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The Second Amendment generally protects the fundamental right of "law-abiding, responsible citizens" to own firearms. (1) Long-standing restrictions on that right for mentally ill individuals are, however, "presumptively lawful". (2) In Tyler v. Hillsdale County Sheriffs Department (3) the Sixth Circuit considered a challenge to enforcement of 18 U.S.C. [section] 922(g)(4), which creates a lifetime ban on gun ownership for any individual who has been involuntarily committed to a mental institution, as applied to Charles Clifford Tyler, whose sole commitment--following an acute emotional trauma--was for only a few weeks over 30 years ago. (4) The Sixth Circuit, sitting en banc, concluded that [section]922(g)(4) may violate the Second Amendment as applied to Mr. Tyler. (5)

In 1985, Clifford Tyler experienced a depressive episode following an unusually acrimonious divorce. (6) Concerned for their father's wellbeing, Tyler's daughters successfully petitioned the state of Michigan to have him involuntarily committed for two to four weeks. (7) Following this treatment, which did not involve any prescription medication, Tyler had no further symptoms of mental illness, secured and held down a job for eighteen years until retiring, repaired his relationship with his daughters, and remarried. (8) After successfully undergoing a substance-abuse and psychological evaluation in 2012, which concluded that Tyler did not present "any evidence of mental illness", Tyler applied for, and was denied, a firearms license. (9) This denial was based on Tyler's record, indicating his prior commitment, when he was entered into the National Instant Criminal Background Check System ("NICS"). (10) The NICS database is administered by the FBI and searchers are required to contact local law enforcement for incident details if a positive result is returned. (11)

Tyler appealed, and the appeal was automatically denied in accordance with the NICS Improvement Amendments Act of 2007. (12) Tyler sought declaratory relief in the United States District Court for the Western District of Michigan. (13) The District Court granted the defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), reasoning that the statute at issue was presumptively lawful under the Supreme Court's decision in District of Columbia v. Heller (14). (15) The District Court went on to state, in the alternative, that [section] 922(g)(4) was constitutional, applying intermediate scrutiny. (16)

Tyler appealed to the Sixth Circuit, which eventually granted review en banc. (17) In a contentious decision, the court reversed and remanded to the District Court for further proceedings. (18) The Court concluded that the Second Amendment may potentially preclude enforcement of [section]922(g)(4) against Tyler and that, on remand, the defendants must justify [section]922(g)(4) by showing either (1) "the necessity," under intermediate scrutiny, of implementing a lifetime ban for everyone who has been committed to a mental institution, or (2) constitutionality as applied to Tyler because he would be a risk to himself or others if he were able to obtain a firearm due to his history of mental illness. (19)

Tide II of the Americans with Disabilities Act ("the ADA") states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (20) The interplay between the ADA and an individual's constitutional guarantees and protections, particularly in situations involving the safety of those individuals, the public, or police has been a matter of debate amongst the lower courts. (21) Although the Supreme Court granted review of this important question, the Court ultimately determined that the parties had failed to adequately brief one of the certified questions, and dismissed the question as improvidently granted, leaving this important issue unresolved. (22) Although privacy laws, such as the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), provide exceptions for public safety, typical background checks for firearm transfers do not include medical information unless that information is tied to a prior court proceeding, such as an involuntary commitment. (23) The interplay of these privacy statutes and the restriction of rights related to an individual's medical history are not clearly defined, and scholars and courts have commented that this lack of clarity re-entrenches harmful stereotypes about mental illness and highlights the need for laws that allow for more individualized determinations in a fair and consistent way. (24) Laws that allow the government to lump all individuals with mental illness, or even who have ever been treated for mental illness, into a single bucket and to declare "once mentally ill, always so" not only raise significant policy concerns, but may unjustly deprive citizens of statutory and constitutional rights in areas far beyond the Second Amendment. (25)

The Second Amendment evaded substantial interpretation by the Supreme Court until fairly recently. (26) It was not until 2008 that the Supreme Court confirmed that the right to bear arms was an individual right, and included the right to own a handgun for lawful purposes such as self-defense in the home. (27) In 2010, the Supreme Court confirmed that the Second Amendment was incorporated against the states as well, meaning that states could not impose certain restrictions on gun ownership. (28) However, Second Amendment rights are not unlimited; restrictions on dangerous and unusual weapons, as well as long standing prohibitions against firearm ownership by felons or the mentally ill, are "presumptively lawful". (29)

