Erica Anderson, Notes and Comments Chair, University of Cincinnati Law Review
Imagine you just experienced a traumatic event. You unexpectedly lost a family member, you were assaulted, or your house burned down in a fire. You take some time off work because you are suffering from severe stress, anxiety, or sadness. A family member or friend becomes worried about your mental health and files a petition for your involuntary commitment to a mental institution. A judge, preferring to be safe rather than sorry, orders your treatment against your will. Although the experience is somewhat traumatic, you are soon released from care and resume your daily life activities without the need for further mental health treatment. Life returns to normal, except for one small thing—you have officially lost your rights to bear arms forever.
The Gun Control Act of 1968 (“Gun Control Act”) imposes a lifetime firearm ban on any individual who has ever been involuntarily committed to a mental health institution regardless of their current mental health status. This seems like a good thing, so what’s the problem?
Gun rights activists claim that approximately 400,000 American lives are saved each year by using a firearm as self-defense. Statistics show that the mentally ill are the most common targets of gun violence as they are ten times more likely to be targeted than the rest of the population, yet this is the exact population the Gun Control Act prevents from ever owning a gun for protection. To this day, the mentally ill are the only group of people who, without committing a crime, lose their Second Amendment right for their entire lifetime.
Despite the mainstream belief that the mentally ill are the perpetrators of societal gun violence, there is no factual basis linking the mentally ill to violence against others. In truth, less than five percent of violent crimes are committed by those with mental illness. Psychiatrists have discovered that the most common perpetrators of societal gun violence are average citizens who are dealing with “anger, isolation, depressive moods, resentments, [and] jealousy.” This raises the question: Does the Gun Control Act’s lifetime firearm ban for the involuntarily committed violate the Second Amendment of the Constitution? This article argues that a lifetime firearm ban is unconstitutional and that Second Amendment claims deserve a higher level of scrutiny.
In an effort to preserve colonists’ freedom and symbolize American independence, the Framers of the Constitution guaranteed “law abiding citizens” the “right to keep and bear arms” under the Second Amendment of the Constitution. In 2008, the Supreme Court, for the very first time, analyzed exactly what this right entails. Justice Scalia, in the majority opinion, declared that the Second Amendment granted a “pre-existing right” to bear arms for self-defense. However, Scalia emphasized that, similarly to other constitutional rights, the right to bear arms has never been absolute. Consequently, the Supreme Court held that “longstanding prohibitions” on firearm possession by the mentally ill were still constitutional. Unfortunately, it never addressed whether the prohibitions for the mentally ill can include lifetime bans for people who are no longer mentally ill.
A. The Gun Control Act of 1968
In response to the assassinations of President John F. Kennedy and Martin Luther King Jr., Congress passed 18 U.S.C. § 922, also known as the Gun Control Act. In hopes of reducing gun violence by keeping firearms away from the mentally ill, Congress passed § 922(g)(4), stating that individuals who have been “committed to a mental institution” at any time during their life, including childhood, are categorically prohibited from possessing a firearm.
Previously, the Gun Control Act allowed a person who was involuntarily committed to obtain relief. However, since 1992, Congress has prohibited the federal government from “investigating or acting upon such application for relief. Since then, 31 states have created their own state relief programs applicable when an individual is no longer dangerous to the public. That leaves 19 states with an automatic lifetime ban on individuals who have been involuntarily committed for any reason, including non-violent ones.
B. The Circuit Split
Because there is often no option for relief against the lifetime firearm ban against the involuntarily committed, the Third, Sixth, and Ninth Circuits have entered into a circuit split regarding the Gun Control Act’s constitutionality under the Second Amendment. In all three circuits, the plaintiff had been denied the purchase of a gun because several years ago (up to 30 years), they had been involuntarily committed in response to an acute traumatic event. All argued that because they were no longer dangerous and had not suffered from mental illness for many years, the Gun Control Act’s ban on their possession of a firearm was a violation of the Second Amendment.
