A Sane Proposal for the Mentally Ill: Are Their Second Amendment Rights Dead? Raygen L. Lee Fundamentally Fair for the Noncitizen: Federal Circuit Court Jurisdiction over Ineffective Assistance of Counsel and Procedural Due Process Claims Made by Petitioners Seeking Discretionary Relief

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the crime committed.25 The Court provided that the VIII Amendment and the Constitution cannot be viewed “only of what has been, but of what may be.”26 The Court acknowledged that the legislature, such as purporting punishment to crime, is enacted in response to crimes that have been committed.27 However, the Court went on to say it is vital that a principle, such as the prohibition of administering cruel and unusual punishment, “[B]e capable of wider application than the mischief which gave it birth.”28 The Court stated further, “The clause of the Constitution . . . may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by humane justice.”29 These court opinions serve as important dicta for future courts tasked with applying the VIII Amendment to capital punishment cases.

The next landmark case backtracked the zealous principles stated in Weems. In State of La. ex rel. Francis v. Resweber, the Court was required to address if it was cruel and unusual punishment to execute a prisoner after a failed execution attempt.30 The petitioner was convicted of murder and sentenced to death.31 However, on the date of his execution, the electricity did not kill him.32 For an unknown reason, the electrical current that coursed through his body did not result in death, and he challenged a second execution attempt on VIII Amendment and V Amendment double-jeopardy grounds.33

The Court did not find any constitutional violation by executing the prisoner a second time.34 It said, “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.”35 The decision appeared to align with the reasoning of In re Kemmler, that the method chosen by the legislature is deemed to be humane; a rare

25. Weems v. U.S., 217 U.S. 349, 382 (1910). 26. Id. at 373. 27. Id. 28. Id. at 373. 29. Id. at 378. 30. State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 460 (1947). 31. Id. at 459. 32. Id. at 473. 33. Id. at 461. 34. Id. 35. Id. at 464.

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example of the suffering of one prisoner does not deem execution cruel and unusual punishment.36

Next came Trop v. Dulles, where the Court struck down a loss of citizenship for the petitioner after he was found guilty of desertion during wartime by court-martial.37 The Court emphasized the VIII Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”38 Supreme Court precedence has not provided very much insight into the forms of capital punishment that would amount to cruel and unusual punishment. Often, it was expressed that the VIII Amendment should adapt to the times; however, application of that principle did not match the sentiment.

In the 1970s, advocates for the death penalty claimed that it is a necessary part of society to ensure the public knows criminals get “the punishment they ‘deserve[.]’”39 The death penalty was argued justifiable “by the social ends it was deemed to serve.”40 However, history shows that administering the death penalty has been far from consistent. Often, it has been an arbitrary sentence handed down while other offenders who committed similar crimes have not received the same punishment.

A breakthrough for anti-death penalty proponents came in Furman v. Georgia and its companions when the Court overturned the sentence of death in two rape and one murder cases.41 The majority held the application of the death penalty violated the VIII and XIV Amendments in the instant cases where, under the Georgia statute, imposition of the penalty was left to the judge or jury.42 In all three cases, the jury imposed the death penalty.43 The concurring opinions detailed the long history of cruel and unusual punishment jurisprudence, discussed above, and finally made a concrete statement regarding capital punishment’s status under the VIII Amendment.44 The main contribution from Furman was the majority

36. Furman, 408 U.S. at 326 (Marshall, J., concurring). 37. Trop v. Dulles, 356 U.S. 86, 87 (1958). 38. Id. at 101. 39. Furman, 408 U.S. at 308 (Stewart, J., concurring). 40. Id. at 312 (White, J., concurring). 41. Id. at 240. (Douglas, J. concurring). 42. Id. 43. Id. 44. Id.

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of the Court’s concern that the death penalty can be administered arbitrarily.45

In response to Furman, at least 35 states created statutes expressly stating when and for what crimes the death penalty can be administered.46 One such statute was challenged in Gregg v. Georgia. 47 The Court upheld the state statute that had a lengthy procedural requirement before the sentence of death was imposed.48 The Court determined that punishment selected by a state’s legislature is granted the presumption of constitutional validity.49 The presumption remained as long as the punishment selected is “not cruelly inhumane or disproportionate to the crime involved.”50 It appears the Court maintained the principles of early VIII Amendment jurisprudence. Indeed, the Court took one step beyond Furman and expressly held that “the punishment of death does not invariably violate the Constitution.”51

The Court in Gregg was motivated by the belief that society was heavily in favor of implicating the death penalty in some instances. According to the majority, this reasoning was evidenced by the overwhelming state legislative reactions to Furman.

52

In summary, through the 1970s it was determined that the death penalty was not unconstitutional, and the preferred methods of state legislatures will be presumed valid unless there is proof that the methods and application are inhumane or arbitrary. There are two remaining justifications for the death penalty: retribution and deterrence of capital crimes.53 However, following Furman and Gregg, the federal death penalty was not a hot-button issue until the 1990s with Congress’s passage of a national Death Penalty Act. The Act’s purpose was to remove the arbitrariness of death penalty sentencing by providing a pre-determined list of federal crimes worthy of execution as a sentence.

45. Id. at 253 (Douglas, J., concurring). 46. Corinna Barrett Lain, Deciding Death, 57 Duke L.J. 1, 17 (2007) https://sch olarship.law.duke.edu/cgi/viewcontent.cgi?article=1329&context=dlj. 47. Gregg v. Georgia, 428 U.S. 153 (1976). 48. Id. 49. Id. at 175. 50. Id. 51. Id. at 169. 52. Id. at 180-81. 53. Id. at 183.

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Executions Administered by Lethal Injection

Since the 1970s, the preferred method of federal and state executions has been lethal injection.54 It has been determined to be the more humane of all other proffered methods.55 Until the mid2000s, lethal injection had typically been carried out using a combination of three drugs: an anesthetic, a paralyzing agent, and a drug that induces cardiac arrest.56

Due to ethical dilemmas among pharmaceutical companies and backlash from death penalty abolitionists, it became impossible to carry out federal executions due to drug shortages that were typically used.57 Since the 1960s there have only been three federal executions, all of which were carried out in the early 2000s.58 To ensure they were able to easily obtain the necessary drugs, some death penalty states switched to a single dose injection of pentobarbital.59

In its 2019 Protocol addendum, the federal government announced it would switch to using a single dose of pentobarbital as its method of lethal injection.60 However, the government obtained pentobarbital through back channels and companies who were not aware of the purpose for why the drug was being tested and developed.61 The government has argued that secrecy was necessary to procure the drugs, or else companies would not supply them due to public backlash.62 In contrast, abolitionists have argued such secrecy

54. Jonathan Allen, Special Report: How the Trump Administration Secured a Secret Supply of Execution Drugs, Reuters, (July 10, 2020, 7:13 AM), https://www. reuters.com/article/us-usa-executions-specialreport-idCAKBN24B1E4. 55. Id. 56. Lethal Injection: Overview, Death Penalty Info. Ctr., https://deathpenalty info.org/executions/lethal-injectioner. 57. Allen, supra . 58. Fed. Bureau of Prisons, Capital Punishment, https://www.bop.gov/about /history/federal_executions.jsp. 59. Death Penalty Information Center, Overview of Lethal Injection Protocols (2022), https://deathpenaltyinfo.org/executions/lethal-injection/overview-of-lethalinjection-protocols. 60. Press Release, DOJ, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse, (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishmentafter-nearly-two-decade-lapse. 61. Allen, supra note 54. 62. Id.

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creates skepticism as to whether these drugs cause prisoners unnecessary pain or trauma.63

In 2017, the Trump Administration began building a network of contractors known as “[C]ompounding [P]harmacies,” that custommake drugs to fit specific needs. For example, these companies can take a pill and turn it into liquid form for a patient who has trouble swallowing.64 These companies are not FDA approved and operate under less oversight than pharmaceutical companies.65 Some argue that such “shortcuts” could lead to an increase in contaminated or less effective drugs.66

These compounding pharmacies began sending their custommade drugs to laboratories for testing.67 Most of these labs had pledged to no longer test drugs that were to be used in the execution of prisoners.68 Because pentobarbital can be used for other purposes, such as euthanizing animals, company CEOs were surprised to learn the drug they were testing was intended to be used for prisoner executions.69

By 2018, court filings show the Trump Administration obtained a bulk manufacturer of powder pentobarbital and a compounding pharmacy willing to turn it into an injectable solution70 However, the pentobarbital developed for federal executions did not pass its first quality test because the compound contained impurities.71 However, the solution was refined and subsequently passed a quality test in February 2019.72 This allowed the Trump Administration to make plans to carry out federal executions for the first time in nearly two decades.

In July 2019, when AG Barr announced the 2019 Protocol, there was no reference to any sort of quality control for the administration of the drug.73 In fact, the Protocol made “no reference to the form or

63. Id. 64. Id. 65. Id. 66. Id. 67. Id. 68. Id. 69. Id. 70. Id. 71. Id. 72. Id. 73. Roane v. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d 209, 216 (D.D.C. 2020).

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source of the drug” at all.74 Instead, it was a crude description of the generalized method for administering the injection.75 This minimal level of transparency raised legal challenges as to whether the Protocol was within the government’s statutory authority under the Federal Drug Act.76 However, the United States District Court of Appeals for the District of Columbia Circuit denied the Appellants’ challenge and reversed its earlier decision in April 2020.77

Following this decision, in June 2020, AG Barr scheduled the first prisoner, Daniel Lee, to be executed on July 13, 2020.78 The second prisoner, Wesley Purkey, was scheduled to be executed on July 15’, and the third prisoner, Honken, was scheduled for July 17. 79 These fast-tracked executions required the prisoners’ legal teams to file injunctions for their legal challenges to be adjudicated before the scheduled execution dates.80

Despite the stakes being so high, the government was not inclined to ensure all legal challenges were properly heard. Rather, it seemed that the prisoners hoped that courts would be required to make quick decisions, despite the dire consequences of an incorrect decision. The prisoners’ haste led to extraordinary emergency relief granted by the Supreme Court.

