Duy Mai v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUY T. MAI, No. 18-36071
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-00561-
RAJ
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
JUSTICE; BUREAU OF ALCOHOL, ORDER
TOBACCO, FIREARMS, AND
EXPLOSIVES; FEDERAL BUREAU OF
INVESTIGATION; WILLIAM P. BARR,
Attorney General; CHRISTOPHER A.
WRAY, as Director of the Federal
Bureau of Investigation; REGINA
LOMBARDO, as Acting Director of
the Bureau of Alcohol, Tobacco,
Firearms, and Explosives,
Defendants-Appellees.
Filed September 10, 2020
Before: Susan P. Graber and Ronald M. Gould, Circuit
Judges, and David A. Ezra, * District Judge.
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 MAI V. UNITED STATES
Order;
Dissent by Judge Collins;
Dissent by Judge Bumatay;
Dissent by Judge VanDyke
SUMMARY **
Second Amendment
The panel denied a petition for panel rehearing and
denied on behalf of the court a petition for rehearing en banc.
In the underlying appeal, the panel affirmed the district
court’s dismissal of a 42 U.S.C. § 1983 complaint containing
an as-applied Second Amendment challenge to 18 U.S.C.
§ 922(g)(4), which prohibits plaintiff from possessing
firearms due to his involuntary commitment in 1999 to a
mental institution for more than nine months after a
Washington state court found plaintiff to be both mentally ill
and dangerous. The panel concluded that Section 922(g)(4)’s
continued application to plaintiff did not violate the Second
Amendment.
Dissenting from the denial of rehearing en banc, Judge
Collins stated that the panel’s application of intermediate
scrutiny here was seriously flawed and created a direct split
with the Sixth Circuit. That alone was enough to warrant en
banc review, and Judge Collins therefore joined Part IV.B of
Judge Bumatay’s dissent from the denial of rehearing en
banc. Moreover, Judge Collins stated that he had substantial
doubt that the framework of rules that the court uses to
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MAI V. UNITED STATES 3
analyze Second Amendment claims properly construes the
controlling principles set forth in District of Columbia v.
Heller, 554 U.S. 570 (2008).
Dissenting from the denial of rehearing en banc, Judge
Bumatay, joined by Judges VanDyke, and with whom judges
Ikuta, Bade, and Hunsaker join as to Part IV, and with whom
Judges Bennett, Collins, and Bress join as to Part IV.B,
stated that the panel’s opinion justified the disturbing
deprivation of a fundamental right by ignoring the history
and tradition of the Second Amendment and applying ill-
suited, foreign statistical studies that had no bearing on
plaintiff’s circumstances. The proper inquiry would have
recognized that the lifetime ban imposed by § 922(g)(4) on
plaintiff is unequivocally a complete deprivation of his core
right to home gun ownership, and therefore that the law was
unconstitutional. Judge Bumatay stated that the panel
incorrectly identified intermediate scrutiny as the proper
standard of review and then flubbed its application. By
failing to correct these errors, the Court undermined its
Second Amendment jurisprudence and gave an unworthy
judicial imprimatur to the false premise that once mentally
ill, always mentally ill.
Dissenting from the denial of rehearing en banc, Judge
VanDyke, joined by Judge Bumatay, stated that he agreed
with Judge Bumatay’s dissent from the denial of rehearing
en banc and wrote separately because he believes that the
panel should have reconsidered the panel’s circular logic
about who lies at the core of the Second Amendment. Judge
VanDyke stated that the panel’s bootstrapping, class-based
approach to defining those at the “core” of the Second
Amendment was unjust and antithetical to controlling case
law. Judge VanDyke also stated that the court’s intermediate
4 MAI V. UNITED STATES
scrutiny jurisprudence is broken, at least as to Second
Amendment claims.
COUNSEL
Vitaliy Kertchen (argued), Tacoma, Washington, for
Plaintiff-Appellant.
Abby C. Wright (argued) and Michael S. Raab, Appellate
Staff; Brian T. Moran, United States Attorney; Joseph H.
Hunt, Assistant Attorney General; Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellees.
ORDER
The panel judges have voted to deny Appellant’s petition
for rehearing. Judges Graber and Gould voted to deny the
petition for rehearing en banc, and Judge Ezra recommended
denying the petition for rehearing en banc.
The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a vote on
en banc rehearing. The matter failed to receive a majority of
votes of non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
Appellant’s petition for rehearing and petition for
rehearing en banc, filed Docket No. 37, are DENIED.
MAI V. UNITED STATES 5
COLLINS, Circuit Judge, dissenting from the denial of
rehearing en banc:
As Judge Bumatay ably explains in Part IV(B) of his
dissent, the panel’s application of intermediate scrutiny here
is seriously flawed and creates a direct split with the Sixth
Circuit. That alone is enough to warrant en banc review, and
I therefore join that section of Judge Bumatay’s dissent.
Moreover, I have substantial doubt that the framework of
rules that this court uses to analyze Second Amendment
claims properly construes the controlling principles set forth
in District of Columbia v. Heller, 554 U.S. 570 (2008), and
granting en banc review in this case would have given us a
welcome opportunity to reexamine that framework. I
respectfully dissent from our failure to rehear this case en
banc.
BUMATAY, Circuit Judge, with whom VANDYKE,
Circuit Judge, joins, with whom IKUTA, BADE, and
HUNSAKER, Circuit Judges, join as to Part IV, and with
whom BENNETT, COLLINS, and BRESS, Circuit Judges,
join as to Part IV.B, dissenting from the denial of rehearing
en banc:
Today, our court advances an extraordinarily sweeping
view of government power. Against the text, history, and
tradition of the Second Amendment, we hold that the
government may forever deprive a person of the individual
right to bear arms—if that person spends even one day
committed involuntarily, even as a juvenile, and no matter
the person’s current mental health soundness. Of course, we
only adopt this view for the Second Amendment. For other,
more fashionable constitutional rights, we would not
countenance such an abridgment.
6 MAI V. UNITED STATES
When the Second Amendment was ratified, times were
different. Firearms were ubiquitous and their regulation was
sparse. Firearms were considered essential for defense of
the home and hearth. District of Columbia v. Heller,
554 U.S. 570, 635 (2008). While times have changed, the
Constitution has not. The Second Amendment is not “a
second-class right,” McDonald v. City of Chicago, Ill.,
561 U.S. 742, 780 (2010), so we must continue to uphold the
right it confers against government encroachment. But by
aggrandizing the government’s power here, we improperly
relegate the Second Amendment to “disfavored right” status
yet again. Silvester v. Becerra, 138 S. Ct. 945 (2018)
(Thomas, J., dissenting from denial of certiorari).
In doing so, we seemingly treat some people as second-
class citizens—concluding that they don’t deserve the full
complement of fundamental rights. We don’t make that
decision based on any present-day impairments or past
criminal convictions, but, in the case of Duy Mai, for an
involuntary commitment to a mental-health facility more
than 20 years ago when he was just 17 years old. Because
of that brief commitment as a teen, our court lets the federal
government ban Mai—for life—from possessing a firearm.
This, despite a state court finding that Mai is no longer
mentally ill or dangerous. We justify this disturbing
deprivation of a fundamental right by ignoring the history
and tradition of the Second Amendment and applying ill-
suited, foreign statistical studies that have no bearing on
Mai’s circumstances. By failing to correct our errors here,
we undermine our Second Amendment jurisprudence and
give an unworthy judicial imprimatur to the false premise
that “once mentally ill, always mentally ill.”
I respectfully dissent from the denial of rehearing en
banc.
MAI V. UNITED STATES 7
I.
By all accounts, Duy Mai is an American success story.
Mai was born in a Thai refugee camp to a Vietnamese family
and moved to the United States at the age of two. As so
many immigrants have, Mai has flourished in this country.
Overcoming an early language barrier, Mai carved out a
stellar academic and professional career. After starting at a
community college, Mai graduated from the University of
Washington with a 3.7 GPA and a degree in microbiology.
While at the University of Washington, Mai’s studies were
inspired by a desire to help people living with HIV and, in
his spare time, Mai volunteered for environmental and
humanitarian causes. Post-graduation, Mai enrolled at the
University of Southern California, where he focused on
cancer research and received a master’s in microbiology.
After returning to Washington state, Mai started a job at the
Benaroya Research Institute, concentrating on virology. As
part of his job, he passed an FBI background check allowing
him access to an irradiator. Today, Mai works as an immune
monitoring specialist at the Seattle-based Fred Hutchinson
Cancer Research Center.
