, seems akin to holding a person guilty (at the whim of a doctor) without any trial, and forcing him to prove his innocence later at his own burden and expense. It hardly seems like a sufficient protection of due process when countless individuals could be easily afforded adequate pre-deprivation safeguards for now-fundamental Constitutional rights.
It is eminently reasonable that people should not live with a lifelong disability because of unfortunate health conditions, which no longer endure, perhaps because of successful medical treatment or perhaps because their disabilities are from the distant past. Most courts so far seem to be correct in the wake of Heller and McDonald that the determination should be made on an individualized basis with robust pre-deprivation due-process safeguards. But whether this theory will prevail nationwide is a matter only time will tell.
[I added the bracketed text in the third paragraph because the author reports that this point was inadvertently deleted in the editing process for the published piece. -EV]
[1] The APA Removes "Gender Identity Disorder" From Updated Mental Health Guide, Dani Heffernan (Dec.3, 2012), available at https://bit.ly/3fEeou0.
[2] 18 USC § 922 (g) (4).
[3] Id.
[4] Id.
[5] District of Columbia v. Heller, 554 U.S. 570 (2008).
[6] McDonald v. City of Chicago, Ill., 561 US 742 (2010).
[7] District of Columbia v. Heller, 554 U.S. 570 (2008).
[8] 18 USC § 922 (g)(4).
[9] 27 CFR § 478.11.
[10] Id.
[11] United States v. Waters, 23 F.3d 29 (2d Cir. 1994).
[12] MHL§ 9.27.
[13] MHL§ 9.37.
[14] United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973).
[15] Id.
[16] District of Columbia v. Heller, 554 U.S. 570 (2008).
[17] United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012).
[18] Tyler v. Hillsdale Cty. Sheriff's Dep't, 837 F.3d 678, 681–82 (6th Cir. 2016) (en banc)(emphasis added).
[19] United States v. McMichael, 350 F.Supp.3d 647 (W.D. Mich. 2018) (emphasis added).
[20] Wilborn v. Barr, 401 F. Supp. 3d 501 (E.D. Pa. 2019).
[21] Phelps v. Bosco, 711 Fed.Appx. 63 (2d Cir. 2018).
[22] Doe v. Evanchick, 355 F.Supp.3d 197 (E.D. Pa. 2019).
[23] Id.
[24] NICS Improvement Amendments Act of 2007 (NIAA), Penal Law §§ 110-180.
