In Defense of (Mental) Hearth and Home: Challenges to § 922(g)(4) in the Wake of New York State Rifle & Pistol Ass’n v. Bruen

By Zachary M. Robole. Full Text.

Individually, discussions about mental illness and firearm possession are at the forefront of American discourse. Intriguingly, the intersection of the two issues produces provocative social and legal questions. 18 U.S.C. § 922(g)(4) bans those who have been involuntarily committed to a mental institution from owning a firearm. This ban is an indefinite one. Such indefiniteness supports a conclusion that “once mentally ill, always so.” But the “once mentally ill, always so” mantra is falling out of acceptance today. Therefore, it is logical to conclude that § 922(g)(4) does not best serve its intended function. Congress provided a route for those banned under § 922(g)(4) to restore their rights. But the route comes in the form of an optional program only some states have elected to participate in. Thus, disparities exist based on where § 922(g)(4) citizens live.

There is currently a three-way circuit split analyzing Second Amendment arguments against § 922(g)(4). However, the precedent of those circuits is likely no longer good law. On June 23, 2022, the Supreme Court released its New York State Rifle & Pistol Ass’n v. Bruen opinion. The opinion expressly rejected the Second Amendment test used by the circuits and instructed the lower courts to focus on a historical analysis.

This Note analyzes the circuit split and what the analysis will likely look like post-Bruen by offering historical evidence of the Founding generation’s view towards those with mental illness. Further, it addresses an equal protection argument (which has not been asserted at the circuit court level yet). It concludes the current system will likely be found unconstitutional post-Bruen. But it offers solutions to create a system that is both constitutional and better serving of societal interests.