Tuesday, July 19, 2022

The Goose and the Gander of the Bruen Prohibition on "Balancing"

Eugene Volokh flags a case out of California involving a man allegedly prohibited from carrying a firearm due to a mental health hospitalization that occurred twenty years ago, when the man was in middle school. Federal law generally prohibits an individual "who has been committed to a mental institution" from owning, possessing, using, or purchasing a firearm or ammunition. The man, who later enlisted in the Marines and worked in law enforcement, has not had any other mental health issues since that single incident.

The court in this case ended up ducking the major constitutional issue for technical reasons we don't need to go into, but suggested that the relevant section of federal law was probably still constitutional after Bruen because several justices in that case specifically identified bans on mentally ill persons carrying firearms as among the sort of historical restrictions that had been permitted at the time of the framing. Prof. Volokh, by contrast, thinks the law should be unconstitutional insofar as it does not require any showing that the prohibited individual is presently mentally ill. The facts of this case, in particular, suggest a person for whom the law as written sweeps too broadly.

I make no judgment on whether federal law should, as a matter of policy, create such a carve-out for persons who seem to no longer be mentally ill. However, it does seem to me that this sort of analysis represents exactly the sort of "balancing" of interests that Bruen quite categorically forbade courts from engaging in. From Bruen's perspective, the sole question a court should consider is whether or not this sort of firearms restriction -- in this case, restrictions blocking the mentally ill from possessing firearms -- was historically present at the time of the framing. If the answer is no, then the restrictions are unconstitutional no matter how good a reason we might think exists for imposing such a restriction. But the flipside has to be true too: if the answer is yes, then the restrictions are constitutional no matter how unfair or untailored we might think they might be as applied to a given individual. And since the Court has already seemingly conceded that restricting the mentally ill from possession of firearms is one of the restrictions historically permitted, that should end the discussion.

The counterargument, alluded to be Volokh, is that the relevant basis for historical comparison is not the existence of "laws prohibiting the mentally ill from possessing firearms", but rather "laws prohibiting persons who once had a mental health crisis but have not had any symptoms for decades from possessing firearms." At one level, this is a familiar problem of abstractness versus specificity, one which offers courts yet more discretion to approve or disapprove of firearms regulations that they like or dislike. As I said in my last Bruen post, the application of Bruen by the judiciary will not ultimately be controlled by lawyerly parsing of the constitutional or precedential text; it will be a matter of personal judicial preference -- and the specificity problem identified here is just another opportunity for judges to disguise their policy preferences under the cloak of a legal rule. 

But if we make-believe that the putative legal rule will matter--well, Bruen promised that the relevant requirement for a historical analogue was not a "twin". And there are good reasons for that, which go beyond allowing for some amount of adjustment for societal developments as centuries pass. Requiring that state or congressional gun restrictions map on precisely to policy initiatives passed in the 19th century significantly limits the legislature's policymaking authority even in a domain where the Court agrees the legislature has the right to impose restrictions. It is facile to say that restrictions on firearms possession by the mentally ill is permitted, but Congress must only implement those restrictions via the precise programmatic means used in the 1800s. The constitution doesn't typically encode specific policy demands, it encodes general rules and standards that broadly define the parameters through which the democratic branches are allowed to fill in the details.

Given that, it seems to me that as far as Bruen is concerned, the germane constitutional question is whether the restriction in question is of the class of restrictions that had been historically been permitted. Once we answer that question in the affirmative, then Congress or the states should be given considerable leeway in figuring out how it wants to instantiate that restriction -- that inquiry being primarily a policy question which courts should be reluctant to intrude upon. Certainly, Congress cannot simply declare anything to be a "mental illness" restriction, anymore than New York in Bruen was allowed to declare the entire city of New York a "sensitive place". But it's equally clear that restricting persons who had a serious mental health episode from owning firearms is much more clearly under the umbrella of "restrictions on the mentally ill". The opposition to that rule is not really that it falls outside the category, it's that as applied here something like a "one strike rule" feels overbroad and unfair.

And maybe it is -- that rule may be too harsh. But again Bruen says it is not the judiciary's business to weigh competing interests. Mental health restrictions are historically permitted, this is Congress implementing such a restriction -- end of discussion. What is good for the goose is good for gander. That is, unless Bruen actually means what many of us suspect it to mean -- not an actual rule that constrains judicial partisanship, but a thin cloak for imposing pro-gun outcomes, text of the alleged legal rule be damned. We'll see. I'm not optimistic.

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