Challenging a Lethal Injection Method on VIII Amendment Grounds

The Court has never held that a method to deliver a lethal injection is unconstitutional on the grounds that it is cruel and unusual punishment. History shows that success on an VIII Amendment violation based on cruel and unusual punishment is an exceptionally high hurdle to clear.

A recent case, Glossip v. Gross, established that prisoners must show the “method presents a risk that is “‘sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.’”81 These imminent dangers “‘must be a

74. Id. 75. Id. 76. Id. 77. Roane v. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 980 F.3d 123, 138 (D.C. Cir. 2020). 78. Id. at 128 . 79. Id. 80. Id. 81. Glossip v. Gross, 576 U.S. 863, 877 (2015) (quoting Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008)).

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substantial risk of serious harm, an objectively intolerable risk of harm.’”82 The opinion suggests that the officials who carry out the injection must be blameless for the pain and suffering caused by the injection.83 Further, challengers must identify an alternative to the proffered method to be successful in their claim.84 The alternative method must be “‘feasible, readily implemented, and . . . significantly reduce[s] a substantial risk of severe pain.’”85 Glossip provided us with a clearer understanding of what the Court considered to be a viable, modern VIII Amendment claim when challenging an execution. The Court stated that “because some risk of pain is inherent in any method of execution . . . the Constitution does not require the avoidance of all risk of pain.”86 Stating further, “[W]hile most humans wish to die a painless death, many do not have that good fortune.”87 The Court said that deciding in the alternative would render the death penalty unconstitutional, and the Court was unwilling to make such a decision.

88

Clearly, a successful VIII Amendment challenge is no easy feat given the fact that lethal injection has been argued to be a more humane method to execute a prisoner.89 The single dose of pentobarbital given to prisoners might not have cleared the high hurdle, but it did deserve a closer look than the Supreme Court gave it when denying Lee’s preliminary injunction in July 2020.90

ANALYSIS

The D.C. District Court Found the Prisoners Were Likely to Succeed on Their VIII Amendment Claim and Granted Their Preliminary Injunction

After the District of Columbia Court of Appeals decided the single dose of pentobarbital did not exceed the government’s

82. Id. 83. Id. 84. Id. at 867. 85. Id. 86. Id. at 869. 87. Id. 88. Id. at 880-81. 89. Jonathan Allen, Special Report: How the Trump Administration Secured a Secret Supply of Execution Drugs, Reuters, (July 10, 2020), https://www.reuters. com/article/us-usa-executions-specialreport-idCAKBN24B1E4. 90. Barr v. Lee, 140 S. Ct. 2590, 2591-92 (2020).

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statutory authority, the first group of prisoners selected to be executed attempted to preliminarily enjoin the government from executing them.91 Their names were: Daniel Lee, Alfred Bourgeois, Dustin Honken, and Wesley Purkey; Keith Nelson later joined their claims once he was scheduled to be executed in August 2020.92 The prisoners had several challenges in various courts concerning the new method of execution, and the prisoners sought injunctions to have more time to ensure their challenges were properly heard before a court.93 The government’s rush to schedule execution dates did not mean the courts were not willing to stay the executions.94

As discussed above, the prisoners had to establish the proffered method of execution was likely to cause them substantial harm and needless suffering, and they must offer alternatives available to the proffered method.95 Additionally, for a challenger to be granted a preliminary injunction, they must establish that they are likely to be successful on the merits of their claim, will suffer irreparable harm absent a preliminary injunction, the balance of equities is in their favor, and injunction is favorable to the public interest.96

On July 13, 2020, the D.C. District Court found the prisoners had satisfied the first requirement of a preliminary injunction by establishing an injection of pentobarbital was likely to cause the prisoners “extreme pain and needless suffering during their executions.”97 It cited the overwhelming scientific evidence provided by the prisoner’s experts.98 The experts determined that it was more than likely most or all of the prisoners would suffer from pulmonary edema.99 One doctor went so far as to state it was almost a medical certainty.100

91. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 980 F.3d 123,125 (D.C. Cir. 2020). . 92. Id. at 128. 93. Id. 94. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d at 216. 95. Glossip, 576 U.S. at 877. 96. In re Fed. Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106, 111 (D.C. Cir. 2020). 97. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d at 218. 98. Id. 99. Id. 100. Id.

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Eyewitnesses to executions that have used pentobarbital described prisoners “repeatedly gasping for breath or showing other signs of respiratory distress.”101 It was argued these accounts indicated the likelihood that flash-pulmonary edema was common and extremely painful.102

When discussing the irreparable harm requirement of a preliminary injunction, the court found that by not granting the injunction, the prisoners would be unable to get judicial intervention regarding their VIII Amendment claims, and they would be executed under a proffered method that very well could be unconstitutional.103 The loss of life is essentially the definition of irreparable harm.

The court found that both of the final requirements were satisfied.104 It determined that the balance of equities was in favor of the prisoners because this was not a last-minute effort to try and stay a long-scheduled execution.105 Nearly all of the prisoners began filing challenges following the announcement of the 2019 Protocol.106 The government made efforts to preclude the challenges by scheduling quick execution dates and refusing to stay the executions.107 Based on this, the court determined that the public favored ensuring the executions were carried out constitutionally.108 Thus, the court determined that the final requirement for preliminary injunction was satisfied.109 While the court decided the prisoners were likely to succeed on their claim, it made no ruling as to any of the constitutional issues presented.110

The court agreed the prisoners provided sufficient alternative methods to just a single dose of pentobarbital for their executions.111 One alternative was to provide a shot of an opiate, such as morphine or fentanyl.112 It was argued that an opiate would significantly reduce the chances that the prisoners would experience severe pain and

101. Id. 102. Id. 103. Id. 104. Id. at 222-23. 105. Id. at 224. 106. Id. at 224. 107. Id. at 215. 108. Id. at 224. 109. Id. at 225. 110. Id. 111. Id. at 222. 112. Id. at 220.

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distress.113 At the very least, why would the government not consider using an opioid to reduce any chance of unnecessary pain or anguish for a prisoner being executed? It appeared it was reluctant to acknowledge the presence of scientific evidence that pointed to the likelihood of physical pain or discomfort. This was a prudent move, considering there would be more challenges to come.

The Supreme Court Granted Certiorari Before this Decision Made its

Way Through the Appellate System and Vacated the Injunction

Establishing Precedent for the Remaining Prisoners’ Claims.

On the day Daniel Lee was scheduled to be executed, the D.C. District Court determined he and several other prisoners were likely to succeed on an VIII Amendment challenge and granted a preliminary injunction.114 The D.C. Court of Appeals denied the government’s request to lift the injunction, stating the prisoner’s claim involved “novel and difficult constitutional questions” that required a proper court hearing to settle the matter.115 It expedited the appeal and set a deadline of July 24th for briefs.116 In the early morning of July 14th, the Supreme Court granted the government’s “emergency” request to vacate the injunction and granted its motion.117 Mere hours later, Daniel Lee was executed.118

The Court based its two-page decision on the fact that states have used pentobarbital in “over 100 executions, without incident.”119 It cited the difficulty of overcoming an VIII Amendment challenge as sufficient justification to overturn the injunction.120

It noted that both sides had medical experts with conflicting testimony concerning when the harmful effects of pentobarbital occurred.121 The Court found the government’s expert opinion that pulmonary edema occurred “after the prisoner has died or been rendered fully insensate” more convincing than the likelihood of

113. Id. at 222. 114. Barr, 140 S. Ct. at 2592 (Breyer, J., dissenting). 115. Id. 116. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 980 F.3d at 128. 117. Id. 118. Id. 119. Barr, 140 S. Ct. at 2591. 120. Id. at 2591. 121. Id.

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pulmonary edema occurring before that.122 However, there was viable, competing evidence as to when pulmonary edema occurred.123 The government was not arguing that pulmonary edema did not occur from a pentobarbital injection–124 It was argued that the prisoners could not feel it.125 Should disputing medical evidence alone justify denying an unusual and extraordinary request for Supreme Court intervention before a lower court ruling on this issue? Let alone the fact there was conflicting testimony as to when the feeling of asphyxiation occurred?

The Court’s decision to grant the government’s emergency request set a dangerous precedent for the legal challenges raised by the remaining prisoners. It also foreshadowed the unlikelihood that a court could or would find for the remaining prisoners on any other VIII Amendment challenge to lethal injection using compounded pentobarbital.

One lower court decided the prisoners were likely to be successful on their VIII Amendment claim. The appellate court agreed the conflicting evidence was enough to stay the execution. At the very least, the court should have denied the government’s motion for an emergency decision and allowed the prisoner’s legal claims to be heard and decided by a lower court. Instead, it granted the emergency request before the judgment of the appellate court. A grant that is usually reserved only for cases that are “of such imperative public importance as to justify deviation from normal appellate practice.”126 The appellate court even ordered an expedited briefing schedule to hasten its decision, but the government would not wait for that.

In capital punishment cases, the irreparable harm suffered by the prisoners when an injunction is lifted is absolute. There would be no second chance for Daniel Lee. Would it not be in the best interest of the public and justice that these legal claims were adjudicated to the fullest? If for nothing more than to ensure they are executed humanely and constitutionally? Does our government owe this to an individual whose life is being cut short at its hand?

122. Id. 123. Id. 124. Id. 125. Id. 126. United States v. Higgs, 141 S. Ct. 645, 646 (2021) (Breyer, J., dissenting).

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Lee was the first instance in which the Court circumvented traditional procedure to grant the government’s extraordinary request; it will not be the last before the execution spree ends.

Following Lee, the Next Prisoner Was Executed Before His Legal Claims Were Fully Adjudicated.

