Clifford Tyler is 74 years old. Thirty years ago, he suffered an emotional episode, but he has since reclaimed his Second Amendment Constitutional right to bear arms. However you phrase the result, the United States Court of Appeals for the Sixth Circuit’s recent decision in Tyler v. Hillsdale County Sheriff’s Department, allowing previously committed individuals to own guns, has brought with it a barrage of legal and practical questions.
After Clifford Tyler’s wife of 23 years ran off with their finances – and another man – Mr. Tyler experienced an emotional breakdown that led his daughters to contact the police. “He had trouble sleeping and sat at home ‘in the middle of the floor… pounding his head.’” Mr. Tyler was committed to Ypsilanti Regional Center for a period, not to exceed 30 days, due to a concern that he might further injure himself.
A quarter of a century later, Mr. Tyler was denied the ability to purchase a gun pursuant to federal law 18 U.S.C. § 922(g)(4) which prevents anyone from possessing a firearm if they have been “adjudicated as a mental defective” or “committed to a mental institution.”
“There is no indication of the continued risk presented by people who were involuntarily committed many years ago…”
Sitting en banc, the Sixth Circuit held that Tyler had a “viable claim under the Second Amendment” to challenge the constitutionality of 18 U.S.C. § 922(g)(4) and allowed remand for the lower court to apply an intermediate level of scrutiny. The Court began by putting aside the traditional prohibition, expressed in Heller, against allowing the mentally ill to possess firearms. Instead, it found inconclusive whether the mentally ill fully fell outside the protection of the Second Amendment (i.e. not a categorically unprotected class) and, pursuant to United States v. Greeno, proceeded to determine what level of scrutiny applied to overruling the statute in question.
Landing on an intermediate level of scrutiny, the Court weighed the interests of the individuals against that of the Government, and concluded that 18 U.S.C. § 922(g)(4) could not stand as applied to every person with a history of mental illness. While the Government’s interest to prevent suicide and murder is substantial, it could not overwhelm the rights of every individual who has had any mental illness in their past. The Court emphatically stated, “There is no indication of the continued risk presented by people who were involuntarily committed many years ago and who have no history of intervening mental illness, criminal activity, or substance abuse.”
“In some states, judges are given exceedingly wide discretion in the restoration process.”
Historically, the states have created easier avenues to have one’s gun rights restored. At this time, 31 states have specific gun laws dealing with restoration. California, for example, includes in Cal Wel & Inst Code § 8103:
“(1) No person who… has been adjudicated by a court of any state to be a danger to others as a result of a mental disorder or mental illness… shall purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control a firearm or any other deadly weapon unless there has been issued to the person a certificate by the court of adjudication upon release from treatment or at a later date stating that the person may possess a firearm or any other deadly weapon without endangering others, and the person has not, subsequent to the issuance of the certificate, again been adjudicated by a court to be a danger to others as a result of a mental disorder or mental illness.”
These statutes have led to exceedingly wide judicial discretion in the restoration process. In Idaho, a woman was able to merely send in a letter to the district court and have her rights restored via a judge order in the return mail. This occurred, notwithstanding the fact that, she had only been out of commitment for a couple of years.
While the genuine risks in many of these cases are low, this is not always the case. Michael Luo writes in the New York Times, “Then there are the nightmare cases — like that of Ryan Anthony, 35, a former Emmy Award-winning animator at Disney who was involuntarily hospitalized in mid-2001 after losing his job and separating from his wife. Mr. Anthony filed a petition to get back his gun rights in early 2002, telling a court-appointed psychiatrist that he wanted to go skeet shooting. A few weeks after the court granted his petition, Mr. Anthony bought a Remington 870 12-gauge shotgun, holed up in a Holiday Inn in Burbank, CA, and committed suicide.”
Additional accounts include extremely short hearings, sometimes only five minutes in length, involving minimal evidence, and only a few questions by the judges. As Luo reports, “[M]any seemed willing to simply give petitioners the benefit of the doubt. The results often seem haphazard.” In 2011, hundreds of people had already taken advantage of this process.
This is a marked difference from the federal law under which Tyler’s case originates. Federal laws have traditionally held the mentally ill to stringent restrictions. In fact, programs that existed to aid in the restoration process have since been defunded. Until Tyler, the only current avenue for restoration at the federal level was presidential pardon.
In addition to statutes directly contradicting federal mandates, few states opted to report to the FBI’s National Instant Criminal Background Check System (NICS). This created a vast disparity between those who could legally buy guns according to federal law and those who were actually able to because their history did not show up on background searches. However, the 2007 mass shooting at Virginia Tech was prominent in creating the public outcry that led to much more cooperation.
