WHO HAS THE RIGHT? ANALYSIS OF SECOND AMENDMENT CHALLENGES TO 18 U.S.C. s. 922(g) (4).

• Author: Cline, Alexandra T.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (1) INTRODUCTION

On December 28, 2005, Bradley Beers told his mother he had placed a gun in his mouth, had nothing to live for, and that he was going to kill himself. (2) A college student at the time, Beers was armed with both a musket he used for Civil War reenactments and with the determination to end his life. (3) Fortunately, he never had the chance. Before tragedy struck, Beers's mother intervened and brought him to a local hospital for a mental health evaluation. (4) Beers was involuntarily committed under Pennsylvania law after a physician found him depressed and suicidal, such that "inpatient treatment was needed for his safety." (5) His involuntary commitment was extended twice in the months that followed, and he was deemed to be "severely mentally disabled and in need of treatment" at two separate court proceedings. (6) However, soon after Beers was released, he attempted to purchase a firearm yet again. (7) While Beers perhaps considered himself rehabilitated and deserving of a second chance to possess a firearm, his constitutional right to exercise that privilege is far from certain.

When the Second Amendment to the United States Constitution was ratified in 1791, (8) its ratifiers perhaps had not considered its specific implications for individuals such as Beers. Rather, its provisions likely reflected the sentiment of the times--prevailing distrust of standing armies and military rule. (9) At that time, "[n]either hunting nor self-protection, individually speaking," seemed to prompt the nation's Founders to cement the right to keep and bear arms. (10) Instead, the Amendment responded to the fear that Congress possessed too much power to build a national standing army and thus to disarm state militias. (11) Nonetheless, the right to bear arms in the Founding era was always premised on certain qualifications, namely a person's status as white, male, able-bodied, and typically of certain religious affiliation. (12) As such, selective disarmament continued even after the Amendment's ratification, preventing Native Americans, free and enslaved African Americans, and others from keeping or bearing arms. (13) These restrictions were grounded on the notion that certain individuals throughout history have been considered "too dangerous, too radical, or too unpredictable to have weaponry." (14)

While many scholars have historically viewed the Second Amendment as providing a collective right, particularly in the context of protecting state militias, (15) judicial interpretation of the Second Amendment has shifted in recent years. In 2008, the Supreme Court held for the first time in District of Columbia v. Heller that the Second Amendment protects an individual right to bear arms, unattached to organized militia service. (16) Justice Scalia, writing for the majority, concluded that the prevention of tyranny, through state militias, was only one motivation behind the ratification of the Amendment. (17) Indeed, Justice Scalia thought, the Amendment was also understood at the time of ratification as codifying a "pre-existing right" to bear arms for self-defense. (18)

Nonetheless, the Heller Court acknowledged that even an individual right to bear arms is not unlimited. (19) In fact, Justice Scalia wrote that "nothing in [Heller] should be taken to cast doubt" on the constitutionality of "longstanding prohibitions" on firearm ownership for certain categories of people, including felons and the mentally ill. (20) While Scalia deemed those particular prohibitions presumptively lawful, the Heller Court declined to define the full scope of the Second Amendment right, (21) leaving unanswered questions for lower courts. (22) Instead, the Heller Court merely recognized the right of "law-abiding, responsible citizens" to own firearms, without deciding who falls within the confines of that classification. (23)

One notable question that remains after Heller is whether "presumptively lawful" prohibitions on firearm ownership, (24) specifically for those considered mentally ill, can include lifetime bans. As the law stands today, individuals who have been "adjudicated as a mental defective or who [have] been committed to a mental institution" at any time are categorically barred from possessing firearms. (25) That prohibition, codified at 18 U.S.C. [section] 922(g)(4), has given rise to a circuit split in the past five years, with the Third, Sixth, and Ninth Circuits reaching different conclusions on its constitutionality. In each case, the plaintiff argued that, at least as applied to him, [section] 922(g)(4) violates the Second Amendment. (26) While the Third and Ninth Circuits rejected the challenges, (27) the Sixth Circuit remanded the case for further proceedings, holding that the government had failed to meet its burden of showing that a lifetime ban on firearm possession reasonably fit the statute's goals. (28) Though ultimately reaching different conclusions, each circuit applied a two-part test to evaluate the challenges. (29) First, the court determines "whether the challenged law burdens conduct protected by the Second Amendment." (30) If it does, courts proceed to the second step and "apply an appropriate level of [heightened] scrutiny." (31) However, if the opposite conclusion is reached at step one, the inquiry is over and the provision is constitutional.

