Interesting Second Amendment Case

This case Eugene Volokh highlights challenges part of California’s Welfare and Instutions Code, which bars people who have been involuntarily admitted for mental treatment from possessing firearms for a period of 5 years.  I believe this section would also apply a federal ban as well.  The plaintiff in the case went through the normal channels for relief from this type of firearms disability, and was denied.

The question is whether or not a “preponderance of evidence” standard is sufficient to deny Second Amendment rights, or whether a stronger standard, such as “clear and convincing evidence” need to be required for a civil commitment.  The court reasons:

When evaluating whether the private interest affected by the civil proceeding requires a standard of proof higher than the preponderance of the evidence standard, the courts consider “the nature of the private interest threatened and the permanency of the threatened loss.” (Assuming arguendo the Second Amendment applies to the states, under Heller an individual’s right to possess certain firearms in the home for defensive purposes is of constitutional stature. However, under section 8103, the deprivation of this interest is temporary, lasting for five years. Further, the loss concerns the loss of property, and does not involve deprivation of physical liberty or severance of familial ties. The deprivation is not akin to the types of cases -— such as termination of parental rights, civil commitment, or deportation —- where a clear and convincing evidence standard is typically imposed. Moreover, although the loss of the right to possess firearms can impact an individual’s ability to defend him- or herself, the deprivation does not leave the individual exposed to danger without recourse to other defensive measures, such as installing home security devices and summoning the police.

The court goes on to argue that balancing the consequences of a mentally unstable person having a gun, versus the temporary loss of liberty favor using preponderance of the evidence standard.

What I don’t quite understand is why, in a case like this, the “clear and convincing” standard isn’t sufficient?  I would imagine even under that standard this guy is pretty clearly and convincingly mentally disturbed.  I think the court also errs in assuming that substitutes are as readily effective.  As someone in the comments point out, “Those alternatives were just as available to the residents of Washington DC, but the supreme court rejected such reasoning when presented by the DC government.”

I can understand why the judge felt the need to reach this conclusion, because this person is a poor plaintiff to be making Second Amendment claims.  Who wants to be responsible for allowing a mentally disturbed individual access to firearms?  But I think the standard is too low, and relegates the Second Amendment to second class status among our panoply of rights.

I’d say I hope the case is appealed, but this plaintiff is awful.  It would be ideal to appeal a better case, but we might not get ideal.

6 thoughts on “Interesting Second Amendment Case”

  1. While I understand the concerns of the court and of society, Constitutionally protected rights are either afforded in total or not at all.

    If the person is “clearly mentally disturbed” shall we abrogate all enshrined rights? Should we inspect his house often and unannounced? Should we let him vote (ok, maybe that’s a bad example millions of mentally disturbed people voted this past year – and they won)?

    If an individual can’t function in society without a custodian, they should not be in society and not afforded the inherent rights enshrined in the Constitution. That is the risk we take if we are to be a free society.

    As an aside, I also believe that anyone released from prison after serving their time should have all of their rights restored, if not, then they should still be in prison.

  2. The problem here is that a person can be temporarily hospitalized under Cal. W&I sec. 5150 on the say-so of a police officer. I know someone who was so hospitalized for less than two hours–just long enough for the psychiatrist to see that the guy was not properly hospitalized. And yet he was now subject to a five year prohibition.

    Involuntary commitment procedures are pretty demanding–so demanding that even clearly dangerous people are routinely released from a sec. 5250 hearing–but 5150 is far too easy for this.

  3. The crazies in society already exist without knowledge who they are and they have guns so the best thing is to allow others to be armed also. So if family member goes nuts and attacks the family can defend themselves. Not a great solution but it allows freedom with all its risks to exist.

    The guy in Alabama was obvioulsy on a homicidal/suicidal rampage and attacked his family first and killed them until he was stopped by another and he killed himself.

    He was not a known danger by anyone else though his family may have known.

    Cho was another example of the crazy’s in our midst. I accept the nut cases are out there and dangerous. Until they act out there is no way to put them behind bars first like any first time ceminal. They should not be criminalized or imprisoned due to bad thoughts.

    Probably 95 % who say crap they want to die or kill someone will not act on those thoughts. I can accept the 5% who does as a risk.

  4. “The crazies in society already exist without knowledge who they are and they have guns so the best thing is to allow others to be armed also. So if family member goes nuts and attacks the family can defend themselves. Not a great solution but it allows freedom with all its risks to exist.”

    Better to hospitalize those who are a danger to themselves of others than for the whole of society to become like a prison or mental hospital, where you don’t trust people with guns or sharp objects. Part of why gun control behave a major problem for gun owners in the 1970s and especially 1980s was so many mentally ill people were released–and realistically, gun control isn’t an effective strategy. But scared people do stupid things. is the first few chapters of my next book, about this problem.

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