Category: 2nd Amendment

A lawsuit has been filed in federal court challenging Pennsylvania’s statute that strips anyone committed under Section 302 of Pennsylvania’s Mental Health Procedures Act (MHPA) from possessing a firearm.

In this media environment, where insisting on due process to strip fundamental rights gets spun as, “You want crazy people have guns!,” it’s prudent to cover a bit of background.

Pennsylvania’s Mental Health Procedures Act has three types of commitments. The first is the typical involuntary commitment, under Section 303 and 304 of the MHPA. There is some due process involved to commit someone under Section 303 and more under 304. For 303, for instance, the medical professionals have to petition the Court of Common Pleas and make their case before a judge. There is a right to representation by counsel. Section 303 and 304 commitments are not challenged in this case.

But Pennsylvania also has an observational commitment as well, under Section 302. In the vernacular, you will hear this referred to as a “302 Commitment.” For Section 302 commitments there is no due process involved whatsoever. All you need to earn a 302 commitment is a ride from your girlfriend, wife, mom, or friendly local police officer to a the hospital, and for a physician to sign off. Often times people are not even aware they’ve been committed.

The parties here are both John Does. Both, other than their 302 history, are eligible to possess firearms under federal and state law.

John Doe I was bullied at school, lost his girlfriend, got depressed, and was taken to the hospital at 16 by his concerned mother, held for a few hours and quickly released. He did not know he was a prohibited person until later as an adult he tried to purchase a firearm and was denied. The hospital had held him under Section 302.

John Doe II was taken to the hospital by a friend because he was intoxicated and belligerent. He was kept under Section 302 involuntarily until he sobered up and was released. He has since gone through alcohol rehabilitation and now lives a clean life. John Doe II was also not aware he had actually been held under Section 302 until he tried to purchase a firearm.

The plaintiffs are represented by Jonathan Goldstein of McNelly and Goldstein. Jonathan is an experienced attorney in firearms law.

As mentioned in the case, Pennsylvania law does not require that the examining physician have any specific mental health training, only that they are licensed to practice medicine in Pennsylvania. There is no due process whatsoever, as the suit notes:

An individual is not provided the most basic due process protections before being involuntarily committed under the Temporary Emergency Commitment Statute. He receives no pre-deprivation notice of the potential consequences of the hearing; he receives no right to review by a neutral arbiter he receives no opportunity to make an oral presentation; he receives no means of presenting evidence; he receives no opportunity to cross-examine witnesses and respond to evidence; he receives no right to counsel; and he receives no pre-commitment review by a court or a decision based upon a written record.

All it takes is a ride to the hospital and a doctor to sign off. That’s it.

Under the Fourteenth Amendment, government must provide adequate due process procedures before divesting citizens of fundamental rights. Logan v. Zimmerman Brush Co, 455 U.S. 422, 432-33 (1982); Vitek v. Jones, 445 U.S. 480, 495-96 (1980); Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3rd Cir. 2000).

Seems like it should be a solid case, but these are the federal courts we’re dealing with. The same federal courts have largely said that the Second Amendment is a second class right, not worthy of the same protections, often not even close to the same protections, as other rights. But I think there’s some hope here.

If we look at the last en-banc decision on guns out of the 3rd Circuit, the Binderup case, it was heard before Judges McKee (Clinton), Smith (G.W.), Ambro (Clinton), Fischer (G.W.), Chagares (G.W.), Jordan (G.W.), Hardiman (G.W.), Greenway (Obama), Vanaskie (Obama), and Schwartz (Obama), Fuentes (Clinton).

Fischer (G.W.) is up for replacement. But so are Julio Fuentes’ (Clinton) and Marjorie Rendell’s (Clinton) seats. Binderup did pretty well on a more heavily Dem appointed panel. If Trump can replace the three vacancies with solid judges we may have a decent chance with this case.