This Note argues that courts should decide challenges to [section] 922(g)(4) solely under the first step of the test, based on the notion that individuals subject to [section] 922(g)(4) fall outside the scope of Second Amendment protection. Thus, under the two-part test, the law would not burden conduct protected by the Amendment, rendering step two unnecessary for at least the vast majority of [section] 922(g)(4) challenges. This Note provides three independent ways in which courts could deem [section] 922(g)(4) outside the purview of the Second Amendment, and each should be considered a permissible approach.

The first Part of this Note provides background information on the relationship between mental illness and violence in the United States, which established the rationale for the enactment of [section] 922(g)(4). Part II then considers the text of [section] 922(g)(4), including opportunities for relief from the firearm prohibition. Next, Part III discusses the implications of recent Supreme Court Second Amendment jurisprudence for [section] 922(g)(4), which has provided the backdrop for lower court analysis. Part IV then summarizes recent [section] 922(g)(4) decisions across three circuit courts, in which they interpreted the relevant Supreme Court jurisprudence and offered their own analyses. Finally, Part V provides three alternative approaches that courts could use when evaluating challenges to [section] 922(g)(4), based on the framework provided in the recent circuit court holdings.

1. MENTAL ILLNESS AND VIOLENCE IN THE UNITED STATES

   Though civil commitment has existed in the United States for hundreds of years, (32) reliable statistics about the practice largely remain unavailable. (33) Due to patient privacy issues and a decentralized U.S. mental health care system, the exact number of individuals subject to involuntary commitment each year is not publicly known. (34) However, in 2015, a branch of the U.S. Department of Health and Human Services estimated that only nine out of every 1000 people with a "serious mental illness" had been involuntarily committed that year. (35) Generally, data also suggest that involuntary commitments have decreased over the past several decades, as a movement toward deinstitutionalization has taken shape. (36)

   Further, state laws governing involuntary commitment have tightened over the past century, limiting the types of individuals subject to these commitments. (37) By 1980, almost every state had implemented a dangerousness requirement in its involuntary commitment statute (38)--a requirement that remains an important criterion in state laws today. (39) In fact, in many of these statutes, the individual must pose a threat of serious bodily harm to himself or others before involuntary commitment can be imposed. (40) As a result, the dangerousness criterion usually refers directly to an individual's risk of engaging in violent acts. (41) Nonetheless, a finding of dangerousness is not required in every statute; instead, some allow for involuntary commitment upon a finding of "grave disability." (42) The latter is usually defined as an "inability to provide for basic personal needs," such as food and shelter. (43) Finally, most states also allow for involuntary commitment only when an individual's needs cannot be met in a less restrictive setting. (44) Thus, if a caregiver or other outpatient setting could adequately provide for the person's care, he or she will not meet the statutory guidelines for involuntary commitment. (45)

2. BACKGROUND AND TEXT OF [section] 922(G)(4)

   To combat the general misuse of firearms, various prohibitions on gun ownership have existed throughout the nation's history. (46) As courts and scholars have noted, the Second Amendment has inherently been "tied to the concept of a virtuous citizenry," such that the government has always retained the power to "disarm 'unvirtuous citizens.'" (47) Congress codified that sentiment over fifty years ago, when it passed the Gun Control Act of 1968 ("GCA") in response to the assassinations of President John F. Kennedy and Dr. Martin Luther King, Jr. (48) At the time, the GCA was intended to control access to weapons by "those whose possession thereof [is] contrary to the public interest." (49) Accordingly, Congress was primarily concerned with preventing crime by keeping "firearms out of the hands of those not legally entitled to possess them," whether due to age, criminal background, or mental...