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Sixth Circuit Court of Appeals, Cincinnati, Ohio
Sixth Circuit Court of Appeals, Potter Stewart U.S. Courthouse, Cincinnati, Ohio

The Sixth Circuit Court of Appeals held today in the matter of Tyler v. Hillsdale County Sheriff’s Dep’t that a Michigan man who had been barred by federal gun control laws from possessing a firearm could proceed with a suit asking that prohibition to be overturned.

Clifford Charles Tyler had a run of bad luck in 1985, when his wife of 23 years left him for another man, took his money, and served him divorce papers. Tyler spent the next few nights sitting at home “in the middle of the floor…pounding his head.” Concerned, his kids set him up with an appointment with a doctor, who promptly had him committed to an institution for treatment and evaluation for the next four weeks or so. Tyler, who is now 74 years old, worked for another 18 or 19 years after his release from treatment, re-married in 1999, and does not appear to have had any other major mental health issues since that “brief reactive depressive episode” in 1999.

None of that matters under the gun control scheme in our country; because of that episode and course of treatment, Tyler wears the scarlet letter of an American legally barred from exercising his right to keep and bear arms. When he tried to purchase a gun in 2011, he was advised by the Hillsdale County Sheriff’s Department of this fact.

As I have written about earlier, people who are legally disabled from possessing a firearm in this country due to a nonviolent misdemeanor conviction or mental health commitment have a raw deal when trying to get their constitutional rights restored. Procedures for removing the legal disability vary wildly in the several states, and some — like Michigan — have never created a legal path forward at all. In theory, federal law (at 18 U.S.C. § 925) provides that a person prohibited by federal law from possessing firearms can apply to the Attorney-General for relief from that legal disability (and even petition the courts for review of her decisions.) Unfortunately, Congress has not seen fit to provide funds to the AG to allow this program to be implemented, so that option remains a nullity. Tyler had no official path of ever restoring his fundamental rights protected by the Second Amendment. With that in mind, he filed suit, claiming that his history since 1985 showed that he was mentally fit, and that continuing the ban on his possession of firearms was a violation of his fundamental rights.

The District Court judge laughed Tyler’s suit out of court, holding that Tyler had failed to state a valid claim. The lower court judge even had the temerity to cite the landmark 2008 decision, Heller v. D.C. in support, noting that the late Justice Scalia had, in dicta, described “longstanding prohibitions on the possession of firearms by felons and the mentally ill” as being “presumptively lawful regulatory measures….” (See Heller, at footnote 26.)

The Sixth Circuit, in an opinion by Judge Julia Smith Gibbons, rejected the lower court’s reasoning, and ordered that Tyler’s case be allowed to proceed. Just because a law is “presumed” to be valid, she writes, doesn’t mean that it actually IS valid. People can still sue and make the case that the law is unconstitutional. She writes:

A presumption implies “that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge.” We do not take Heller’s “presumptively lawful” dictum to foreclose § 922(g)(4) from constitutional scrutiny. The mere fact that Congress created a categorical ban does not give the government a free pass; it must still be shown that the presumption applies in the instant case. As the Seventh Circuit has recognized, the Heller Court’s observation regarding the presumptive lawfulness of longstanding bans is precautionary, not conclusive.

(Citations omitted.)

Judge Gibbons offers the following, which apparently shows the only real argument the other side had:

To rely solely on Heller’s presumption here would amount to a judicial endorsement of Congress’s power to declare, “Once mentally ill, always so.” This we will not do. Heller’s presumption of lawfulness should not be used to enshrine a permanent stigma on anyone who has ever been committed to a mental institution for whatever reason. Some sort of showing must be made to support Congress’s adoption of prior involuntary commitments as a basis for a categorical, permanent limitation on the Second Amendment right to bear arms.

The upshot of all this is that Mr. Tyler’s rights have not yet been restored, but that at least his case can finally proceed. Judge Gibbons explained that going forward, the government could only win if: (1) It could explain the necessity of the lifetime ban on people who had once been involuntarily committed due to mental illness, like Mr. Tyler, or (2) by showing that the law was constitutional as applied to Tyler because he would be a risk to himself or others.

I don’t think that people who are currently suffering from mental illness, or who just got out of the slammer after serving 20 years for murder necessarily should have their rights restored immediately. But, very occasionally, people do change. The sick get well. Better answers are found. Allowing those folks a way to have their fundamental rights restored is just…justice.

