[Eugene Volokh] Man who was involuntarily committed 30 years ago might regain Second Amendment rights

(Paul Buck/European Pressphoto Agency)

This morning’s 10-to-6 decision by the full U.S. Court of Appeals for the 6th Circuit, in Tyler v. Hillsdale County Sheriff’s Department, concludes that people who were committed because of mental illness many years ago might regain their Second Amendment rights. Like last week’s 3rd Circuit decision related to the Second Amendment rights of people who had felony convictions decades ago, this is a narrow decision, but an important one.

1. Clifford Tyler, now age 74, “was involuntarily committed thirty years ago following an emotional divorce,” and stayed at the mental hospital for two to four weeks. He has since then apparently not had any mental-health problems. But federal law bans gun possession by anyone “who has been committed to a mental institution,” and Tyler remains covered by that.

From 1986 to 1992, such people could apply to the Justice Department for relief from such a disability, but in 1992 Congress “defunded this program, noting that reviewing applications was a ‘very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made.'” In 2008, Congress did give states a financial incentive to create state rights-restoration systems, and a state restoration would lift the federal disability. But while about 30 states have implemented such systems, Michigan, where Clifford Tyler lives, lacks such a system.

2. In D.C. v. Heller (2008), the Supreme Court majority opinion recognized that the Second Amendment secures an individual right, but said that this doesn’t forbid “presumptively lawful” and “longstanding” bans on gun possession by “felons and the mentally ill.” But 11 judges on the 6th Circuit held that “prior involuntary commitment is not coextensive with current mental illness,” so that Heller doesn’t justify a ban on gun possession by anyone who had ever been mentally ill.

At this point the those 11 6th Circuit judges split into three groups.

a. Five judges (Judges Julia Smith Gibbons, Eugene Siler, Deborah Cook, Helene White and Bernice Donald) took the view that the restriction could still be upheld if it passed “intermediate scrutiny,” which here meant that it was a “reasonable fit” to the government interests in preventing crime and suicide. But they concluded that the government hadn’t shown enough of a reasonable fit: The government did introduce studies that people with mental-health problems generally had greater risk of committing crime or suicide, but those studies didn’t focus on people who had brief mental-health episodes many decades ago. Because of this, Tyler would be entitled to regain his Second Amendment rights, unless on remand the government can show either that (a) Tyler indeed “would be a risk to himself or others were he allowed to possess a firearm,” or (b) there are more studies that generally show the enduring dangerousness of people with long-ago commitments for mental illness.

None of the government’s evidence squarely answers the key question at the heart of this case: Is it reasonably necessary to forever bar all previously institutionalized persons from owning a firearm? But perhaps the biggest problem for the government is Congress’s most recent answer to this very question: No, it is not.

From 1986 to 1992, federal law provided a relief-from-disabilities program whereby individuals prohibited by federal law from possessing firearms could “appl[y] to the Attorney General for relief from [their] disabilities.” In 1992, Congress defunded this program, noting that reviewing applications was a “very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made.” In 2008, Congress changed its mind. It authorized federal grants to the states for their help in shoring up the NICS instant background check system after a gunman with “a proven history of mental illness” killed dozens at Virginia Tech…. [This] is a clear indication that Congress does not believe that previously committed persons are sufficiently dangerous as a class to permanently deprive all such persons of their Second Amendment right to bear arms.

b. Five judges (Judge