Petitions Challenging the Federal Prohibitors & More Scholarship Skepticism

  • Date:
  • April 02, 2021

At its conference two weeks from today, the Supreme Court is scheduled to consider whether to accept review in two as-applied challenges to the federal felon prohibitor. In Flick (which we’ve covered here and here), the Eleventh Circuit basically foreclosed as-applied challenges. In Holloway (which we’ve covered here and here), the Third Circuit—one of the few circuits expressly open to as-applied challenges—clarified that even nonviolent offenses can constitutionally serve to bar a person from possessing firearms, so long as the offense is “serious.” There are also several other as-applied challenges completing cert briefing in the next few weeks, including another Third Circuit opinion we’ve covered here, Folajtar. The Supreme Court has turned down review in a number of similar petitions over the past year, so it would not be surprising if that same fate meets these petitions.

In addition to those challenges to the felon bar, there is one pending cert petition challenging the bar for those who have been involuntarily committed to a mental institution. Briefing at the cert stage is almost complete, and the case will soon go to conference. In Mai, the Ninth Circuit upheld the bar as-applied to a man with a twenty-year old involuntary commitment, as we’ve covered here and here. The circuit court’s denial of en banc review drew some sharp dissenting opinions.

A new student note recently published in the Cornell Law Review, Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions, challenges the federal prohibition in 922(g)(4). Here’s the abstract (footnotes removed):

This Note seeks to critique the conflicting approaches that the Third, Sixth, and Ninth Circuits have taken when analyzing what Second Amendment rights, if any, individuals are entitled to after a mental institution involuntarily commits them. Additionally, this Note offers a novel solution. To do so, it explores “not the what, where, when, or why of the Second Amendment’s limitations—but the who.” Part I first discusses the modern framework for analyzing Second Amendment claims. Part II then discusses the language of § 922(g)(4), whom it affects, and why previously involuntarily committed Americans in approximately nineteen states are entirely foreclosed from seeking relief from § 922(g)(4)’s lifetime firearm ban. It then offers an in-depth analysis of how the Third, Sixth, and Ninth Circuits have applied the post-Heller framework for adjudicating as-applied Second Amendment challenges to § 922(g)(4)’s lifetime ban for the involuntarily committed. Part III briefly explores why the policy goals of reducing the stigma of mental illness and increasing access to mental healthcare point in favor of ensuring that presently mentally healthy individuals have the opportunity to petition for relief from § 922(g)(4)’s firearm ban. Finally, Part IV offers a novel approach to analyzing Second Amendment challenges to § 922(g)(4)—viewing the application of strict scrutiny as justifiable by viewing Heller’s exceptions as an off switch to the Second Amendment right to bear arms. Part IV discusses why Judge Sutton’s assertion “that Heller create[d] an on-off switch to the right to bear arms,” although originally offered to refute the application of any form of scrutiny to § 922(g)(4)’s committed provision, can also be used to support the argument that courts must analyze § 922(g)(4)’s committed provision under strict scrutiny.

This note joins what seems like growing student skepticism about the sweep of the lifetime firearm possession bars in federal law—including this note we highlighted just a few weeks ago—and perhaps also growing judicial skepticism—including this dissent that would have created an as-applied exception to the bar for those with a misdemeanor domestic violence conviction. If the Supreme Court wants to step in and provide some clarity to lower courts on how to assess these challenges, or what the outcomes should be, it has a whole set of cases at its disposal.