STATE OF MADNESS: MENTAL HEALTH AND
GUN REGULATIONS
STEVEN W. DULAN*
ABSTRACT
Recently there have been many calls for the disarmament of all
“mentally ill” persons. Such overly broad measures would only
compound the injustice already inherent in the current scheme by
further stigmatizing mental illness, discouraging individuals from
seeking potentially helpful treatment, and disarming individuals who
may face serious threats to their safety.
This Article explores current problems, using the author’s clients
as examples, and advocates that statutes and regulations should
clearly distinguish between mental illness and danger to oneself or
others. This will help ensure due process for all individuals before
they are potentially stripped of their fundamental right to carry a
firearm for self-defense.
*
Steven W. Dulan, J.D., Thomas M. Cooley Law School (1994), B.A. in Political
Science and International Studies (double major), Michigan State University
(1991). The author has taught classes at Lansing Community College, Baker
University, Cleary University, and Adrian College. He has been an Adjunct
Professor at Cooley Law School since 2009, where he teaches several courses,
including Gun Control Seminar, and serves as Faculty Advisor for The Federalist
Society. He is a Fellow of the George Romney Institute for Law and Public Policy.
The author is in solo practice in East Lansing, Michigan. He is admitted to the State
Bar of Michigan and the State Bar of Colorado and is admitted to practice before
the Eastern and Western Districts of Michigan and the Supreme Court of the
United States. He also serves on the Board of Directors of the Michigan Coalition
for Responsible Gun Owners (MCRGO) and the MCRGO Foundation. In that
capacity, he has contributed to drafting several bills and has testified at numerous
hearings in the Michigan Legislature. The author wishes to acknowledge the
invaluable contributions of (in alphabetical order) Casey Conklin, J.D., Alexander
Keane, J.D., Laurette C. LeBlanc, J.D., Brent Riley, J.D., and Daniel Shawl, J.D.,
who provided assistance with research, writing, and editing of this Article. Finally,
the author gives special thanks to Professor M. Carol Bambery, J.D., his former
professor, mentor, colleague, and friend.
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TABLE OF CONTENTS
I.INTRODUCTION ................................................................................... 2 II.CASE STUDIES: HOW MICHIGAN REGULATIONS AFFECT “MENTALLY
ILL” INDIVIDUALS ......................................................................... 2 III.FEDERAL REGULATIONS CREATE IMPORTANT EXCEPTIONS BUT
STILL FALL SHORT ........................................................................ 5 IV.STATUTORY DEFINITIONS FAIL TO DISTINGUISH MENTAL ILLNESS
FROM VIOLENT TENDENCIES ......................................................... 9 V.COMPARING STATE AND FEDERAL LAW ......................................... 12 VI.RECOVERING THE RIGHT ............................................................... 13 I.
INTRODUCTION
In the Moral Letters to Lucillius, the Roman philosopher, Seneca,
is quoted as saying, “[A] sword does not kill anyone: it is the weapon
used by the killer.”1 Clearly, weapons regulation has been a publicpolicy issue for centuries—long before the invention of firearms—
but now more than ever, gun-control law is passionately debated and
ever-shifting. Public-policy arguments drive constant change in
statutes and case law. Currently, there are approximately 90 bills
pending in the Michigan legislature that propose changes to firearms
regulation.2 One important issue in this debate is the use of mentalhealth diagnoses to limit the lawful possession and carry of firearms,
whether for self-defense or another purpose.
II.
CASE STUDIES: HOW MICHIGAN REGULATIONS AFFECT
“MENTALLY ILL” INDIVIDUALS
There is some common ground in the gun-control debate; many
on both sides agree that there is a clear distinction between those who
are “mentally ill” and those who are dangerous. Yet recently there
have been renewed calls for gun-ownership restrictions based purely
on mental-illness diagnoses. Ignoring the fact that only law-abiding
1. LUCIUS ANNAEUS SENECA, Letter 87, in SENECA: SELECTED LETTERS 167
(Elaine Fantham trans., 2010).
2. See, e.g., S.B. 213, 97th Leg., Reg. Sess. (Mich. 2013) (eliminating county
concealed-weapons-licensing boards by transferring their functions to state police
departments and repealing gun-free zones and giving schools and hospitals
discretions to permit concealed carry).