Courts have struggled to define Heller's limits and the appropriate level of scrutiny to apply to Second Amendment claims since the decision came down in a variety of contexts --including the types of weapons covered, (30) if restrictions can be placed on violent misdemeanants in addition to felons, (31) and, of course, how to tailor restrictions on the mentally ill (32). (33) The government interests involved in gun control are dissimilar--and likely to stand up to more rigorous forms of constitutional scrutiny--than the interests expressed in cases involving curtailment of other constitutional rights. (34) There has been extensive discussion amongst lawmakers and political candidates regarding the best approach to balance safety concerns against these rights. (35)

In Tyler, the Sixth Circuit's fragmented opinion focuses first on rejecting the government's argument that Heller's dicta supports Congress' ability to proclaim "[o]nce mentally ill, always so." (36) The Court then moved to a two-step analysis--adopted by several circuit courts of appeal--(1) whether Second Amendment protections are implicated; and, if they are, (2) the weight of the governmental interest against the restriction. (37) After carefully considering the fact that scholars could not point to a complete ban on firearm ownership by the mentally ill at the time of the framing, the court determined that because 922(g)(4) places a heavy burden on a narrow group of individuals, that intermediate scrutiny should apply. (38) Reasoning that involuntary commitment once in a lifetime is not a perfect proxy for an individual currently being mentally ill, the Court determined that the government had not yet met its burden: to prove either (a) that a lifetime ban that may sometimes apply to an overbreadth of cases is necessary to achieve the government's interest; or (b) demonstrate that Tyler, specifically, would be a risk to himself or others if armed. (39)

Tyler raises significant questions regarding the intersection of constitutional rights and mental illness that are currendy poorly addressed under federal law. (40) It is difficult to determine what level of scrutiny to apply to any Second Amendment challenge due to lack of regulation and clear guidance from the courts. (41) Access by gun retailers and government officials to mental health records that may allow for a more narrowly tailored review than the current test that Michigan residents are entided to presents substantial challenges under HIPAA, even in light of recent HHS regulations. (42) Tyler underscores the failure of federal legislators to successfully respond to the need for comprehensive reform while addressing both the subdeties and tensions of existing legislation and the complex realities of mental health. (43)

Although one concurrence addresses potential implications of Tyler's commitment under the ADA, the main opinion relies primarily on classifying mental illness as mutable or immutable. (44) While not at issue in Tyler, 18 U.S.C. [section] 922(g)(4) also (1) assumes all individuals adjudicated to be mentally incompetent should fall under the ban and (2) does not address individuals with serious mental illness who are not subject to a court proceeding such as an involuntary commitment. (45) In these ways, evaluation under 18 U.S.C. [section] 922(g)(4) both goes too far and not far enough in the name of public safety. (46)

While the procedural posture and alleged facts at issue in this case did not require the court to address potential barriers created by HIPAA or the implications of the ADA on firearms transfers, those issues are at the core of demonstrating the extent of a mental illness and government obligations to those that are mentally ill. (47) Particularly if the government does not carry its burden on the facial challenge on remand, there may be a push for swift reform. (48) However, swift action is unlikely to result in a delicate weighing of the involved important and competing interests. (49) Further litigation of Tyler and similar cases may provide a useful framework for evaluating the interplay of ADA accommodations, medical privacy laws, and the meaning of mental illness where serious considerations of public safety are at issue. (50)

Tyler represents a crucial step in identifying the gaps in existing law that are probably not fully resolvable by the judiciary. Regardless of individual opinions on the Second Amendment generally, the blanket denial of any right or privilege based on something as individualized as a person's health without an individualized evaluation is troubling. Hopefully further action on this and similar cases will prompt the thorough and thoughtful reform this area of the law is calling out for.

Catherine Dowie, JD Candidate, Suffolk University Law School, Evening Division, 2018; BA, Smith College, 2012. Catherine Dowie can be contacted at

(1) U.S. Const, amend. II; District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

(2) Heller, 554 U.S. at 626-27 n.26 (describing certain longstanding prohibitions on firearm possession as presumptively lawful);
   Although we do not undertake an exhaustive historical analysis
   today of the full scope of the Second Amendment, nothing in our
   opinion should be taken to cast doubt on longstanding prohibitions
   on the possession of firearms by felons and the mentally ill, or
   laws forbidding the carrying of firearms in sensitive places such
   as schools and government buildings, or laws imposing conditions
   and qualifications on the commercial sale of arms.