There is one downside here. This decision was before the en banc Sixth Circuit. The case had been before a three-judge panel back in 2014. That panel held that strict scrutiny would generally be the appropriate standard for evaluating restrictions on the right to keep and bear arms. ‘Strict scrutiny‘ is the highest possible level of judicial review of a law, and when it is applied, it must be shown that a law is justified by a compelling governmental interest, and that the law is the least restrictive means to protect that interest.

Most courts have been applying intermediate scrutiny when evaluating the constitutionality of firearms law. As you can guess, that’s a lower standard of review in which the government must show that the challenged law furthers an important government interest by means that are substantially related to that interest. In this case, the en banc Sixth Circuit decided to apply the intermediate standard. That was disappointing, as an affirmation of strict scrutiny could only have helped in the Sixth Circuit and beyond. With strict scrutiny, anti-gun courts in locales such as California or Massachusetts would likely be running scared. Still, a win’s a win.

We will have to see how the lower court handles Mr. Tyler’s case going forward.

[Hat tip: Gabriel Malor]

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    • 60s-70s NRA is very different than todays NRA because the members went from Fudds to those actually concerned about gun rights.

      But feel free to throw money at other gun rights .orgs like GOA (who hasnt done shit) or SAF (whose own Allen Gottlieb said universal background checks are A-OK).

      • S.A.F. (Second Amendment Foundation) has been at the forefront of regaining our right to the Second Amendment and has had more victories in courts than all other organizations combined, and most of the NRA court actions are “piled on” after SAF has done most of the heavy lifting.

        I do share you view that on occasion the head of this organization has tried “too hard” to compromise with our enemies. I guarantee you I was way ticked off on how he was repeatedly trying to compromise with the Chicago and Illinois politicians on the right for concealed carry!

        Yet his overall strategy of hitting away at our enemies at state, local, and federal level, wherever and whenever possible has been a great success.

  1. What a load. Getting “treatment” or help for a significant emotional issue that is not caused by an internal disorder is not a “mental illness” it’s what normal people do when they suffer an emotional trauma, which I’m sure a nasty divorce is.

    Some people talk to a doctor, some people talk to friends, some people talk to Jack or Jim. This guy’s only problem is that the doctor he talked to was a freaking quack.

    • This is exactly the problem, and it’s not just about guns. We have made seeking help for mental issues (including ones that end up manifesting physically, like addiction) a literal crime or a socially stigmatized act that people associate with… all the negative things, I’m not going to list them.

      What happens? People don’t seek help. The problem gets worse.

      If they do seek help, there is no room at the inn (I know this won’t go over well here, but that’s Reagan’s fault. The honest among you know it) and the mentally ill and dangerously addicted are left to fend for themselves and survive however they can. Which sometimes means getting shot by one of us.

      I know most of you are super bootstrapy and think the poor, the mentally ill, the housewife who started drinking in her teens for fun and then couldn’t stop, the construction worker who got a little to friendly with his pain meds, got cut off by his doctor and ended up seeking relief on the street, the destitute elderly with dementia, all of them are at fault for their lot in life, and they should just be as tough as you, but maybe, just maybe not everyone in the country has the same family support, friends, educational opportunities, money, or just plai backbone as you.

      Sorry for the off topic rant, I just get tired of people on this site acting like the world is black and white and the only people whose blood counts are the ones who look and think just like them.

      • I see what you’re saying Swarf and IMHO, having worked with addicts by volunteering with them for a year, they actually have a mental issue in the fact that they lack impulse control. Most of them can learn it but some cannot. Sober addicts often display the same issues non-sober addicts have, they’re impulsive to the point of being annoying and sometimes even a danger to themselves.

        Also, when it comes to homeless addicts most of them are mentally ill and self-medicating something like schizophrenia because booze and drugs work better and have less side effects than the legit meds.

        But back to the topic at hand. You are absolutely right. Stories like this convince people not to seek help that they may well need because they’re afraid of what are, quite frankly, ridiculous consequences. The answer to a guy who’s going through a nasty divorce is some mild tranquilizers and a referral to a therapist to talk to about what the guy is going through and assure him that it’s normal. Locking him up against his will and calling it an “involuntary psychiatric confinement” is beyond retarded.

        It’s hit or miss with a doctor. My parent’s doctor is staunchly anti-gun and would look for a reason to get your guns taken away from you. He’d tell himself he did you a favor because you were going to hurt yourself eventually anyway. My doctor on the other hand is at the range on the weekends with me.

        • Nah, my parent’s doc is just a Lefty who believes the bullshit.

