Burden of Proof in Mental Health Cases

Eugene Volokh covers a case in the California Court of Appeals. This case is a good example of the importance of picking your plaintiffs carefully. In this case, the courts are going to be looking for reasons why this guy shouldn’t be allowed to have a gun given the circumstances. I disagree with the courts ultimate conclusion:

First, with respect to the private interest element of the due process test, an individual’s right to possess firearms is of fundamental constitutional stature. However, this constitutional right is subject to the state’s traditional authority to regulate firearm use by individuals who have a mental illness. Moreover, the length of the threatened loss is a relevant factor in analyzing the nature of the private interest. Under section 8103, the deprivation of the right is lengthy, but temporary, lasting for five years. Further, the infringement concerns the loss of property, and does not involve deprivation of physical liberty or severance of familial ties.

You’re removing the most effective tool we have for self-defense. I think that’s up there with those other circumstances. The problem is, I think this guy’s temporary prohibition would pass a “clear and convincing” evidentiary standard. I’m not sure why the Court felt the need to say preponderance of evidence is fine.

I appreciate the Courts willingness to take the right seriously, by at least doing a serious analysis, but far too many courts have been all too willing to treat the Second Amendment as a second class right.

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