2014]
STATE OF MADNESS
3
citizens will obey the law, we are still left with the serious question
of whether gun regulations based on mental-health diagnoses actually
contribute to the safety of society. If not, these proposed laws
needlessly violate those individuals’ rights. The following case
studies demonstrate some of the inherent injustices in this area of
regulation.3
Client X is a middle-aged adult with no criminal history. X held a
Michigan Concealed Pistol License (CPL) for an initial five-year
period without incident. During the latter portion of the five-year
period, X sought mental-health treatment. Medical professionals
diagnosed X with depression and prescribed medication. The
medication was effective and X reported good results. X was able to
maintain employment and interpersonal relationships. X was never
violent, threatening, or suicidal. When X applied for a CPL renewal,
X had never had any contact with law enforcement—even for traffic
violations. But Michigan’s CPL application form includes the
question, “Do you have a diagnosed mental illness, regardless of
whether you are receiving treatment for that illness?”4 X truthfully
answered yes, and the renewal application was denied. Michigan’s
policy toward mental illness denied an honest, law-abiding citizen,
who had taken steps to treat a minor mental illness, the fundamental
right to carry a pistol for self-defense.
The next client, Client Y, was involuntarily committed to a
mental-health facility at age 15 because Y had threatened to harm an
older sibling during the grieving process, after witnessing their father
die of a heart attack. Y’s mother opposed the commitment and
challenged the diagnosis of schizophrenia. She stated that Y had
experienced anger issues since the death of Y’s father and also had
been previously diagnosed with epilepsy and overmedicated. The
psychiatric hospital reported that Y was intelligent, articulate, welloriented to time and place, and not delusional. It also reported that
15-year-old Y had difficulty with authority, was overly fixated on the
formal application of rules, and was sometimes rude and angry. After
brief inpatient treatment with the best methods available during the
1960s, the hospital released Y, who went on to successfully complete
high school and several specialized vocational programs. Y spent an
entire career employed in maintenance and repair positions, earning
3. These case studies provide the relevant facts from the author’s actual client
files. All names and identifiers have been removed to protect their confidentiality.
4. MICH. STATE POLICE, CONCEALED PISTOL LICENSE GUIDE 9 (2013),
available at www.michigan.gov/documents/ri_012_7736_7.pdf.
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THOMAS M. COOLEY LAW REVIEW
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outstanding employee evaluations that described Y as conscientious
and honest. Y eventually retired to a rural area. Y has never been a
gun owner, but when coyotes and feral dogs attacked Y’s neighbors
and their pets, Y wanted to buy a Taser. Michigan law requires an
individual to hold a valid CPL in order to legally purchase an electromuscular-disruption device, such as a Taser.5 Unfortunately, because
Y was involuntarily committed to a mental-health facility
approximately 40 years ago, Y suffers from a legal disability that
cannot be cured through any process or mechanism in Michigan
Law.6 Thus, Y is ineligible for a CPL which precludes the purchase
of a Taser.
Finally, Client Z is an adult, full-time student who has struggled
with coursework and exams. An initial screening revealed that Z
probably suffers from Attention Deficit Disorder (ADD). Under the
Americans with Disabilities Act, if Z was formally diagnosed, Z’s
school would be required to provide reasonable accommodations,
including extended time for course examinations.7 Z is a CPL holder
who is aware that Michigan’s application form asks about current
mental-health diagnoses.8 Michigan law considers ADD to be a
disqualifying mental-health diagnosis as it “significantly impairs
judgment, behavior, capacity to recognize reality, or ability to cope
with the ordinary demands of life.”9 Because of the potential
consequences, Z has foregone treatment and its possible benefits in
order to remain eligible to carry a pistol for self-defense.
These case studies illustrate just a few of the ridiculous and
unjust results occurring under Michigan’s current regulatory scheme.
These regulations indiscriminately strip people with mental illness of
the right to purchase a Taser or carry a pistol for self-defense, failing
to recognize the wide spectrum of diagnoses included under the
broad category of mental illness.
5. MICH. COMP. LAWS ANN. § 750.224a(2)(b) (Westlaw 2014).
6. See, e.g., MICH. COMP. LAWS ANN. § 28.425b(7) (Westlaw 2014) (stating
that the licensing board, subject to many additional requirements, will grant a
license if the applicant has never been involuntarily committed for or diagnosed
with a mental illness).