Mai is similarly enriched in his home life. While at USC,
Mai met a woman and they now raise eight-year-old twins.
He remains close to his sister and parents and often meets
them for weekend family dinners. He also enjoys wilderness
activities and volunteer work.
Mai has been a productive member of society for nearly
20 years. But like most people, Mai has faced his share of
challenges. At the age of 17, he suffered from depression,
for which he was involuntarily committed to a mental health
hospital for a little over two months total after a Washington
state court determined that he might be a harm to others. But
8 MAI V. UNITED STATES
since Mai’s commitment order expired in August 2000, he
has not been re-committed and his medical record shows no
reoccurrence of serious mental illness. He has no criminal
history or substance abuse issues.
Under state and federal law, Mai was barred from
possessing a firearm due to his involuntary commitment. In
2014, Mai successfully petitioned the State of Washington
to remove the state-law barrier. See Wash. Rev. Code
§ 9.41.047(3)(c)(iii). Mai submitted his medical history
showing that he’s been free of depression since at least 2010
and that, based on the opinions of multiple psychologists, he
is not considered a significant risk of suicide or harm to
others. Based on this evidence and declarations from his
friends and family, the Washington court agreed that Mai
doesn’t present a substantial danger to himself or to the
public and that the symptoms that led to his commitment are
not reasonably likely to reoccur. Thus, today, under state
law, Mai’s right to possess a firearm has been fully restored.
Mai’s final hurdle is federal law. It prohibits an
individual who has been “committed to a mental institution”
from possessing a firearm. 18 U.S.C. § 922(g)(4). Mai
brought an as-applied challenge to § 922(g)(4) and sought
declaratory and injunctive relief declaring him eligible to
possess a firearm under federal law and the Constitution.
The district court granted the government’s motion to
dismiss. Mai v. United States, No. C17-0561 RAJ, 2018 WL
784582, at *6 (W.D. Wash. Feb. 8, 2018). Applying
intermediate scrutiny, the district court rejected Mai’s claim
based on various studies linking mental illness to a
heightened risk of gun violence. Id.
On appeal, this court affirmed. Without bothering itself
with the text, history, or tradition of the Second Amendment,
the court decided that, due to Mai’s brief commitment, he
MAI V. UNITED STATES 9
was not a “law-abiding, responsible” citizen and, therefore,
not protected by the Second Amendment’s “core.” See Mai
v. United States, 952 F.3d 1106, 1115 (9th Cir. 2020). In so
ruling, the court compared Mai’s past commitment to a
conviction for domestic violence. Id. The court also
concluded that Washington’s adjudication of his mental
soundness and subsequent restoration of his gun rights—and
Mai’s present-day mental health status—were irrelevant to
the constitutional analysis. Id. at 1115, 1120. Finally, with
the help of studies from Sweden, Australia, Italy, and other
countries, the court ruled that the permanent deprivation of
Mai’s fundamental right cleared intermediate scrutiny. Id.
at 1118–20. We should’ve corrected the layers of errors in
this decision through en banc review.
II.
The Second Amendment guarantees that, “[a] well
regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall
not be infringed.” U.S. Const. amend. II. “[O]n the basis of
both text and history,” the Second Amendment confers “an
individual right to keep and bear arms.” Heller, 554 U.S.
at 595. This guarantee was considered “among those
fundamental rights necessary to our system of ordered
liberty.” McDonald, 561 U.S. at 778.
Of course, this right is not without its limits. It does not
guarantee a right to keep and carry “any weapon whatsoever
in any manner whatsoever and for whatever purpose.”
Heller, 554 U.S. at 626. The Court noted, for example, that
nothing in Heller should “be taken to cast doubt on
longstanding prohibitions on the possession of firearms by
felons and the mentally ill.” Id. But it recognized that there
would be time to “expound upon the historical justifications
for the exceptions . . . if and when those exceptions come
10 MAI V. UNITED STATES
before” the Court. Id. at 635. Heller, in the meantime,
observed that these “longstanding” prohibitions were
“presumptively lawful regulatory measures.” Id. at 627
n.26.
Heller provided us the roadmap for Second Amendment
claims. The Court looked to the Amendment’s words,
Founding-era thinkers, and early court decisions to examine
the scope of the Second Amendment right. Heller, thus,
showed us exactly what to look at: the text, history, and
tradition. Id. at 605, 625, 635. Importantly, the Court
warned that the Second Amendment was not subject to a
“freestanding ‘interest-balancing’ approach.” Id. at 634.
The Court observed that the “very enumeration of the right
takes out of the hands of government—even the Third
Branch of Government—the power to decide on a case-by-
case basis whether the right is really worth insisting upon.”
Id. Accordingly, Heller squarely rejected the view that “the
scope of the Second Amendment right should be determined
by judicial interest balancing.” McDonald, 561 U.S. at 785.
Yet judicial interest balancing is exactly what our court
does. Following Heller, our circuit, like many others,
adopted a two-step test to adjudicate Second Amendment
claims. First, we ask whether the statute at issue “burdens
conduct protected by the Second Amendment[.]” United
States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). We
decide this “based on a ‘historical understanding of the scope
of the [Second Amendment] right[.]’” Jackson v. City &
Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014)
(quoting Heller, 554 U.S. at 625). Second, having
determined that the law burdens protected Second
Amendment activity, we select the appropriate level of
scrutiny based on our assessment of “(1) how close the law
comes to the core of the Second Amendment right and
MAI V. UNITED STATES 11
(2) the severity of the law’s burden on the right.” Chovan,
735 F.3d at 1138 (simplified).
Judges across this country have questioned whether
Chovan-type tests are consistent with Heller’s command to
follow the text, history, and tradition in evaluating the scope
of the Second Amendment. See, e.g., United States v.
McGinnis, 956 F.3d 747, 762 (5th Cir. 2020) (Duncan, J.,
concurring) (encouraging the replacement of the Fifth
Circuit’s two-step test in favor of Heller’s text and history
mandate); Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney
Gen. New Jersey, 910 F.3d 106, 127 (3d Cir. 2018) (Bibas,
J., dissenting) (arguing that Heller did not set up tiers of
scrutiny with respect to regulations affecting the Second
Amendment); Mance v. Sessions, 896 F.3d 390, 398 (5th Cir.
2018) (Ho, J., dissenting) (explaining that Heller instructs
that fundamental constitutional rights are enshrined with the
scope they were understood to have at the Founding); Tyler
v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 702 (6th Cir.
2016) (Batchelder, J., concurring) (encouraging the
replacement of the Sixth Circuit’s two-step test in favor of a
test that, as required by Heller and McDonald, looks to
history and tradition); id. at 710 (Sutton, J., concurring)
(arguing that history and tradition should inform the scope
of the Second Amendment rather than tiers of scrutiny);
Ezell v. City of Chicago, 651 F.3d 684, 701–02 (7th Cir.
2011) (Sykes, J.) (explaining that the scope of the Second
Amendment right requires a historical inquiry into original
meaning and does not leave room for interest-balancing);
Heller v. District of Columbia, 670 F.3d 1244, 1271 (D.C.
Cir. 2011) (Kavanaugh, J., dissenting) (“Heller and
McDonald leave little doubt that courts are to assess gun
bans and regulations based on text, history, and tradition, not
by a balancing test such as strict or intermediate scrutiny.”);
see also N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New
12 MAI V. UNITED STATES
York, 140 S. Ct. 1525, 1544 (2020) (Alito, J., dissenting)
(“We are told that the mode of review in this case is
representative of the way Heller has been treated in the lower
courts. If that is true, there is cause for concern.”).
Indeed, when this court first adopted the two-step test,
Judge Bea rightfully questioned whether applying tiers of
scrutiny to a Second Amendment right was consistent with
Heller. Chovan, 735 F.3d at 1143 (Bea, J., concurring). As
Judge Bea noted, “[u]nitary tests such as strict scrutiny,
intermediate scrutiny, undue burden, and the like don’t make
sense . . . in the Second Amendment context because the
language of Heller seems to foreclose scrutiny analysis.” Id.
(quoting Eugene Volokh, Implementing the Right to Keep
and Bear Arms for Self-Defense: An Analytical Framework
and a Research Agenda, 56 UCLA L. Rev. 1443, 1443,
1461–73 (2009)) (simplified). Nevertheless, since Chovan
didn’t challenge the application of an interest-balancing test,
Judge Bea considered the question waived. Id.
