lawful citizens under heller for short term hospitalizations

Since writers originate from the southern district under the Ninth circuit this comment shall address the lawful citizen test under Heller not Bruen. Bruen analysis have not address 922 (g)(4) prohibitors and the lawful citizen historical analyses.

When the majority in Heller described individual self-defense as the “central component” of the Second Amendment, a right that “pre-exists” the written Constitution, these decisions and ones that followed them—have focused little on this alleged “central” feature of the Amendment, but rather on how various classes of persons do not qualify as law abiding citizens. The Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 626 (2008), recognized that, like most rights, the right secured by the Second Amendment is not unlimited in that anyone may possess and control firearms for whatever reason. Since Heller was controlling for many years and continues to be controlling even in the face of Bruen in many district courts, they rely on the reasoning in Heller, that the scope of the Second Amendment is limited to presumptively lawful regulatory measures, including “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. at 626-27, 627. Even though bans on possession of unsecured firearms in the home was rule unconstitutional, the Heller Court explained that nothing in its opinion should be taken to cast doubt on the other regulatory measures and that the findings in McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) continue to control. Therefore, Heller has long been used to uphold prohibitions on felons and the mentally ill possessing firearms.

With the findings in Bruen should control, most courts still follow the mandates of Heller, in which the courts issue opinions that analyze second amendment's challenges by tying in any historical patterns of denying these classes of persons to Bruen's founding-era historical traditions and understandings of the scope of the second Amendment.  For purposes of this writing, Bruen's core requirement of historical traditions does not lay the foundation for pro second amendment advocates to create a strong argument that there lacks a historical tradition of barring firearms from mentally ill persons as only modern developments in psychology have discussed the longitudinal studies of mental illness and dangerousness to others and remission. Therefore, we shall analyze the case studies using Heller's interpretation of lawful citizen.


If under Heller, the purpose was to keep firearms out of the hands of mentally ill persons, the intent was to keep it out of the hands of those who were adjudicated mentally ill by a full court and with the intent that the person was so severe they faced a judicial hearing to make a formal decision. Most hospitalizations have periodic reviews and to comport with due process, they must occur before a judicial or hospital committee. Even though Mai and Stokes discussed the limitations of treating such hearings as formal adjudications, the purpose of Heller was for those who were committed for years in a hospital or found NGRI and sent to state hospital for years of treatment. Those persons under Heller were the intended population for a 922 (g)(4) prohibition as they did not fall under the lawful citizen. For all of the others who face short term commitments, they, once rehabilitated are lawful citizens. 34 U.S.C. § 40911 (C)(1)(A) serves as proof of such reasoning as the commitment by a federal agency, once discharged and released evinces how the federal government considers the person rehabilitated and the record ineligible for the NICS.


When a hospital submits a 5250 cert hearing premised on either misplaced or transient psychiatric issues, they effectively violate the defendant's constitutional right to possess firearms, right to due process, and to be considered a law abiding person under Heller, the harm occasioned by such a violative action ought to be redressable via petition for federally recognized state relief from disabilities under the NIAA.

 

The ATF has explained itself that mental illness alone does not confer a prohibition. It is the determination by a court that a person is incompetent or a formal commitment to a mental hospital that confers the lifetime prohibition.  Given that CA's state relief from disabilities process is not recognized at the federal level, the lifetime prohibition stays. Because of our overburdened hospital system, many patients face long stays and eventually run up against the mandatory 5250 certification review hearing. This cert hearing must occur by law and often happens on day three or four of the 5250 hold.. Now given the high case loads, patients often find themselves in the ER triage for a day or two waiting before they are send to the actual psychiatric unit or transported to another facility that does have space. By the time the patient may have actually arrived, the clock has already began to run even though the law suggests otherwise [link]. Therefore, by the time the patient will have arrived at the facility they will soon receive the 5250 hold paperwork and the notice of upcoming certification hearing. They have yet to meet their actual treating doctor who will fully review their file and history and make decisions about their treatment and plan for release.

This brings us to the facts of our case where the patient may have had a medication induced manic episode from pseudoephedrine and was admitted to the hospital under dangerousness to self and others. 

In the case of many people who are diagnosed with some milder forms of mental illness, medications can trigger an episode that is very uncharacteristic for them and the resultant hospitalization will have marked them as unfit and not a "law abiding citizen" under Heller. Their certification of dangerousness to self and others is not characteristic of their mental illness or for those without an underlying mental illness, not characteristic of themselves and therefore do fall within the intent of the legislature and Heller in regards to the federal prohibition under 922(g)(4). Within the scope of Bruen, the historical tradition of keeping and bearing arms extends to those who are not chronically severely mentally ill; but rather, just suffering a transient period of medication imbalance relating to an unrelated condition such as pneumonia. With no recourse for them to seek relief from disabilities at the federal level from within California, they would have no way to restore their rights without having to go through expensive lawsuits entailing suing the DOJ. Furthermore, if the BSCA intends to prosecute more lie and try cases and investigate failed NICS background checks, a patient may have even forgotten they were certified danger to self and others if this was a one time occurrence from a medication never to be repeated again.   




Jasani, R., Deacon, J. W., & Sertich, A. (2021). Corticosteroid-Induced Mania After Previous Tolerance of Higher Doses. Cureus, 13(9), e17719. https://doi.org/10.7759/cureus.17719

Panwar, V., & Lassi, K. (2011). Stable Bipolar Patient Switched to Mania following Clinical Doses of Prednisone. Case reports in psychiatry, 2011, 797658. https://doi.org/10.1155/2011/797658