In his telling, Bradley Beers was having a really bad day in 2005 when, as a 19-year-old college student, he returned home “deeply overwhelmed and stressed” about school. He threatened to take his life, so his mother took him to a local hospital for mental health treatment. The hospital committed him on an involuntary basis. Beers is now in his 30s and has not needed mental health treatment since this incident, but because of 18 U.S.C. § 922(g)(4) he is barred from ever again possessing firearms. He lost a Second Amendment challenge to that law in the Third Circuit and is now, with a team of prominent lawyers, seeking Supreme Court review.
Beers’s case raises a host of questions about laws like § 922(g)(4) that prohibit certain classes of persons from possessing firearms. One question is whether Heller blessed these types of laws when it said that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” There’s a first-order debate about whether lower courts are even bound by this language—is it dicta and therefore (maybe) not binding or is it necessary to the holding and thus binding? Then there’s the debate about what the language means. Heller said these laws are “presumptively lawful regulatory measures.” Can the presumption be rebutted? If so, how?
Moving out beyond Heller’s less-than-clear language, there are conceptual and theoretical debates about these person-based prohibitions. Do they raise questions about the scope of the right—who it covers—or just about whether the government may permissibly dispossess certain rights-holders if it advances good enough reasons? And if some person-based prohibitions are justified, on what basis are they justified? Dangerousness? Lack of “reason”? Lack of virtue? All of these questions are debated in the case reporters and law journals. All of these questions are open—there’s no clear guidance from the Supreme Court on how courts should approach questions like these. (To be sure, as I’ve noted, there’s still a surprising amount of agreement among the courts of appeals on lots of the questions—including, for the most part, this one—that Heller left open.)
Beers itself illustrates how difficult these questions can be to answer. The Third Circuit has developed a framework to assess as-applied challenges:
First, we look at the historic, traditional justifications for barring a class of individuals from possessing guns and ask whether the challenger can distinguish his circumstances from those of individuals in the historically barred class. If the challenger makes such a showing, we proceed to the second step, which requires the government to demonstrate that the challenged law satisfies some form of heightened scrutiny.
At the first step, the only focus is on the rationale for the historical exclusion of a class of persons and whether the challenger can show that that rationale does not fit his conduct or circumstances—“i.e., that he is literally not a part of the historically-barred class.” Nothing about the passage of time or post-incident rehabilitation is relevant at this first step.
The Beers court stated that “[t]raditionally, individuals who were considered dangerous to the public or to themselves were outside of the scope of Second Amendment protection.” It noted no precise historical analogues to § 922(g)(4), but observed that since the Founding era the government was authorized to “lock up” dangerous people who appeared to be suffering severe mental illness. Since it could take away such people’s liberty, the court says, the government could also be presumed to be authorized to disarm them. (This is not unlike the argument in the felon context that because felons at common law were punished by death, the lesser intrusion of disarmament was authorized.) Beers, the court said, fell into that traditional category.
Finally, the court concluded that Beers could not distinguish himself from those traditionally barred from possessing firearms. In fact, the court made this task nearly impossible: “[T]he only way Beers can distinguish his circumstances is by demonstrating that he was never determined to be a danger to himself or to others.” Of course, if no such determination was made, then § 922(g)(4) would never have applied to Beers in the first place. Under the court’s rule, an individual could only ever distinguish himself in those circumstances in which the prohibitor applied because a court determined that he “[l]acks the mental capacity to contract or manage his own affairs” by reason of mental illness or if he was committed to a mental institution for reasons other than danger, like involuntary “commitment for mental defectiveness or mental illness” or “for other reasons, such as drug use.”
The Beers court noted that its approach diverged from that taken by the Sixth Circuit in Tyler v. Hillsdale County Sheriff’s Department, where the Sixth Circuit applied a different methodology and allowed a claim to go forward for an individual with an old involuntary commitment order.
Person-based prohibitions raise hard questions that go right to the core of the Second Amendment—what is for? How do we determine its boundaries? Who can exercise the right? What role does history have in the analysis? What role does empirical evidence play? I’m working on a forthcoming article right now that seeks to address some of the larger conceptual questions around prohibited statuses; it’s due out in Law & Contemporary Problems early this summer.