History of Mental Illness Might Not Prevent Gun Purchase

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By Bernie Pazanowski

Sept. 20 — A man who was involuntarily committed 30 years ago may continue his challenge to the federal law barring him from possessing a gun, the en banc U.S. Court of Appeals for the Sixth Circuit ruled Sept. 15 ( Tyler v. Hillsdale Cty. Sheriff’s Dept. , 2016 BL 301140, 6th Cir. en banc, No. 13-1876, 9/15/16 ).

The district court misapplied the seminal Second Amendment case District of Columbia v. Heller, 554 U.S. 570 (2008), when it ruled that a federal law banning those who have been committed for mental health issues from possessing a gun is presumptively valid, the lead opinion by Judge Julia Smith Gibbons said.

“This opinion is important because it reflects a growing sense among federal judges that lifetime prohibitions on gun ownership are difficult to justify,” UCLA School of Law professor and Second Amendment scholar Adam Winkler told Bloomberg BNA Sept. 19.

Several courts have already struck down “the lifetime ban on gun possession by felons as applied to people with only ancient, non-violent convictions. Now we are also seeing courts question whether it is constitutional to ban someone from having a gun just because they … had a mental issue many years ago,” Winkler said.

Rough Divorce

Clifford Tyler is 74 years old.

In 1985, Tyler's wife took all his money and ran off with another man.

Tyler was involuntarily committed after his daughters found him sitting in the middle of the floor in his house pounding his head.

Tyler stayed in the hospital for a few weeks.

But a 2012 psychological evaluation determined he currently has no signs of mental illness.

Because of his mental health history, however, 18 U.S.C. §922(g)(4) prevents Tyler from buying a gun.

Tyler claimed that the statute violates the Second Amendment as applied to him, because, unlike 31 other states, Michigan doesn't have a process to challenge his lifetime ban on gun ownership that has been approved by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Under Heller mental illness is a presumptively valid reason to restrict a person's right to own a gun and dismissed the case, the district court said.

Not Really True

Gibbons's opinion said that Heller does say that “longstanding prohibitions on the possession of firearms” by the mentally ill are “presumptively lawful.”

But that doesn't apply in this case because the history of the Second Amendment doesn't support a permanent ban on the possession of guns by anyone who has been committed to a mental institution, the court said.

The court reiterated that there is only “ambiguous historical support” for the proposition that Section 922(g)(4) doesn't burden “conduct within the ambit of the Second Amendment as historically understood.”

Mental illness isn't necessarily a lifetime condition and people “who have been involuntarily committed are not categorically unprotected by the Second Amendment,” it said.

The court decided to apply intermediate scrutiny and said that protecting the community from crime and preventing suicide are significant governmental objectives.

Even so, it said that a permanent ban isn't a good fit.

In support of its position, the court noted that 31 states allow those who have been involuntarily committed to prove that they are no longer a threat to themselves or society and then purchase guns.

But Michigan is one of the 19 states that don't have such procedures. Tyler was therefore constitutionally entitled to show that he's no longer a threat to anyone, it said.

Second Amendment Jurisprudence

This opinion adds to Second Amendment jurisprudence through its interpretation of the “presumptively lawful” language in Heller, Lucas J. McCarthy, Wyoming, Mich., who represented Tyler, told Bloomberg BNA Sept. 20.

He said that now the presumption “may be rebutted.”

The opinion also “reinforces the importance of the government having evidence to support how a regulation of a constitutional right furthers the government's interest,” McCarthy said.

Standard of Review Questioned

As the Sixth Circuit did here, intermediate scrutiny is generally applied to Second Amendment cases.

But a concurrence in this case challenged that conclusion.

Judge Alice M. Batchelder, noted that the “Supreme Court has at every turn rejected the use of interest balancing in adjudicating Second Amendment cases.”

The debate over the standard of review in Second Amendment cases “is likely to continue until the Supreme Court weighs in,” Winkler said.

“Although most circuits have coalesced around intermediate scrutiny, the absence of controlling authority from the high court keeps this debate alive,” he said.

The dissent by Judge Karen Nelson Moore argued that Section 922(g)(4) survives under Heller and, in any event, it survives intermediate scrutiny.

Murky Impact?

The overall impact of the opinion remains cloudy.

It's unclear “what impact this case will have beyond the 19 states that have no process for restitution on gun rights,” Winkler said.

McCarthy agreed that the opinion probably won't have an impact in the 31 states “that already have an ATF-approved program to review individuals,” and that it's “far more important in states like Michigan that lack” such programs.

“Perhaps the decision will spur Congress to fund a mechanism under federal law for reinstatement,” Winkler said.

“If not, the federal courts are going to be inundated with as-applied challenges to lifetime bans,” he said.

Abby C. Wright, Department of Justice, Washington, represented the government. The government didn't immediately return a request for comment.

By Bernie Pazanowski

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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