Two days later, in a strikingly similar scenario, the D.C. District Court heard the consolidated remaining claims of Purkey, Honken, and Nelson.127 The prisoners were seeking a preliminary injunction to stay their executions for their claims of pentobarbital violating the constitution and various federal statutes to be adjudicated.128 While the court held most claims were without merit and they were bound by the Court’s decision in Lee, it found there was a likelihood of success if the use of pentobarbital violated the Food, Drug, and Cosmetics Act (FDCA).129 Partially due to the fact that the compounding pharmacies making the solution were not regulated and pentobarbital was not prescribed.130

The appellate court again denied the government’s request to vacate the lower court’s decision. Once again, the Supreme Court granted emergency relief to the government and vacated the district court’s preliminary injunction. Hours later, Wesley Purkey was executed.

The Supreme Court did not provide an opinion or any reasoning for its decision.131 It did not address the district court’s findings, which stated that lethal injection drugs are not determined to be humane under the FDCA. Instead, it simply granted the government’s request to speed up the execution of the prisoners.132

In Lee, the Court established the precedent that conflicting medical testimony as to when pulmonary edema occurs after injection, is an unlikely challenge to establish pentobarbital as cruel and unusual under the VIII Amendment.133 Now, it has established

127. Barr (In re Fed. Bureau of Prisons’ Execution Protocol Cases), 471 F. Supp. 3d at 217. 128. Id. 129. In Re Fed. Bureau of Prisons’ Execution Protocol Cases, 474 F. Supp. 3d 171, 182 (D.D.C. 2020). 130. Id. at 180. 131. Barr v. Purkey, 141 S. Ct. 196 (2020). 132. Id. 133. Barr, 140 S. Ct. at 2591.

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the precedent that it would be unlikely for any remaining prisoner to establish that pentobarbital violates the FDCA.

Based on the early legal decisions on the challenges to these executions, it is hard to dispute that the government was in a rush to execute these prisoners, and that the Court was willing to provide it the route to do so. There were credible legal challenges to how these executions were administered. The Court failed to provide the prisoners the necessary overwatch to ensure that the government executed them constitutionally. These decisions allowed the government to execute as many prisoners as possible before there could be a change in the White House. The government took full advantage of the opportunity.

The Compounded Version of Pentobarbital Likely Caused Unnecessary Pain and Suffering That Was Downplayed by Those in the Execution Chambers.

An NPR article from September 2020 detailed the troubling effects of lethal injection, regardless of which drug was used.134 The autopsies of 200 prisoners executed by lethal injection revealed that roughly 84% of executed prisoners showed signs of pulmonary edema.135 In fact, some prisoners’ lungs were filled with so much froth, blood, and foam that they weighed nearly three times the normal weight of human lungs.136 The presence of froth showed doctors conducting the autopsies that prisoners were struggling for breath after the injections.137 Froth only forms when air is still passing through the lungs.138 The doctors who were interviewed for this article and conducted the autopsies have testified in courts across the country concerning their findings on the effects of lethal injection drugs.139

In Lee, the Court was presented with plausible evidence that pentobarbital would most likely cause pulmonary edema but still

134. Noah Caldwell, Ailsa Chang, & Jolie Myers, Gasping for Air: Autopsies Reveal Troubling Effects of Lethal Injection, NPR, (Sept. 21, 2020, 7:00 AM), https://www.npr.org/2020/09/21/793177589/gasping-for-air-autopsies-revealtroubling-effects-of-lethal-injection. 135. Id. 136. Id. 137. Id. 138. Id. 139. Id.

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allowed the executions to carry forward.140 It concluded that disputing medical evidence was not sufficient justification to delay the executions.141 The Court’s decisions concerning the subsequent executions were likely due to the testimony provided by execution officials who downplayed what they saw in the chambers in Terre Haute, Indiana.142

According to the Associated Press, who witnessed all of the executions carried out by the Trump Administration, the prisoners’ stomachs “heav[ed]” and “rolled” during at least half of the executions.143 However, these jerking movements were left out of the accounts made by the executioners and government officials who were present.144 Most described the prisoners as drifting to sleep in comfort before letting out a snore as their final breath.145 These official accounts were used by the courts to justify the executions carried out after Lee. 146 The government used expert medical witnesses to dispute the pulmonary-edema claim.147 One such witness did not witness any of the executions firsthand.148 She relied on the accounts of the executioners, who intentionally downplayed the effects of pentobarbital.149

The media reported the prisoner’s stomachs heaving and rolling after the injection of pentobarbital, but they were not able to hear if any of those executed cried out in pain or agony.150 The audio to the execution chamber was cut off before the administration of the pentobarbital.151 However, a spiritual advisor, who was present in the room for an execution in January, stated the prisoner complained that his “hands and mouth were burning” following the injection.152

140. Barr, 140 S. Ct. at 2592. 141. Id. at 2590-92. 142. Michael Tarm, Executioners Sanitized Accounts of Deaths in Federal Cases, AP News, (Feb. 17, 2021), https://apnews.com/article/executioners-sani tized-accounts-of-death-25d133f59039150c2e308ba1a2a5caef. 143. Id. 144. Id. 145. Id. 146. Id. 147. Id. 148. Id. 149. Id. 150. Id. 151. Id. 152. Id.

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Unfortunately, no one in the government witness room acknowledged they heard this proclamation.153

As the government argued in Lee, there is no way to tell if the prisoners who were executed could feel the effects of pulmonary edema prior to their life being extinguished.154 But the eyewitness accounts suggest the bodies heaving and rolling were consistent with the body struggling to breathe.155 Unfortunately, the Government has not provided public access to the prisoner’s brain waves or heart rates before their deaths.156 This information could help us understand whether they were feeling the effects of pulmonary edema prior to losing consciousness.

The VIII Amendment challenges raised by the first prisoners executed by the Trump Administration established the likelihood of experiencing pulmonary edema. The Supreme Court decided the prisoners’ claims were unlikely to succeed and allowed the executions to continue. However, eyewitness accounts to these executions confirmed the likelihood that pulmonary edema occurred while at least half of the prisoners were executed. There was and continues to be conflicting medical testimony as to the effects of pentobarbital on the human body that should have been fully adjudicated before the executions were carried out.

CONCLUSION

“The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.”157 These words were written in the Court’s opinion in the mid-Twentieth Century and remained true under the Trump Administration.

The use of pentobarbital in executions has been shown in the autopsies of prisoners to cause pulmonary edema. Whether the prisoners experienced the sensation of drowning and asphyxiation prior to dying is still unclear. However, there are indications that it was possible for the prisoners to feel the effects before their life ended. Regardless, the speed at which the government executed these prisoners would never allow us to know the answer. That, taken with

153. Id. 154. Id. 155. Id. 156. Id. 157. Resweber, 329 U.S. at 464.

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the Supreme Court clearing the way for the executions to proceed by granting the government extraordinary relief, should raise eyebrows.

In Lee, the Government vacated the stay of the execution during the early morning hours of July 14. Just hours later, Lee was executed.158 The haste at which this was done is appalling. The truly troubling part is that this was the norm in the majority of the executions carried out. It was an unimaginable spree of executions despite valid legal challenges. Whether or not one supports capital punishment, we as Americans need to at least acknowledge that these prisoners were entitled to a constitutional execution.

If pentobarbital does not cause pain and suffering, then why are government officials sanitizing reports at executions, and why is there so much secrecy surrounding the process? Could the executions have been delayed until the lower courts could hear arguments and process the complicated scientific data? Why did the government incessantly pursue the executions? Why did they force the prisoner’s lawyers to file frantic preliminary injunction requests so their claims could be fully heard?

As Justice Sotomayor wrote, “This [was] not justice.”159 This was the follow-through of a political promise made by President Trump and the Republican Party. These were executions authorized by a conservative majority on the Court, and those executed deserved more from our judicial system.

158. Barr, 140 S. Ct. at 2592. 159. United States v. Higgs, 141 S. Ct. 645, 647 (2021) (Sotomayor, J., dissenting).

RAYGEN L. LEE *

ABSTRACT…. .....................................................................................36 INTRODUCTION ...................................................................................37 BACKGROUND.....................................................................................39 Understanding Mental Illness .................................................40 Appropriate Studies...........................................................42 Understanding Involuntary Commitment..........................44 Legislative Consequences .................................................45 Court Considerations ..............................................................48 What Heller Says...............................................................49 Lessons from the Circuit Courts........................................53 Past Proposals Regarding the Gun Control Act .....................57 ARGUMENT….....................................................................................59 The Discriminatory View in Current Legislation....................61 Correcting the Overwhelming Stigma...............................62 Prioritizing Appropriate Statistics.....................................65 Current Legislation and Its Devastating Consequences....66 Misconstrued “Historical Support” used to Prohibit Firearm Possession...........................................................................68 The Appropriate Standard of Review .....................................70 Heller’s Intermediate Scrutiny Application ......................71 The Supreme Court Should Adopt the Sixth Circuit Analysis........................................................................73 PROVIDING A LEGISLATIVE.................................................................75 CONCLUSION.. ....................................................................................76

* Raygen L. Lee, Staff Editor, Texas Tech Law Review, J.D. Candidate, May 2022, Texas Tech School of Law; B.A. Psychology, 2019, Warner University. The author wishes to thank Dean Jack Wade Nowlin, Professor Jamie Baker, Professor John Watts, John Kirby, and Joey Best for their editorial contributions and feedback throughout the writing process of this Article

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ABSTRACT

The focus of this Article is on individuals whose constitutional rights are being infringed upon because they have been involuntarily committed. 18 U.S.C. § 922 (g)(4) provides a lifelong ban of gun possession to anyone who has ever been involuntarily committed. The purpose of this Article is to draw attention to the most concerning issue; many individuals do not have any type of avenue to regain their constitutional right and are thus prohibited from exercising a fundamental constitutional right for the rest of their lives.

