First Circuit Suggests The Mentally Ill Cannot Lose Their Right To Buy Or Carry Guns Without A Hearing

Yesterday, Rep. Gabrielle Giffords (D-AZ) announced that she would resign from Congress to focus on her recovery from the horrific mass shooting where she was targeted by mentally ill shooter Jared Lee Loughner. Nine days before this announcement, however, the United States Court of Appeals for the First Circuit handed down a decision which could drastically limit lawmakers’ ability to keep guns away from mentally ill potential assailants such as Loughner.

Although the Supreme Court’s decision in D.C. v. Heller is best known for holding for the first time that the Second Amendment protects an individual right to keep a firearm, Heller also made clear that this right is not absolute. Laws prohibiting concealed weapons, or the carrying of “dangerous and unusual weapons,” or the carrying of firearms in “sensitive places such as schools and government buildings” are still entirely constitutional, as are laws prohibiting the possession of firearms by felons or the mentally ill.

The First Circuit’s decision in United States v. Rehlander, however, suggests there is a serious limit on this ability to keep guns away from people who lack the capacity to handle them. Although the court invokes a technical doctrine to avoid saying so definitively, the court strongly suggests that mentally ill individuals must be allowed to carry guns until they receive a fairly elaborate hearing declaring them unfit to use a gun:

Although the right established in Heller is a qualified right, the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, and adjudicatory hearing, including the right to offer and test evidence if facts are in dispute, is required. It is evidently doubtful that a [Maine temporary committment hearing] provides the necessary process for a permanent deprivation.


If this decision stands the test of time (and, potentially, the Supreme Court) it would drastically alter society’s power to keep guns away from the mentally ill. Loughner, for example, was deemed unqualified to join the military and was asked to leave his community college due to mental health issues, but it is unlikely that either of these incidents meet the bar described by the First Circuit as sufficient to allow someone to lose their ability to carry a firearm because they are mentally ill.

(HT: Eugene Volokh)