7. 42 U.S.C.A. § 12101 (Westlaw 2014); see also Individuals with Disabilities
Education Act, 20 U.S.C.A. § 1400 (Westlaw 2014).
8. § 28.425b(7)(l).
9. § 28.425b(19)(c).
2014]
III.
STATE OF MADNESS
5
FEDERAL REGULATIONS CREATE IMPORTANT EXCEPTIONS
BUT STILL FALL SHORT
At first blush, federal law seems to prohibit people with mental
illness from purchasing a firearm from a Federal Firearms Licensed
(FFL) dealer.10 The ATF Firearms Transaction Record form includes
the question, “Have you ever been adjudicated mentally defective
(which includes a determination by a court, board, commission, or
other lawful authority that you are a danger to yourself or to others or
are incompetent to manage your own affairs) OR have you ever been
committed to a mental institution?”11 There are several important
exceptions that allow certain individuals to purchase firearms despite
having a mental-illness diagnosis. For example, committed to a
mental institution does not include individuals who were in a mental
institution solely for the purpose of observation.12 Similarly,
individuals who voluntarily commit themselves to a mental
institution to receive treatment are also excluded.13
The NICS Improvement Amendments Act of 2007 provides other
important exceptions. If a federal agency or department adjudicates
an individual as mentally defective or commits an individual to an
institution, that individual is exempt from the prohibition to purchase
firearms if (1) the adjudicating or committing agency sets aside the
adjudication or commitment; (2) the agency fully released or
discharged the individual from all mandatory treatment, supervision,
or monitoring; or (3) the agency found that the individual no longer
suffers from the mental-health condition that served as the basis for
the initial adjudication.14
To a certain extent, federal law recognizes that mental illness can
be a transient, rather than permanent, condition.15 Although federal
law now provides a mechanism for those who have recovered from a
10. 18 U.S.C.A. § 922(g)(4) (Westlaw 2014).
11. BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES, U.S. DEP’T OF
JUSTICE, FIREARMS TRANSACTION RECORD PART I – OVER-THE-COUNTER 4
(2012), available at http://www.atf.gov/files/forms/download/atf-f-4473-1.pdf. at
1.
12. Id. at 4.
13. Id.
14. NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, § 101,
122 Stat. 2559, 2561.
15. See id.
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THOMAS M. COOLEY LAW REVIEW
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previous mental illness to exercise their right to keep arms, this was
not always the case.16
Carving out this exception, Galioto v. Department of Treasury,
Bureau of Alcohol, Tobacco, & Firearms was an important case that
involved a plaintiff, Anthony Galioto, who was similarly situated to
many individuals previously diagnosed with a mental illness.17 After
serving in the Armed Forces, Galioto became an engineer with the
Port Authority.18 Although he had no history of mental illness,
Galioto suffered an acute schizophrenic episode and voluntarily
admitted himself to a mental hospital.19 During his stay, his treating
physician sought to have him committed, and a local court entered a
final commitment order. But Galioto was released just five days later,
after the same physician determined that his condition had improved.
He was never again hospitalized for mental illness. Ten years after
his release, Galioto applied to the state court and received an order
granting him a firearms identification purchase card.20 But when
Galioto attempted to purchase a firearm with his card, the dealer
refused the sale because Galioto answered yes to the question, “Have
you ever been adjudicated mentally defective or have you been
committed to a mental institution?”21 At the time of the case, a
federal statute prohibited the transaction.22
After his denied sale, Galioto applied to the ATF for a release
from firearms disability. Federal law allowed convicted felons to
have their firearms rights restored if they could establish that they
would not be “likely to act in a manner dangerous to public safety”
and that having firearms rights restored would “not be contrary to
public policy.”23 A former mental-health patient like Galioto,
however, had no equivalent mechanism to seek relief.24
The court noted that the law recognized a possibility of
rehabilitation for a criminal but not for someone committed for
mental illness: “The statute thus implies that mental illness is
incurable, and that those persons with a history of mental illness who
16.
17.
18.
19.
20.
21.
22.
23.
24.
Id.
602 F. Supp. 682 (D.N.J. 1985), vacated as moot, 477 U.S. 556 (1986).
Id. at 683.
Id. at 684.
Id.
Id.
Id. (citing 18 U.S.C.A. § 922(d)(4) (Westlaw 2014)).
