Prior Involuntary Institutionalization Does Not Justify a Lifetime Second Amendment Ban: An Originalist Approach to 18 U.S.C. 922(g)(4)

Abstract

Once mentally ill does not mean always mentally ill. This underlying premise is not only scientifically accepted, but has been long recognized in the history and tradition of our common law. However, rather enigmatically, two circuit courts have deviated from this long understanding to find that once an individual has been classified as mentally ill, that classification is permanent. This flawed understanding has not only created a rupture in our Second Amendment jurisprudence, but it has also produced a significant circuit split between three circuits, in which neither the conclusions nor analyses are uniform. Notwithstanding the judicial disarray, federal law historically—and currently— poorly addresses this issue as well. Federal law categorically prohibits the possession of a firearm from an individual who has been “adjudicated as a mental defective or who has been committed to a mental institution.” The United States deems this class of individuals worthy of a lifetime Second Amendment ban with only two avenues for relief: one that is nullified; and the other that is non-uniform and arbitrary. While this statute is imposing, it certainly does not lack justification. There is without a question a governmental interest and objective in protecting the citizens through crime reduction and suicide prevention. This objective, however, cannot be reached by categorically denying a constitutional right to a classification of individuals without due process. This article uses an originalist approach to demonstrate that the classification of “mentally ill” is not a permanent and static one; rather that it is fluid and subject to transformation and development. With this main premise in mind, this article critiques the insufficient statutory response to this issue and offers an originalist judicial approach to resolving the circuit split. In the end, this article analyzes recent circuit court decisions on this issue from the Third, Sixth, and Ninth Circuits and offers a solution that safeguards the constitutional rights of an individual, ensures that due process rights are feasible, and preserves the governmental interest of reducing crime and preventing suicides. This is an article I wrote while I was a member of the Kansas Law Journal at the University of Kansas School of Law. I neither purport to be an expert in mental health initiatives nor Second Amendment litigation. I welcome all comments and criticisms. This article was selected to be published in the forthcoming issue of the Kansas Journal of Law and Public Policy.