A chink created in GCA68

Via Dave Hardy and WSJ. This is a really big deal:

This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person “who has been committed to a mental institution,” 18 U.S.C. § 922(g)(4), violates the Second Amendment. Twenty-eight years ago, Clifford Charles Tyler was involuntarily committed for less than one month after allegedly undergoing an emotionally devastating divorce. Consequently, he can never possess a firearm. Tyler filed suit in federal court, seeking a declaratory judgment that § 922(g)(4) is unconstitutional as applied to him. The district court dismissed Tyler’s suit for failure to state a claim. Because Tyler’s complaint validly states a violation of the Second Amendment, we reverse and remand.

This creates a significant chink in GCA68:

In this case of first impression, we consider not the what, where, when, or why of the Second Amendment’s limitations—but the who.6 Specifically, does the Second Amendment forbid Congress from prohibiting firearm possession by all individuals previously committed to a mental institution?

It also reviews the level of scrutiny being applied by other courts, expends several pages on it, and:

We conclude our explanation of choosing strict scrutiny with a reminder of intermediate scrutiny’s shaky foundation in Second Amendment law.

Strict scrutiny it is!

With strict scrutiny the law must be narrowly tailored to a compelling state interest. The fact that someone was once confined to a mental institution does not mean they should necessarily be prohibited from exercising their right to keep and bear arms for the rest of their life.

The same could easily be said of those who have committed non-violent felonies.

This ruling could help end the “sporting purpose” test and the Lautenberg Amendment.

Although this was in the sixth circuit and not the ninth which covers Washington State you can see how strict scrutiny would mean the end of the most onerous portions of I-594. How can a law preventing students in a classroom from passing a an unloaded firearm to another student be considered “narrowly tailored to further a compelling state interest”? The only way that can be true is if the state interest is that there not be a right to keep and bear arms.


4 thoughts on “A chink created in GCA68

  1. Strict scrutiny is better than the alternatives, but it doesn’t have any basis in the Constitution, either. “Shall not be infringed” does not mean “may be infringed if it the infringement meets strict scrutiny”.

      • I’m not sure if “Shall not be infringed” is any more or less prohibitive than “Congress shall make no law”.
        Also. remember, Brown vs Board of Education took some 55 years to overturn Plessey v Ferguson. Nibbling at the edges is the way to get the Supreme Court to overturn itself.
        And Strict Scrutiny not only means ” narrowly tailored to further a compelling state interest”, it means that there can be no less burdensome means to address the same state interest (or words to that effect, it’s been awhile). As we have seen in the First, Fourth, Fifth, and Sixth Amendment cases, there is always a way that is less burdensome than the one selected by the legislature.
        The restrictions on the Amendments are IIRC always strict scrutiny, and there is no exception for the Second Amendment. It really comes back to Joe’s analogies with race and sex and national origin, which are usually suspect classifications and thus subject to.

      • My point is that the plain English words of the Constitution allow no exceptions at all. “Compelling state interest” is an unconstitutional fiction that doesn’t justify anything, ever.

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