In an opinion issued this past Wednesday, the Ninth Circuit in Mai v. United States rejected an as-applied challenge to 18 U.S.C. § 922(g)(4), which prohibits firearm possession for anyone who “has been committed to any mental institution.” The ATF interprets the provision to cover only those who have been involuntarily committed, but the statutory bar applies to those individuals for life (absent some exceptions). In Mai, the Ninth Circuit joined the Third Circuit in rejecting the Second Amendment challenge, splitting with the Sixth Circuit, which is the only federal court of appeals to have found the statute unconstitutional as applied to a particular case.
In 1999, 17-year-old Duy Mai was involuntarily committed for mental health treatment in Washington. A court found that he was both dangerous and mentally ill, and his commitment lasted more than nine months. In the 20 years since then, Mai finished college and graduate school, fathered two children, and works a steady job. According to his complaint, he no longer suffers from mental illness.
Mai petitioned a Washington state court in 2014 for relief from the analogous state law prohibition that barred him from possessing firearms. That court granted him relief, but federal law does not recognize Washington’s relief program as sufficient to dislodge the federal bar. Although federal law does include a state relief-from-disabilities program through which a prior commitment is wiped off the books for purposes of the federal prohibition, Washington’s program does not meet the federal standards. Mai sued, claiming that continuing to apply the prohibition to him violates his Second Amendment rights. The district court rejected his claim.
On appeal, the court noted the narrowness of his Second Amendment claim. Mai, it observed, “has never asserted, for example, an equal-protection claim that, because persons in thirty other states benefit from programs applying [the federal relief-from-disabilities program’s] substantive standards, he too is entitled to relief or to an opportunity to meet those standards. Nor has he advanced, on appeal, an argument that due process demands the same results.” He only raised the claim that the Second Amendment entitles him to possess guns, notwithstanding his earlier commitment.
Following the familiar two-part framework, the court first took the increasingly common step of assuming-without-deciding. At step one, it refused to hold that Mai, or individuals who have been committed to a mental institution, fall outside the scope of the Second Amendment altogether (unlike the Third Circuit in Beers, which did hold this). Instead, it assumed that the law burdened conduct protected by the right and moved to step two.
At step two, a court decides whether the law passes the appropriate level of scrutiny. Interestingly, Mai appears to have conceded that intermediate scrutiny applied in this case. As the court said, “Regardless of present-day peaceableness, a person who required formal intervention and involuntary commitment by the State because of the person’s dangerousness is not a ‘law-abiding, responsible citizen.’ Section 922(g)(4)’s prohibition thus falls well outside the core of the Second Amendment right.”
In applying intermediate scrutiny, the court cited the government’s interest in preventing suicide as a compelling interest and then concluded that the law is a reasonable means to achieve that purpose. The court relied on empirical evidence that it said supported Congress’s judgment. It noted that one study found that individuals with a prior involuntary commitment were 39 times more likely to attempt suicide. Although the court acknowledged that the study is not a perfect fit for Mai’s situation (it extended out less than a decade after commitment), intermediate scrutiny does not require a perfect fit. “We cannot conclude that, because no one apparently has published a study beyond 8.5 years after the participants’ release from involuntary commitment, Congress may not infer that the increased risk of violence continues after that time period.” The court also rejected the notion that Congress’s allowance for state relief-from-disabilities programs meant the legislature changed its mind with respect to the risk of this class of individuals. “Congress’ statutory extension of grace to some persons as part of a political compromise aimed at preventing gun violence does not affect our constitutional analysis.” The court concluded that the statute passed intermediate scrutiny as applied to Mai.
In short, after Mai, each of the three federal courts of appeals to have addressed the issue have reached different conclusions about the rights of those with disqualifying mental health commitments:
- Tyler (6th Cir. 2016): these individuals are inside the scope of the right at step one and the law is unconstitutional under intermediate scrutiny as-applied to a person with an old commitment
- Beers (3rd Cir. 2019): these individuals are outside the scope of the right at step one
- Mai (9th Cir. 2020): these individuals are inside the scope of the right at step one (at least for argument’s sake), but the law is not unconstitutional under intermediate scrutiny as applied to a person with an old commitment
Judging by the Supreme Court’s denial of a cert petition late last year in Medina v. Barr, challenging the felon prohibitor, the Court may have less of an appetite for dealing with person-based prohibitions than other gun regulations. Or maybe just less appetite for those with a prior criminal conviction. One way or another, though, this issue will continue to present a live controversy for courts grappling with the scope and strength of the Second Amendment right.