Second Amendment Originalism and Mental IllnessMichael Ramsey

From Michael Buschbacher (Sidley): 

I wanted to send you a quick note about a Second Amendment case that I and a few of my colleagues recently picked up in connection with Sidley’s Supreme Court Clinic at Northwestern. The case is Beers v. Attorney General, No. 17-3010 (3d Cir.). It presents the same issue as Tyler v. Hillsdale County Sheriff from a few years ago in the Sixth Circuit: can the government permanently strip a mentally healthy and law abiding citizen of his second amendment rights solely because of a prior involuntary commitment? The Sixth Circuit said “no,” but the Third recently said “yes,” applying a misguided form of something like original methods originalism. As it explained things, while there were no founding-era laws disarming people because of mental illness, the founding generation “saw a danger in providing mentally ill individuals the right to possess guns,” regardless of the “[p]assage of time and evidence of rehabilitation.” As we explain in [our] petition for rehearing/rehearing en banc, however, this is demonstrably wrong. Blackstone, for instance, says that “the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed” and the person’s rights restored. 1 William Blackstone, Commentaries *304-05.

The Third Circuit opinion in Beers is here.  From the historical discussion (footnotes omitted): 

Even though he claims to be rehabilitated, Beers cannot distinguish himself from the historically-barred class of mentally ill individuals who were excluded from Second Amendment protection because of the danger they had posed to themselves and to others.

...

Traditionally, individuals who were considered dangerous to the public or to themselves were outside of the scope of Second Amendment protection. Although laws specifically excluding the mentally ill from firearm possession did not begin appearing until later, such laws were not necessary during the eighteenth century. At that time, judicial officials were authorized to “lock up” so-called “lunatics” or other individuals with dangerous mental impairments. Thus, courts analyzing the traditional justifications for disarming the mentally ill have noted that “if taking away a lunatic’s liberty was permissible, then we should also find the ‘lesser intrusion’ of taking his or her firearms was also permissible.”

The historical record cited in Binderup supports this conclusion. In Binderup, we turned to the precursor to the
Second Amendment, the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents. That Address states that citizens did not have a right to bear arms if they had committed a crime. The Address goes on to note that citizens were excluded from the right to bear arms if they were a “real danger of public injury.” We can therefore ascertain that the traditional justification for disarming mentally ill individuals was that they were considered dangerous to themselves and/or to the public at large.

In a footnote, the court acknowledged the split with the Sixth Circuit in Tyler and added: "For the reasons we have stated above, we disagree that there is an absence of historical evidence that mentally ill individuals, who were considered a danger to themselves or to others, were banned from possessing guns."

The Sidley brief is here.  In part it argues:

The cited history [in the opinion], however, showed only that those who were dangerously mentally ill could be “locked up” and, a fortiori, could also be disarmed at the time of the founding. Op.16 (citing Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1377 (2009) (quoting on Henry Care, English Liberties, or the Free-born Subject’s Inheritance 329 (6th ed. 1774))). This does not support the panel’s “deduction” that such deprivations could be permanent, regardless of recovery. Op.16 n.43. Our common law tradition has “long recognized that mental illness is not a permanent condition.” Tyler, 837 F.3d at 710 (Sutton, J., concurring). Thus, as one leading founding-era legal treatise explained, “[a] lunatic is never to be looked upon as irrecoverable.” Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy 73 (1807). And “the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed” and the person’s rights restored. 1 William Blackstone, Commentaries *304-05. Even the sole historical source on mental illness that the panel relied upon explains—on the same page that the panel looked to—that “[a lunatic] is to be kept … locked up only so long as such lunacy or disorder shall continue, and no longer.” Care, supra, at 329.

Interesting case (and thanks for the pointer).  Maybe a Supreme Court candidate, if the Court is looking for some incremental Second Amendment cases.