This Note seeks to critique the conflicting approaches that the Third, Sixth, and Ninth Circuits have taken when analyzing what Second Amendment rights, if any, individuals are entitled to after a mental institution involuntarily commits them. Additionally, this Note offers a novel solution. To do so, it explores “not the what, where, when, or why of the Second Amendment’s limitations—but the who.”1Tyler v. Hillsdale Cty. Sheriff’s Dep’t. (Tyler I), 775 F.3d 308, 316 (6th Cir. 2014), vacated, 837 F.3d 678 (2016). Part I first discusses the modern framework for analyzing Second Amendment claims. Part II then discusses the language of § 922(g)(4), whom it affects, and why previously involuntarily committed Americans in approximately nineteen states are entirely foreclosed from seeking relief from § 922(g)(4)’s lifetime firearm ban. It then offers an in-depth analysis of how the Third, Sixth, and Ninth Circuits have applied the post-Heller framework for adjudicating as-applied Second Amendment challenges to § 922(g)(4)’s lifetime ban for the involuntarily committed. Part III briefly explores why the policy goals of reducing the stigma of mental illness and increasing access to mental healthcare point in favor of ensuring that presently mentally healthy individuals have the opportunity to petition for relief from § 922(g)(4)’s firearm ban. Finally, Part IV offers a novel approach to analyzing Second Amendment challenges to § 922(g)(4)—viewing the application of strict scrutiny as justifiable by viewing Heller’s exceptions as an off switch to the Second Amendment right to bear arms. Part IV discusses why Judge Sutton’s assertion “that Heller create[d] an on-off switch to the right to bear arms,”2See Tyler v. Hillsdale Cty. Sheriff’s Dep’t. (Tyler II), 837 F.3d 678, 712 (6th Cir. 2016) (Sutton, J., concurring in part). although originally offered to refute the application of any form of scrutiny to § 922(g)(4)’s committed provision, can also be used to support the argument that courts must analyze § 922(g)(4)’s committed provision under strict scrutiny.
Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions
Lauren Devendorf, B.A., Duke University, 2015; J.D., Cornell Law School, 2020; Publishing Editor, Cornell Law Review, Vol. 105.
15 Jan 2021