Litigation Highlight: Arkansas Supreme Court Rejects Rights-Restoration Equal Protection Claim

On March 28, in a 4-3 decision in Sagely v. Hutchinson, the Arkansas Supreme Court rejected an equal protection challenge to the state’s gun-rights restoration process for those who have previously been involuntarily committed for mental illness.  The plaintiff in the case had been involuntarily committed in 2010 as a result of paranoid behavior that included “sho[oting] a bullet through the ceiling of his home because he believed something was in the attic.”  Under Arkansas law, the involuntary commitment made Sagely a prohibited person unable to possess guns; he was subsequently pulled over, found to have a firearm in his car, and arrested.  Sagely later filed a civil complaint against the state seeking to lift his firearm disqualification and arguing in relevant part that Arkansas law “violate[s] equal protection by allowing felons to petition to have their gun rights reinstated but [] not allow[ing] those who were involuntarily committed to a mental health facility to have their gun rights reinstated.”[1]  The court’s splintered decision is fascinating both in how it weighs the justifications for disarming felons and the mentally ill and for its analysis of Bruen within the equal protection context. 

The Arkansas Supreme Court consists of seven justices, none of whom is officially affiliated with a political party.  Six of the current justices were elected by voters in nonpartisan elections from 2011-2021.  The newest justice, J. Cody Hiland, was appointed to the court by Republican Governor Sarah Huckabee Sanders after another justice passed away in 2023.

The majority in Sageley, in an opinion by Justice Webb, first made short work of the plaintiff’s claim that the state’s ban on gun possession for those “adjudicated mentally ill”—the state’s version of the federal mental illness prohibitor in 18 U.S.C. § 922(g)(4)—was unconstitutional under the Second Amendment post-Bruen.  The majority emphasized that, “in three successive decisions, the [U.S. Supreme] Court has taken pains to underscore that firearm restrictions on the mentally ill fall squarely within our nation’s historical tradition” and that “the Court simply did not distinguish permanent and temporary restrictions on the mentally ill.”  Therefore, the majority rejected the Second Amendment claim while also observing that “[w]hether an individual remains a danger to himself or others is a policy determination left to the General Assembly, not this court.”  Next, the majority turned to the equal protection claim and found the claim insufficient as a matter of law because Sagely did not “demonstrate that he and persons convicted of a felony offense are similarly situated.”  Here, the majority stressed that, “rather than imposing a punitive sentence upon criminal conviction, the civil commitment process provides for release once the individual is no longer deemed a danger to others.”  To the justices in the majority, this was by definition an appropriate reason for the court to provide different restoration processes for the two groups.

Chief Justice Kemp concurred.  He would have reached the same result as the majority but by different means.  Rather than rely on Heller’s dicta to resolve the Second Amendment claim, Chief Justice Kemp would have held that Sagely “is excluded from ‘the people’ whose rights are protected under the Second Amendment” because “he had been involuntarily committed because of violent behavior toward himself and others.”  As to the equal protection claim, Chief Justice Kemp found that the plaintiff had shown that those who are involuntarily committed are similarly situated to convicted felons.  However, he would have applied rational basis review because, in his view, the challenge involved no fundamental right as both felons and the mentally ill are categorically excluded from the Second Amendment’s protections.  Chief Justice Kemp would have upheld the state’s decision to differentiate between felons and the mentally ill in gun-rights restoration as “rationally related to the legitimate governmental interest of protecting the peace, health, and safety of Arkansas citizens.”

The primary dissent was filed by Justice Wood.  She first clarified that she did not believe the Second Amendment claim was properly before the court and thus expressed no view on its merits (she used Bruen only to inform the level of scrutiny for the equal protection claim).  Justice Wood found that felons and the mentally ill are similarly situated—noting that they both face the loss of physical liberty, that “the Sixth and Fourteenth Amendments’ safeguards have been extended to civil commitments,” and that both groups are prohibited from possessing guns for the purpose of advancing public safety.  Because she found the two groups similarly situated, she moved on to the final two steps of the equal protection analysis: (1) differential treatment, and (2) application of means-end scrutiny.  She noted the state did not contest that the two groups are treated differently, because those who are involuntarily committed have no practical way to recover their firearm rights. 

