974 F.3d 1082
9th Cir.2020Background
- Plaintiff Duy Mai was involuntarily committed for a short period as a 17-year-old; he has had no subsequent commitment, no criminal history, and Washington state restored his firearm rights in 2014 after finding him not a present danger.
- Federal law, 18 U.S.C. § 922(g)(4), bars possession by anyone "committed to a mental institution." Mai brought an as-applied Second Amendment challenge to that statute.
- The district court dismissed Mai’s claim applying intermediate scrutiny and relying on empirical studies linking mental illness to increased violence/suicide risk.
- A Ninth Circuit panel affirmed, treating Mai as outside the Second Amendment’s "core" because of his prior commitment and upholding the lifetime federal ban under intermediate scrutiny using several studies (including foreign data).
- Multiple Ninth Circuit judges dissented from denial of rehearing en banc, arguing the panel disregarded Heller’s text/history/tradition, misapplied Chovan’s two-step framework, wrongly applied (and weakened) intermediate scrutiny, and relied on inapposite studies to justify a lifetime deprivation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §922(g)(4) as applied to Mai burdens conduct protected by the Second Amendment | Mai: his present status (restored state rights; no current illness) means the federal ban burdens core Second Amendment conduct (home defense) | Gov: the statute targets those adjudicated/committed as mentally ill — a presumptively lawful category; panel treated the statute as within Heller’s exceptions | Panel assumed the statute burdens protected conduct and proceeded under Chovan; en banc rehearing denied, leaving the panel result intact |
| Proper scope/role of historical/textual inquiry for lifetime bans tied to past commitment | Mai: Founding-era text/tradition show mental incapacity was treated as temporary; no historical analogue for permanent exclusion of formerly committed persons | Gov: relies on contemporary safety concerns and precedent treating the mentally ill as within presumptively lawful prohibitions | Dissenters: panel failed to apply Heller’s text/history/tradition; they argue history favors Mai. The panel did not meaningfully rely on original-era history and was affirmed by default when rehearing was denied |
| Level of scrutiny to apply to a lifetime, categorical ban on gun possession by a formerly committed individual | Mai: a lifetime ban that wholly prevents home possession strikes the core Second Amendment right and warrants strict scrutiny or is categorically unconstitutional as applied | Gov: intermediate scrutiny suffices because the ban targets a narrow class (those adjudicated/committed) outside the core | Panel applied intermediate scrutiny and upheld §922(g)(4) as applied to Mai; dissenters argue that core deprivation should trigger strict or per se review |
| Sufficiency and relevance of the government’s empirical evidence to justify the lifetime ban | Mai: studies relied on by the panel are inapposite (many foreign samples, short post-commitment windows) and fail to show continued risk for someone like Mai decades after a brief juvenile commitment | Gov: empirical studies demonstrate heightened risk among committed populations, justifying a lifetime prohibition as a preventative measure | Panel found the evidence adequate to satisfy its ‘‘reasonable fit’’ intermediate-scrutiny standard; dissent contends the evidence is not tailored to Mai and fails heightened-scrutiny demands |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects an individual right to possess firearms for self-defense in the home)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment incorporated against the states via the Fourteenth Amendment)
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (adopted Ninth Circuit two-step framework for Second Amendment claims)
- Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) (scope of Second Amendment informed by historical understanding)
- Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) (intermediate scrutiny framework applied in Ninth Circuit Second Amendment analysis)
- Tyler v. Hillsdale County Sheriff’s Department, 837 F.3d 678 (6th Cir. 2016) (criticized permanent stigma of past commitment; remanded for tailored analysis)
- United States v. Torres, 911 F.3d 1253 (9th Cir. 2019) (described the circuit’s ‘‘reasonable fit’’ inquiry under intermediate scrutiny)
- Boumediene v. Bush, 553 U.S. 723 (2008) (categorical approach to whether certain actors possess constitutional rights)
- United States v. Carolene Products Co., 304 U.S. 144 (1938) (Footnote Four: heightened protection for discrete and insular minorities)
- United States v. O’Brien, 391 U.S. 367 (1968) (test for when a regulation that incidentally burdens speech is permissible)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (narrow tailoring/time/place/manner principles for content-neutral regulations)
- Craig v. Boren, 429 U.S. 190 (1976) (rejecting reliance on broad sociological generalizations under heightened scrutiny)