I share these concerns. It is difficult to square the type
of means-ends weighing of a government regulation inherent
in the tiers-of-scrutiny analysis with Heller’s directive that a
core constitutional protection should not be subjected to a
“freestanding ‘interest-balancing’ approach.” Heller,
554 U.S. at 634. In fact, such an analysis is difficult to
square with the interpretation of most constitutional rights.
As Justice Scalia wrote, “[a] constitutional guarantee subject
to future judges’ assessments of its usefulness is no
constitutional guarantee at all.” Id. After all, “[t]he People,
through ratification, have already weighed the policy
tradeoffs that constitutional rights entail.” Luis v. United
States, 136 S. Ct. 1083, 1101 (2016) (Thomas, J.,
concurring). Our duty as unelected and unaccountable
judges is to defer to the view of the people who ratified the
MAI V. UNITED STATES 13
Second Amendment, which is itself the “very product of an
interest balancing by the people.” Heller, 554 U.S. at 635.
By ignoring the balance already struck by the people, and
instead subjecting enumerated rights, like the Second
Amendment, to our own judicial balancing, “we do violence
to the [constitutional] design.” Crawford v. Washington,
541 U.S. 36, 67–68 (2004). Perhaps, this is why “[t]he
Constitution does not prescribe tiers of scrutiny.” Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016)
(Thomas, J., dissenting).
If operating on a clean slate, I would hew to Heller’s and
McDonald’s fidelity to the Second Amendment’s history,
tradition, and text. The precise contours of such a review
should be subject to further refinement; but we might, as
Justice Scalia suggested in Heller itself, look to the original
meaning of the First Amendment. See Heller, 554 U.S. at
635 (suggesting categorical exceptions to the First
Amendment as recognized at the Founding, such as
obscenity, libel, and disclosure of state secrets); see also
Tyler, 837 F.3d at 712 (Sutton, J., concurring) (opining that
“Heller creates an on-off switch to the right to bear arms”).
Under this view, a law may only constitutionally prohibit the
core right to keep arms in the home for self-defense if the
prohibition falls within an exception understood to be
outside of the Amendment’s scope at the time of the
Founding.
As the following section shows, when viewed under the
original understanding of the Second Amendment,
§ 922(g)(4)’s application to Mai cannot pass muster.
III.
In the Founding era, little regulation surrounded the core
right of gun ownership for self-defense of the home. As
14 MAI V. UNITED STATES
recognized by Heller, the Founders understood the “[t]he
right of self defence” as “the first law of nature” and “the
true palladium of liberty[.]” Heller, 554 U.S. at 606 (quoting
1 St. George Tucker, Blackstone’s Commentaries 300
(1803)). William Rawle, a constitutional scholar and George
Washington’s pick for Attorney General, noted that “[n]o
clause in the Constitution could by any rule of construction
be conceived to give to congress a power to disarm the
people. . . . But if in any blind pursuit of inordinate power,
[congress] should attempt it, [the Second] amendment may
be appealed to[.]” William Rawle, A View of the
Constitution of the United States 125–26 (2d. ed 1829).
When proposing a model constitution for Virginia in 1776,
Jefferson included within the document the explicit
guarantee that “[n]o free man shall be debarred the use of
arms in his own lands.” The Jefferson Cyclopedia 51 (Foley
ed., reissued 1967).
Historical regulations of the right to bear arms focused
more on how people used weapons—not who could own
them. For example, in 1840, the Alabama Supreme Court
upheld a ban on the secret carrying of guns and knives. State
v. Reid, 1 Ala. 612, 614–15, 622 (1840); see also Aymette v.
State, 21 Tenn. 154 (1840) (upholding a statute making the
carrying of a concealed weapon a crime); State v. Chandler,
5 La. Ann. 489, 489–90 (1850) (same). In 1846, the
Supreme Court of Georgia noted that at the time of the
Founding there was a distinction between “a law prohibiting
the exercise of the right [to bear arms], and a law merely
regulating the manner of exercising that right.” Nunn v.
State, 1 Ga. 243, 247 (1846). Consequently, a state
legislature could ban the concealed-carry of a gun, so long
as the ban did not infringe upon the “natural right of self-
defence, or of [the] constitutional right to keep and bear
arms.” Id. at 251.
 MAI V. UNITED STATES 15
Indeed, the first decision addressing a firearms
regulation based on the condition of a person (rather than the
manner of carrying) did not arise until 1886. See C. Kevin
Marshall, Why Can’t Martha Stewart Have A Gun?,
32 Harv. J.L. & Pub. Pol’y 695, 711 (2009) (citing State v.
Shelby, 2 S.W. 468, 469 (Mo. 1886)) (hereinafter,
“Martha”). In Shelby, the Supreme Court of Missouri
upheld a restriction on the carrying of a deadly weapon while
intoxicated. 2 S.W. at 469. Similarly, late 19th century laws
in Michigan and the District of Columbia restricted weapons
ownership for minors. See Martha at 712 n.93. But as a
Texas state court explained, the state may have “the power
by law to regulate the wearing of arms, with a view to
prevent crime, but it has not the power to enact a law the
violation of which will work a forfeiture of defendant’s
arms.” Jennings v. State, 5 Tex. Ct. App. 298, 300 (1878)
(striking down a law requiring forfeiture of guns used during
a crime under the state constitution).
It should come as no surprise, then, that scholars have
“search[ed] in vain through eighteenth-century records to
find any laws specifically excluding the mentally ill from
firearms ownership.” Carlton F.W. Larson, Four Exceptions
in Search of a Theory: District of Columbia v. Heller and
Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009).
Such laws would be highly unusual in a context where
regulations focused on use rather than ownership. Not until
1930 do we see laws specifically touching on gun ownership
and mental health, after the ABA-approved Uniform
Firearms Act prohibited delivery of a pistol to any person of
“unsound” mind. Id. at 1376 (quoting Handbook of the
National Conference of Commissioners on Uniform State
Laws and Proceedings of the Fortieth Annual Conference
563 (1930)). The Act, first drafted in 1926, sought to
promote uniform state laws on firearms. Legislation, The
16 MAI V. UNITED STATES
Uniform Firearms Act, 18 Va. L. Rev. 904, 904–05 (1932).
It was adopted by Pennsylvania in 1931, id. at 905 n.9, and
other states passed similar laws in the following decades,
see, e.g., 1965 N.Y. Laws 2343, 2472 (codified at N.Y. Penal
Law §400.00.1 (McKinney 2008)). The statute at issue here,
§ 922(g)(4), was not enacted until 1968. Gun Control Act of
1968, Pub. L. No. 90-618, 82 Stat. 1213, 1220.
Given the paucity of Founding-era laws specifically
prohibiting gun ownership by the mentally ill, we are better
served by exploring the dominant thinking on mental illness
in that period. On this, the evidence is clear: temporary
mental illness didn’t lead to a permanent deprivation of
rights.
Influential philosophers of the day understood that rights
attach with the attainment of “reason” and, correspondingly,
the loss of rights persisted only through the loss of reason.
See Tyler, 837 F.3d at 705–06 (Batchelder, J., concurring)
(citing 1 Jean-Jacques Burlamaqui, The Principles of
Natural and Politic Law 82 (1747); John Locke, Two
Treatises of Government (1691), reprinted in 4 John Locke,
The Works of John Locke 207, 339, 342 (12th ed. 1824);
1 Frederick Pollock & Frederic William Maitland, The
History of English Law Before the Time of Edward I 507–08
(1898)). This understanding accorded with a deeply rooted
common law tradition recognizing that mental illness was
not a permanent condition. See id. at 707–14 (Sutton, J.,
concurring) (citing 1 William Blackstone, Commentaries
*304–05; Anthony Highmore, A Treatise on the Law of
Idiocy and Lunacy 104 (1807)). 1 Thus, an “insane” person
1
For example, in 1689, a Virginia court ordered the confinement of
John Stock, who kept “running about the neighborhood day and night in
sad Distracted Condition to the great Disturbance of the people” to
MAI V. UNITED STATES 17
was one who “by disease, grief, or other accident hath lost
the use of his reason.” 1 William Blackstone, Commentaries
*304. But “the law always imagines, that the[] accidental
misfortunes [that caused the lunacy] may be removed” and
at that point the person’s rights restored. Id. at *304–05; see
1 Frederick Pollock & Frederic William Maitland, The
History of English Law Before the Time of Edward I 507–08
(1898); see also Anthony Highmore, A Treatise on the Law
of Idiocy and Lunacy 73 (1807) (“[A] lunatic [was] never to
be looked upon as irrecoverable.”).
