Under Fire: Evaluating As-Applied Challenges to Disarming the Involuntarily Committed

Abstract

18 U.S.C. § 922(g)(4) prohibits previously committed persons from purchasing or possessing firearms. On March 11, 2020, in Mai v. United States, the U.S. Court of Appeals for the Ninth Circuit assumed, without deciding, that § 922(g)(4) burdens the Second Amendment rights of individuals no longer living with mental illness. It then agreed with the Sixth Circuit Court of Appeals—the lone other circuit to reach the question—in holding that intermediate scrutiny applies. Unlike the Sixth Circuit, however, the Ninth Circuit concluded that the provision survives intermediate scrutiny. The Third Circuit also considered an as-applied challenge to § 922(g)(4), but it did not address the scrutiny issue because it held that the law does not burden constitutionally protected conduct. This Comment argues that the Ninth Circuit’s approach is correct because it does not give undue weight to ambiguous historical evidence in determining the scope of the Second Amendment’s protections and it demonstrates appropriate deference to Congress.