Id. at 626-27. See generally Allen Rostron, Justice Breyer's Triumph in the Third Battle over the Second Amendment, 80 GEO. WASH. L. REV. 703, 729-36 (2012) (listing and discussing presumptively lawful regulations under Heller).

(3) Tyler v. Hillsdale Cty. Sheriffs Dep't., 775 F.3d 308 (6th Cir. 2014).

(4) Tyler, 837 F.3d 678 at 681. Federal regulations make clear that "committed to a mental institution", in the context of this statute, applies only to persons who are involuntarily committed by an appropriate judicial authority following due process safeguards. See 27 C.F.R. [section] 478.11 (defining "committed to a mental institution").

(5) Tyler, 837 F.3d 678 at 699. This case resulted in seven separate opinions amongst the sixteen judges. Id.

(6) Tyler, 837 F.3d 678 at 683. Tyler's wife ran away with another man and depleted Tyler's bank accounts following a twenty-three-year marriage. Id. Tyler had symptoms of depression and was found at home pounding his head. Id. Further details surrounding Tyler's actions prior to confinement as well as details of treatment are limited as the notes and records from his treatment are no longer available because the hospital has long since closed. Id. at n.4.

(7) Tyler, IIS F.3d at 684-85. The exact length of Tyler's treatment is unknown as the notes and records from his treatment are no longer available. Id. at 683 n.4.

(8) Tyler, 775 F.3d at 683-84.

(9) Id.
   During his psychological evaluation, Tyler reported that he has
   "never experienced a depressive episode" other than the one
   following his divorce. He also stated that he maintains a close
   relationship with his daughters and that he has repaired his
   relationship with his ex-wife. Dr. Osentoski observed that Tyler's
   "[cognitive ability appeared to be in the average range" and that
   there was "no evidence of thought disorder ... [or] hallucinatory
   phenomena.". She also noted that Tyler's personal physician
   reported no signs of mental illness. Osentoski concluded that
   Tyler's response to his divorce was a "brief reactive depressive
   episode," but that, at the time of his evaluation, Tyler did not
   present any "evidence of mental illness.". Tyler's substance-abuse
   evaluation reveals no issues with alcohol or drug abuse, and it
   notes that Tyler has had no past legal involvement.

Id. at 683-84. (internal citations omitted).

(10) See Tyler, 837 F.3d at 682. Created following adoption of the Brady Handgun Violence Prevention Act of 1993 ("Brady Act"), the NICS allows Federal Firearms Licensees to check if a potential firearms transfer would violate federal law. Brady Handgun Violence Prevention Act, PL 103-159, November 30, 1993, 107 Stat 1536; at 1. (mandating federal background checks on United States firearm purchases). The NICS is operated by the FBI. Id. A match on the NICS indicates that an individual is disqualified from owing a firearm based on 18 U.S.C. [section] 922(g)(1) (conviction in any court of a crime punishable by imprisonment for more than one year), [section] 922(g)(2) (being a fugitive from justice), [section] 922(g)(3) (unlawful user of or addicted to any controlled substance), [section] 922(g)(4) (adjudicated as a "mental defective" or committed to a mental institution), [section] 922(g)(5) (unlawfully in the United States or in the United States under a nonimmigrant visa), [section] 922(g)(6) (dishonorable discharge), [section] 922(g)(7) (renunciation of United States citizenship), [section] 922(g)(8) (being subject to a court order that restrains the person from harassing, stalking or threating an intimate partner or child of such intimate partner), [section] 922(g)(9) (conviction for a misdemeanor of domestic violence), [section] 922(n) (under indictment for a crime punishable by imprisonment for a term of a year or more), or an applicable state law offense. Id at 2.

(11) NICS Overview Brochure, at 2. Although the NICS check allows for a descriptive search of incidents, that information is not revealed to the searcher, nor is the information centrally located. Id.

(12) See Tyler, 837 F.3d at 684; Pub L. No. 110-180, 121 Stat. 2559 (2008) (The NICS Improvement Act of 2007). The NICS Improvement Act of 2007 provides that individuals can pursue appeals of firearm denials under federal law based on prior involuntary commitment through state action, rather than through a long-defunded federal administrative process, if the state meets certain statutory conditions, which Michigan has not. Id. at 684 688. Tyler is a citizen of Michigan Id. at 683.

