Mimesis Law
20 October 2020

To Retain Gun Rights, Just Be Perfect

July 15, 2016 (Fault Lines) — Well hooray. A man who served in the military, who spent years as a correctional officer, and who lived his entire life without committing a felony or a crime of domestic violence has been found to be “no more dangerous than a typical law-abiding citizen.” As a result, bully for him, Jonathan Yox gets back his Second Amendment rights.

Why were they stripped away in the first place? Because at fifteen years old, under the influence of “an older girl,” Yox started cutting himself and entered a suicide-pact. He was caught and involuntarily committed to a mental institution for three days. Did he receive notice of a hearing and a right to be heard? Hell no. He got a signature from a person the court doesn’t bother to name.

And after that? A lifelong ban on firearm ownership, all because the federal government decided to pass a law that says that you can’t possess a firearm if you “[have] been adjudicated as a mental defective or [have] been committed to any mental institution.”

Despite the ban, which Yox may very well not have known about, he served honorably in the military:

During his military service, Mr. Yox was trained to use, and did use, various kinds of firearms, including fully automatic rifles, machine guns, explosives, and grenade launchers…. Upon his return from active duty in Afghanistan, Mr. Yox was not recommended for further psychological evaluation after his deployment briefing.

The government attempted to argue that because of his mental health history, Yox was likely to relapse and start shooting people. It argued that people don’t get their gun rights back just because of their employment history. Perhaps because he has been such a model citizen, it barely bothered to address the facts of his case at all, apparently relying more on an argument that the systematic exclusion of the mentally ill from firearms ownership tends to make sense.

But maybe the government was on the right track. Why the hell would it be okay to say that anyone who has ever suffered any form of mental illness isn’t allowed to own a firearm? Well, it’s all because of that same damned footnote we’ve talked about earlier.

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Scalia claimed in Heller that there was a long-standing prohibition on the mentally ill to prevent them from having guns. He wasn’t right, but that doesn’t mean that courts don’t heavily rely on the language. And what it meant for Mr. Yox is that, to have access to a right he was born with, he had to assemble a legal team, go to court, establish a track record of honor, virtue, and no mistakes, and then convince the court that that track record was sufficient to allow him his rights.

Most people subject to this disability wouldn’t be so lucky.

This is logical and expected, as it is highly unlikely that most of the people who have been adjudicated as a “mental defective” or who have been committed to a mental institution will be able to present a court with sufficiently compelling facts to warrant relief from the federal firearms disability. But that does not mean that it is impossible for any plaintiff to present such facts. Indeed, if Mr. Yox were not to succeed on his as-applied challenge, we cannot imagine that there exists any person who could.

But wait a minute, the attentive reader might ask, “aren’t you typically entitled to some sort of hearing before the government can strip away an essential civil liberty?” Yox raised this point as well, arguing that it was fundamentally unfair to restrict his liberties based on his conduct as a juvenile, especially when he was never given an opportunity to defend himself.

Under Bell, a plaintiff does not have a due process right to a hearing to determine his “future dangerousness.” Similarly, in the instant matter, we do not believe the law supports Mr. Yox’s contention that he deserved some kind of hearing before or after being subjected to the disability under § 922(g)(4). The statute subsection is clear that anyone who has been committed for mental health reasons is subject to it; thus a hearing on whether the plaintiff is still dangerous is not in fact relevant. However, Barton holds that a plaintiff may still contest the prohibition with an as-applied Second Amendment challenge to the statute.

This isn’t much of a consolation. There’s a reason that we typically require hearings before we remove life, liberty, or property. It’s because holding the hearing later doesn’t do much to curb potential injustice. And a remedy like mounting a federal challenge naming Loretta Lynch as a defendant isn’t available to just anyone.

As Ken White aptly pointed out, our rights are a bundle. You can’t remove just one stick. And the contempt we heap upon any one right can spread, by analogy, to any of the others. It’s great for Yox that he can own a gun. It sucks for everyone else that it required a miracle to get there.

Don’t think for a second that this is over. Eugene Volokh suggests that the government is likely to appeal. With any luck, Yox will get a cross-appeal and the opportunity to explain why his liberties shouldn’t have been snuffed out in the flash of a pen.

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