The unfortunate sub issue—of the misconstrued stigma against the mentally ill population and the scapegoating technique used to prejudice the mentally ill community—is prevalent throughout this Article as these societal issues drive the legal issue at hand. After reading this Article, a clearer understanding of what mental illness looks like, and more specifically how that translates into involuntary commitment, will be achieved. This understanding is necessary for society and our government to take steps towards righting the wrong done upon this group of people.

The proposal provided here is a detailed yet efficient solution to the current constitutional infringement. The solution incorporates both the legislative and judicial branches of power, which is crucial as neither alone can resolve this constitutional infringement. The legislative branch needs to write an avenue for individuals who have been stripped of their Second Amendment right to resort to in attempt to regain a fundamental constitutional right. The most practical and best entity to hear such a case is the appropriate federal district court.

However, federal district courts do not currently have standing over this issue due to the current language in 18 U.S.C. § 925. Thus, the code should explicitly replace the current written avenues —that do not practically exist due to defunding—with the federal district courts as the avenue to hear such cases. This resolves the standing issue that federal district courts currently have and satisfies the government’s interest to protect the general public without infringing upon individual’s constitutional rights. Unlike other proposals, this Article provides a practical solution that protects individuals’ constitutional rights, while also safeguarding the government’s compelling interest.

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INTRODUCTION

Clifford Charles Tyler is currently being forced to live a life without the freedom to exercise his Second Amendment right to bear arms.1 Tyler is without even an opportunity to potentially regain this right.2 The current legislation has forced Tyler to live in a world without the Second Amendment until the day he dies.3 Before Tyler was forced to live without a fundamental constitutional right he was a happily married man focusing his life on building his family and live his normal day to day life.4 Unfortunately for Tyler, his life took a devastating and unexpected turn that resulted in a loss of everything he once knew.5

Tyler arrived home one day to see his wife—the mother of his children— had packed up and left their home to live with a man with whom she was engaged in a secret affair.6 Consistent with most of the population this caused an immediate emotional reaction from Tyler.7 As he is trying to understand this new life of his, Tyler enters a depressive episode.8 Shortly following, Tyler’s daughter came home and saw him out of character, as he was typically a happy individual.9 Tyler was emotionally distraught as his entire life as he knew it was up in flames and in all intents and purposes gone.10

Scared and concerned Tyler’s daughter stepped out of her role as a daughter and did what she thought was appropriate for the situation.11 She made the call and had her father involuntarily committed to seek psychiatric assistance.12 There Tyler exemplified characteristics of a depressive episode and was deemed to be a danger to himself.13 Approximately four weeks later Tyler was released from involuntary commitment as there was no longer indication that he was a danger to himself.14

1. Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 683 (2016). 2. See id. at 682-83. 3. See id. 4. Id. at 683. 5. See id. 6. Id. 7. See id. 8. Id. at 681. 9. See id. at 683. 10. See id. at 683-84. 11. Id. at 683. 12. Id. 13. Id. 14. Id.

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Following his release, Tyler re-entered society as a productive member who worked, hard and continued to be the family man he has always been.15 Tyler eventually remarried and continued a strong relationship with his children.16 Additionally, Tyler continued to illustrate a “clean bill of health” and never again illustrated anything that would deem him a danger to himself or others.17 However, Tyler’s one depressive episode has become a nightmare that haunts him to this day.18 18 U.S.C. §925(g)(4) strictly prohibits Tyler from ever owning a firearm for the rest of his life. Because Tyler was involuntarily committed, he will never have the opportunity to exercise the Second Amendment.19

This Article focuses on individuals like Tyler whose constitutional rights are being infringed upon, without an avenue to remedy such infringement. Understanding the mentally ill population and more specifically, those who have been involuntarily committed due to mental illness, is crucial to fully comprehend the severity of this constitutional violation. This Article illustrates the stigmatized view and overwhelming discrimination against the mentally ill population. Additionally, this stigmatized view has led to the mentally ill population serving as the scapegoat for our nation’s firearm violence. The legislative consequences and endorsement of this stigmatized belief is also critical to understand so the Court and Congress can make the necessary changes to resolve this constitutional violation.

A current circuit split between the Sixth Circuit Court and the Ninth Circuit Court has fore fronted this article. Tyler v. Hillside (from the Sixth Circuit Court) and Mai v. United States (from the Ninth Circuit Court) has left many confused on this constitutional issue and has resulted in continuing constitutional infringements for those within the Ninth Circuit. These circuit courts, and many district courts have disagreed on the appropriate analysis required for this constitutional issue as 18 U.S.C. § 922 exists with many unconstitutional flaws in application.

This Article proposes a unique, yet simple and efficient proposal, that has not been suggested by other scholarly articles. Congress needs to replace the current language in 18 U.S.C. § 925 and

15. Id. at 683-84. 16. Id. 17. Id. at 681. 18. See id. at 683-84. 19. Id.at 684; 18 U.S.C. § 922(g)(4).

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explicitly allow federal district courts to hear cases of individuals who wish to advocate reinstatement of their Second Amendment right. This would provide individuals like Tyler an opportunity to regain their Second Amendment rights. If one can prove that they are no longer a danger to themselves or others, then the district court should use its discretion to possibly reinstate an individual’s Second Amendment right. If the language is changed to what this Article strongly suggests, then the federal district court’s docket would shift from determining whether a constitutional violation exists—as seen in Tyler and Mai—to merely determining if an individual should be able to regain their Second Amendment right after being placed on the prohibited list due to involuntary commitment.

Understanding and treating those with mental illness with compassion is a mindset this nation needs to engage in. The Second Amendment likewise needs to be protected as it exists as a fundamental right for American citizens and has existed as a core part of our nation from the foundation. After recognizing the current constitutional violation, the next step for our nation is to fight for these individuals’ constitutional rights with the same zealousness that is fought for others.

BACKGROUND

Currently, individuals who have ever been involuntarily committed are banned from possessing a firearm for the rest of their lives.20 The right to possess a firearm is a fundamental constitutional right;21 yet, many individuals do not have any type of recourse or avenue to attempt to regain such right.22 The objective behind this lifelong ban is to ensure the safety of our country.23 The fear of individuals with mental illness greatly influences how those who have been involuntarily committed are treated.24

To gain the necessary insight to remedy this unconstitutional provision, we must first understand mental illness by examining appropriate studies, the process of involuntary commitment, and the legislative consequences of a stigmatized view of the mentally ill

20. Id. § 922(g)(4). 21. D.C. v. Heller, 554 U.S. 570, 593-94 (2008). 22. Id. § 922(g)(4); 18 U.S.C. § 925; Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 689 (2016). 23. See D.C., 554 U.S. at 626-27. 24. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 2, 23 (2013).

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population.25 Second, insight from case law that illustrates how the circuit courts have grappled with this issue, and precedent regarding the Second Amendment must be examined including cases such as, Heller—from the Supreme Court—as well as Tyler and Mai from two different circuit courts.26 Finally, we must look to past proposals to fully understand where they fell short and why the proposal in this Article is the most appropriate to remedy this constitutional violation.27 Gaining a better understanding of the mentally ill population, what stigmatized views lead us to where we are at now, and reconciling case law will provide the necessary insight to remedy this unconstitutional provision.

Understanding Mental Illness

Mental illness is different for each situation dependent on numerous life factors.28 There are many diagnoses that all provide distinctive challenges and are caused by unique circumstances.29 Further, a mental illness diagnosis typically can have several different symptoms varying in severity depending on the individual and other surrounding factors.30

Psychology is an area of science that continues to grow significantly as time passes.31 Throughout history those who were mentally ill carried a stigma that equated their mental illness to being dangerous.32 As the field of psychology continues to develop many statistics directly negate the long-held belief that mental illness equates to dangerousness. 33 In the past mental illness was so misconstrued that the practiced treatment was drilling holes in an

25. See infra Part A. 26. See infra Part B. 27. See infra Part C. 28. See Vars & Young, supra note 25, at 12-16. 29. See id.; See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUM. BEHAV., No.6, 685, 686 (2006). 30. See Silver, supra note 30. 31. Ingrid G. Farreras, History of Mental Illness, NOBA TEXTBOOK SERIES, https://nobaproject.com/modules/history-of-mental-illness (last visited Dec. 8, 2020). 32. See Vars & Young, supra note 25, at 23; See Silver, supra note 30, at 69596. 33. See id.

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individual’s skull.34 More recently, and still existing to this day, is the belief that demonic possession is the cause for mental illness and is thus treated through exorcisms.35 The more we learn about the science involved with mental illness the more evidence illustrates that our past reality was most likely false.36 As science continues to develop it becomes more evident that mental illness encompasses so many unique individuals with unique challenges that grouping them under one category is difficult at best.37

Understanding the historical development of psychology is important because the previous misinformation led to a stigmatized view of the mentally ill population which continues to burden them to this day.38 The government’s concern for the public’s health and safety has fore fronted all conversations relating to gun rights for those who have been involuntarily committed.39 However, this concern along with the historical misconception of mental illness has furthered the stigma that those who have mental illness are dangerous.40

Leaders, including the Vice President of the National Rifle Association (NRA), directly contribute to the mislabeling of the mentally ill population.41 When discussing a mass shooting on a military base, LaPierre, the NRA Vice President, called for a stronger action against the mentally ill population and wished to place even stricter gun regulations.42 In 2013, a mass shooting occurred in Washington Navy Yard leaving thirteen individuals dead, including the shooter.43 Upon investigation it was discovered that the shooter had reported psychiatric struggles.44 In response to this mass

34. Farreras, supra note 32. (Near 6500 B.C. this technique was a common practice and one of the only ways to “treat” insanity.) 35. Id. 36. See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, 1447 (2015). 37. See id. 38. See id. at 1470. 39. See id. 40. See id. at 1443. 41. Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www.reuters.com /article/us-usa-guns/nra-chief-criticizes-navy-yard-for-being-unprotectedbeforemass-shooting-idUSBRE98L0C920130922. 42. Id. 43. Id. 44. Id.