Although the Sixth Circuit ultimately ruled in favor of the plaintiff, and the Third and Ninth Circuits ruled in favor of the government, all three courts applied a dual factor test to determine the Gun Control Act’s constitutionality. The first step in the analysis asks “whether the challenged law burdens conduct protected by the Second Amendment.” All three courts correctly found that it did, and thus moved on to the second step which asks which level of scrutiny is appropriate.
C. Tiers of Scrutiny
The Fourteenth Amendment guarantees “equal protection under the laws,” but the Supreme Court has not interpreted “equal protection” to require the government to treat all individuals exactly the same, but rather, to require the government to treat all similarly circumstanced individuals the same. Consequentially, “legislation may impose burdens upon defined classes in order to achieve permissible ends.” Thus, depending on which class a plaintiff is part of, the governmental restrictions against them may be required to meet more or less standards than restrictions against other classes of people.
Classes which are “suspect” are “united by ‘an immutable characteristic’ that can neither be controlled nor affects ‘a person’s ability to contribute to society.’” Suspect classes require laws that burden them to be proven essential in achieving a compelling government interest. This is known as the strict scrutiny standard. The class below suspect is the “quasi-suspect class.” The Supreme Court has failed to clarify the criteria for this class, and thus, “[t]he clearest rule . . . is that qualification for quasi-suspectness turns on whether a class shares at least some of the indicia of suspectness.” The quasi-suspect class only requires laws that burden them to be proven to further in achieving a compelling governmental interest. The lowest class of individuals does not have a name, but includes felons and people with disabilities. The test for this class of individuals is known as the rational basis test. To pass the rational basis test, the burdening law must have a legitimate governmental interest and the burden must be rationally connected to the law’s goal.
The Supreme Court has held that rational basis is not the correct standard for Second Amendment regulations, but declined to distinguish whether strict or intermediate scrutiny was more appropriate. Unsurprisingly, lower courts have struggled to determine what standard applies themselves. Although most courts utilize intermediate scrutiny, judges from the Third, Fifth, Sixth, Seventh, Ninth, and D.C. Circuits have argued in either concurrences or dissents that intermediate scrutiny was the incorrect standard of review.
To determine whether intermediate or strict scrutiny should apply to a claim, the Sixth and Ninth Circuits followed a two-step test: (1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on the right.
In Tyler, the Sixth Circuit found that intermediate scrutiny was improper because people with a history of mental illness cannot be at the core of the Second Amendment as that view “cut[s] too hard against Congress’s power to categorically prohibit certain presumptively dangerous people from gun ownership.” Although the Sixth Circuit conceded that the burden on the plaintiff was great, it also acknowledged that the burden did not affect the public at large, but rather, a narrow class of individuals. The court based its decision on Tenth Circuit precedent stating intermediate scrutiny was appropriate in Second Amendment claims brought by a narrow class of perpetrators of domestic violence because perpetrators are likely to be violent in the future. In Mai, the Ninth Circuit agreed that the plaintiff is not at the core of the Second Amendment rights because “regardless of present-day peacefulness, a person who required formal intervention . . . because of the person’s dangerousness is not a ‘law abiding, responsible citizen.’”
The Sixth Circuit appropriately held that a “continued risk” of dangerousness, rather than mere past dangerousness, must be shown to constitutionally restrict a previously involuntarily committed individual from their right to bear arms. However, the Court should have held that strict scrutiny was the correct standard when analyzing Second Amendment cases.
A. Upholding the Gun Control Act’s constitutionality thwarts policy goals behind § 922(g)(4).
The courts in Beers, Tyler, and Mai all argue that § 922(g)(4) furthers the governmental interest of preventing suicide. However, without an opportunity to petition for relief from the Gun Control Act’s lifetime ban, the statute is doing the opposite of its purported goals. Although the statute was passed to prevent violence, overbroad regulations against the mentally ill that associate the mentally ill with violent acts further stigmatize mental illness. The stigmatization of mental illness causes violence by: (1) increasing the likelihood that the mentally ill will be victims of violent acts, including suicide, and (2) decreasing the likelihood that the mentally ill will seek treatment. At the very least, these laws “vastly overreach” as most individuals with mental illness do not die via suicide. Actually, as low as 2% of individuals with mental illness die via suicide, and up to 54% of suicide victims do not possess mental health issues at all, but take their lives following a major negative life event.