These views on the mentally ill were reflected in
historical practices and laws. Even as Virginia sought to
ratify its constitution with a limitation on the civil rights of
“lunatics,” such limitation was only “during their state of
insanity.” 1 St. George Tucker, Blackstone’s
Commentaries: With Notes of Reference, to the Constitution
and Laws, of the Federal Government of the United States;
and of the Commonwealth of Virginia 145 (1803). Virginia
recognized that “an[c]ient law” mandated that the insane
should recover their rights when “they recovered their
senses.” Id. For example, even if a former “lunatic[]” had
his property taken, he was free to petition a tribunal to
establish that “he was now restored to his Understanding” in
order to re-claim the property. Charles Viner, A General
Abridgment of Law and Equity 138 (1741). And while
judicial officials were authorized to “lock up” “lunatics” or
“other individuals with dangerous mental impairments”
(thereby depriving them of all rights), they were “locked up
only so long as such lunacy or disorder shall continue, and
no longer.” Henry Care, English Liberties, or the Free- born
prevent “his doeing any further Mischiefe.” Gerald N. Grob, Mad
Among Us 16 (1994). But Stock was to be confined only “until hee bee
in a better condition to Governe himself.” Id.
18 MAI V. UNITED STATES
Subject’s Inheritance 329 (6th ed. 1774). Similarly, the
statute of limitations affecting a claimed property right
would not run against a mentally ill person until the
“removal of his disability and knowledge of the existence
of” such right. See Dicken v. Johnson, 7 Ga. 484, 494
(1849).
From this historical record a clear picture emerges:
mental illness was considered a temporary ailment that only
justified a temporary deprivation of rights. At the time of
the Founding, the idea that the formerly mentally ill were
permanently deprived of full standing in the community was
nowhere to be found. Thus, § 922(g)(4)’s permanent
prohibition on those “formerly committed to a mental
institution” patently burdens the Second Amendment right
of an individual, like Mai, who has been adjudicated to be
no longer mentally ill and whose commitment was long ago.
Heller’s observations about “presumptively lawful
regulatory measures” does not change this analysis. See
United States v. Torres, 911 F.3d 1253, 1262 (9th Cir. 2019).
Heller’s reference to firearm prohibitions for the “mentally
ill” as being “presumptively lawful,” 554 U.S. at 626, 627
n.26, apply to those who are presently mentally ill. “[A]
good rule of thumb for reading [Court] decisions is that what
they say and what they mean are one and the same.” Mathis
v. United States, 136 S. Ct. 2243, 2254 (2016). As such, we
view these categories as “well-defined and narrowly
limited.” Jackson, 746 F.3d at 960 (quoting Brown v. Entm’t
Merchants Ass’n, 564 U.S. 786, 791 (2011)). Accordingly,
nothing in these categories contravenes the historical
evidence that mental illness was considered a temporary
status with no lifelong legal consequences. Because Mai is
MAI V. UNITED STATES 19
not currently mentally ill, he doesn’t belong in that
“presumptive” category. 2
With no historical support for this type of permanent
restriction, or even an analogous restriction, § 922(g)(4) as
applied to Mai violates the Second Amendment’s command
that “the right of the people to keep and bear Arms, shall not
be infringed.” U.S. Const. amend. II. Accordingly, we
should have said as much and reversed the district court’s
decision.
IV.
As I have shown, § 922(g)(4)’s application to Mai has no
basis in the text, tradition, and history of the Second
Amendment. But until our court agrees to apply such a test
to Second Amendment claims under en banc review or the
Court provides us with further guidance, we remain bound
by the Chovan test. But even under that test, the court still
got it wrong. The court first incorrectly identified
intermediate scrutiny as the proper standard of review and
then flubbed its application. These errors were further
reason to revisit this case.
A.
As discussed, Chovan calls for a two-step process. First,
we determine if the law “burdens conduct protected by the
Second Amendment,” Chovan, 735 F.3d at 1136, “based on
a historical understanding of the scope of the [Second
2
As the Sixth Circuit held, “Heller’s presumption of lawfulness
should not be used to enshrine a permanent stigma on anyone who has
ever been committed to a mental institution for whatever reason.” Tyler,
837 F.3d at 688. To do so “would amount to a judicial endorsement of
Congress’s power to declare, ‘Once mentally ill, always so.’” Id.
20 MAI V. UNITED STATES
Amendment] right[.]” Jackson, 746 F.3d at 960 (9th Cir.
2014) (simplified). Second, we decide what level of scrutiny
applies based on our assessment of “(1) how close the law
comes to the core of the Second Amendment right and
(2) the severity of the law’s burden on the right.” Chovan,
735 F.3d at 1138 (simplified). Depending on the answers to
these questions, we determine our review on a sliding scale
ranging from intermediate scrutiny to per se
unconstitutionality. See Silvester v. Harris, 843 F.3d 816,
821 (9th Cir. 2016). A law, like the complete handgun ban
examined in Heller, that imposes “such a severe restriction”
on the core Second Amendment right that “it amounts to a
destruction of [that] right” is per se unconstitutional. See
Bauer v. Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017)
(simplified). A “law that implicates the core of the Second
Amendment right and severely burdens that right”—without
totally destroying it, like a ban on large-capacity
magazines—“warrants strict scrutiny.” Duncan v. Becerra,
No. 19-55376, 2020 WL 4730668, at *22 (9th Cir. Aug. 14,
2020) (quoting Silvester, 843 F.3d at 821, 827). For all other
laws that do not implicate the core Second Amendment right
or do not substantially burden that right, like a short waiting
period to purchase firearms, we apply intermediate scrutiny.
Torres, 911 F.3d at 1262 (citing Jackson, 746 F.3d at 961);
Silvester, 843 F.3d at 823.
The court erred at both steps of the Chovan analysis. At
step one, the court assumed, rather than decided, that
§ 922(g)(4) as applied to Mai burdens conduct protected by
the Second Amendment right. Mai, 952 F.3d at 1114. But
by dodging the question of “which perspective better
comports with the historical evidence,” id., the court
sidesteps Heller’s command to review the text, history, and
tradition of the Amendment. Heller, 554 U.S. at 605, 625,
635. But when we suspect that a question may implicate a
MAI V. UNITED STATES 21
“core” constitutional concern, “we should do more before
tossing it aside.” Fazaga v. FBI, 965 F.3d 1015, 1079 (9th
Cir. 2020) (Bumatay, J., dissenting). Furthermore, when
undertaking a constitutional analysis, “[w]e should resolve
questions about the scope of [our] precedents in light of and
in the direction of the constitutional text and constitutional
history.” Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir.
2020) (Bumatay, J., dissenting) (quoting Free Enter. Fund
v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698
(D.C. Cir. 2008) (Kavanaugh, J., dissenting)).
By punting the analysis of the historical scope of the
Second Amendment and its impact on the formerly mentally
ill, we let false assumptions cloud our judgment and distort
our precedent even further from the original understanding
of the Constitution. Had we done the requisite analysis, we
would have recognized that this law not only burdens
Second Amendment-protected conduct, but that it also
strikes at the core right protected by its guarantee. Instead,
our court skips this important step—an omission that infects
the rest of the Chovan analysis.
The court erred again at Chovan step two, by incorrectly
identifying intermediate scrutiny as the proper standard. 3 As
we have recently explained, step two of Chovan “is a simple
inquiry: if a law regulating arms adversely affects a law-
abiding citizen’s right of defense of hearth and home, that
law strikes at the core Second Amendment right.” Duncan,
2020 WL 4730668, at *12; Jackson, 746 F.3d at 961
3
Without reference to our precedent, Mai apparently agreed that
intermediate scrutiny should apply to his case. See Mai, 952 F.3d
at 1115. Nevertheless, “we are not bound to decide a matter of
constitutional law based on a concession.” Colo. Republican Fed.
Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 604, 622 (1996).
22 MAI V. UNITED STATES
(recognizing that laws which regulate only the “manner in
which persons may exercise their Second Amendment
rights” are less burdensome than those which “bar firearm
possession completely”) (quoting Chovan, 735 F.3d
at 1138); see also Heller, 554 U.S. at 635 (“[W]hatever else
it leaves to future evaluation, [the Second Amendment]
surely elevates above all other interests the right of law-
abiding, responsible citizens to use arms in defense of hearth
and home.”).