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shooting, committed by someone who was mentally ill, LaPierre called for more guns to the “good guys” with the assumption that the more good guys with guns the better protected society will be.45 Unfortunately, this stigmatized language from our nation’s leaders strongly encourages the stigmatized belief that those with mental illness are a direct danger to society.46

Further, accurately understanding mental illness is directly tied to understanding the legal issue at hand. The constitutional issue arises from the prohibition of gun possession for those who have been involuntarily committed or deemed as a mental defect.47 Those who are prohibited due to involuntary commitment is the primary focus of this Article, however understanding mental illness on a broad level and how the group is treated is necessary to understand how the law applies to these individuals.48

Appropriate Studies

There are many studies that view the intersection of mental health and gun violence, but several studies are skewed and inaccurately present the data.49 Many statistics regarding mental illness and violence compare violent acts to individuals who are mentally ill or not mentally ill.50 This information is helpful when the concern is solely on the public safety; however, the statistics likely skew the view on mental illness and reality as a whole.51 The reality is that “incidence of violent acts, including homicide, has no significant relationship to mental illness.”52 A study of a community of residents concluded that “6.81% of people with a serious mental illness reported violent behavior in the past year as compared with only

45. Id. 46. See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. Rev. 1439, 1455 (2015). 47. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 681 (2016). 48. See id.; See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 Law & Human Behavior, No.6, 685, 689 (2006). 49. See Silver, supra note 49, at 686. 50. Id. 51. See id. 52. Calvin J. Frederick, Dangerous Behavior: A Problem in Law and Mental Health, U.S. DEP’T OF JUST. OFF. OF JUST. PROGRAMS 4 (1978), https://www.ojp .gov/ncjrs/virtual-library/abstracts/dangerous-behavior-problem-law-and-mentalhealth.

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2.05% of people without a major mental disorder.”53 However, this percentage was admittedly highest in patients with schizophrenia, as these individuals were also the most likely to use weapons.54

One of the most important studies regarding violent tendencies in the mentally ill population, is one conducted by MacArthur Foundation which compared violent tendencies from individuals who were discharged from facilities.55 When these patients were discharged their violent acts were compared to their neighbors, who were not previously committed.56 The study concluded that, (when excluding substance abusers) “the prevalence of violence by patients was no higher than by neighbors.”57 Even further, the study shows that “among acts of violence, actual or threatened weapon use was significantly less likely among patients” than their neighbors.58 This updated knowledge highlights the lack of violent tendencies in individuals who have been released from facilities, solidifying that they do not actually pose a higher risk to society than individuals who have never been committed to a facility.59

The study provided by the MacArthur Foundation exemplifies the most accurate representation of the current data. This study was conducted without proof of confirmation bias, like many other studies which focus solely on protecting the masses from these

53. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 14-15 (2013) (“The diagnoses considered schizophrenia, major depression, mania or bipolar disorder, alcohol or drug abuse or dependence, obsessive compulsive disorder, panic disorder, and phobia.”) 54. See id. (The 4% difference between those what a severe mental illness and those without is significantly less dramatic once the patients with schizophrenia are removed from the data.) A study conducted by Seena Fazel and his collogues concluded that schizophrenics were the most likely to commit homicide, significantly higher than any other mental illness. 55. See Vars & Young, supra note 54, at 16-17 (This is the most appropriate study when considering this constitutional issue because 18 U.S.C. § 922 dictates that individuals who have been involuntarily committed cannot possess a firearm.); See 18 U.S.C. § 922(g)(4). 56. Id. at 14-15. 57. Id. at 16. 58. Id. 59. Id. (This conclusion of and the study does not include those who have a substance abuse issue, or are schizophrenic, due to each of those specified groups skewering the results. This is an appropriate measure, as outliers are regularly eliminated from final conclusions of data. The only push back with eliminating these groups is the underlying stigma that innates people to be scared).

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dangerous individuals. Understanding the complete data from an objective point of view has provided a more accurate picture of the mentally ill population and specifically how they compare to the rest of the population with regards to dangerousness.

Understanding Involuntary Commitment

If an individual is declared to be a danger to themselves or others they could be involuntarily committed, most commonly by someone in their life who notices the dangerousness of their behavior.60 A series of legal avenues must take place before someone is involuntarily committed.61 Each state has their own specific steps and requirements but many states include petitioning to a magistrate judge62 (to involuntarily commit someone else), who then orders a custody order to have that person brought to a facility to receive a complete examination.63

Once the initial examination is completed, the examiner can recommend involuntary commitment if they deem that the patient meets the criteria.64 If a patient is deemed to need involuntary commitment they are then transported “to a 24-hour facility where a second exam occurs by a physician. If the patient still meets criteria for an involuntary commitment, the patient receives treatment and is held in the 24-hour facility until a court hearing.”65 Depending on the state, a court hearing is held in a district court within a short amount of time; North Carolina’s being 10 days after the custody order.66 The

60. John A. Menninger, Involuntary Treatment: Hospitalization and Medications, BROWN UNIV. 1, https://www.brown.edu/Courses/BI_278/Other/Cler kship/Didactics/Readings/INVOLUNTARY%20TREATMENT.pdf (last visited Dec. 8, 2020) 61. Involuntary Commitment, N.C. HEALTHCARE ASS’N, https://www.ncha.org/ ivc-bill-involuntary-commitment/#1543438516731-3b90b933-3e47 (last visited Dec. 8, 2020); DJ Jaffe, Involuntary Treatment and Involuntary Commitment Laws: Basis in Law and History, MENTAL ILLNESS POL’Y ORG. https://mentalillness policy.org/ivc/involuntary-commitment-concepts.html (last visited Dec. 8, 2020) (Typically, an individual will have a court or administrative hearing to decide whether an individual is considered dangerous.) 62. Id. (In many cases this is illustrated by a loved one, doctor, or someone who is not the person being committed, advocating to a judge or agency to involuntarily commit an individual.) 63. Involuntary Commitment, supra note 65. 64. See id. 65. See id. 66. See id.

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court hearing will conclude with either a court ordered treatment or discharge from the facility.67 An individual will be involuntarily committed if the court at this point declares that the individuals needs this serious treatment.68

The nature of involuntary commitment requires these extensive measures because involuntary commitment strips an individual of almost every closely held freedom that Americans presume they will always have.69 Each state has the power to determine what steps they judge as being necessary to ensure that they are only involuntarily committing individuals who are truly a danger to themselves or others.70

During involuntary commitment an individual is observed, often diagnosed, and almost always treated to ensure they reach a level of safety and are no longer a danger to themselves or others.71 Once an individual is deemed to not be a danger to themselves or others they are released from involuntary commitment and begin to regain their basic human rights, and some of their constitutional rights.72 This article focuses specifically on the lack of ability to regain their Second Amendment rights to possess a firearm for their entire life.73

Legislative Consequences

The Gun Control Act was passed in 1968 in an attempt to halt the increase of gun violence throughout the United States.74 This 1968

67. See id. 68. See id.; Position Statement 22: Involuntary Mental Health Treatment, MENTAL HEALTH AM. https://www.mhanational.org/issues/position-statement-22involuntary-mental-health-treatment (last visited Dec. 8, 2020). 69. See id. 70. See id. 71. See Position Statement 22: Involuntary Mental Health Treatment, supra note 72; Washington v. Harper, 494 U.S. 210 (1990) (Ensuring that individuals almost always have the right to refuse medication, even if it is recommended treatment, to protect what little autonomy involuntarily committed individuals have). 72. See John A. Menninger, Involuntary Treatment: Hospitalization and Medications, BROWN UNIV. 3, https://www.brown.edu/Courses/BI_278/Other/Cler kship/Didactics/Readings/INVOLUNTARY%20TREATMENT.pdf (last visited Dec. 8, 2020); See Position Statement 22: Involuntary Mental Health Treatment, supra note 72. 73. See 18 U.S.C. § 922(g)(4). 74. Gun Control Act of 1968, 18 U.S.C. §§ 921-28 (1968), https://www.gov info.gov/content/pkg/STATUTE-82/pdf/STATUTE-82-Pg1213-2.pdf#page=4.

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code has had additions but minimal changes throughout the years.75 In an attempt to protect the nation as a whole the Gun Control Act provides a laundry list of individuals who are prohibited from possessing a firearm.76 This article focuses on the group of individuals who are declared to be “of mental defect” or involuntarily “committed to a mental institution.”77

One of the most significant and serious aspects of the Gun Control Act is that the prohibition is perpetual.78 The Gun Control Act included exceptions and avenues for individuals to regain their Second Amendment right, if they were a part of a class that was stripped of such right.79 Exceptions for individuals who have been involuntarily committed are provided in 18 U.S.C. § 925 in the “Relief from Disabilities.”80 This effectively provided two options for individuals to try to regain their Second Amendment right: apply to the Attorney General or apply through your state in an approved program.81 The Attorney General has discretion to grant an individual their gun rights back if it “established to his satisfaction that the circumstances regarding the disability, and the applicants record and

75. 18 U.S.C. § 922(g)(4) (2015). (These minimal changes include language which furthered a stigma against those with Mental illness.); Id. 76. Id. § 922(g) (Prohibiting gun possession from individuals who have “been convicted . . . of a crime punishable by imprisonment for a term exceeding one year”; “a fugitive from justice”; “an unlawful user of or addicted to any controlled substance” ; “who has been adjudicated as a mental defective or who has been committed to a mental institution” ; “who, being an alien – is illegally or unlawfully in the United States; or except as provided in subsection (y)(2), has been admitted to the United States under nonimmigrant visa” ; “who has been discharged from the Armed Forces under dishonorable conditions” ; “who, having been a citizen of the United States, has renounced his citizenship” ; “who has been convicted in any court of a misdemeanor crime of domestic violence”) 77. Id. § 922(g)(4); See Gun Control Act of 1968, 18 U.S.C. §§ 921-28 (1968), https://www.govinfo.gov/content/pkg/STATUTE-82/pdf/STATUTE-82-Pg12132.pdf#page=4. (Explaining that those who have voluntarily been committed to a mental institution are not included in this prohibition list, leaving only those who have been involuntarily committed. The specification “committed to a mental institution” was an attempt to clarify the already existing language “of mental defect” as congress wan ted to explicitly include those who had been involuntarily committed to this prohibited list.) 78. Id. 79. Id. § 925. 80. Id. 81. Id. It is important to note that not every state has an approved program eliminating one of the two possible avenues for reinstating their Second Amendment right.

