At the midnight premiere of the latest Batman movie on Friday, July 20, 2012, in Aurora, Colorado, James Holmes “tossed two hissing gas canisters and calmly walked up the aisle firing at movie-goers, killing 12 and wounding 58.” Some called almost immediately for reinstatement of the ban on assault weapons and high-capacity magazines. President Obama hinted in that direction but called instead for better enforcement of existing gun laws and keeping guns out of the hands of the mentally ill. Although all of Holmes’s guns were obtained legally, he was apparently seeing a psychiatrist before the shooting.
The politics of gun control are complicated. The Brady Campaign to Prevent Gun Violence and the National Rifle Association (“NRA”) are generally on opposite sides of gun policy debates. After the Virginia Tech massacre, however, the NRA actually worked with the Brady Campaign on a bill encouraging states to submit records of the dangerously mentally ill for background checks.
This temporary alignment of strange bedfellows and Obama’s response to the movie massacre are undoubtedly derived from the strong public perception that the mentally ill are dangerous to others. High-profile killings certainly fuel that perception: in addition to Virginia Tech and Aurora, consider Jared Loughner and John Hinckley, both of whom attempted to assassinate prominent politicians. Fear was also the motivation for the current federal law prohibiting firearm possession by certain mentally ill individuals. And it would be hard to conclude that the perception of danger did not contribute to the United States Supreme Court’s recent dictum to the effect that such laws do not violate the Second Amendment.
In fact, the vast majority of mentally ill individuals will not be violent toward others, and large subsets do not even pose an increased risk. The risk of suicide, on the other hand, is substantially elevated for nearly every diagnosis. Mental illness likely played a role in the gun suicides of Junior Seau, Kurt Cobain, Ernest Hemingway, and Vincent van Gogh. Current restrictions on gun ownership by the mentally ill would rest on much stronger constitutional footing if based on preventing suicide rather than violence toward others. Of course, this assumes that the mentally ill have some right, however limited, to bear arms.
The Supreme Court’s dictum is the starting point for answering the title question: Does the Second Amendment protect the mentally ill? Part I considers several possible interpretations of the dictum. One reading is that the mentally ill simply fall outside the scope of the Second Amendment and have no right to bear arms. All but one federal circuit court of appeals have strongly suggested that they would take this approach. This reading is unsatisfactory, as explained below. The Seventh Circuit would apparently apply intermediate scrutiny. State courts interpreting their own constitutions have adopted a less exacting standard: reasonableness. Finally, some commentators and courts have advocated hybrid or other unorthodox approaches.
Rather than arguing for the adoption of one approach or another, the balance of this Article examines whether existing gun laws restricting the right of the mentally ill to possess firearms are constitutional under three possible approaches: (1) reasonableness; (2) intermediate scrutiny; and (3) hybrid or other.