Under this framework, the application of § 922(g)(4) to
Mai strikes at the core Second Amendment right—and guts
it. Indeed, § 922(g)(4) completely deprives Mai of the
ability to possess a firearm, even within the home, where
protections are “at their zenith.” Duncan, 2020 WL
4730668, at *12 (quoting Kachalsky v. Cty. of Westchester,
701 F.3d 81, 89 (2d Cir. 2012)). In any other context, laws
that burden the core of a fundamental right are invariably
analyzed under heightened scrutiny—e.g., restrictions on the
“content” of speech rarely survive strict scrutiny, e.g., Brown
v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011), nor do
laws that restrict “core” political speech, see, e.g., McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995);
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S.
182, 207 (1999) (Thomas, J., concurring). We should not
treat the Second Amendment any different. Instead, we
should have recognized that § 922(g)(4) effects a complete
deprivation of Mai’s core Second Amendment right and held
the law unconstitutional as applied to him.
At a minimum, the law is a “substantial burden” on the
core Second Amendment right, warranting the application of
strict scrutiny. Duncan, 2020 WL 4730668, at *22. But the
court evaded any form of strict scrutiny, despite admitting
that § 922(g)(4)’s “lifetime ban” on Mai’s Second
MAI V. UNITED STATES 23
Amendment right was “quite substantial,” by minimizing the
law’s burden as falling on only a “narrow class” of
individuals. Mai, 952 F.3d at 1115. In doing so, the court
seemingly pulls new doctrine out of its hat and magically
transforms a fundamental right that belongs to an individual,
Heller, 554 U.S. at 592, into one that is class-based. Rather
than face the total and permanent deprivation of the core
Second Amendment right for Mai (and the class of people
like him), the court refocused the inquiry on the size of the
class. And ta-da!, the court holds, intermediate scrutiny
applies. Like most magicians, the court refused to explain
its act. 4 Because the law deprives only a “narrow class” of
individuals their Second Amendment right, ipse dixit, it is
analyzed only under intermediate scrutiny. Such reasoning
is even more perplexing given that heightened scrutiny was
originally announced as a method to protect the rights of
“discrete and insular minorities.” See United States v.
Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Today,
according to the court, the fact that Mai belongs to a “narrow
class” is, paradoxically, the very reason to lower the level of
scrutiny applied to him. We should have corrected this
jurisprudential sleight of hand.
Next, the court justified its decision to apply
intermediate scrutiny by refusing to recognize Mai as a “law-
abiding, responsible citizen.” But its refusal to do so is
baffling. Besides a brief involuntary commitment as a
youth, nothing in the record shows that Mai is anything but
4
The court cites to Tyler for its analysis, Mai, 952 F.3d at 1115, but
Tyler provides no reasoning for the class-based burden approach and
only cites to a Tenth Circuit case for that proposition. Tyler, 837 F.3d
at 691 (citing United States v. Reese, 627 F.3d 792, 802 (10th Cir.
2010)). In turn, the Tenth Circuit case merely announces the proposition
with no accompanying analysis. Reese, 627 F.3d at 792. So the court
falls into a rabbit hole within rabbit holes to justify its conclusion.
24 MAI V. UNITED STATES
a “law-abiding, responsible citizen.” Instead, it shows that
Mai is a person of advanced education and demonstrated
professional achievement, with strong community and
family support and no history of criminal activity or
substance abuse. Yes, he suffered from significant
depression as a teen, but recent psychological evaluators and
Washington state have concluded he is not currently
mentally ill and presents no risk of violence to others or
himself. Nor is that reasonably likely to change in the future.
Washington, in turn, restored his right to possess firearms
under state law.
But this court decided it knows better, holding that,
“[r]egardless of [Mai’s] present-day peaceableness,” Mai is
not a “law-abiding, responsible citizen” because of his brief
commitment 20 years ago. Mai, 952 F.3d at 1115. The
court, with no analysis, held that “[t]he same logic” used to
prohibit a domestic-violence convict from possessing a
firearm applied here—to a person like Mai. Id. (citing
Chovan, 735 F.3d at 1138). 5 But a criminal conviction is not
the same as mental illness. Unless pardoned, expunged, or
set aside, a conviction always remains a conviction under the
law. See, e.g., 18 U.S.C. § 921(a)(20)(B), (33)(B)(ii). And,
5
In Chovan, we found § 922(g)(9)’s prohibition on firearm
possession by domestic-violence misdemeanants didn’t implicate the
“core” Second Amendment protection because the law’s burden fell only
on “individuals with criminal convictions.” Chovan, F.3d at 1138. The
court doesn’t justify why mental illness fits into the same category.
Indeed, while civil commitment often results from threats of physical
harm, some states allow civil commitment where no risk of physical
harm is present at all. See, e.g., Haw. Rev. Stat. § 334-1 (“substantial”
emotional injury on others); Iowa Code § 229.1(20) (“serious” emotional
injury on others); Kan. Stat. Ann. § 59-2946(f)(1)–(3) (property
damage); La. Stat. Ann. §§ 28:55(E)(1), 28:2(10) (substance abuse);
N.H. Rev. Stat. Ann. §§ 135-C:34, 135-C:2(X) (noncontinuous alcohol
abuse).
MAI V. UNITED STATES 25
at least for felony convictions, there is historical support for
a law resulting in forfeiture of property and rights. See
2 William Blackstone, Commentaries *377 (describing the
possible punishments of serious crime as including
“confiscation, by forfeiture of lands, or moveables, or both,
or of the profits of lands for life: others induce a disability,
of holding offices or employments, being heirs, executors,
and the like”); see also United States v. McCane, 573 F.3d
1037, 1049 (10th Cir. 2009) (Tymkovich, J., concurring)
(“[T]he application of § 922(g) to a violent felon . . . would
appear appropriate under any Second Amendment reading.
After all, felons lose out on fundamental rights such as
voting and serving on juries, and face discrimination that
need only survive rational basis review.”). As we have said,
“felons are categorically different from the individuals who
have a fundamental right to bear arms.” United States v.
Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010).
So, while the law may hold that “once a convict, always
a convict,” tradition, history, and elementary psychology
teach us that “once mentally ill, not always mentally ill.”
This is the distinction that the court ignores. Indeed, under
the court’s extreme reading of the law, any person falls
outside of the Constitution’s core protection if that person
spends even one day in commitment—even as a youth!
Nothing in the text, history, and tradition of Constitution
supports this view. The proper inquiry would have
recognized that the lifetime ban imposed by § 922(g)(4) on
Mai is unequivocally a complete deprivation of his core right
to home gun ownership. As such, the law is
unconstitutional.
B.
Even accepting the court’s error and analyzing Mai’s
claim under intermediate scrutiny, we still got it wrong.
26 MAI V. UNITED STATES
To satisfy intermediate scrutiny, the government’s
statutory objective must be “significant, substantial, or
important,” and there must be a “reasonable fit” between the
challenged law and that objective. Mai, 952 F.3d at 1115
(quoting Silvester, 843 F.3d at 821–22). 6 The burden of
satisfying intermediate scrutiny is demanding and rests
entirely on the government. United States v. Virginia,
518 U.S. 515, 533 (1996). It doesn’t require the court to
approve “shoddy data or reasoning.” See City of Los Angeles
v. Alameda Books, Inc., 535 U.S. 425, 438 (2002). We
demand “consistency and substantiality” in the evidence the
government uses to establish a sufficient fit between its
means and ends. Lalli v. Lalli, 439 U.S. 259, 274 (1978)
(quoting Mathews v. Lucas, 427 U.S. 495, 515 (1976)). The
proffer of “loose-fitting generalities” in the form of
statistical data is insufficient to clear intermediate scrutiny.
See Craig v. Boren, 429 U.S. 190, 191–92, 202–04, 209
(1976) (rejecting to the use of “broad sociological
propositions” to particularized applications under
heightened scrutiny).
Here, the court disclaims any adherence to the false
assumption that “once mentally ill, always mentally ill.”
The court also fully professes to believe in Mai’s current
mental health. But, once we acknowledge that Mai has no
present-day mental health impairment, what justifies the
deprivation of his fundamental right? Apparently, according
to the court, Swedish statistical studies.
6
As Judge VanDyke traces in his dissent, our court transplanted the
“reasonable fit” standard from the First Amendment context, where it
was used to evaluate neutral, incidental burdens on speech. VanDyke,
J., dissenting at 46. I join Judge VanDyke in questioning whether this
standard inappropriately waters down the exacting scrutiny required to
review the complete deprivation of a fundamental right.