Scientifically based research shows that the mentally ill are only very slightly more violent than the general public. In fact, “if the elevated risk of violence in people with mental illness is reduced to the average risk in those without mental illness, an estimated 96% of the violence that currently occurs in the general population would continue to occur.” Yet the media continues to maintain the narrative that the mentally ill are dangerous via horror films such as “Split” and “Session 9” while the legal field maintains the narrative via discriminatory laws such as the Gun Control Act.
Because society is trained via the media and laws that the mentally ill are dangerous, they are exposed to heightened risks of violence. For example, the mentally ill are 16 times more likely to be murdered by police officers than the general population. Police are not trained to properly deescalate mental health crises situations, and thus, they rely upon their general knowledge which is coming from the media. When the media teaches the general public that those suffering from a mental health crisis are violent, crisis responders often act violently in fear of their own safety, even though they were never in danger.
The negative stigma of mental illness also builds barriers to the mentally ill receiving treatment. Young teenagers with trauma or attention-deficit disorder (“ADD”) “are at an extremely high risk for later self-injury.” Talk-therapy is the most effective preventative measure and treatment for self-injury. Yet, 8 out of 10 workers suffering from mental illness do not seek treatment because of the stigma in the workplace. In order to prevent and treat self-harm by getting the mentally ill the help that they need, society must destroy the current stigma fueled by media and the law.
B. Second Amendment claims should be reviewed under strict scrutiny.
Supreme Court precedent states that “the most exacting scrutiny,” strict scrutiny, should apply when fundamental rights are at stake. In 2008, the Supreme Court confirmed that the right to own a firearm is, in fact, a fundamental right under the Second Amendment. Although in Heller, the Supreme Court stated that “longstanding prohibitions on the possession of firearms by . . . the mentally ill” are constitutional, “mentally ill” was used in present tense. Consequently, Judge Sutton, in his Tyler concurrence, stated that the Heller “longstanding prohibitions” exception should be treated as “an off switch to the right to bear arms.” If an individual is presently mentally ill, the Heller exception switches off. This takes the right to bear arms off the table. If and when the individual is no longer mentally ill, the right to bear arms switches back on.
Because a lifetime firearm ban on the involuntarily committed permanently bars individuals from enjoying a core constitutional right, strict scrutiny is the correct standard of review. This is where both the Sixth and Ninth Circuit got it wrong. Both Circuits conclude that because the plaintiffs were once dangerous to society, they are no longer “law abiding citizens.” The courts erroneously emphasize that the core of the Second Amendment right is only granted to law-abiding citizens, and that those who are involuntarily committed are not law-abiding. However, this conclusion is completely baseless. Involuntary commitment is not an automatic consequence of the commission of a crime. In fact, less than three to five percent of crimes in the United States are committed by the mentally ill.
Being a mere risk of harm to one’s self or others is not and should not be criminal. Absent any other crimes on their records, the plaintiffs in Mai and Tyler are law abiding citizens as they never actually caused harm to anyone.
Concern persists that utilizing the strict scrutiny standard for Second Amendment claims would be a death knell for all gun control laws to ever be proposed. However, this fear is simply unsupported as courts have previously applied strict scrutiny to other gun regulations and in every instance, the regulation survived.
Congress aimed to limit gun violence by passing the Gun Control Act which prohibits the mentally ill and those who have been involuntarily committed to mental institutions from owning or possessing firearms. Not only does the Gun Control Act fail to achieve its goal, it is unconstitutionally overbroad. One of the main reasons the Gun Control Act has been previously deemed constitutional by certain courts is because the courts have erroneously used the wrong level of scrutiny. Although the Gun Control Act should not survive intermediate scrutiny, since there is minimal evidence supporting the proposition that the mentally ill are dangerous, it has often survived because the government’s burden is so low. According to Supreme Court precedent, Second Amendment claims deserve a strict scrutiny analysis to provide the mentally ill with a fair trial.