Justice Wood would have applied strict scrutiny because the claim involves the assertion of a fundamental right under the Second Amendment.  To obtain a lower level of scrutiny, she said, “the State [would have] to show a clear national historical tradition that those involuntarily committed for any length or reason, permanently lost their fundamental firearm rights.”  Instead she determined that history supported only the temporary disarmament of certain dangerous individuals, who were then generally permitted to recover their rights once “they were no longer perceived to be dangerous.”[2]  Applying strict scrutiny, Justice Wood determined that Arkansas “did not demonstrate that the permanent ban on firearm possession with no means of restoration for anyone who has been involuntarily committed to a mental-health treatment facility is narrowly tailored to serve the governmental interest” at stake.  Specifically, she found it relevant that the state had designated certain nonviolent felons “for automatic lifting of the firearm ban upon completion of the sentence”[3] and that “the legislature has acknowledged that not all felonies are the same, and so not all felons are too dangerous to own or possess firearms.”  Thus, she found, the state was required to “carve[] out a legal path” for certain involuntarily committed individuals to recover their gun rights at a future point.  She would have stayed her order for a period of time “to give the General Assembly an opportunity to create the process.”  Finally, Justice Womack issued a brief dissent suggesting that the court lacked jurisdiction to hear the case due to Arkansas’ state sovereign immunity.

There is a lot to say about Sagely, one of the first major post-Bruen decisions dealing with guns and mental illness.[4]  The comparison between felons and the mentally ill is especially illuminating, given that many courts have simply lumped those groups together in Second Amendment cases given the Supreme Court’s dicta endorsing possession bans for both categories of individuals.  No justice specifically consulted empirical evidence in the analysis of whether the two groups are “similarly situated,” instead comparing the nature of the confinement or punishment and the legislative justification for regulation.  But I believe this is an area where empirical data on recidivism could—and probably should—play a major role. 

Under Justice Wood’s analysis, the state is likely safest if it enacts a rights-restoration scheme for the involuntarily committed that automatically lifts the gun disqualification after a certain number of years without additional mental health issues.  But that approach probably is not directly transferable to the mental health context because serious mental health conditions are “often characterized by recurring relapses.”  And these are often difficult to predict—one study, for example, found that “[f]ew baseline demographic or clinical characteristics predict who will or will not experience a recurrence of an affective disorder after recovery from an index episode of major depressive disorder, even in persons with lengthy well intervals.”  In other words, the restoration process likely does need to look different for those who have been involuntarily committed, and it likely requires a more intensive clinical or expert evaluation. 

It’s probably not possible to draw this type of distinction from history, either.  As the Eighth Circuit recently observed:

It goes without saying that confinement with straitjackets and chains carries with it a greater loss of liberty than a temporary loss of gun rights. And the mentally ill had less of a chance to regain their rights than drug users and addicts do today. 

Judge Wood is certainly correct that “individuals who have been involuntarily committed are not a monolith.”  Recognizing this and crafting restoration systems accordingly, however, requires direct consideration of the types of modern evidence that Bruen’s focus on history and tradition makes increasingly irrelevant.

[1] As the majority opinion notes, Arkansas permits certain felons to have their gun rights restored even in the absence of a pardon upon the recommendation of local law enforcement (and in some cases, automatically after completion of the sentence).  Those who have been involuntarily committed are only eligible to have their rights restored upon application to the United States Attorney General under 18 U.S.C. § 925(c).  However, Congress has withheld all funding to implement 925(c) since 1993—which means that no such application process currently exists, and individuals like Sagely have no actual avenue to recover their gun rights at the current time.

[2] Here, Justice Wood referenced laws relating to gun possession by those who failed to swear loyalty oaths and those who were intoxicated.

[3] This provision applies to those convicted of violating antitrust, unfair trade practices, restraint of trade, or other laws relating to business practices.  

[4] No circuit court has yet addressed the question at the federal level, and courts prior to Bruen were split with some granting as-applied challenges.