kindling used as a case for maintaining lifetime prohibition

Summary: gun control advocates would push for lifetime prohibition after the first hospitalization and use the fact that SMI are susceptible to kindling (worsening of illness) even if there are no future hospitalizations. They would argue that a lifetime prohibition would address the risk inherent in SMI with kindling of the diseases, protects the public, and comports with Bruen's historical traditions of prohibiting mentally defective persons from owning firearms.


Arguing the converse, proponents for gun control may use the fact that there is neurological kindling in untreated or poorly managed bipolar disorder, all which leads to more frequent and severe episodes. Sensitization, decreasing well intervals over time, presents itself in triggering life events triggering the first few episodes, creating a positive correlation between life events throughout the first few episodes, but as the person ages episodes begin to randomly occur without a life event.

As seen in bipolar disorder, major life stressors are required to trigger initial onsets and set off recurrences of affective episodes, but with kindling successive episodes become progressively less tied to stressors and may eventually occur autonomously. If bipolar disorder patients are prone to stop treatment due to anosognosia or the belief they do not need medication during periods of remission, then proponents for gun control like Giffords and Everytown would find that a lifetime prohibition would be in the best interest for public safety as the research demonstrates that kindling is exacerbated by noncompliance and the episodes will increase in frequency and not always triggering successive hospitalizations and by extension new prohibitions.

Everytown and Brady would further contend that even though the concept of kindling was not known at the time, it was well known that severe mental illnesses were lifelong and incurable; thus enough to trigger a prohibition once someone was institutionalized. Since Everytown et all will need to address how this fits into the scheme of Bruen as it is controlling, below is how Bruen is construed. Bruen does not address mental illness prohibitors. Rather it lays out the framework for future challenges to base their constitutional claims upon. This comment shall also include Heller since many courts still rely on it.


Adhering to a Heller and Bruen analysis, gun control advocates would need to demonstrate in their amicus briefs that the 922 (g)(4) prohibitor would meet constitutional muster as Heller indicated that its decision to reverse the ban on keeping arms unsecured in the home, “should [not] be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .” Id. (quoting Heller, 554 U.S. at 626). Heller in a way if positioned correctly by Everytown and Giffords, predicted its eventual overturn and included the clause that there was a long standing prohibition on mentally ill persons and violent felons from possessing and controlling firearms. Now turning to Bruen and Duarte, this case did not pass constitutional muster because in their briefing they described how felonies during the writing of the constitution was to mean violent felons who faced life sentences. Duarte was charged with a nonviolent felony and did not pose a danger to society and had demonstrated reintegration into society with no recidivism. Drawing from Duarte, looking at the historical traditions it is important to see if the conduct was a one time violation or whether the conduct is likely to repeat itself and carries an inherent danger to society. 

1. To justify its regulation of firearms under the Second Amendment, the government may not simply posit that the regulation promotes an important interest; rather, the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation. U.S. Const. Amend. 2. 
2. Only if a firearm regulation is consistent with the Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command. U.S. Const. Amend. 2. 

 

1. Means-end scrutiny, such as strict or intermediate scrutiny, does not apply in the Second Amendment context, but, instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms; abrogating Harley v. Wilkinson, 988 F. 3d 766. 

When the constitution was written, those who were institutionalized were largely the insane who lacked any meaningful recovery and were warehoused in asylums for the rest of their lives. Now the tricky aspect of incorporating a historical analysis under Bruen to modern day psychiatry is that historically, the mentally insane label was assigned to many classes of persons who were not considered mentally defective by today's standards. However, advocates like Giffords and Everytown would argue that if we were to apply a Bruen analysis to the 922 (g)(4) prohibitor, adjusting for the prejudices that existed back then, the historical tradition was meant to translate to those who are under care of the state or suffered from severe illnesses that carried high risk of relapse even with diligent treatment.

Therefore illnesses such as Bipolar and Schizoaffective disorder were intended to disqualifying illnesses if the person had ever been sectioned. Everytown and Giffords would contend that untreated or poorly managed bipolar disorder leads to more frequent and severe episodes. If there was one hospitalization, it would indicate that the illness was more severe than cyclothymia given that per DSM V criteria hospitalization would change the diagnosis to a manic episode and Bipolar 1. With a more severe illness, there is the known fact that sensitization for episodes and decreasing well intervals over the lifespan, there would be a high risk for someone who may have been in remission for many years can still have a severe relapse and use a firearm in a deadly manner.