(13) Tyler, .837 F.3d at 684. Tyler sought as-applied relief under the Second, Fifth and Fourteenth Amendments. Id. All parties and courts agree that Tyler's claims under the Fifth and Fourteenth Amendments are dictated by the results of his claim under the Second Amendment, and so the Second Amendment claim is the sole subject of the suit. Id. The District Court opinion is Tyler v. Holder, No. E12-CV-523, 2013 U.S. Dist. LEXIS 11511 (W.D. Mich. Jan. 29, 2013). N.B. All references to the case "Tyler" will refer to the 6th Circuit's en banc review. Any reference to the District Court Opinion or Original 6th Circuit Opinion will be clearly distinguished in this piece.

(14) 554 U.S. 570.

(15) See Tyler, 837 F.3d at 681 (noting the lower courts' different application of the Second Amendment under the circumstances).

(16) Id. (Reasoning, a second inquiry exists into the government's justification for regulating second amendment rights).

(17) Tyler v. Hillsdale Cty. Sheriffs Dep't, 775 F.3d 308 (6th Cir. 2014) (Original 6th Circuit Opinion; reversing the District Court and remanding for further proceedings).

(18) Tyler, 837 F.3d 678 at 707.

(19) Id. Tyler initially named a substantial number of state officers and entities that are no longer involved in this lawsuit. Id. at 686. N.B. For clarity's sake, the remaining government entities and officers, both county and federal, will be referred to collectively as 'defendants' throughout this comment.

(20) 42 U.S.C. [section] 12132.

(21) Tyler, BL 301140 at 48 (Sutton, J, concurring); Petition for Writ of Certiorari, City & Cty. of San Francisco, Calif, v. Sheehan, 135 S. Ct. 1765 at 18-22 (describing the circuit split), "... [I]t manifests itself in the Americans with Disabilities Act and the Rehabilitation Act, both of which forbid governments from den[ying] ... benefits' to otherwise 'qualified individuals] ' solely 'by reason of [their] disability' or because they are 'regarded as having' a disability." 29 U.S.C. [section][section] 705 (9) (B) 794(a); 42 U.S.C. [section][section] 12102(1), 12132". Tyler, BL 301140 at 48 (Sutton, J, concurring). "Just as one's physical condition changes over the course of a lifetime, worsening at some moments and improving at others, one's mental condition changes as well. A key lesson of disability rights law is that governments may not treat dynamic features as static and immutable." Tyler, BL 301140 at 48 (Sutton, J, concurring); ehan_supreme_court_case_police_shot_mentally_ill_woman.html; John E. Oliver, Law Enforcement Intervention in Mental Health Crises: The Ilegal Standards for Officer Conduct After the Supreme Court's Decision in Sheehan v. City and County of San Francisco, 34 Dev. Mental health L. 1 (2015) (commenting on the unsettled nature of 4th Amendment protections for the mentally ill); Sanna Deerrose, Comment, Aldaba v. Pickens: Police Excessive Force and Mentally Disturbed Individuals, 93 DENV. L. REV. ONLINE 1 (2016) (outlining the varied History of mental health in relation to use of force). Circuits have ruled inconsistently even in near-identical factual circumstances. Id M 5 fn 32; Samuel R. Bagenstos, Who Is Responsible for the Stealth Assault on Civil Rights?, 114 Mich. L. Rev. 893,902 (2016) (discussing consequences of inconsistent judicial views on qualified immunity and civil rights in relation to mental illness).

(22) City & Cty. of S an Francisco, Calif, v. Sheehan, 135 S.Ct.1765,1772-74 (2015). See also Transcript of March 23 Oral Argument at 3-4, City & Cty. of San Francisco, Calif, v. Sheehan, 135 S.Ct 1765 (2015) (No. 13-1412),;

MS. VAN AKEN: Thank you, Mr. Chief Justice, and may it please the Court-This

JUSTICE SCALIA: Ms. Van Aken, before you go any further. (Laughter.)

MS. VAN AKEN: Yes, Justice Scalia.

JUSTICE SCALIA: Your petition for--for writ of certiorari and it was a petition that had your name on it, said on--on the reasons for granting the petition, this Court should resolve whether and how the Americans with Disabilities Act applies to arrests of armed and violent suspects who are disabled. The circuits are in conflict on this question. The question presented is recurring and important, and Tide II of the ADA does not require accommodations for armed and violent suspects who are disabled, and that's the issue in which there is a circuit conflict. I now look at the Table of Contents of your petition. This argument is not made in the petition at all. You--you concede that--that Title II does apply even to the arrest of--of armed and dangerous suspects. You just say in this case, "Modification to Sheehan's arrest would not have eliminated the significant risk she posed." There--there's a technical word for this. It's called bait--and--switch. We might well not have granted this petition had you not listed those reasons. Are we supposed to appoint somebody else to argue the point that you asked--asked us to resolve in the--in--in your petition for certiorari?