MAI V. UNITED STATES 27
In justifying the “reasonable fit” between the
government’s objective here, the court relies on several ill-
suited studies, many compiling data from foreign countries.
One of the primary studies relied on by the court analyzed
suicide risk after release from involuntary commitment, but
offered no information about suicide risk for someone like
Mai—20 years past his commitment and free of mental
health issues. 7 See also Tyler, 837 F.3d at 696 (finding this
same study insufficient to “explain why a lifetime ban [on
gun possession] is reasonably necessary”). The court admits
the inapplicability of this study to someone like Mai. See
Mai, 952 F.3d at 1121. But undeterred, the court offers
additional studies, perhaps even more inapplicable, such as
a study focused on patients from Sweden, 8 “community
care” patients from Italy and Australia, 9 an “[o]ut-patients”
7
Of the patients considered, 98% were considered for only a year
following their commitment, and the remaining 2% were studied from
2.5 to 8.5 years post-commitment. E. Clare Harris & Brian Barraclough,
Suicide as an Outcome for Mental Disorders: A Meta-Analysis, 170 Brit.
J. Psychiatry 205, 219 (1997) (hereinafter “Meta-Analysis”). The study
doesn’t include any research into the suicide risk at 10, 15, and 20 years
out from commitment—even while recognizing that “[s]uicide risk
seems highest at the beginning of treatment and diminishes thereafter.”
Meta-Analysis at 223.
8
In one study of “[p]reviously hospitalised patients,” 80% of the
observations were from Sweden and involved all types of psychiatric
diagnoses, not just depression. See Mai, 953 F.3d at 1118 (citing Meta-
Analysis at 220–21); Allgulander C. et al., Risk of Suicide by Psychiatric
Diagnosis in Stockholm County. A Longitudinal Study of 80,970
Psychiatric Inpatients, 241 Eur. Archives Psychiatry Clinical
Neuroscience 323, 324 (1992); Appendix, Figure 1.
9
In this study of “[c]ommunity care patients,” 86% of observations
were patients from Italy and Australia (the United States represented a
mere 4% or three total observations). Mai, 952 F.3d at 1118 (citing
28 MAI V. UNITED STATES
study with a meager 34 observations, 10 and another study of
predominately foreign patients (with some U.S. data from
1969). 11
The court offered no reasoned explanation of how a
fundamental right can be contingent on off-point studies
conducted overseas, see Mai, 952 F.3d at 1117–18 (relying
on Meta-Analysis), despite the Supreme Court counseling
against relying on such inapposite data. See Craig, 429 U.S.
at 201.
The court’s application of intermediate scrutiny here
requires more of a rifle’s precision, not a shotgun’s spread.
See Ass’n of N.J. Rifle & Pistol Clubs, Inc., 910 F.3d at 133–
34 (Bibas, J., dissenting) (“Intermediate scrutiny requires
more concrete and specific proof before the government may
restrict any constitutional right, period.”). The panel’s cited
studies fail to meet this standard because none demonstrate
a “continued risk presented by people who were
involuntarily committed many years ago and who have no
history of intervening mental illness, criminal activity, or
substance abuse.” Tyler, 837 F.3d at 699. If we are to accede
to the permanent deprivation of Mai’s fundamental right, we
should, at a minimum, demand evidence sufficiently tailored
to his circumstances. See id. (remanding to the district court
Meta-Analysis at 221); see Appendix, Figure 2. The court doesn’t even
define “community care,” much less its relevance to Mai.
10
Mai, 252 F.3d at 1118 (citing Meta-Analysis at 220–21); see
Appendix, Figure 3.
11
Mai, 952 F.3d at 1118 (citing Meta-Analysis at 221); see
Appendix, Figure 4.
MAI V. UNITED STATES 29
to allow the government to present “additional evidence
explaining the necessity of § 922(g)(4)’s lifetime ban”).
V.
Many years ago, judges took a turn as pseudo-
psychologists and waded into whether a woman’s mental
health may be balanced against her constitutional rights. See
Buck v. Bell, 274 U.S. 200 (1927). That case is generally not
treated kindly today. I fear the court goes down the same
path.
Heller’s endorsement of text, history, and tradition as the
proper lens for evaluating the scope of the Second
Amendment was not accidental. There, the Court
emphatically disapproved of courts determining on an ad hoc
basis whether certain individuals were undeserving of the
full complement of fundamental rights. Duy Mai deserves
better. Our Constitution deserves better. I respectfully
dissent from the denial of rehearing en banc.
30 MAI V. UNITED STATES
APPENDIX
Figure 1
Figure 2
MAI V. UNITED STATES 31
Figure 3
Figure 4
32 MAI V. UNITED STATES
VANDYKE, Circuit Judge, with whom BUMATAY,
Circuit Judge, joins, dissenting from denial of rehearing en
banc:
In the final paragraph of its opinion rejecting Mai’s
Second Amendment claim, the panel emphasized that “[w]e
emphatically do not subscribe to the notion that ‘once
mentally ill, always so.’” Mai v. United States, 952 F.3d
1106, 1121 (9th Cir. 2020). I believe them. Yet just like the
government’s position in this case, the panel’s decision
inescapably effectuates exactly that ethic. How can this
court purport to be applying “heightened” scrutiny, yet bless
a legal position and practical outcome everyone insists isn’t
true?
The answer is a simple four-letter word: guns. It is hard
to conceive of any other area of the law where, given the
opportunity to apply heightened scrutiny, this court would
countenance for a moment an outcome rooted in the
scientifically indefensible, morally repugnant, and legally
insufficient concept of “once mentally ill, always so.” Mr.
Mai could understandably take personally this court’s
labeling of him as a second-class citizen (more on that
below). But he shouldn’t. Our court cannot really believe
that, just because a currently healthy individual decades ago
suffered from mental illness, they are permanently relegated
to a disfavored status impervious to even heightened
scrutiny. Mr. Mai is not a second-class citizen—not in this
court’s eyes or anyone else’s. He’s just seeking to exercise
a second-class right. He is another innocent casualty of this
court’s demonstrated dislike of things that go bang. Perhaps
Mr. Mai can take faint solace in the fact that, were he seeking
to exercise any other right entitled to heightened scrutiny, he
would no doubt get the judicial review he plainly merits.
MAI V. UNITED STATES 33
Mai, and all others who have overcome mental illness,
deserve better than to be permanently designated second-
class citizens, particularly as it relates to their equal
participation in a fundamental right. I therefore agree
entirely with Judge Bumatay’s dissent and write separately
to expound on two of the reasons this case deserved en banc
attention.
First, our en banc court should have reconsidered and
corrected the panel’s circular logic about who lies at the
“core” of the Second Amendment. By lumping individuals
like Mai into overbroad groups that, as a whole, may pose
heightened risks of violence, the panel has effectively given
governments carte blanche to legislate the Second
Amendment away. The panel’s classist approach labels
many law-abiding, responsible citizens like Mai non-law-
abiding, irresponsible citizens, outside the protections of the
Second Amendment. No evidence suggests Mai is mentally
ill, yet the panel’s rationale labels him so, for life. The panel
then uses this grouping to lower the applicable level of
scrutiny, which in turn relaxes (or eliminates) the
requirement that a restriction should substantially fit the
government objective. It’s circular. All this, when the
“core” of the Second Amendment in Heller is about
protected conduct—not people.
Second, our intermediate scrutiny jurisprudence is
broken, at least as to Second Amendment claims. We have
appropriated a “reasonable fit” standard from the First
Amendment context, where it was used to evaluate neutral,
incidental burdens on speech. Not only have we pilfered a
test ill-suited to direct burdens on a different fundamental
right, we have further diminished that already too-anemic
test. Our track record on the Second Amendment is quite
34 MAI V. UNITED STATES
poor, and the analytical maltreatment exhibited again in this
case only adds to the rap sheet.
