As we previously highlighted on the blog, a Ninth Circuit panel in March upheld the federal lifetime firearm ban as applied to an individual involuntary committed to a mental institution twenty years prior. In Mai v. United States, the panel split with the Sixth Circuit on the issue, joining a Third Circuit panel rejecting an as-applied challenge to 18 U.S.C. § 922(g)(4). Yesterday the Ninth Circuit declined to take Mai en banc over the heated dissent of 8 judges. I’ve recently written on how courts treat questions of prohibited persons in Second Amendment cases, so I have some sympathy for the dissents’ criticism of several conceptual moves in these types of cases. But I can’t say I find the acerbic hostility to a broader range of reasonable Second Amendment methodologies or outcomes altogether convincing.
Here’s a snippet from the dissents to the court’s denial of rehearing en banc.
…I have substantial doubt that the framework of rules that this court uses to analyze Second Amendment claims properly construes the controlling principles set forth in District of Columbia v. Heller, 554 U.S. 570 (2008), and granting en banc review in this case would have given us a welcome opportunity to reexamine that framework. I respectfully dissent from our failure to rehear this case en banc.
Judge Bumatay (joined by Judge VanDyke in whole and in part by Judges Ikuta, Bade, Hunsaker, Bennett, Collins, and Bress):
Today, our court advances an extraordinarily sweeping view of government power. Against the text, history, and tradition of the Second Amendment, we hold that the government may forever deprive a person of the individual right to bear arms—if that person spends even one day committed involuntarily, even as a juvenile, and no matter the person’s current mental health soundness. Of course, we only adopt this view for the Second Amendment. For other, more fashionable constitutional rights, we would not countenance such an abridgment.
If operating on a clean slate, I would hew to Heller’s and McDonald’s fidelity to the Second Amendment’s history, tradition, and text. The precise contours of such a review should be subject to further refinement; but we might, as Justice Scalia suggested in Heller itself, look to the original meaning of the First Amendment. See Heller, 554 U.S. at 635, 128 S.Ct. 2783 (suggesting categorical exceptions to the First Amendment as recognized at the Founding, such as obscenity, libel, and disclosure of state secrets); see also Tyler, 837 F.3d at 712 (Sutton, J., concurring) (opining that “Heller creates an on-off switch to the right to bear arms”). Under this view, a law may only constitutionally prohibit the core right to keep arms in the home for self-defense if the prohibition falls within an exception understood to be outside of the Amendment’s scope at the time of the Founding.
Judge VanDyke (joined by Judge Bumatay):
In the final paragraph of its opinion rejecting Mai’s Second Amendment claim, the panel emphasized that “[w]e emphatically do not subscribe to the notion that ‘once mentally ill, always so.’ ” Mai v. United States, 952 F.3d 1106, 1121 (9th Cir. 2020). I believe them. Yet just like the government’s position in this case, the panel’s decision inescapably effectuates exactly that ethic. How can this court purport to be applying “heightened” scrutiny, yet bless a legal position and practical outcome everyone insists isn’t true?
The answer is a simple four-letter word: guns. It is hard to conceive of any other area of the law where, given the opportunity to apply heightened scrutiny, this court would countenance for a moment an outcome rooted in the scientifically indefensible, morally repugnant, and legally insufficient concept of “once mentally ill, always so.” Mr. Mai could understandably take personally this court’s labeling of him as a second-class citizen (more on that below). But he shouldn’t. Our court cannot really believe that, just because a currently healthy individual decades ago suffered from mental illness, they are permanently relegated to a disfavored status impervious to even heightened scrutiny. Mr. Mai is not a second-class citizen—not in this court’s eyes or anyone else’s. He’s just seeking to exercise a second-class right. He is another innocent casualty of this court’s demonstrated dislike of things that go bang. Perhaps Mr. Mai can take faint solace in the fact that, were he seeking to exercise any other right entitled to heightened scrutiny, he would no doubt get the judicial review he plainly merits.
To the rational observer, it is apparent that our court just doesn’t like the Second Amendment very much. We always uphold restrictions on the Second Amendment right to keep and bear arms. Show me a burden—any burden—on Second Amendment rights, and this court will find a way to uphold it. Even when our panels have struck down laws that violate the Second Amendment, our court rushes in en banc to reverse course. See, e.g., Teixeira v. County of Alameda, 873 F.3d 670, 690 (9th Cir. 2017) (en banc) (reversing panel’s invalidation of a regulation prohibiting the right to purchase and sell firearms); Peruta v. County of San Diego, 824 F.3d 919, 942 (9th Cir. 2016) (en banc) (reversing panel’s invalidation of city law requiring showing of special self-defense need to obtain conceal carry permit where open carry was also prohibited); Young v. Hawaii, 896 F.3d 1044, 1074 (9th Cir. 2018) (discussed above), reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019). Other rights don’t receive such harsh treatment. There exists on our court a clear bias—a real prejudice—against the Second Amendment and those appealing to it. That’s wrong. Equal justice should mean equal justice.