 This hypothetical is fiction, but is based upon real situations such as the following: See Jason Moon, Woman Detained in Hospital For Weeks Joins Lawsuit Against New Hampshire, NPR (Oct. 22, 2019) https://www.npr.org/2019/10/22/771854639/woman-detained-in-hospital-for-weeks-joins-lawsuit-against-new-hampshire.
 Lawrence W. Reed, Guns Prevent Thousands of Crimes Every Day, Research Shows, Foundation for Economic Education (Aug. 23, 2019) https://fee.org/articles/guns-prevent-thousands-of-crimes-every-day-research-show/.
 Mental Health Myths and Facts, U.S. Department of Health and Human Resources (Aug. 2017); Dinah Miller, MD & Annette Hanson, MD., Violent Behavior and Involuntary Commitment: Ethical and Clinical Considerations, 37 Psychiatric Times (Feb. 28, 2020) https://www.psychiatrictimes.com/view/violent-behavior-and-involuntary-commitment-ethical-and-clinical-considerations (last visited Oct. 23, 2020).
 Heather Stuart, Violence and mental illness: an overview, 2 J. World Psychology, 121, 124 (2003); Jillian K. Peterson, How Often and How Consistently do Symptoms Directly Precede Criminal Behavior Among Offenders With Mental Illness?, 38 Law and Human Behavior, 439, 445 (2014).
 APA Condemns Loss of Life from Gun Violence, Disputes Link to Mental Illness, Am. Psychiatric Ass’n (Aug. 5, 2019) https://www.psychiatry.org/newsroom/news-releases/apa-condemns-loss-of-life-from-gun-violence-disputes-link-to-mental-illness (last visited Nov. 27, 2020).
 Benedict Carey, What Experts Know About People Who Commit Mass Shootings, N.Y. Times (Aug. 2019) https://www.nytimes.com/2019/08/05/health/mass-shootings-mental-health.html.
 Emily Wajert, Navigating the Rights of the Mentally Ill and the Second Amendment: Defining Responsibility, Balancing Safety, and Weighing Constitutional Rights, 19 U. of Pa. J. Const. L., 731, 735 (2017).
 District of Columbia v. Heller, 554 U.S. 570, 582-84 (2008).
 Id. at 603.
 Id. at 626.
 Olivia B. Waxman, How the Gun Control Act of 1968 Changed America’s Approach to Firearms—And What People Get Wrong About That History, TIME (Oct. 25, 2018) https://time.com/5429002/gun-control-act-history-1968/.
 18 U.S.C. § 922 (g) (4) (2018); See 114 CONG. REC. 21,784 (1968) (statement of Rep. Celler).
 Supreme Court Brief for the federal respondents in opposition, page 2 (citing Logan v. United States, 552 U.S. 23, 28 n.1 (2007)).
 Tyler v. Hillsdale, 837 F.3d 678, 683 (6th Cir. 2016).
 Beers v. Att’y Gen., 927 F.3d 150 (3rd Cir. 2019); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678 (6th Cir. 2016); Mai v. United States, 952 F.3d 1106 (9th Cir. 2020).
 Beers v. Att’y Gen., 927 F.3d 150 (3rd Cir. 2019); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678 (6th Cir. 2016); Mai v. United States, 952 F.3d 1106 (9th Cir. 2020).
 Beers, 927 F.3d at 153; Tyler, 837 F.3d at 685; Mai, 952 F.3d at 1113.
 Mai, 952 F.3d at 1113 (quoting United States v. Torres, 911 F.3d 1253, 1258 (9th Cir. 2019)).
 Heller, 670 F.3d at 1253 (stating that a longstanding regulation is one that has been accepted for a long time); E.g., United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013) (stating that a regulation barring individuals who have been convicted of misdemeanor domestic violence from possessing a firearm was not longstanding as it only came about in 1996).
 Chovan, 735 F.3d at 1137 (quoting Torres, 911 F.3d at 1258).
 U.S. Const. amend. XIV § 2.
 Rinaldi v. Yeager, 384 U.S. 305, 309 (1966).
 Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007).
 Quasi-Suspect Classes and Proof of Discriminatory Intent: A New Model, 90 Yale L. J., 912, 916 (1981).
 Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, U. of Illinois L. Rev., 783, 789 (2007).
 City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
 Heller, 554 U.S. at 648.
 Lauren Devendorf, Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions, 106 CNLLR 501, 503 (2021); Mai, 974 F.3d at 1095 (Bumatay, J., dissenting that the Ninth Circuit should abandon the tiers of scrutiny when reviewing Second Amendment claims).
 Mai, 952 F.3d at 1115 (quoting Chovan, 735 F.3d at 1138).
 Tyler, 837 F.3d at 691.
 Mai, 952 F.3d at 1115.
 Tyler, 837 F.3d.
 Stigma, Prejudice and Discrimination Against People with Mental Illness, American Psychiatric Association, https://www.psychiatry.org/patients-families/stigma-and-discrimination (last visited July 15, 2021).
 Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J. L. & PUB. AFF., 1, 41 (Jan. 2020) (stating “less than thirty percent of individuals with a mental health condition attempt to treat it” because of “the shame associated with mental illness”).
 Devendorf, supra note 32 at 522; McMahon, supra note 40(stating “less than thirty percent of individuals with a mental health condition attempt to treat it” because of “the shame associated with mental illness”).
 Merete Nordentoft, et. al., Absolute Risk of Suicide After First Hospital Contact in Mental Disorder, 68 Archives Gen Psychiatry 1058, 1061 (2011).
 Nell Greenfield Boyce, CDC: U.S. Suicide Rates Have Climbed Dramatically, NPR (June 7, 2018) https://www.npr.org/sections/health-shots/2018/06/07/617897261/cdc-u-s-suicide-rates-have-climbed-dramatically.
 Mohit Varshney, et. al., Violence and mental illness: what is the true story?, 70 J Epidemiol Community Health, 223, 223 (2016).
 Yancy Aracena, Psychosis in Films: An Analysis of Stigma and the Portrayal in Feature Films, City University of New York (2012); Sophie Meifang Wang, Split: A Review and Its Unexpected Merit, Applies Psychology Opus (2017) https://wp.nyu.edu/steinhardt-appsych_opus/split-a-review-and-its-unexpected-merit/; Alyssa Miller, Session9 (2001) and Dissociative Identity Disorder, Scriptophobic (May 7, 2018) https://scriptophobic.ca/2018/05/07/the-haunted-and-the-sick-session-9-alyssa/.
 Victimization and Serious Mental Illness, Treatment Advocacy Center, https://www.treatmentadvocacycenter.org/storage/documents/backgrounders/victimization-and-smi.pdf (June 2016).
 Alexandra Sifferlin, Untreated Mentally Ill 16 Times More Likely to Be Killed by Police, Study Says, Time (Dec. 10, 2016) https://time.com/4144276/mentally-ill-police-killings-study/.
 Police Need More Mental Health Training, Mental Health First Aid (Feb. 22, 2018) https://www.mentalhealthfirstaid.org/2018/02/police-need-mental-health-training/.
 Benedict Carey, Getting a Handle on Self-Harm, NY Times (Nov. 11, 2019) https://www.nytimes.com/2019/11/11/health/self-harm-injury-cutting-psychology.html.
 Don Mordecai, MD., Mental health at work – why stigma is a workforce issue, Kaiser Permanente (March 18, 2019) https://business.kaiserpermanente.org/insights/mental-health-workplace/stigma-at-work.
 Clark v. Jeter, 486 U.S. 456, 461 (1988).
 See generally Heller, 554 U.S. 570 (2008).
 Tyler, 837 F.3d at 708.
 Mai, 952 F.3d at 1115; Tyler, 837 F.3d at 691.
 Heather Stuart, Violence and mental illness: an overview, 2 World Psychiatry 121, 123 (2003); Mental Health Myths and Facts, Mental Health (Aug. 29, 2017) https://www.mentalhealth.gov/basics/mental-health-myths-facts.
 Stephen Kiehl, In Search of a Standard: Gun Regulations After Heller and McDonald, 70 Md L. Rev., 1131, 1146 (2011).