Id. (citing 18 U.S.C.A. § 925(c) (Westlaw 2014)).
Id.
2014]
STATE OF MADNESS
7
have never committed a crime are deemed more likely to commit one
in the future than those persons who have actually done so in the
past.”25 The court also noted that convicted criminals may, after
meeting certain conditions, possess firearms, and those who have
overcome mental illness should be afforded the same rights. As the
court stated, “To impose a perpetual and permanent ban against
anyone who has ever been committed for mental illness, no matter
how ancient the commitment or how complete the cure, is to elevate
superstition over science and unsupported fear over equal protection
and due process.”26
The court held that New Jersey’s firearm policy, as it relates to
people with mental illness, was unconstitutional.27 It found that
former mental-health patients constitute a quasi-suspect class for
Fourteenth Amendment purposes, but the court did not rest its
decision on that ground.28 Instead, the court found that even under a
rational-basis test, the provisions were defective under both equalprotection and substantive-due-process theories because they did not
“provide former mental patients with the opportunity to contest their
firearm disability . . . .”29
These provisions violated the Equal Protection Clause because
they treated “former mental health patients . . . differently than others
similarly situated . . . without any logical justification for doing so.”30
The court noted that “if anything, the bar would be more logically
applied to convicts than to former mental patients, rather than vice
versa.”31 The court found further deficiencies. First, that the punitive
aspect of the bar is more suited to a person convicted of a crime than
an innocent mental patient. Next, that convicts have already shown
capability for criminal activity. Lastly, that committed patients who
are released have little incentive to appeal their initial commitment,
and commitment proceedings generally have fewer procedural
safeguards than criminal proceedings.32
These same provisions violated the Due Process Clause because
they permanently deprive mental-health patients “without any
25.
26.
27.
28.
29.
30.
31.
32.
Id. at 683.
Id.
Id. at 691.
Id. at 687.
Id. at 688.
Id.
Id.
Id.
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THOMAS M. COOLEY LAW REVIEW
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rational basis of the opportunity to demonstrate that they are no
longer, or never were, incapable of handling firearms safely.”33 The
court noted that the statute created an “irrebuttable presumption that
one who has been committed, no matter the circumstances, is forever
mentally ill and dangerous” and that “[a]n irrebuttable presumption
violates the due process rights of the individual against whom it is
applied unless it is ‘at least rationally related to a legitimate state
objective.’“34 The court conceded that regulating firearms sales for
the public safety was a legitimate state objective.35 An irrebuttable
presumption that former mental patients are never fit to own
firearms, however, is not rationally related to achieving that
objective.36
While the appeal was pending, Congress redrafted the statute, no
longer limiting the provision to certain former criminals and allowing
the ATF to grant relief to certain former mental-health patients like
Galioto.37 The new provisions rendered the federal district court’s
issues moot.38 The Supreme Court of the United States eventually
granted certiorari, but never decided the merits,39 leaving the basic
question of whether or not Congress was discriminating against
people with mental illness in this context unsettled as a matter of
constitutional jurisprudence.
The victory was short-lived, however, and this issue appears ripe
for re-litigation. While the administrative remedy technically still
exists, the ATF, in practice, is prohibited from spending any funds on
investigating applications for relief under this exception.40 Without
33. Id.
34. Id. at 690 (alteration in original) (quoting Malmed v. Thornburgh, 621 F.2d
565, 575, 578 (3d Cir. 1980), cert. denied, 449 U.S. 955 (1980)); see also Stanley
v. Illinois, 405 U.S. 645 (1972) (finding it is unconstitutional to presume that all
unwed fathers are unfit as parents); Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir.
1977) (finding it unconstitutional to presume a blind teacher was not competent to
teach English in public schools).
35. Galioto, 602 F. Supp. at 690.
36. Id.
37. 18 U.S.C.A. § 925(c) (Westlaw 2014).
38. U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto,
477 U.S. 556, 559–60 (1986).
39. Galioto, 477 U.S. 556, vacating as moot, 602 F. Supp. 682 (D.N.J. 1985).
40. See Adjudicated “Mentally Defective,” FFL NEWSLETTER (U.S. Dep’t of
Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Wash., D.C.), Sept.
