A Bridge Over Troubled Water: The Second Amendment Guarantee for the Previously Mentally Institutionalized

37 Pages Posted: 28 Jan 2016

See all articles by Nash Gilmore

Nash Gilmore

University of Mississippi, School of Law, Students

Date Written: 2015

Abstract

In District of Columbia v. Heller and McDonald v. City of Chicago, Ill., the Supreme Court established that the right to keep and bear arms is a fundamental right guaranteed to all Americans. In 2014, using these opinions as a basis for its opinion, the Sixth Circuit became one of the first circuits to strike down a federal firearm control law in the post-Heller Era. In Tyler v. Hillsdale County Sheriff’s Dep’t., the Sixth Circuit struck down the federal firearm prohibition on the previously mentally institutionalized because it failed to satisfy a strict scrutiny standard of review.

The Tyler court, in applying strict scrutiny, became the first circuit to apply such standard to federal firearm laws and added fuel to the debate over who should be able to possess firearms. While this debate is not new, the holding in Tyler has again made many question Congress’s existing gun regulations. One of these regulations — and the subject of this Article — is a class-based prohibition that groups the mentally ill and the previously mentally institutionalized together. This prohibition treats these two classes as one, when in reality not all the previously mentally institutionalized are still currently mentally ill and should not have their right to keep and bear arms severely restricted.

In light of the Tyler opinion, this Article is the first to take an in-depth look at the prohibition on the previously mentally institutionalized, showing why the prohibition is currently unconstitutional. This Article shows that the prohibition cannot be supported by history or by public policy and subjects the prohibition to all three levels of judicial scrutiny, showing that regardless of the tested used the prohibition is unconstitutional. This Article recommends that to alleviate the current unconstitutional prohibition, Congress should reinstate the federal relief-from-disabilities program that was originally enacted with the prohibition 1968 and has since lost funding.

Keywords: Second Amendment, Strict Scrutiny, Disability, Previously Mentally Instituitonalized, Guns, Institution, District of Columbia v. Heller, McDonald v. City of Chicago, Tyler v. Hillsdale Sheriff's Department

Suggested Citation

Gilmore, Nash, A Bridge Over Troubled Water: The Second Amendment Guarantee for the Previously Mentally Institutionalized (2015). Available at SSRN: https://ssrn.com/abstract=2722891 or http://dx.doi.org/10.2139/ssrn.2722891

Nash Gilmore (Contact Author)

University of Mississippi, School of Law, Students ( email )

MS 38677
United States

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