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.Â I believe this section would also apply a federal ban as well.Â 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.Â 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 -â€” such as termination of parental rights, civil commitment, or deportation â€”- 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?Â I would imagine even under that standard this guy is pretty clearly and convincingly mentally disturbed.Â I think the court also errs in assuming that substitutes are as readily effective.Â 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.Â Who wants to be responsible for allowing a mentally disturbed individual access to firearms?Â 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.Â It would be ideal to appeal a better case, but we might not get ideal.