I. ASSUMPTIONS, PRESUMPTIONS, AND THE
“CORE” OF THE SECOND AMENDMENT RIGHT
A. The Panel’s Awkward Assumption at Chovan Step 1
The panel sidestepped the difficult task of determining
whether 18 U.S.C. § 922(g)(4) burdens Mai’s Second
Amendment rights (Chovan Step 1) by simply assuming it
did. Mai, 952 F.3d at 1114–15. According to the panel, a
restriction does not burden a Second Amendment right if it
fits a presumptively lawful ban in Heller (felons or the
mentally ill) or regulates conduct outside the scope of the
Second Amendment. Id. at 1114 (referencing Unites States
v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)). Blanketly
banning firearm possession clearly implicates the scope of
the Second Amendment, so, if the panel had decided Mai’s
case at Chovan Step 1, it could only uphold § 922(g)(4) as
applied to Mai by concluding that he is properly included
amongst “the mentally ill.” Faced with either holding that
Mai’s past mental illness rendered him perpetually mentally
ill (once mentally ill, always so) or admitting that Mai had
the same Second Amendment right as any other law-abiding
citizen, the panel punted. Id. at 1115. This “well-trodden”
analytical technique is generally fine, but here the panel
buried the lede in Chovan Step 1 to avoid the awkwardness
of expressly saying up front what it implicitly concluded in
Chovan Step 2, Prong 1: that Mr. Mai’s long-ago mental
illness forever excludes him from the community of “law-
abiding, responsible citizens” under the Second Amendment
(i.e., once mentally ill, always so). Chovan, 735 F.3d at
1138.
MAI V. UNITED STATES 35
B. After Assuming the Statute Burdens Mai’s Second
Amendment Rights, the Panel Concluded Mai Is
“Well Outside the Core of the Second Amendment.”
Chovan Step 2 is a two-prong inquiry to determine the
appropriate level of scrutiny: (1) how close the law comes to
the core of the Second Amendment and (2) the severity of
the law’s burden on that right. Chovan, 735 F.3d at 1138.
As to the second prong, the panel correctly recognized that
§ 922(g)(4) severely burdens Mai’s Second Amendment
right and amounts to a lifetime ban on firearm ownership.
Mai, 952 F.3d at 1115.
This put all the pressure on the panel’s Prong 2 “core”
analysis. The panel first determined Mai was not a law-
abiding, responsible citizen because of his former mental
illness. Id. (likening Mai to domestic violence
misdemeanants). From this, and despite § 922(g)(4)’s
severe burden on Mai’s Second Amendment rights, the panel
concluded that § 922(g)(4) “falls well outside the core of the
Second Amendment right.” Id. The panel then deemed a
lower level of scrutiny appropriate, because a “lifetime ban”
on the formerly committed “burdens only a narrow class of
individuals who are not at the core of the Second
Amendment.” Id.
The panel believes class-based categorical bans are
permissible under intermediate scrutiny, so long as those
bans target groups that pose a heightened risk of violence.
Id. at 1116. Because some metrics indicate that individuals
recently involuntarily committed are more violent than the
general public, the panel surmises that the firearm ban, as
applied to Mai (who was committed as a juvenile decades
36 MAI V. UNITED STATES
ago), survives intermediate scrutiny. 1 Id. at 1116–17. But
this standard abandons any reasonable fit requirement.
Presumably, the panel’s version of “intermediate scrutiny”
would uphold firearm bans as applied to young men, the
poor, or the entire 2008 Florida Gators football team. 2
Ironically, the broader the class, the more likely it is to pass
this standard. Suppose Congress instituted a firearm ban
against anyone who has committed a crime—from
jaywalkers to violent felons. That “all criminals”
classification would withstand scrutiny under the panel’s
standard because, when lumped together into one group, that
group—as a whole—poses a heightened risk of violence just
because some members of that group do. Whether
committing murder or activating the turn signal too late,
under the panel’s rationale, “all criminals” are no longer law-
abiding, responsible citizens entitled to basic Second
Amendment rights.
Of course, this is absurd and circular. Step 1: Congress
bans firearm possession for a broad class of people including
some sub-class therein that poses a heightened risk of
violence. Step 2: Our court says the broad class is outside
“core” of the Second Amendment. Step 3: We say the
1
For the reasons Judge Bumatay ably explains, those metrics’
relevance to Mai’s circumstances is dubious at best, and clearly
insufficient to meet any form of heightened scrutiny with real teeth.
2
As of 2013, 34% of the 2008 Florida Gators football team had been
arrested. Many were charged with violent crimes, including at least one
who was convicted of a notorious murder. See Greg Bishop, Hernandez
Among Many Who Found Trouble at Florida in the Meyer
Years, N.Y. TIMES (July 6, 2013), https://www.nytimes.com/2013/07/0
7/sports/ncaafootball/hernandez-among-many-arrested-at-florida-in-the
-meyer-years.html. But the team was also graced by model citizen Tim
Tebow, who, I’m sure we can all agree, could be trusted to own a firearm
(and probably raise our children).
MAI V. UNITED STATES 37
individual in the broad class is also outside the core, even
though no evidence says he belongs to a violent sub-class,
and all the evidence suggests otherwise. Step 4: We lower
the level of scrutiny and relax the “fit” requirement so that a
wildly overbroad prohibition can be deemed “reasonable.”
This bootstrapping approach is an ingenious but insidious
way to render the Second Amendment a paper tiger. See
Chovan, 735 F.3d at 1148 (Bea, J., concurring) (“If … the
terms ‘law-abiding’ and ‘responsible’ are not tied to ‘felons’
and ‘mentally ill,’ how are the lower courts to recognize the
limits of the ‘law-abiding, responsible citizen’ standard?”).
C. The “Core” of the Second Amendment Right has
Nothing to Do with Classes of People.
The panel references Chovan (which quotes from Heller)
for the principle that “[t]he core of the Second Amendment
is ‘the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.’” Id. at 1115 (quoting
Chovan, 735 F.3d at 1138). According to the panel, this
supported its decision to subject different classes of people
to different tiers of scrutiny. Id. But this “core” standard
finds no support in and misrepresents Heller.
Although the panel concludes that certain privileged
classes of people constitute the “core of the Second
Amendment” (while, by extension, other classes like the one
it lumped Mai into don’t), the Heller Court never applied this
test to the right’s holders, but only to its substance. The
word “core” appears only twice in Heller and both times
describes the activity protected by the Second Amendment.
District of Columbia v. Heller, 554 U.S. 570, 630 (2008)
(“the core lawful purpose of self-defense”) (emphasis
added); id. at 634 (reasoning that handgun ownership is the
“core protection” of the Second Amendment) (emphasis
added).
38 MAI V. UNITED STATES
Heller never used “core,” or its like, to discuss the
Second Amendment’s application to individuals. But the
panel nonetheless splices language—separated by fifty-four
pages from Heller’s actual individual rights analysis—to
support its claim that the formerly mentally ill lie outside the
core of the Second Amendment. See Mai, 952 F.3d at 1115;
compare Heller, 554 U.S. at 581 (“We move now from the
holder of the right—‘the people’—to the substance of the
right ….”) with id. at 635 (“And whatever else it leaves to
future evaluation, it surely elevates above all other interests
the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.”).
Heller actually cuts against the panel’s supposition. The
Heller Court noted that the six other constitutional
provisions that guarantee rights to “the people” refer
unambiguously to the same class of individuals: namely, “all
members of the political community.” Id. at 580 (First,
Second, Fourth, Ninth, Tenth, and Seventeenth
Amendments). Heller then concluded that “the Second
Amendment right is [likewise] exercised individually and
belongs to all Americans.” Id. at 581 (emphasis added).
Does the panel’s contrary logic mean groups or individuals
may also be placed outside the “core” of other constitutional
rights?
I’m certain this court would say no. The Supreme Court
has repeatedly declined to do so. Instead, it takes an all-or-
nothing approach to delineate the scope of individuals
included in a constitutional protection and then applies an
appropriate level of scrutiny to the regulatory burden on the
substance of that right, if necessary. See, e.g., Boumediene
v. Bush, 553 U.S. 723, 771 (2008) (holding that enemy
combatants are entitled to the privilege of habeas corpus);
Demore v. Kim, 538 U.S. 510, 531 (2003) (aliens not entitled
MAI V. UNITED STATES 39
to bail hearings during removal proceedings under Due
Process Clause); Jones v. Helms, 452 U.S. 412, 419–20
(1981) (convicted felons have no fundamental right to
travel); Richardson v. Ramirez, 418 U.S. 24, 54–56 (1974)
(states can prevent convicted felons from voting). Just this
year, the Supreme Court reaffirmed this approach. See
Agency for Int’l Dev. v. All. for Open Soc’y. Intl., Inc., 140
S. Ct. 2082, 2086 (2020). There, the Court held that “foreign
organizations operating abroad … possess no rights under
the First Amendment.” Id. at 2087. The foreign
organizations’ status didn’t dictate the Court’s selected tier
of scrutiny—indeed, scrutiny appears nowhere in the
decision. Id. at 2085–89. On the contrary, the Court’s
decision was categorical: the plaintiffs don’t have First
Amendment rights. Id. at 2087.