Id at 3-4. "We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA question that has relevance only if we assume the Ninth Circuit correctly resolved the antecedent, unargued question on which we granted certiorari." Sheehan, 135 S.Ct.1765 at 1779 (Scalia, J., concurring in part and dissenting in part). The Court untimely resolved the case under the second question presented, determining that the officers (petitioners) were immune from suit based on qualified immunity under 42 U.S.C. 1983. Id. at 1778.

(23) Katherine L. Record & Lawrence O. Gostin, Robust Individual Right to Bear Arms Versus the Publics Health: The Court's Reliance on Firearm Restrictions on the Mentally Ill, 6 CHARLESTON L. REV. 371, 380-81 (2012) (describing the intersection of the NICS and HIPAA).

(24) See generally Katherine L. Record et al. A Robust Individual Right to Bear Arms Versus the Public's Health: The Court's Reliance on Firearm Restrictions on the Mentally Ill, 6 CHARLESTON L. REV. 371, 378-79 (2012) (explaining the implications of inconsistency regarding privacy and disclosure of medical diagnosis).
   Mental health records contain sensitive information and fear of
   disclosure may dissuade individuals from being honest with
   physicians or even seeking treatment. Nonetheless, the Supreme
   Court has upheld restrictions on access to firearms based on
   involuntary commitment or adjudication as a "mental defective,"
   meaning that gun control laws circumvent medical privacy laws,
   subjecting mentally ill patients to unwanted and unauthorized
   disclosure of treatment and diagnosis details. 379. See also Jeffery Swanson, The Ban on Mentally III People Buying Guns Wasn't Ever Based on Evidence, wash. post, (Feb. 10, 2017) the-gop-ismaking-it-easier-for-mentally-ill-people-to-buy-guns-they-have-a-point/ (describing the lack of clarity in supported information to restrict gun purchases to mentally ill). Some have also argued that regulations based on mental illness essentially do not go far enough, allowing unfit individuals to obtain weapons because their illness was undiagnosed or was insufficiently considered. See Jennifer Mascia, Report, The Gun Report: September 27, 2013, N.Y. TIMES, (Sept. 27, 2013), (quoting a veteran with PTSD, arguing it is too easy for him to obtain guns). See also, Colleen L. Barry et al., After Newtown--Public Opinion on Gun Policy and Mental Illness, 368 NEW ENG. J. MED. 1077, 1080-81 (2013) (describing data on popular public view of the mentally ill obtaining guns).

(25) See Records, supra note 24.
   Moreover, the attempt to filter arms out of the hands of the
   dangerous has failed; use of the NICS has not lowered firearm
   related homicide and suicides, even though the number of mentally
   ill persons listed has increased significantly since 2007. This is
   not surprising, given that most violent acts are not committed by
   the mentally ill.

Id. at 382.

(26) See Heller, 554 U.S. at 570-628 (2008) (detailing the history of the Second Amendment); U S DEPT. OF JUSTICE, BACKGROUND CHECKS FOR FIREARMS TRANSFERS 2009-STATISTICAL TABLES, 13 tbl.4 (2010),

(27) Heller, 554 U.S. at 635-36 (comparing the Second and First Amendment). "In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Id.

(28) See McDonald v. City of Chic., III., 561 U.S. 742, 790 (2010) (acknowledging that incorporation will limit states' ability to have variations on the restrictions on guns).

