Trump-Appointed Judges Issue Blistering Dissent In 9th Circuit Gun Case

A pair of judges appointed to the Ninth Circuit Court of Appeals absolutely torched a decision by their colleagues to declare that even spending a single day in a mental institutional as the result of an involuntary commitment can leave someone permanently barred from exercising their Second Amendment rights.


The case, known as Mai vs. U.S., was brought by a man named Duy Mai, who was born in an refugee camp in Thailand before moving to the United States with his family when he was two. By all accounts Mai has been a “productive member of society” for the past two decades, but when he was 17 he was involuntarily committed to a hospital after a court determined that he posed a danger to himself and others.

Mai spent nine months in the institution, but over the last 20 years he’s gone on to earn his GED, a bachelor’s degree, and a master’s degree. He’s now a husband and a father of two, hasn’t been in any trouble with the law, and hasn’t suffered any additional mental issues. When Mai sought to purchase a firearm, however, he was denied because of the involuntary commitment from 1999.

Mai filed suit seeking to relief, and even the federal court system has noted that, despite the fact that federal law allows for the resumption of Second Amendment rights, Congress has prohibited the use of funds “to investigate or act upon applications for relief from Federal firearms disabilities,” which leaves Mai and others without a way to reestablish their rights.

A trial court judge in the Ninth Circuit ruled that Mai had no claim for relief, and earlier this week a panel on the Ninth Circuit upheld that decision, in essence ruling that a lifetime prohibition on the right to keep and bear arms for those who’ve been involuntarily committed doesn’t infringe on their Second Amendment rights.


Two judges on the Ninth Circuit, however, vehemently disagreed with their colleagues, torching the twisted logic used by the majority in a blistering dissent. Judges Patrick Bumatay and Lawrence VanDyke, both appointed to the bench by President Donald Trump, argue that the decision means that someone who’s spent as little as a single day involuntarily committed can lose their Second Amendment rights forever.

The pair write that the Ninth Circuit only adopted “this view for the Second Amendment. For other, more fashionable constitutional rights, we would not countenance such an abridgment.” That’s absolutely right, and it’s just another piece of evidence that too many judges view the Second Amendment as a second-class right.

In any other context, laws that burden the core of a fundamental right are invariably analyzed under heightened scrutiny—e.g., restrictions on the “content” of speech rarely survive strict scrutiny, nor do laws that restrict “core” political speech. We should not treat the Second Amendment any different….

[The panel] evaded any form of strict scrutiny, despite admitting that § 922(g)(4)’s “lifetime ban” on Mai’s Second Amendment right was “quite substantial,” by minimizing the law’s burden as falling on only a “narrow class” of individuals.

In doing so, the court seemingly pulls new doctrine out of its hat and magically transforms a fundamental right that belongs to an individual, into one that is class-based. Rather than face the total and permanent deprivation of the core Second Amendment right for Mai (and the class of people like him), the court refocused the inquiry on the size of the class. And ta-da!, the court holds, intermediate scrutiny applies. Like most magicians, the court refused to explain its act.

Because the law deprives only a “narrow class” of individuals their Second Amendment right, ipse dixit, it is analyzed only under intermediate scrutiny. Such reasoning is even more perplexing given that heightened scrutiny was originally announced as a method to protect the rights of “discrete and insular minorities.” Today, according to the court, the fact that Mai belongs to a “narrow class” is, paradoxically, the very reason to lower the level of scrutiny applied to him. We should have corrected this jurisprudential sleight of hand.


The court should have, but it didn’t. As Judge Bumatay argues, the Ninth Circuit’s decision hearkens back to some of the ugliest jurisprudence in our nation’s history.

Many years ago, judges took a turn as pseudo- psychologists and waded into whether a woman’s mental health may be balanced against her constitutional rights. That case is generally not treated kindly today. I fear the court goes down the same path.

Heller‘s endorsement of text, history, and tradition as the proper lens for evaluating the scope of the Second Amendment was not accidental. There, the Court emphatically disapproved of courts determining on an ad hoc basis whether certain individuals were undeserving of the full complement of fundamental rights. Duy Mai deserves better. Our Constitution deserves better.

There’s one step left for Duy Mai in his quest to have his rights restored; the Supreme Court. Unfortunately, SCOTUS hasn’t heard a Second Amendment-related case in ten years, and there’s a lot of speculation among court watchers that Chief Justice John Roberts has gone soft and squishy when it comes to striking down gun laws as unconstitutional.

The odds may be long that the highest court in the land will hear Mai’s case, but if they don’t it will set a precedent that really shouldn’t stand. Those convicted of felony offenses have a way to get their rights restored, but those who have been found to be suffering from mental illness do not, even if doctors determine that the individual in question is no longer a danger to themselves or others.


I’m not an attorney, but to me the argument is simple. Congress set up a mechanism for those adjudicated as mentally defective to have their rights restored, but refused to fund the program several years later rather than repealing the mechanism entirely. If the federal government has established a way for these individuals to have their rights restored, then it needs to live up to its promise and actually allow that process to be used. If the government wants to end that program, it should repeal it completely instead (which, of course, would be subject to another legal challenge).

The majority opinion states that “We emphatically do not subscribe to the notion that ‘once mentally ill, always so,’” but the ruling sets up a system that even those who are no longer mentally ill cannot legally exercise their constitutional rights. This is not only an infringement of the Second Amendment, in my opinion, it’s an unjust exercise of power on the part of the legislative branch, and it should be overturned by the Supreme Court.



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