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reputation, are such that the applicant will not be likely to act in a manner dangerous to pubic and that the granting of relief would not be contrary to the public interest.”82 If, and only if, the Attorney General denies the request may an individual look to their federal district court for judicial review of their denial.83

In 1992 congress defunded the program for the Attorney General to review these issues, so in all intents and purposes 18 U.S.C. § 925 does not exist for individuals to regain their Second Amendment right.84 This program is also very unlikely to regain any funding due to the increasing concern for gun violence and the lack of political push to ensure constitutional rights are not being infringed upon by individuals who were at one point mentally ill.85 An even larger roadblock with the funding of this program is that this is the same program which oversees whether a felon (or anyone else in the prohibition list) can regain their gun possession rights.86 In reality there will never be a strong political agenda or encouragement to advocate for those who are convicted felons or likewise unpopular to the general public.

Without the Attorney General having the funding to review and make a decision on these issues the federal district courts do not have standing to hear the cases.87 What once provided an option and backup judicial option, now provides absolutely no relief for individuals to regain their gun possession rights.88 Noting the serious issue with this congress provided financial incentives for states to adopt a similar program allowing some avenue for relief.89 The voluntary nature of this state program has resulted in at least twenty states lacking such program.90 These individuals are who need to be addressed first and foremost as “the most serious constitutional issues must be addressed first.”91

82. Id. § 925 (a)(4). 83. Id. 84. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 697 (2016). 85. See id. 86. See id. 87. Id. at 682; See § 925. 88. See § 925. 89. See Tyler, 837 F.3d at 682. 90. Id. at 683. 91. The NICS Improvement Amendments Act of 2007, BUREAU OF JUST. STAT., http://www.bjs.gov/index.cfm?ty=tp&tid=491#promising (last visited Dec. 8, 2020).

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Court Considerations

When considering the constitutional right for individuals with mental illness to possess firearms, it is important to understand the Second Amendment jurisprudence. The landmark case for the Second Amendment has a relatively recent history.92 District of Columbia v. Heller clarified that the right to bear arms is available for individuals throughout the United States as an exercise of selfdefense.93 Unlike many other constitutional rights, the Second Amendment is limited strictly based on the individual.94 18 U.S.C. § 922 (g) provides the list of individuals who are prohibited to exercise their Second Amendment right.95 Although Heller is the landmark case for this issue, it has provided different interpretations leading to many applications for courts moving forward.96 This has led to a circuit split between the sixth circuit court and ninth circuit court.97 This circuit split needs to be resolved by the Supreme Court as this split in decision revolves around an infringement on individuals fundamentally constitutional right.98

To understand what Heller has provided and where differences lie we must first examine what exactly Heller explicitly says, what can confidently be inferred and what Heller does not say. Two areas of difference when interpreting Heller include the historical support,99 that the court has to prohibit firearm possession for those who have been involuntarily committed, and the appropriate level of scrutiny to review such issue.100 After an understanding of exactly where Heller leaves us, the circuit court decisions will be examined as the two have somewhat similar analysis but come to opposite decisions.101

92. See D.C. v. Heller, 554 U.S. 570, (2008). 93. Id. at 606. 94. See 18 U.S.C. § 922(g)(4); See D.C., 554 U.S. at 626-27. 95. Id.; See supra Part II(A)(3). 96. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016); See Mai v. United States, 2018 U.S. Dist. Lexis 21020. 97. Id. 98. Id. 99. See infra Part II(B)(1)(a). 100. See infra Part II(B)(1)(b). 101. See infra Part II(B)(2).

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What Heller Says

The founding fathers of our nation specifically included the Second Amendment in our constitution; however, Heller officially allowed the Second Amendment to apply to citizens of the United States.102 The broad consensus of Heller is that the Second Amendment is a fundamental right for all individuals;103 however, consistent with every other constitutional right, the Second Amendment is limited.104

Heller addressed whether a total ban on handguns under D.C. code violated a constitutional right to bear arms.105 To answer this the Court had to first determine if the right to bear arms was truly a right for individuals to carry firearms as a means of self-defense.106 The Court followed a textualist analysis—as the opinion was written by Justice Scalia—and looked at the plain meaning of the constitution.107

The fact that the “constitution was meant to be understood by voters” further encouraged an analysis around the plain meaning of the text.108 The right for a well-rounded militia would only exist if individuals were able to carry firearms.109 Thus, the Court concluded that the prohibition on handguns as a whole violated the Second Amendment and unconstitutionally infringed upon a fundamental right for “all Americans.”110

After looking at the constitution Heller provided that we start with a strong presumption that “the Second Amendment right is exercised individually and belongs to all Americans.”111 From this language “it would seem clear that those who have been involuntarily committed, like all other Americans have the right to bear arms.”112 The Supreme Court spoke in support of individuals right to bear arms as a “fundamental right of law abiding, responsible citizens” but is

102. See D.C. v. Heller, 554 U.S. 570, 589 (2008); U.S. Const. amend II. 103. Id. at 594-95. 104. Id. at 621. 105. Id. at 573. 106. Id. at 624-25. 107. See id. at 604. 108. See id. at 576. 109. See id. at 579. 110. Id. at 581. 111. Id. 112. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 5 (2013).

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now in a position to possibly contradict the crucial rights provided to Americans.113

“Longstanding” Historical Support

The Court later provides a stricter view on the matter by suggesting that “nothing cast doubt on longstanding prohibition on the possession of guns to felons and the mentally ill”. 114 This longstanding history is controversial, and many have differing opinions on where (if anywhere) the court found this longstanding history.115 Although justices of the peace traditionally had greater power to confine individuals with dangerous mental impairments, there is no historical basis for deprivations of gun rights after release from a mental institution or similar institution that regulates dangerous individuals’ behavior.116

Justice Breyer, in a dissenting opinion in Heller, provided that when an infringement of the Second Amendment arises, the question is whether a regulation infringes on the Second Amendment to an unconstitutional degree.117 Justice Breyer continued by explaining that an infringement on an individual’s right is a regular and constitutional act when it is in furtherance of government interests.118 Heller provided that prohibition of individuals who are mentally ill is presumptively lawful.119 It is important to note that Heller did not explicitly extend this prohibition to someone who was once mentally ill but no longer struggles with mental illness.120 Heller was silent on these individuals and provided the assumption that if someone has ever been mentally ill they will forever be mentally ill.121

113. See D.C. v. Heller, 554 U.S. 570, 635 (2008). 114. Vars & Young, supra note 116, at 5 (emphasis added, there continues to be debates on the historical support for the ban on gun possession when discussing the constitutionality of the gun possession ban). 115. See D.C., 554 U.S. at 626-27; See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 685-86 (2016). 116. See Vars & Young, supra note 116, at 7. 117. Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1061 (2020); 554 U.S. at 687-88. 118. D.C., 554 U.S. at 687-88. 119. Id. at 626-27. 120. Id. 121. See id.

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Level of Scrutiny

The level of scrutiny which a legal issue is analyzed under is a critical factor in determining how a legal issue will resolve.122 There are three basic levels of scrutiny courts use with each level requiring more compelling evidence the lowest level being rational basis, secondly intermediate scrutiny and finally the highest level of scrutiny is strict scrutiny.123 Applying the appropriate scrutiny is crucial when analyzing a legal issue because the evidence necessary changes significantly.124

As the highest level of scrutiny for courts to apply; strict scrutiny requires that the government’s regulation be narrowly tailored to a compelling state interest.125 Strict scrutiny fails if any other means, that is less burdensome still satisfies the compelling government interest.126 In other words, it must be the least restrictive avenue to accomplish a compelling government interest.127

Intermediate scrutiny is a higher level of scrutiny than rational basis but does not have to be the absolute least restrictive means like strict scrutiny.128 Here, intermediate scrutiny would require that “restriction upon the gun rights for the mentally ill would have to be substantially related to an important government objective.”129 Intermediate scrutiny can also be observed as a two part test requiring (1) the government’s stated objective be significant or substantial and (2) the relationship between the challenged regulation and asserted objective must have a reasonable fit.130 In practice intermediate scrutiny is used when a higher level than rational basis is required but the extreme standard under strict scrutiny fails to provide consistent logic necessary for the law.131 Most courts have

122. See id. at 628-29. 123. Id. at 634. 124. See id. 125. See id. at 688. 126. See id. 127. See id. 128. See id. at 134. 129. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 9 (2013). 130. Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 693 (2016) (citing U.S. v. Chovan, 735 F.3d 1127 (2013). 131. See D.C., 554 U.S. at 634; Vars & Young, supra note 133, at 9.