(29) Heller, 554 U.S. at 626-27 (discussing how courts have explained that there is not an absolute right in gun ownership). There has been substantial debate amongst the lower courts regarding the meaning of "presumptively lawful". Tyler, 837 F.3d at 686 n.6. Although the 6th Circuit refused to use the dicta of Helleras an "analytical off-ramp", other circuits have taken a different approach. Id.; United States v. McCane, 573 F.3d 1037,1049 (10th Cir. 2009) (Tymkovich, J, concurring) ("Rather than seriously wrestling with how to apply this new Second Amendment rule, ... courts will continue to simply reference the applicable Heller dictum and move on."). Heller itself was a contentious decision, and the court recognized the unique challenges presented by upholding and expanding Second Amendment rights as compared to other individual liberties. Heller, 554, U.S. at 636;
   We are aware of the problem of handgun violence in this country,
   and we take seriously the concerns raised by the many amid who
   believe that prohibition of handgun ownership is a solution. The
   Constitution leaves the District of Columbia a variety of tools for
   combating that problem, including some measures regulating
   handguns. But the enshrinement of constitutional rights necessarily
   takes certain policy choices off the table. These include the
   absolute prohibition of handguns held and used for self-defense in
   the home. Undoubtedly some think that the Second Amendment is
   outmoded in a society where our standing army is the pride of our
   Nation, where well-trained police forces provide personal security,
   and where gun violence is a serious problem. That is perhaps
   debatable, but what is not debatable is that it is not the role of
   this Court to pronounce the Second Amendment extinct.

Id. (internal citations omitted).

(30) See Kolbe v. Hogan, 813 F.3d 160,168 (4th Cir.), reh'g en banc granted (4th Cir. 2016) (holding that strict scrutiny required in determining constitutionality of ban on assault weapons); Friedman v. City of Highland Park, 784 F.3d 406, 407, 419 (7th Cir. 2015), cert, denied sub nom. Friedman v. City of Highland Park, 136 S. Ct. 447 (2015) (upholding a ban on assault weapons using intermediate scrutiny). See also Friedman v. City of Highland Park,136 S. Ct. 447 (2015) (Scalia, J, dissenting from denial of cert);
   Despite these holdings, several Courts of Appeals--including the
   Court of Appeals for the Seventh Circuit in the decision
   below--have upheld categorical bans on firearms that millions of
   Americans commonly own for lawful purposes. Because noncompliance
   with our Second Amendment precedents warrants this Court's
   attention as much as any of our precedents, I would grant
   certiorari in this case.

Id. at 484 (internal citations omitted).

(31) See United States v. Chester, 628 F.3d 673, 677 (4th Cir. 2010) (discussing need to "protect family members and society in general" from domestic violence misdemeanants); see also United States v. Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013) ("Congress sought [to] close fa] dangerous loophole ... when it comes to guns and domestic violence.") (internal citations omitted); United States v. Skoien, 614 F.3d 638, 643 (7th Cir. 2010) (reasoning that domestic violence misdemeanants pose same danger to relatives as felons pose to society). There is significant overlap between both victims and perpetrators of domestic violence and the mentally ill. See generally Denice Wolf Markham, Mental Illness and Domestic Violence: Implications for Family Law litigation, 37 CLEARINGHOUSE REV. 23-35 (May-June 2003),

(32) See Tyler, 837 F.3d at 691-93 (applying intermediate scrutiny for firearm ban applied to those with mental illness).

(33) A "citing references" check on Westlaw indicates that in the mere 8 years since Heller was decided, it has been cited in nearly 300 Circuit Court of Appeals cases, indicating that nearly half of the cases brought in District Courts involving Heller are appealed. This is nearly twice the average appeal rate in decided cases--21%. Theodore Eisenberg, Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. empirical Legal Stud. 659, 659 (2004);
   The Supreme Court's decisions in District of Columbia v. Heller and
   McDonald v. City of Chicago settled several important controversies
   concerning the Second Amendment right to keep and bear arms. They
   also left many vital questions unanswered. Struggling with these
   unresolved issues, lower courts have produced a large and
   continually growing volume of decisions about the Second Amendment
   in recent years.

Allen Rostron, The Continuing Battle over the Second Amendment, 78 Alb. L. Rev. 819 (2015) (citations omitted).

(34) See McDonald, 561 U.S. 742, 894 (Stevens, J., dissenting) "The liberty interest asserted by petitioners is also dissimilar from those we have recognized in its capacity to undermine the security of others." Id. See also Josh Blackman, The Constitutionality of Social Cost, 34 HARV. J.L. & PUB. POL'Y 951, 979-86 (2011) (comparing the governmental interests at stake in Second Amendment claims and other constitutional challenges); Fredrick E. Vars & Amanda Adcock Young, Do the Mentally III Have A Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 12-13 (2013) (documenting the "obvious" compelling government interest). "In 2009, there were 554 unintentional firearm deaths in the United States. By comparison, there were 18,735 gun suicides and 11,493 gun homicides." Id.