2011, at 1; (Westlaw 2014) (noting a loophole in the statutory language: the
Attorney General cannot review an application that is never received and the ATF,
which is responsible for processing and forwarding the applications, refuses to do
2014]
STATE OF MADNESS
9
funding, the ATF cannot so much as open an individual’s application
for relief. Individuals who are similarly situated to Galioto are once
again denied this important right.
The current regulatory scheme favors those who were adjudicated
mentally defective by federal courts or agencies or who had their
records set aside or expunged, as these individuals are completely
exempt from the definition of prohibited persons.41 But this creates
an equal-protection and due-process problem. Given the
advancements in research of and treatment for mental illnesses, the
Galioto court conclusions are more compelling now, over 25 years
later. Even for those who believe that there are valid reasons for
discriminating between people with mental illness and convicted
felons, there is no rational basis for artificially distinguishing
between federal and state mental-illness adjudications.
IV.
STATUTORY DEFINITIONS FAIL TO DISTINGUISH MENTAL
ILLNESS FROM VIOLENT TENDENCIES
In defining mental illness solely through commitment or court
order, the law fails to recognize the difference between a person with
a mental illness and a person who is violent. This failure leads to
further stigma against people with a mental illness because only
about 3–5% of all violent acts are attributable to people with a
serious mental illness.42 The majority of that violence does not
include guns.43 The strongest predictor of violent acts among people
with a history of mental illness is a prior history of violent crime.44
As a whole, people with a mental illness are not any more
dangerous than the general public—but there is a subgroup which
may be more prone to violence.45 Past violent tendencies,
noncompliance with medication, and substance abuse are factors
so, passing the responsibility onto Congress for failing to earmark enough
appropriations).
41. Pub. L. No. 110-180, 121 Stat. 2559 (2008).
42. Jeffrey W. Swanson, Mental Disorder, Substance Abuse, and Community
Violence: An Epidemiological Approach, VIOLENCE AND MENTAL DISORDER:
DEVELOPMENTS IN RISK ASSESSMENT 101, 119 (John Monahan & Henry J.
Steadman eds., 1994).
43. See Paul S. Appelbaum, Violence and Mental Disorders: Data and Public
Policy, 163 AM. J. PSYCHIATRY 1319, 1320 (2006).
44. See E. Fuller Tolley, Violent Behavior by Individuals with Serious Mental
Illness, 45 HOSP. & COMMUNITY PSYCHIATRY 653, 654–55 (1994).
45. Id. at 658.
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THOMAS M. COOLEY LAW REVIEW
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which suggest that a person with a mental illness is more likely to be
violent.46 Additionally, the correlation between sociopathic behavior
and criminal behavior is strong.47 Sociopathic behavior is “a long
term pattern of manipulating, exploiting, or violating the rights of
others.”48
Rather than depriving an entire group of their right to protect
themselves, this information suggests that some change is needed in
the criteria used to involuntarily commit and deprive people of their
fundamental rights.49 There is, in fact, very little evidence to suggest
that laws aimed at keeping firearms out of the hands of people with
mental illness are even effective at reducing gun violence.50
Courts have been slow to recognize this inefficacy; it seems for
every step forward there is a step backward. In District of Columbia
v. Heller,51 the Supreme Court took a step toward protecting the
rights of most American citizens from government intrusion, but it
also took a step backward in its treatment of people with mental
illness. Although the Heller Court bolstered the individual right to
possess and carry firearms for self-defense, it unequivocally stated
that “nothing in [the] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and
the mentally ill.”52
As restated in United States v. Marzzarella, the Second
Amendment must “protect the right of law-abiding citizens to possess
firearms for other, as-yet-undefined, lawful purposes.”53 Again,
however, the Marzzarella Court reiterated that “[t]he right is not
unlimited, however, as the Second Amendment affords no protection
for . . . possession by felons and the mentally ill . . . .”54 Federal
courts have failed to reconcile the contradiction contained in those
two sentences: law-abiding citizens have a fundamental right to keep
46. Id. at 659.
47. See THEODORE A. STERN ET AL., MASSACHUSETTS GENERAL HOSPITAL
COMPREHENSIVE CLINICAL PSYCHIATRY 532 (Theodore A. Stern & Jerrod F.
Rosenbaum eds., 2008).
48. Antisocial Personality Disorder, U.S. NAT’L LIBRARY OF MED. (Nov. 10,
2012), http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001919/.