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agreed that intermediate scrutiny is the most appropriate scrutiny for the issue at hand.132

The government’s reason for this lifelong ban of gun rights is the concern for public health and safety and ensuring that individuals who are a danger to society are not able to exercise their Second Amendment right to bear arms.133 Because this issue revolves around a fundamental constitutional right, a higher level of scrutiny is a natural fit.134 However, the majority in Heller rejected the rational basis test, but they did not provide which level of scrutiny should be applied, leaving future courts to determine whether strict or intermediate scrutiny should be used.135 The Court specifically stated in Heller that these types of laws are considered to be “presumptively lawful.”136 “The majority defines presumptively lawful as those laws imposing conditions and qualifications on the commercial sale of arms.”137

For 18 U.S.C. § 922 (g)(4) to be constitutional would require at least “some evidence of the continuing need to disarm those long ago adjudicated mentally ill . . . to justify 922(g)(4)’s means to its ends.” 138 A proportionality test often assists courts in determining if a regulation is over inclusive to an unconstitutional degree.139 The government must “prove that 18 USC §922(g)(4)’s scope is proportional to the interest served.”140 However, Heller failed to provide a clear answer to the degree of over inclusiveness that would be tolerated under intermediate scrutiny.141

Overall Heller leaves us with three main points to consider regarding this issue. The first is the Second Amendment applies to citizens for the right of self-defense.142 Second, the Court claims to have longstanding historical support for prohibiting those with

132. See Tyler, 837 F.3d at 684; See Mai v. United States, 2018 U.S. Dist. Lexis 21020. 133. See D.C., 554 U.S. at 611-12; See Tyler, 837 F.3d at 685. 134. See D.C., 554 U.S. at 593-94. 135. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 7 (2013); See id. at 634-35. 136. See D.C., 554 U.S. at 626-27. 137. Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1061-62 (2020). 138. Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 694 (2016). 139. See D.C, 554 U.S. at 634; See Vars & Young, supra note 139, at 9. 140. Tyler, 837 F.3d at 698. 141. See 554 U.S. 570, (2008); Vars & Young, supra note 139. 142. See D.C., 554 U.S. at 629-30.

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mental illness from possessing firearms, and thus the prohibition of individuals with mental illness is “presumptively lawful.”143 Finally, when analyzing this issue, a higher level of scrutiny is required— most likely intermediate scrutiny—which the government must satisfy for the statute to be constitutional.144

Lessons from the Circuit Courts

The precedent provided from Heller has left circuit courts with conflicting opinions.145 The Sixth Circuit Court has interpreted Heller along with other Supreme Court opinions and found that a constitutional violation occurs regarding 18 U.S.C. § 922 (g)(4).146 However, the Ninth and Third Circuit Courts both found no constitutional violation regarding the same issue.147 A notable difference between these circuits is the state option available.148 As previously discussed, 18 U.S.C. § 925 provides states the power to create an agency to decide whether an individual should be able to regain their Second Amendment right, which is then signed off by the United States Attorney General as the final stamp of approval.149 The largest constitutional dilemma arises in cases where individuals are in one of the twenty states that does not provide an avenue to regain their Second Amendment right.150 This is most crucial because these individuals are prohibited to exercise a fundamental constitutional right for the rest of their lives without an opportunity to appeal such prohibition.151

Sixth Circuit Court of Appeals

The Sixth Circuit Court “struggled to determine whether the state could permanently ban a man from owning firearms because he was involuntarily committed for mental illness thirty years prior.”152 This resulted in different opinions, and the use of different standards

143. Id. at 627. 144. Id. at 628-29; Tyler, 837 F.3d at 686-87. 145. Tyler, 837 F.3d at 699; Mai v. United States, 2018 U.S. Dist. Lexis 21020. 146. Tyler, 837 F.3d at 699. 147. Mai, 2018 U.S. Dist. Lexis 21020; Beers v. Barr, 140 S. Ct. 2758, (2020). 148. Id.; Tyler, 837 F.3d 678. 149. See supra Part II(A)(3); 18 U.S.C. § 925. 150. See supra Part I. 151. Id. 152. Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1064 (2020).

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throughout the Sixth Circuit Court’s bench.153 Further, “some judges wrestled with whether involuntary commitment, particularly in the past, was an appropriate proxy for mental illness” while “others found it difficult to determine whether Heller was accepting prohibitions for those who have experienced mental illness or were mentally ill at that specific moment in time.”154 The lack of guidance regarding the standard of review guidance worsened the matter while judges continue to debate on whether strict or intermediate scrutiny should be applied.155

Tyler argued 18 U.S.C. § 922 (g)(4) was unconstitutional as applied due to the specific facts surrounding his involuntary commitment and his current state of mind.156 The lack of any avenue for Tyler to regain his fundamental right furthers the unconstitutional effect of this code.157 Tyler argued that a depressive episode, caused by a devastating divorce, cannot be a justifiable reason to strip someone of their constitutional right.158 A married man of twentythree years was confronted with divorce papers as his wife left with another man and his money.159 Tyler has been of stable mind since the divorce and has not had another depressive episode since the divorce over thirty years ago.160 The Sixth Circuit Court declared that “we cannot look to Heller and in good faith believe that when the Court said a law prohibiting guns to mentally ill individuals possibly applies to Tyler.”161 When looking to Heller the Sixth Circuit Court stated that “at least twelve of us agree that intermediate scrutiny should be applied.”162

The argument to prohibit Tyler from exercising his Second Amendment right is founded on the idea that he poses a risk to society since he was previously involuntarily committed.163 After evidence supported that Tyler did not pose a danger to society like

153. Tyler, 837 F.3d at 699-721. 154. Ulrich, supra note 156, at 1065. 155. Id. 156. Tyler, 837 F.3d at 681. 157. Id. at 684. 158. Id. at 681. 159. Id. at 683. 160. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 775 F.3d 308, 314 (2014). 161. See Tyler, 837 F.3d at 697-99. 162. Id. at 699. 163. See id.

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assumed, the court concluded that the current regulation failed intermediate scrutiny.164

Ninth Circuit Court of Appeals

The Ninth Circuit Court’s interpretation of precedent is illustrated in Mai v. United States.165 The court denied petition for rehearing and thus upheld the district court’s finding that no constitutional violation was present.166 There, Mai challenged 18 U.S.C. § 922 (g)(4) as being unconstitutional as applied.167

Mai was involuntarily committed when he was seventeen years old and remained under involuntary commitment for over nine months.168 Once released he was never committed again.169 Mai became a productive member of society as he furthered his education and began working for Fred Hutchinson Cancer Research Center as an immune monitoring specialist.170 Mai’s home state of Washington allows an individual to plead their case in front of a lower court to reinstate their right to bear arms, under the state statute.171 Mai did such and was approved.172 However, when he went to purchase a firearm he was denied based on the federal code, 18 U.S.C. § 922.173

After congress defunded the avenue for individuals to go to the Attorney General and plea to reinstate their Second Amendment right, congress passed NICS Improvement Amendment Act (NIAA).174 NIAA allows states to provide a program that reinstates gun possession rights.175 A crucial requirement is that the state program must receive approval from the Attorney General when it is developing the program and must submit all state approvals to the Attorney General.176 Washington’s program was created prior to NIAA and thus did not receive the Attorney General’s approval

164. See id. 165. Mai v. United States, 974 F.3d 1082, 1083 (2020). 166. Id. 167. Id. 168. Mai v. United States, 2018 U.S. Dist. LEXIS 21020, *1-2 (2018). 169. Id. 170. Id. 171. Id. 172. Id. 173. Id. 174. Id. at *4. 175. Id. at *5. 176. Id.

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during development, so was deemed unfit to provide Mai’s Second Amendment right based on the federal code.177

Mai’s argument that 18 U.S.C. § 922 (g) (4) is unconstitutional as applied to him revolves around the disconnect between involuntary commitment and lifelong danger to the public.178 Mai specifically argued “that the statute is unconstitutional as applied to him because he had no mental health issues since he was involuntarily committed at the age of [seventeen]”.179

The Ninth Circuit Court provided insight through dicta and precedent regarding § 922 (g)(1) prohibiting felons of gun possession.180 The circuit court led this district court to reject constitutionality arguments that turn on whether a plaintiff is violent or not.181 Because Mai’s argument rested on his separation from his seventeen year old self—who was deemed either a danger to himself or others— the Ninth Circuit Court denied his petition and declared that Mai did not provide argument which provided a constitutional basis for the court to hear.182

The district court also provided dicta regarding the case if Mai was determined to have constitutional authority.183 Looking at Heller, this court applied intermediate scrutiny but declared that Mai’s claim fails on the second prong.184 For Mai to prevail he had to prove that there was no substantial relationship with the government’s interest and the code itself.185 The government provided multiple studies suggesting correlations between mental illness and gun violence, which the court decided was more than enough to show this reasonable fit between the government’s interest and the means to satisfy the interest.186 The Third Circuit Court is most closely aligned with the ninth circuit, however they differ throughout their analysis in detrimental ways with the ninth circuit court providing a clearer analysis for courts to look to moving forward.187

177. Id. at *6. 178. Id. at *8-9. 179. Id. at *8. 180. Id. at *10-12. 181. Id. at *12. 182. Id. 183. Id. at *15. 184. Id. at *16. 185. Id. (The government’s interest is to protect the general public.) 186. Id. at *16-17. 187. Beers v. Barr, 140 S. Ct. 2758, (2020). (The Third Circuit Court similarly found that a constitutional violation did not exist, however the analysis differs from

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Past Proposals Regarding the Gun Control Act

Others have also noted this constitutional dilemma and have advocated for a more radical change; calling for a total reform of 18 U.S.C. § 922 (g)(4).188 However, the Legislature and some courts have adamantly supported this rigid provision in the code focusing solely on the possible risk to society.189

Other proposals include providing an agency—such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)—the power to approve an individual’s reinstatement of their Second Amendment right, based on if they are a danger to society.190 As history provides, the most political and necessary government programs receive funding and thus accomplish their goal.191 Both political parties have illustrated the priority of concern does not rest with individuals whose fundamental constitutional rights may be infringed upon, but who were—at some point in time—deemed a danger to society.192 Without funding, an agency in all intents and purposes does not exist.193 The defunding of the avenue194 provided in the Gun Control Act did not merely eliminate the agency avenue, it eliminated any federal avenue leaving only the states the option to

that of the Ninth Circuit Court. The analysis in Beers has recently been overturned as cert was granted for the Third Circuit Court to rehear the case. The court then vacated the judgment and remanded back to the district court with instruction to dismiss the case as moot. Due to this the Third Circuit Court is still beneficial to note that the slight majority of circuit courts agree that a constitutional violation does not occur, however the lack of analysis prevents Beers from honestly being used for anything beyond the holding.) 188. See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUM. BEHAV., No.6, 685, 701-02 (2006); See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 22-24 (2013). 189. See Mai, 2018 U.S. Dist. Lexis 21020; Gun Control Act of 1968, 18 U.S.C. §§ 921-28 (1968), https://www.govinfo.gov/content/pkg/STATUTE-82/pdf/STAT UTE-82-Pg1213-2.pdf#page=4; See 18 U.S.C. § 922. 190. See Silver, supra note 192; See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, (2013). 191. See Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J.L. &PUB. AFFS. 1, 40 (2019). 192. See id. 193. See id. 194. See supra Part II(A)(3).