(35) David M. Herszenhorn, Bipartisan Senate Group Proposes No Fly, No Buy'Gun Measure, N. Y. TIMES (June 21, 2016), no-fly-list-terrorism.html?_r=0 (last visited Aug. 31, 2017) (discussing the proposed 'no fly, no buy' proposal of numerous US legislators); Anna North, Can Psychiatrists Stop Gun Violence?, N. Y. Times (Dec. 6, 2014), (last visited Aug. 31, 2017) (proposal involving expansion of psychiatric care as related to gun violence); Robert Pear, Under Gun Rules, F.B.I. Will Receive Health Data, N. Y. TIMES (Jan. 6, 2016), (last visited Aug. 31, 2017) (addressing 2016 expansion of protected health information to the NICS database for use by federal and state agencies). But see
   More than half of Americans experience one or more mental illnesses
   over the course of their lives, and around 26 percent of Americans
   over age 18 each year experience at least one, primarily anxiety
   disorders and mood disorders like depression. The overwhelming
   majority of them are no danger to anyone at all. But with so
   substantial a portion of the country going through bouts of one
   thing or another over the course of their lives, the idea that any
   federal database could capture enough information to encompass
   every one [sic] who might one day be a threat anywhere is akin to
   hoping for a government staff of precogs. And that's not even
   getting into the highly problematic question of whether the
   government should mark millions of people who will never hurt
   anyone for a carve-out from the Second Amendment, and the privacy
   and stigmatization issues involved in cataloging harmless people
   who suffer from common mental illnesses in order to label them as
   potential threats in a federal government database.

Guarance Franke-Ruta, Why Mental Health Background Checks Are Not the Solution to Gun Violence, THE ATLANTIC (Sep. 19, 2013), whymental-health-background-checks-are-not-the-solution-to-gun-violence/279781/ (last visited Aug. 31, 2017) (citing Steven Reinberg, CDC: Half of Americans will suffer from mental health woes, USA TODAY (Sep. 5, 2011), 1-09-05/CDC-Half-of-Americans-will-suffer-from-mental-health-woes/50250702/1 (last visited Aug. 31, 2017), and Statistics, NAT'L INST. OF MENTAL HEALTH, https://www.nimh.nih.gOv/health/statistics/index.shtml#Intro (last visited Aug. 31, 2017)).

(36) Tyler, 837 F.3d at 683. This "on/off switch" for Second Amendment rights is not limited to the context of mental illness; convicted felons, even non-violent offenders, at best have limited options to demonstrate rehabilitation and restore their rights to own firearms for lawful purposes. Id. at 701 n.2 (White, J., concurring). Felons in all states do, however, have the ability under federal law to re-establish their Second Amendment rights, unlike Tyler and other individuals who have had their rights denied on the basis of mental illness. Id. at 708 (Sutton, J., concurring).
   Congress first enacted a felon-in-possession ban in 1938, but it
   did not give felons a way to regain their right to bear arms until
   thirty years later. Federal Firearms Act, Pub. L. No. 75-785,
   [section] 2(f), 52 Stat. 1250, 1251 (1938); An Act to Strengthen
   the Federal Firearms Act, Pub. L. No. 87-341, 75 Stat. 757, 757
   (1961); Omnibus Crime Control and Safe Streets Act of 1968, Pub. L.
   No. 90351, sec. 902, [section][section] 921(b)(3), 922(f), 925(c),
   82 Stat. 197, 228, 231, 233. The initial relief program in 1968
   allowed the Secretary of the Treasury to grant an exemption from
   the firearm ban for certain felons who could show (1) they were not
   likely to conduct themselves "in an unlawful manner" and (2) "that
   the granting of the relief would not be contrary to the public
   interest." Sec. 902, [section] 925(c), 82 Stat, at 233; see sec.
   902, [section] 921(a)(17), 82 Stat, at 228. Congress re-enacted a
   slightly modified form of this relief program the same year as part
   of the Gun Control Act of 1968. Pub. L. No. 90-618, sec. 102,
   [section] 925(c), 82 Stat. 1213,1225. That is also when Congress
   codified the felon-in-possession ban in its modern form and enacted
   the mental-illness provision before us today. Sec. 102, [section]
   922(h)(1), (4), 82 Stat, at 1220-21. As of 1968, Congress thus
   prohibited firearm possession by felons, by anyone "who ha[d] been
   adjudicated as a mental defective," and by anyone "who ha[d] been
   committed to any mental institution." But only felons had a chance
   to gain relief from the ban.