          Every year for my parents’ physicals he asks about guns. My parents pull a shocked face and say “Never would we allow such a thing in our house!” which is a lie but it keeps the doc KITDFOS on that topic and therefore happy.

        • “Are there guns in your house?” Is on the pre-visit form at my doctor’s office, and since my doctor is part of a massive network of providers that all work under the same Umbrella Corp., it’s probably safe to assume that that form is the same across the whole network.

          I’ve been dealing with some serious issues lately, so I haven’t really had the time or inclination to pick a fight with my insurer, and I think writing in “what goddamn business is it of yours?” is as good as a “yes”.

          Of course, is leaving it blank is probably as good as a “yes”, too, which is what I do.

          If anyone ever asks me about it, then I will tell them some… things.

      • If they do seek help, there is no room at the inn (I know this won’t go over well here, but that’s Reagan’s fault. The honest among you know it)

        Wasn’t deinstitutionalization because of a Supreme Court ruling in a case brought by the ACLU?

        Kinda unclear on how this is on Reagan.

      • “If they do seek help, there is no room at the inn (I know this won’t go over well here, but that’s Reagan’s fault. The honest among you know it) and the mentally ill and dangerously addicted are left to fend for themselves and survive however they can”

        Thank you for being honest. You believe that US citizens should be subject to deprivation of liberty despite being innocent of any crime. I assume you are in favor also of “no-fly, no-buy.”

        That guy down the street sufferring from depression is no threat to you or anyone else. He has the right to live his life unmolested by people who want to restrain him and force him to take psychoactive drugs.

        You need to be posting at HuffnPuff. You are a totalitarian and anti Fifth Amendment.

  2. The courts cannot apply strict scrutiny to firearm cases because all the courts want to preserve the privilege of preventing the second amendment to be declared “absolute”. Strict scrutiny effectively acts to prevent government action except in the most extreme circumstance. In order to preserve “reasonable” gun control laws (Scalia in Heller), courts must apply scrutiny in a “reasonable” manner; i.e. “intermediate”. The Heller decision did not move the needle a millimeter toward “absolute” gun rights. It only held that local government had not made a case that would survive strict scrutiny (allowing a new argument in the future). Remember, the 4-judge minority effectively held that strict scrutiny was the wrong standard. Once Billary is elected, the SC will be able to put gun rights to bed forever.

      • It’s looking better and better, jwm.

        He needs to keep on listening to the advice he’s getting from his new campaign staff.

        The debates, however will probably decide the race…

        • The electoral college will decide the election; nothing else. If, as reported, 48 states have rules in place that dictate electors must vote for whomever garnered the most votes in the popular election, winning the popular would be the deciding factor for the electoral college. However, no one has made a legal challenge to the notion that state elector rules are illegal, and that an elector can vote his/her conscience. I fully expect that if Trump wins the popular, demoncrats will rebel at elector rules and refuse to comply.

        • That’s an interesting scenario, Sam.

          People were making similar noises at the DNC convention, and little came from it.

          “Is it wrong of me to pray she has a stroke or other event at the debates?”


          Next stupid question? *snicker*

          • Oooopps. I think this was meant for someone else (kinda concluded that because the header reports “Geoff PR responds to Geoff PR”).

        • @SamIAM
          If, as reported, 48 states have rules in place that dictate electors must vote for whomever garnered the most votes in the popular election, winning the popular would be the deciding factor for the electoral college.

          Hopefully Trump isn’t as full of FAIL as your REALLY wrong statement is.

          Long live the electoral college. There are perfectly good reasons for its existence and are applicable today.

        • “However, no one has made a legal challenge to the notion that state elector rules are illegal, and that an elector can vote his/her conscience. I fully expect that if Trump wins the popular, demoncrats will rebel at elector rules and refuse to comply.”
          Ironic. On like, a couple of levels (at least)

        • What the populace looks for in a “debate” is which candidate looks better. Actual substance is 5 or 6 on the list.
          If Trump prepares well, he has the advantage of having a better wardrobe and a more pleasant sounding voice. He also has the advantage in that everything the Clintonistas accuse him of wanting to do (i.e., selling the country to the Russkies) Hillary has already done, and it’s documented.

          I really think that IF he prepares, which is not a sure thing, he’ll mop the floor with her.

  3. This again shows the importance of good common sense judges who can both read and Follow The Constitution.
    If the anti’s get their way, they would make any minor infraction , misdemeanor , traffic ticket, or schoolyard teenage fistfight into a lifetime ban on firearm ownership.