Cases are starting to be filed and hopefully moved again, including this one in Massachusetts. I don’t want to say I’m wary, but I am. Replacing Scalia with someone solid on the Second Amendment doesn’t get us anywhere; it prevents us from sliding backwards. Trump’s leading candidate for replacing Scalia is Neil Gorsuch from the 10th Circuit Court of Appeals.

We did litigate the Colorado magazine limitations in the 10th Circuit. The District Court upheld the ban, but that ruling was thrown out by the Circuit Court because they argued none of the plaintiffs had standing to sue. Judge Gorsuch didn’t have anything to do with that case, so the best we can do is the quote from SCOTUSBlog link above:

Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.

I think more will have to come out in the confirmation hearing, but his position on that case makes him promising. We will have to replace one of the liberals to move forward. Otherwise I’m afraid we’re just going to create more bad precedent in the circuit courts that the Supreme Court will leave in place when they refuse to hear the case.

I’ve run into a few threads over the weekend discussing National Reciprocity, and the power Congress is relying on to pass it. There seem to be a number of misconceptions.

First, Congress is not required to state what power its authority to pass a bill falls under, and so often bills do not discuss that. The argument for whether a bill falls outside of Congress’ enumerated powers is an argument for the courtroom. Previous National Reciprocity Bills have had statements speaking to Congress’ power to pass it, but this latest bill, H.B. 38, does not. It is probably best that the bill does not discuss that. National Reciprocity relies on three powers of, with some arguably weaker than others. I will discuss them from the strongest to the weakest (in my opinion, reasonable people can differ):

Commerce Clause: Much of our federal gun control law rests on Congress’ power to regulate interstate commerce. That’s why in much of federal gun control law you see “in or affecting interstate or foreign commerce, ” and why you’ll also find that type of language in H.B. 38. Granted, I strongly believe the Courts have interpreted this power way too broadly, but if we can prosecute felons for possessing firearms because that firearm was once transported in Interstate or Foreign Commerce, it would be interesting to see the Courts’ reasoning on why it can’t apply to firearms carried by civilians. That’s why I believe this is probably the strongest argument for the bill, even if I don’t personally like it. The apple cart that would be upset by the Courts rejecting what is sometimes called the “Herpes Theory” of the Commerce Clause is big and consequential enough I don’t think the federal courts would want to risk it.

14th Amendment: A lot of people have argued that the 2nd Amendment trumps the 10th Amendment. This is true, but only because the 14th Amendment made it so. The 14th Amendment prevents states from interfering with the civil rights of Americans, and also gives Congress the power to enforce that amendment via legislation. This is the power I’d like to be the most solid, but we have a big complication with City of Bourne v. Flores, which argued Congress could not extend the meaning of a right beyond what the Courts have recognized. I would argue Heller and McDonald both acknowledged a right to carry defensive arms, so in this case, Congress is not overstepping its bounds. Additionally, there is a Right to Travel under the 14th Amendment that is recognized by the Courts, and which provides us with additional structure in this area. Finally, National Reciprocity is something more suitable for Congress’ powers than the courts. The courts can strike down laws, but the creation of a reciprocity regime is something only Congress can do appropriately.

Full Faith and Credit: A lot of people mistakenly believe driver’s licenses are recognized in every state because of this clause. That is not the case. Driver’s licenses are recognized in every state via an interstate compact, or by direct state recognition. It is purely a function of state law. What the Full Faith and Credit Clause means is not terribly well defined, and I believe we’d have trouble with the “public policy” exception the Supreme Court laid out in Pacific Employers Insurance v. Industrial Accident. I think this is the weakest power of the three, but Congress has never done anything quite like National Reciprocity, so it’s still there.

If you want to read a more in-depth analysis of what I’ve discussed here, I’d recommend Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation” Please keep these arguments in mind when you run into people spouting “states rights” arguments against National Reciprocity. You’ll find a lot of conservatives doing this if you look. Congress has had the power and used the power to protect the civil rights of Americans since the end of the Civil War. It should not be shy about using those powers to protect the Right to Keep and Bear Arms any more than it other civil rights which have been long protected under federal law.