Id. at 708-09 (emphasis added).

(37) United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) (examining whether the Second Amendment protects unmarked firearms in a home); United States v. Reese, 627 F.3d 792, 80001 (10th Cir. 2010) (explaining that the Second Amendment is not appropriately evaluated under strict scrutiny or rational basis review); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (discussing whether the person, and not solely the conduct, is within the scope of the Second Amendment [hereinafter Chester I); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012) (demonstrating the challenges of scrutiny of the Second Amendment thus suggesting a two-pronged approach).

(38) Tyler, 837 F.3d at 691-92 (explaining that permanent prohibition for a narrow group of individuals does not invoke strict scrutiny).

(39) Tyler, 837 F.3d 678, 707 (6th Cir. 2016). Scholars have questioned the extent to which involuntary commitments even necessarily indicate mental illness, or mental illness treatable by such a commitment, at the time of the commitment. See also Jana R. McCreary, "Mentally Defective" language in the Gun Control Act, 45 CONN. L. REV. 813, 862-64 (2013) (arguing involuntary commitments do not catch correct individuals for Second Amendment purposes, especially this proxy). See generally Megan Testa, MD and Sara G. West, MD, Civil Commitment in the United States, 7(10) psychiatry(Edgemeont) 30-40(2010) (arguing that abuse of the system has led to hospitalization of individuals without mental disease).

(40) Tyler, 837 F.3d 678, 707 (6th Cir. 2016).

(41) Id.

(42) Record, supra note 23 and accompanying text. These exceptions, although rarely used outside of existing court proceedings, can deter individuals who need it from seeking assistance or treatment. Id. at 381. See also Record, supra note 24 (discussing varied state and federal regulations regarding the waiving of privacy rights when applying for gun permits). Only five states require an applicant to waive their medical history. Id at 380. Public records related to mental health, such as records of involuntary commitment, are inherently less reliable as a deciding factor regarding future violent tendencies than an individualized determination. McCreary, supra note 39.

(43) Tyler, 837 F.3d at 698 (describing Congress's and the government's evidence as being insufficient to justify restriction); Id. at 697 (citing Congress defunding a program providing relief for their disabilities, then later changing their minds); See also supra note 35 and accompanying

(44) Tyler, 837 F.3d at 700 (McKeague, J., concurring) (stating there must be a process to demonstrate one is no longer mentally ill); Id. at 712 (Sutton, J., concurring) (arguing one's mental condition is as dynamic throughout their lifetime, as their physical condition); Id. (stating in disability rights law "governments may not treat dynamic features as static and immutable").

(45) Tyler v. Hillsdale Cty. Sheriffs Dep't, 837 F.3d 678, 700 (6th Cir. 2016) (discussing concerns and difficulties classifying potential gun owners based on mental competence). See also Katherine L. Record & Lawrence O. Gostin, A Robust Individual Right to Bear Arms Versus the Public's Health: The Court's Reliance on Firearm Restrictions on the Mentally III, 6 CHARLESTON L. REV. 371, 378 (2012) ("Nonetheless, restrictions on the sale of firearms are based on the defined thresholds of involuntary commitment, adjudicated dangerousness, and receipt of verdict of not guilty by reason of insanity. Because these proxies often follow rather than precede acts of violence, they have limited utility.")

(46) See supra notes 21 (addressing debate amongst lower courts related to protection of civil rights for the mentally ill), 35 (discussing governmental dissatisfaction with current firearms safety regulations), 39 (discussing the use of institutionalization as a proxy of and treatment for mental illness) and 45 (discussing current proxy standard and its lack of efficacy) and accompanying text. See also Joe Nocera, The Gun Report: September27, 2013, N.Y. TIMES: THE GUN REPORT (Sept. 27, 2013), (detailing account of veteran illustrating ease in obtaining gun despite his PTSD).

(47) Tyler, 837 F.3d at 707-14.

(48) See supra note 35 and accompanying text (discussing various reactionary governmental proposals related to firearms regulation).

(49) See Record & Gostin, supra note 23 at 384 (arguing for careful and universal changes).

(50) See Tyler, F.3d at 708 (Sutton, J., concurring) (discussing the movement from Heller to the case at bar). See also supra note 22 and accompanying text (discussing the granting and subsequent rejection of certiorari in Sheehari).
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Author:Dowie, Catherine
Publication:Journal of Health & Biomedical Law
Date:Jan 1, 2018

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