The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner. 
Each student in this select group drafts posts on legal, constitutional, and policy issues, receives feedback and revisions from volunteer experts, and has the opportunity to share his or her work on the Federalist Society's widely viewed platforms. 
The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors.


Twenty years ago, Duy Mai was involuntary committed to a mental health facility for less than three months of treatment related to depression. He was just seventeen at the time. Now Mai—an immigrant father of two with a master’s degree in microbiology—wants his gun rights back. The State of Washington agreed to remove the state-law barriers several years ago, but the federal obstacles remain.

Americans who have a history of involuntary commitment face a long, winding road to restoring their Second Amendment rights. Current federal gun law in this area often amounts to a lifetime ban on gun ownership. 18 U.S.C. § 922(g)(4) makes it “unlawful for any person . . . who has been adjudicated as a mental defective or who has been committed to a mental institution” to receive or possess a firearm. The statute provides no time limit on the ban, no effective restorative mechanism, and no further opportunity for due process.

While companion statute 18 U.S.C. § 925(c), on its face, allows those affected by § 922(g)(4) to apply to the Attorney General to restore their rights, Congress has refused to fund that program for nearly 30 years, and the subsequent Supreme Court holding in United States v. Bean (2002) foreclosed the possibility of judicial review without a denial from the Bureau of Alcohol, Tobacco, and Firearms.

Instead of funding the statute to be administered as written, Congress instead forces would-be applicants to rely on a patchwork of state programs compliant with the terms of 34 U.S.C. § 40915. But by the government’s own admission, only 30 states have qualifying programs. Washington, where Mr. Mai resides, has no such program; therefore, the only option left for Mai was and remains mounting a constitutional challenge. Thus far, that challenge has proven unsuccessful. In a recent opinion denying his challenge and a later denial of en banc consideration, a sharply divided Ninth Circuit has effectively barred Mr. Mai from owning firearms for the rest of his life.

The Mai case comes down to who—or if you ask the dissenting judges, what—is the core interest protected by the Second Amendment. Justice Scalia famously wrote in D.C. v. Heller that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

In resolving the present case, the Ninth Circuit asked who exactly lies at the “core” of the Second Amendment protection.

Its answer was, in this case, not Duy Mai. To reach that conclusion the court  applies the test it developed in Chovan v. United States, first asking whether the challenged law burdens conduct protected by the Second Amendment and then directing courts to apply the appropriate level of scrutiny. Even though the court stipulates that a lifetime ban is “quite substantial,” it nevertheless finds Mai and those similarly situated unprotected by the Second Amendment. In doing so, the Ninth Circuit essentially holds that, like domestic-violence offenders, those who were involuntarily committed are not law-abiding citizens, even if they no longer suffer from mental illness. And because § 922(g)(4) burdens only a “narrow class of individuals,” intermediate scrutiny suffices.

If you ask the dissenters, the majority asks the wrong question. The proper inquiry, they argue, is not who the Second Amendment protects, but what it protects. In his dissent, Judge Lawrence VanDyke lays out the full consequences of relying on a class-based approach he thinks is implicated when the question is about who, rather than about what:

The panel’s classist approach labels many law-abiding, responsible citizens like Mai non-law abiding, irresponsible citizens, outside the protections of the Second Amendment. No evidence suggests Mai is mentally ill, yet the panel’s rationale labels him so, for life. The panel then uses this grouping to lower the applicable level of scrutiny, which in turn relaxes (or eliminates) the requirement that a restriction should substantially fit the government objective. It’s circular.

Judge Patrick Bumatay challenges the panel’s opinion by focusing on Founding-era perceptions of civil rights for the mentally ill. The prevailing reasoning in both the common law and influential legal treatises at the time of the founding was that rights vested in an individual because of their capacity to reason. But even if the mentally ill had, according to Blackstone, “lost the use of [their] reason,” this loss of reason was predominantly seen as temporary. Bumatay’s takeaway? “Mental illness was considered a temporary ailment that only justified a temporary deprivation of rights.” If that’s true, strict scrutiny—and not intermediate—is appropriate in this case.

In Mai, the Ninth Circuit only lightly scrutinizes a near-total ban on gun ownership. Would the Ninth Circuit uphold comparable bans on other rights—for example, on political speech in public places—simply because they affect a narrow class? If Mai sought restoration of a different right, the result could have been much different.