49. Id. at 660–61.
50. See Appelbaum, supra note 43.
51. District of Columbia v. Heller, 554 U.S. 570 (2008).
52. Id. at 626–27.
53. 614 F.3d 85, 92 (3d Cir. 2010) (citation omitted).
54. Id.
2014]
STATE OF MADNESS
11
and bear arms, but the people with mental illness do not—whether or
not they have committed any crime.
Many claim that denying people with mental illness their Second
Amendment rights is justified as a public-policy matter, and courts
have generally agreed. People with mental illness are all lumped
together categorically and automatically considered inherently
dangerous.55 This discriminatory mindset fails to account for
differences between types of mental illnesses and the wildly varying
levels of danger a “mentally ill” person could present to the public.
And it singles out one group for disparate treatment before they have
ever committed an overtly violent act—or any crime at all. This is
unique in American law, and the only explanation seems to be the
irrational fear of people with mental illness.56
It has long been held that those who demonstrate a criminal
capacity and willingness to harm others deserve to forfeit even their
most fundamental rights, such as voting and firearms.57 Unlike a
mental-health adjudication or commitment, many criminal
convictions require both proof of a mental state—usually either a
specific or general intent to commit a crime—and proof that a
specific prohibited act was committed.58 Conversely, people with
mental illness, who have broken no laws, are punished solely for
involuntarily possessing a mental state that does not necessarily
include the intent to threaten the well-being of themselves or others.
Punishing mental illness is essentially punishing thoughtcrime.59
These punishments are levied without the procedural and evidentiary
benefits of criminal trials and can be imposed based on a clear and
convincing standard of proof, compared to the criminal standard of
proof beyond a reasonable doubt.60 This cannot be reconciled with
the premise that firearms ownership is a fundamental right for lawabiding individuals. Reading between the lines, current American
jurisprudence states that firearms ownership is a fundamental right
55. See Joseph M. Livermore et al., On the Justifications for Civil Commitment,
117 U.PA. L. Rev. 75, 80 (1968).
56. See Saul Simlansky, Utilitarianism and the ‘Punishment’ of the Innocent:
The General Problem, 50 ANALYSIS 256, 257–58 (1990).
57. Richardson v. Ramirez, 418 U.S. 24, 56 (1974).
58. See BLACK’S LAW DICTIONARY 41 (9th ed. 2009) (stating that actus reus
comprises a criminal act); cf. id. at 1075 (stating that mens rea requires an actor to
possess a criminal mind).
59. See George Orwell, Nineteen Eighty-Four (Secker and Warburg, 1949)
(introducing the term thoughtcrime).
60. In re Trejo, 612 N.W.2d 407, 414 (2000).
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THOMAS M. COOLEY LAW REVIEW
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for law-abiding individuals, so long as the general public is not afraid
of them.
V.
COMPARING STATE AND FEDERAL LAW
Michigan law and federal law differ only slightly in the rights
given to people with mental illness. Both Michigan and federal law
allow for a person with a mental-illness diagnosis to own long guns if
they have not been adjudicated mentally deficient or involuntarily
committed.61 The same rules apply in Michigan to the license to
purchase a pistol.62 But to lawfully conceal and carry that same
pistol, Michigan additionally requires that individuals have no
current diagnosis of mental illness, regardless of treatment.63
In a post-Heller world, this sort of arbitrary distinction is
problematic. Before Heller, Michigan courts recognized “a legitimate
interest in limiting access to weapons particularly suited for criminal
purposes.”64 But this interest contradicts with the right to bear arms
recognized in Heller.65 According to the United States Court of
Appeals for the Ninth Circuit, “Such regulations affecting a
destruction of the right to bear arms, just like regulations that affect a
destruction of the right to keep arms, cannot be sustained under any
standard of scrutiny.”66 In striking down Illinois’s ban on concealed
carry, the United States Court of Appeals for the Seventh Circuit
stated, “The right to bear arms . . . implies a right to carry a loaded
[weapon] outside the home.”67 To the courts that have considered this
question, it would seem that—under any level of scrutiny—all gun
restrictions must be struck down.
These federal circuit courts recognize that the right to bear arms,
as specified in Heller, cannot rationally be limited to the home and
remain effective.68 The right is clearly based on the idea that
individuals must be able to protect their home from any intrusion by
61. See 18 U.S.C.A. § 922(d)(4) (Westlaw 2014); MICH. COMP. LAWS ANN. §
3.111 (Westlaw 2014).