  4. Long time ago, but still brings to mind a question, how do you become qualified/authorized to confine someone involuntarily to a mental institution? Is that a special degree from a magic school, or what? Because it sounds criminal.

    • A loved one had some serious issues, so I have some experience. The subject must be examined by a medical professional and determined to be an IMMEDIATE danger to themself or others, immediate being the operative term. That qualifies for a 72 hr hold.

      Longer than that is difficult to achieve. My loved one was homeless, delusional, living on the street in the dead of winter, but because she was not an immediate danger, she did not meet the standard for involuntary long term commital.

      And that is how it SHOULD be. We have a right, in this country, to live free.

      Prior to the bipartisan effort to close the looney mills, citizens could be detained indefinitely without trial while the “hospitals” were paid by the taxpayer. There was a lot of money involved. And when the Government offers money, evil men will commit evil acts to get their hands on it.

  5. When the crazies get to say that you’re too crazy to possess arms, that’s crazy.

    Crazy? I was crazy once, they locked me in a round room and fed me worms.

    Worms??? Worms make me crazy.

    Crazy? I was crazy once, they locked me in a round room and fed me worms.. .

    • If you want to fly combat missions, you have to be crazy. To get out of flying combat missions, the flight surgeon has to certify you are crazy. If you tell the flight surgeon you were driven crazy by fear of being killed while flying combat missions, the flight surgeon will tell you that fear of being killed on a combat mission is not crazy. You will be put back on the mission board.

      • Catch 22.

        In my day we were told in basic that if we wanted out just kiss the guy next to us. If he liked it he’d get out too.

  6. Mental illness is as broad a term as is the term transgender. Transgender as used now encompasses everyone who cross-dresses to a person is has complete gender reassignment. Mental illness as used can mean anything. People under extreme stress, be it money, job, marital, health, a survivor from someones suicide, which I can tell you first hand is a real bitch, or any combination of countless problems can result in situational depression. It’s usually temporary but just as real.

    I can’t see where society is served or justified in denying constitutional rights because someone experienced a brief episode of difficulty during their life.

  7. It’s not about a person who is mentally ill being prohibited, it’s about being permanently prohibited when the mental illness may or may not be permanent.

    If, when I got divorced and had situational depression I had voluntarily sought mental help, and it took 6 months of therapy, I would not be prohibited at any point. But, a non-violent episode of depression (I collapse on the floor in tears) where my family calls police / ambulance and I spend a single involuntary day getting help… prohibited person for life.

    This does not mean that someone found by the courts to be a danger to themselves or others shouldn’t be prohibited (i.e. schizophrenia with violent tendancies, especially if off meds), but that mental illness comes in many forms and severities that may be temporary or long term, and that there has to be a path, through the courts, to restore a person’s rights without a bunch of red tape or outright blockage.

    I would also put forth the same for non-violent felons. You do your time for your crime (including any probation), you should be able to go to court and have your rights restored. There are many, many ways to become a felon without being a habitual criminal or violent (example: stealing a bicycle if the value is over $750 is a felony in Oregon which is why the Portland police started using expensive bait bikes instead of cheeper ones for their sting operations), permanent prohibition of a right is excessive.

  8. Isn’t it interesting that our government (which is not just the executive branch) can pass laws authorizing citizens a legal recourse to government action, then refuse to provide funding for citizens to appeal to that same legal recourse?

    “Of course you can appeal that regulation/decision. Only problem is government did not provide funding for government to staff and operate that process of redress. But you most certainly have the right to seek legal redress.”

    • The article is more comprehensive than intended, I’m sure. What Gura hits upon is the breaching of the “gentleman’s agreement” that honest people will abide by a set of rules, even when the rules constrain one’s desired outcome. The lower courts are merely echoing Andrew Jackson in Worcester v. Georgia. Jackson did not like the Supreme Court (opinion written by Chief Justice Marshall). Jackson reportedly said, “John Marshall has issued his ruling; now, let him enforce it.” Jackson ignored the SC. The lower courts know that the only enforcement available to the SC is via impeachment action against lower federal court justices. The implications of judicial outlawry are immense. Not only for the Second Amendment, but for the rule of law itself. One element Gura did not note is that lower courts can refuse to issue injunctive relief while losers in lower courts appeal to the next level. Once governments decide to do as they please during appeals, higher courts will be persuaded that the clock cannot be rolled back; ruling accordingly.

      Never forget, never: leftists, socialists, statists, dictators, all view the law not as a means of organizing a coherent society, but a weapon used to subjugate opponents.

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