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provide a functioning avenue for relief.195 The approval through the Attorney General on paper still exists as the avenue for relief however, the lack of funding prevents an answer to be made.196 Without an answer being made, federal district courts do not have standing to review a denial and thus leaves individuals at the mercy of their state.197 Further, the federal agency expressed concern of “getting it wrong” and potentially providing an individual their right to exercise the Second Amendment when they still pose a danger to themselves or society.198 This fear of enabling a dangerous individual firearms presented an obstacle that led to the Attorney General denying almost all individuals who sought to regain their Second Amendment right.199

Federal district courts handle situations with dire consequences constantly.200 The potential for a bad consequence does not eliminate consideration for approval.201 A court hearing also provides, without limitation of funding, the opportunity to subpoena character and expert witnesses that provide a more complete illustration of an individual’s life and present to the court a more accurate interpretation of their danger to society.202

The importance of the federal district courts extends to the beginning of our Nation.203 Alexander Hamilton specified that in many cases the federal district courts are the best to judge as “courts of neither . . . States could be expected to be unbiased.”204 Unlike state courts, the federal district court judges are not at risk of losing their job based on a decision made.205 Agencies also face this similar

195. See 18 U.S.C. § 922(g); See 18 U.S.C. § 925. 196. See id.; See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678 682, (2016). 197. See id. 198. See Tyler, 837 F.3d at 698. (The seriousness of this potential consequence and concern for this consequence to occur has scared off approval from these agencies even when they did have funding.) 199. See id. 200. See Southeast ADA Center Federal Court Concepts, Federal District Courts, http://adacourse.org/courtconcepts/district.html (last visited Dec. 10, 2020). 201. See id. 202. Id. 203. See THE FEDERALIST NO. 80 (Alexander Hamilton). 204. See id. 205. See id.

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dilemma as the political sway influences many of their jobs as well.206

ARGUMENT

An individual being stripped from exercising a fundamental constitutional right raises concerns for many, but should raise concerns for all. Currently, 18 U.S.C. § 922 (g)(4) does not provide a functional avenue for individuals to regain their Second Amendment right if they have ever been involuntarily committed.207 These individuals who are left in a state that does not provide an avenue to satisfy the federal government’s legal flaw are left without any option.208 The purpose of taking an individual’s right to exercise the Second Amendment is to ensure the safety of the public.209 The same logic used to prohibit one from exercising their right to bear arms, should continue to be used when discussing reinstatement of an individual’s Second Amendment right.210 If an individual is deemed to no longer be a danger to themselves or others, they should be provided the opportunity to regain their Second Amendment right.211

Providing a functional opportunity to regain a fundamental constitutional right, through federal district courts would allow this constitutional violation to be resolved. The federal district courts are best equipped to fully understand and grapple with the seriousness of this consideration, without the risk of any political bias.212 Any type of federal agency program would leave this unconstitutional as the agency would most likely lack the necessary funding and thus face an impossible goal.213 Further, the agency is at the mercy of congress

206. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 697 (2016). 207. U.S.C. § 922(g)(4); See supra Part II(A)(3). 208. See supra Part II(A)(3). 209. See supra Part II(A)(3) (The logic used by congress is that because individuals who have been involuntarily committed were at some point a danger to themselves or others they pose a greater threat to society than others, and prohibiting an individual from being in possession of a gun is worth protecting the general public). 210. See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUM. BEHAV., No.6, 685, 688 (2006). 211. See id. 212. THE FEDERALIST NO. 80 (Alexander Hamilton). 213. See supra Part II(A)(3).

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and the political system.214 Any unfavorable decision an agency makes strengthens the argument to cut funding while also increases the possibility that they could lose their job, since they are at the mercy of the political system .215 Any state court has similar issues, as they are immediately held responsible by the political people they govern over.216 The fear of “getting it wrong” prevents even state courts from providing a true avenue for individuals to possibly regain their Second Amendment rights.217

We now know more about mental illness than we have at any point in history.218 We also live in an inclusive society that strives to be less discriminatory in all areas.219 Although there is a crucial concern about the safety of the public regarding mentally ill individuals possessing firearms, that does not provide the unlimited power to violate an individual’s fundamental constitutional right.220 This constitutional issue should be looked at under a deeper lens and consider other factors, rather than placing individuals in a category and then taking away their constitutional right without recourse.

To resolve this constitutional infringement the existing language in 18 U.S.C. § 925 needs to be replaced with language that explicitly provides standing to federal district courts.221 This would allow these courts to hear cases of individuals who are seeking to reinstate their Second Amendment rights.222 To support this proposal we must first look at the current legislation and specifically note the discriminatory view that fore fronted such legislation.223 The lack of relation between individuals with mental illness and dangerousness must be analyzed with the most accurate study guiding the discussion.224 Second, a reconciliation of Heller’s misconstrued “historical support” must be addressed as the difference in interpretation could lead to an

214. See id. 215. See supra Part II(A)(3); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 697 (2016). 216. See supra; THE FEDERALIST PAPERS:NO. 80 (Alexander Hamilton). 217. See id. 218. See supra Part II(A). 219. See id. 220. See D.C. v. Heller, 554 U.S. 570, 627 (2008); See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 686-87 (2016). 221. See infra Part IV. 222. See supra Part II(C). 223. See infra Part II(A). 224. See infra Part II(A)(2).

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argument without true basis.225 Finally, a detailed scrutiny analysis over the material will further illustrate the unconstitutionality of 18 U.S.C. § 922 as it currently exists.226

The Discriminatory View in Current Legislation

An irrational fear of the mentally ill population has unfortunately existed throughout much of our history as a nation.227 The mentally ill population has carried a stigma that they are dangerous while a debate continues on “whether this perception is grounded in reality.”228 Individuals who have been involuntarily committed carry this burden more than others as they were at one point deemed to be a danger to society and carry the assumption that they will always be a danger, based on that one moment.229

One crucial issue that has continued the stigma against the mentally ill is the all-encompassing grouping of individuals who have mental illness.230 Mental illness includes those who have minor anxiety to those with severe schizophrenia.231 Mental illness incudes those who learn behavioral techniques and cope while being a productive member of society, as well as those who must be heavily medicated to ensure safety for themselves and others.232 Those with mental illness vary in such extreme measures that grouping them together is deceiving at best.233

225. See infra Part II(B)(1). 226. See infra Part II(B). 227. See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, (2013); See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, (2015). 228. See Vars & Young, supra note 231, at 14. 229. See Gues Pryal, supra 231. 230. See Ronald W. Manderscheid, Carol D. Ryff, Elsie J. Freeman, Lela R. McKnight-Eily, Satvinder Dhingra, & Tara W. Strine, Evolving Definitions of Mental Illness and Wellness, PREVENTING CHRONIC DISEASE, (2009); (Many psychologists and researchers outside of the legal field separate the mentally ill population into individuals with serious mental illness and those who do not. However, the law has not provided such distinction as it is much more slow moving compared to society. The law recognizes individuals with mental illness as one group and have stigmatized the entire group based on individuals who act in the most severe and serious ways.) 231. Id. 232. Id. 233. See Id.; See Gues Pryal, supra note 231.

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This misunderstanding and belief of the mentally ill population has led to an overwhelming stigma against those with mental illness.234 This is illustrated and supported with both skewed statistics as well as congress supporting such stigmatized language.235

Correcting the Overwhelming Stigma

The stigmatized belief about individuals with mental illness has seeped into the minds of many individuals throughout the nation, including (most devastatingly) those in power.236 In many instances these individuals are looked down upon as no longer being of the same nature as every other human being.237

Unfortunately, there seems to be a lack of effort in understanding each individual as an individual rather than judging them based on their existence in the all-encompassing “the mentally ill.”238

The political parties further the stigmatized view of the mentally ill population because it furthers both of their own agendas.239 The Democratic Party pushes a stigma that firearms are too readily available (to everyone) including individuals who are mentally ill causing the increase of gun violence that we are witnessing in our recent history.240 It is no secret that the left winged party wants to restrict the Second Amendment much more than it has applied.241 Placing blame on the mentally ill population serves this purpose as it uses a scare tactic to ensure people are so worried of the possibility

234. See Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685, (2006).; See Gues Pryal, supra note 231. 235. See Gues Pryal, supra note 231; See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, (2013). 236. See Gues Pryal, supra note 231. 237. Id.; See Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www. reuters.com/article/us-usa-guns/nra-chief-criticizes-navy-yard-for-beingunprotectedbefore-mass-shooting-idUSBRE98L0C920130922; See D.C. v. Heller, 554 U.S. 570, (2008). 238. See Gues Pryal, supra note 231; Reuters Staff, supra note 241. 239. Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J.L. &PUB. AFFS. 1, 50 (2019). 240. See id. 241. See id.