62. MICH. COMP. LAWS ANN. § 28.422 (Westlaw 2014).
63. See MICH. COMP. LAWS ANN. § 28.425b(7)(k), (l) (Westlaw 2014).
64. Hickel v. Kent Cnty. Concealed Weapon Licensing Bd., No. 231199, 2003
WL 231323, at * 2 (Mich. Ct. App. 2003) (per curiam) (citations omitted).
65. District of Columbia v. Heller, 554 U.S. 570 (2008).
66. Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1175 (9th Cir. 2014) (citing
District of Columbia v. Heller, 554 U.S. 570, 629 (2008)).
67. Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012).
68. Id.
2014]
STATE OF MADNESS
13
a person with ill intent.69 The Ninth Circuit, in reviewing a California
law banning the carrying of a loaded weapon outside the home,
reasoned that the right to bear arms logically relates to a person’s
right to self-defense.70 The court stated that “the sort of conflict for
which one would wish to be ‘armed and ready’ is just as menacing
(and likely more so) beyond the front porch as it is in the living
room.”71 This holding appears to stand for the proposition that if
citizens may be justified in defending themselves in their homes,
logically they would be justified in defending themselves beyond
those safe walls.
This emerging argument, that all gun restrictions must be struck
down under Heller, is not without challenge. Heller expressly stated
that it would not “cast doubt on longstanding prohibitions on the
possession of firearms by felons [or] the mentally ill.”72 Further,
Heller did not address the appropriate standard of review to apply to
future gun-restriction cases, stating only that the District of
Columbia’s outright ban would fail under any level of scrutiny.73 The
federal circuits have continued to use language reflecting the fact that
outright bans on certain practices would fail to meet any level of
scrutiny.74
VI.
RECOVERING THE RIGHT
Some people with mental illness certainly pose a substantial
danger to society—as do many individuals who have no diagnosable
mental illness. Clearly, states have a substantial interest in preventing
violence. The issue then becomes how legislatures and courts balance
that interest against the fact that even the most serious mental
illnesses do not necessarily manifest themselves through overt acts of
violence.
The answer may lie, as United States v. Marzzarella suggests, in
existing First Amendment jurisprudence.75 The court noted that there
are several ways to articulate intermediate scrutiny, including a
reasonable fit between regulations and objectives, narrow tailoring to
serve significant government interests, or regulations that are not
69.
70.
71.
72.
73.
74.
75.
Peruta, 742 F.3d at 1149, 1153.
Id. at 1149.
Id. at 1152.
554 U.S. 570, 626 (2008).
Id. at 628–29.
See, e.g., Peruta, 742 F.3d at 1149 (citation omitted).
614 F.3d 85 (3d Cir. 2010).
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more extensive than necessary to serve a substantial government
interest.76 These standards are substantively similar.77 While simply
grouping all people with mental illness together and denying Second
Amendment rights arguably should not pass even rational-basis
review, more narrowly tailored and clearly articulated standards
could possibly balance the respective interests at play.
This Article does not articulate those specific standards, but it
does advocate that the fundamental right to keep a firearm for selfdefense is the most basic of all rights. Any law seeking to restrict that
right should be accorded the highest level of scrutiny. But any
standard that restricts firearms access by some individuals labeled as
mentally ill should recognize the following general principles: (1)
mental illness is not a crime, and a person with a mental illness is not
morally culpable for having a mental illness; (2) mental illnesses vary
widely in duration, symptoms, intensity, and potential danger to the
community; (3) law-abiding citizens diagnosed with a mental illness
are entitled to the same due process as all other law-abiding citizens;
(4) the government should have the burden of proving that the
fundamental rights of specific individuals should be restricted; and
(5) penalizing those who voluntarily seek treatment is counterproductive, perpetuates an irrational stigma, and needlessly
endangers vulnerable individuals by rendering them defenseless.
Judicial solutions are likely to be rare because plaintiffs with
mental illnesses often have difficulty securing funding from
traditional gun-rights organizations that distance themselves from
advocacy for the “mentally ill.” These same plaintiffs encounter
resistance from mental-health groups that distance themselves from
the gun-rights issue. Until legislatures clarify this issue, there will
continue to be injustice and a lack of logic or understanding in this
area of firearm regulation.
76. Id. at 97–98.
77. Id. at 98.