Bench Memos

Law & the Courts

‘Once Mentally Ill, Always Mentally Ill’?

Federal law prohibits an individual who has been “committed to a mental institution” from possessing a firearm. In rejecting Duy Mai’s claim that the Second Amendment forbids enforcing this provision against him, a Ninth Circuit panel asserted, “We emphatically do not subscribe to the notion that ‘once mentally ill, always so.’” But in their dissents today from the Ninth Circuit’s denial of rehearing en banc, Judge Patrick Bumatay and Judge Lawrence VanDyke persuasively argue that the panel decision rests on precisely that proposition.

Here are some excerpts from Bumatay’s dissent:

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….

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.

Under state and federal law, Mai was barred from possessing a firearm due to his involuntary commitment. In 2014, Mai successfully petitioned the State of Washington to remove the state-law barrier. 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.

Mai’s final hurdle is federal law. It prohibits an individual who has been “committed to a mental institution” from possessing a firearm. 18 U.S.C. § 922(g)(4). Mai brought an as-applied challenge to § 922(g)(4) and sought declaratory and injunctive relief declaring him eligible to possess a firearm under federal law and the Constitution. The district court granted the government’s motion to dismiss. Applying intermediate scrutiny, the district court rejected Mai’s claim based on various studies linking mental illness to a heightened risk of gun violence.

On appeal, this court affirmed. Without bothering itself with the text, history, or tradition of the Second Amendment, the court 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.

Bumatay argues in Parts II and III of his dissent that the Supreme Court’s ruling in District of Columbia v. Heller doesn’t subject Second Amendment rights to “judicial interest balancing” and that section 922(g)(4) can’t be applied to Mai under the original understanding of the Second Amendment. VanDyke joined Bumatay’s dissent in full (and Bumatay joined VanDyke’s).

In Part IV of his dissent (joined in whole or part by six other judges), Bumatay argues that the panel botched its balancing test by incorrectly identifying intermediate scrutiny as the proper standard of review (even though the provision completely deprives Mai of the ability to possess a firearm) and by misapplying that standard (by relying on “off-point studies conducted overseas”).


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