The recent shift by the federal courts, or at least the Sixth Circuit, may be due to recent commotion regarding federal restoration laws. Or it could possibly due to concern over future state nullification laws, where states refuse to carry out federal law or even make it illegal for federal officers to enforce federal laws in their state.
Adding further to the confusion, the decision in Tyler follows on the heels of a decision by the United States Court of Appeals for the Third Circuit, which restores gun rights for minor crimes. This raises the question of whether these two considerations should work in tandem. Is someone 30 years removed from a crime they committed in their early twenties as likely to repeat as someone 30 years removed from a mental breakdown? Especially if the breakdown occurred in their 40s (as was the case with Mr. Warren) and time is now working against their mental capabilities. It also raises the question of how broad is the categorization of felonies as compared to what is required to be mentally confined?
“…the right of the people to keep and bear arms, shall not be infringed.”
Gun rights are a very sensitive issue. On one hand some believe that, “the right of the people to keep and bear arms, shall not be infringed” and any action by the Government is considered to be a risk to the rights of all. On the other, there are clearly people who should not have guns as they pose a danger to themselves and others. Just like the neighbor who knocks on your door, reeking of gin, asking for his hunting gun back or the friend at the bar who wants to drive home, a certain level of care should be taken to ensure the safety of everyone involved.
With the sway toward less restriction on gun rights, the contention lies in where do we draw the line, who is dangerous, and who gets to decide? How many years before you regain your rights in this area? What are the inherit dangers of judges weighing the risk? For years the states have had a patchwork of ineffective gun laws as described in the harrowing cases above. Is Tyler simply the beginning of the federal system following suit?
Judge Moore, in her dissent in Tyler, initially argues that the Heller presumption should stand and the Greeno test should not be used. However, she goes on to contend that even if Greeno applies and intermediate scrutiny is used, the Government meets their burden. Not only is the Legislature better equipped to consider the various dangers involved with guns in the hands of the previously mentally ill, but the statistics show a marked increase in the number of suicides by those with a history of mental illness. Guns being the most often used method to accomplish this.
“Ninety percent or more of suicide victims are individuals that suffered from mental illness.”
In 2013, Vars and Young published a law review article entitled: Do the Mentally Ill Have a Right to Bear Arms. Both the majority and dissent point to this article, but come to differing conclusions. Vars and Young cite that ninety percent or more of suicide victims are individuals that suffered from mental illness. Though incidents such as Virginia Tech and Aurora are more well-known, suicide is the primary governmental interest that should overcome an otherwise Constitutional right to bear arms. The note goes on to indicate that firearms are the method of choice for the majority of suicides. The main reason for this is “(1) ‘one third to four fifths of all suicide attempts… are impulsive,’ and (2) ‘more than ninety percent of people who survive a suicide attempt … do not go on to die by suicide.’”
On the outset, Mr. Tyler seems like the ripe individual to have his rights restored. However, even his case is susceptible to holes. He has had a clean bill of health for 30 years, however nothing in the record indicates that he has experienced any traumatic events similar to what he experienced with his previous wife. It is unclear if another such event occurs, he will not respond in a similar way to what his tendencies have established.
This case presents a best case scenario. After this decision the Court might be plagued with the individual who has only been clean for 15 years, or the individual who is 20 years removed from a mental facility, but had some issues with alcohol somewhere in between. These are issues that federal courts must now wrestle with and decide on a case by case basis. Such decisions are not easy, psychiatrist have enough of an issue determining who is dangerous and who is not. Even when psychiatrist testimony is involved in a restoration hearing, there are often extenuating circumstances that the psychiatrist either does not know, or does not think is necessary to tell the court.
This does not mean that Mr. Tyler is a poor candidate to have his rights restored, or that the rights of those like him are not infringed upon due to an incident that occurred three decades ago. The issue is whether this is a case of a good result creating bad law.
The Court is ambiguous enough in Tyler to raise the question of how long is long enough
While the correct answer might not be clear, the principle is simple – we need a system that fully accounts for the dangerousness of providing the mentally ill with firearms. It is unacceptable for people to receive permission to own a gun only a couple months after confinement. The Court is ambiguous enough in Tyler to raise the question of how long is long enough, and creates a system, at the federal level, that could lead to case-by-case judicial assessment. This creates the possibility of isolated horrors experienced in some states expanding across the country. While the desire to allow law-abiding, responsible citizens their guns is clear, the solution to carefully carrying it out is not.