Our court, too, has generally refused to apply a Mai-
style, second-class citizen “core” analysis to rights
guaranteed to “the People.” See, e.g., Rodriguez v. Swartz,
899 F.3d 719, 730 (9th Cir. 2018) (extending the full
protection of the Fourth Amendment to a Mexican citizen
shot on Mexican soil by American officer on American soil),
cert. granted, judgment vacated, 140 S. Ct. 1258 (2020);
Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001)
(ruling that mentally disturbed individuals are protected by
the Fourth Amendment right against excessive force); Maag
v. Wessler, 960 F.2d 773, 775 (9th Cir. 1991) (per curiam)
(holding that mentally ill individuals are fully protected by
the Fourth Amendment), as amended on denial of reh’g
(Apr. 1, 1992).
In this case, the panel invents a class scrutiny standard in
order to quietly lump Mai into a class (“the mentally ill”) to
which it wouldn’t explicitly consign him at Chovan Step 1.
It then leverages intermediate scrutiny to allow it to ignore
40 MAI V. UNITED STATES
the group’s obvious overbreadth, thereby allowing anyone
who has ever suffered from mental illness to be deprived of
their Second Amendment rights for life, regardless of their
present condition. Once mentally ill, always so. But see
Heller, 554 U.S. at 634–35 (“Constitutional rights are
enshrined with the scope they were understood to have when
the people adopted them, whether or not … future judges
think that scope too broad.”). Consistently applied, this
class-based recharacterization about the “core” of the
Second Amendment would bode ill for our foregoing
scrutiny of laws burdening other fundamental rights. But we
would never allow such subtle and slippery reasoning to so
grievously burden the rights of “the People” protected
elsewhere by the Constitution. This disparate treatment is
unacceptable, even as applied to one of this circuit’s least-
favored constitutional provisions. By refusing to
acknowledge that it is giving second-class treatment to the
Second Amendment, the panel tragically relegates folks like
Mai to permanent second-class status.
II. LOWERING HEIGHTENED SCRUTINY
Of course, any concerns about the panel’s circular class-
based rationale bankrupting other constitutional rights is
probably misplaced. This appears to be a “one-show-only”
phenomenon specially reserved for the Second Amendment.
Particularly in that context, we have watered down the
“reasonable fit” prong of intermediate scrutiny to little more
than rational basis review.
The panel cited circuit precedent when articulating the
reasonable fit standard: “‘the statute simply needs to
promote a substantial government interest that would be
achieved less effectively absent the regulation.’” Mai, 952
F.3d at 1116 (quoting United States v. Torres, 911 F.3d
1253, 1263 (2019)). Whatever kind of fit that requires, it
MAI V. UNITED STATES 41
certainly isn’t reasonable. A grossly overbroad regulation
with just a miniscule bit more effectiveness meets that
standard. A law that banned firearm ownership for “young
men” or “anyone who has committed any crime” would meet
that standard. Such a standard is an incomplete and incorrect
tool for measuring regulations that facially burden a
fundamental right.
The panel not only applies this inappropriate standard
(see Section I, above), it applies it inappropriately. The
“reasonable fit” language the panel relied upon was crafted
for use in a specific, and very different, context: facially
neutral regulations that incidentally burden freedom of
speech in a way that is no greater than is essential. It’s
worth exploring how this standard stumbled its way from the
First to the Second Amendment and arrived here.
A. The “Reasonable Fit” Standard Is Born and
Promptly Diluted.
The trail begins at the well-known United States v.
O’Brien, where the Court dealt with a war protester who
burned his draft card. 391 U.S. 367, 369 (1968). O’Brien
argued the prohibition on burning draft cards violated his
freedom of speech, id. at 370, while the government claimed
it needed to ensure the ready accessibility of issued draft
cards. Id. at 378. The Court reasoned:
[W]e think it clear that a government
regulation is sufficiently justified … if it
furthers an important or substantial
governmental interest; if the governmental
interest is unrelated to the suppression of free
expression; and if the incidental restriction
on alleged First Amendment freedoms is no
42 MAI V. UNITED STATES
greater than is essential to the furtherance of
that interest.
Id. at 377 (emphasis added). The restriction in O’Brien was
(a) incidental and (b) no greater than was essential to further
an important or substantial government interest. Both
qualifications are critical to the O’Brien test, but subsequent
cases purporting to apply it neglected these qualifications.
In United States v. Albertini, the defendant argued his
First Amendment rights were violated because he was
banned from entering a military base and thereby prevented
from peacefully protesting during an open house on Armed
Forces Day that was generally open to the public. 472 U.S.
675, 677–78 (1985) (the defendant had previously
improperly entered military bases and destroyed government
documents). The Court disagreed: “an incidental burden on
speech is no greater than is essential, and therefore is
permissible under O’Brien, so long as the neutral regulation
promotes a substantial government interest that would be
achieved less effectively absent the regulation.” Id. at 689
(emphasis added). 3
In Ward v. Rock Against Racism, musicians argued the
denial of a permit to perform in a public space due to
repeated past noise violations burdened their First
Amendment rights. 491 U.S. 781, 785 (1989). Quoting
from Albertini, the Court affirmed that a speech regulation
must be:
3
Albertini’s recitation of the O’Brien standard is confusing and
probably oxymoronic. But even Albertini’s word jumble is a poor fit in
Mai’s case, where the regulation is neither incidental, nor neutral, nor
“no greater than is essential.”
MAI V. UNITED STATES 43
narrowly tailored to serve the government’s
legitimate, content-neutral interests but that it
need not be the least restrictive or least
intrusive means of doing so. Rather, the
requirement of narrow tailoring is satisfied so
long as the ... regulation promotes a
substantial government interest that would be
achieved less effectively absent the
regulation.
Id. at 798–99 (internal quotation marks omitted). Ward
further clarified that the speech regulation may not “burden
substantially more speech than is necessary to further the
government’s legitimate interests.” Id. at 799 (emphasis
added) (“Government may not regulate expression in such a
manner that a substantial portion of the burden on speech
does not serve to advance its goals.”). Yet while Ward
explicitly described the regulation as a content-neutral,
incidental burden on speech, id. at 791–92, it curiously
omitted the word “neutral” from its Albertini quotation.
Compare id. at 799 (“so long as the … regulation”) with
Albertini, 472 U.S. at 689 (“so long as the neutral
regulation”). As a result, later cases citing Ward likewise
fail to note that the test was crafted to analyze neutral,
incidental burdens on speech.
We cited the Ward language in Colacurcio v. City of
Kent to uphold a content-neutral, narrowly tailored
regulation of nude dancing performances. 163 F.3d 545, 553
(9th Cir. 1998) (upholding ordinance requiring nude dancers
to perform at least ten feet away from patrons for health and
safety reasons). Colacurcio notably reaffirmed that a
regulation evaluated under this test may not burden
substantially more speech than necessary to further the
government’s interests. Id.
44 MAI V. UNITED STATES
B. The Ninth Circuit Leans into the Watered-Down
Standard.
But things went sideways when we jumped from the
First to the Second Amendment. In Fyock v. Sunnyvale, 779
F.3d 991 (9th Cir. 2015), for the first time, we applied a sub-
Albertini standard (lacking explicit neutrality, incidental
burden, and not substantially more burdensome than
necessary language) to a regulation that squarely and
severely burdened the fundamental right to keep and bear
arms. Id. at 1000. The Fyock plaintiffs challenged a
regulation restricting possession of higher-capacity
magazines under the Second Amendment. Id. at 994–95.
The court upheld the restriction, holding that “[the
government] was required to show only that [the regulation]
promotes a ‘substantial government interest that would be
achieved less effectively absent the regulation.’” Id. at 1000
(quoting Colacurcio, 163 F.3d at 553)) (emphasis added).
And there it is. Quietly and fatally, we watered down a First
Amendment “reasonable fit” requirement (of dubious value
to the Second) to a Second Amendment test the government
could drive a truck through.
Our cases have subsequently cited and applied Fyock’s
(un)reasonable fit requirement. 4 But this isn’t heightened
scrutiny at all. Originally developed to analyze neutral
regulations that incidentally burdened First Amendment
4
See, e.g., Torres, 911 F.3d at 1263; United States v. Singh, 924
F.3d 1030, 1057–58 (9th Cir. 2019), cert. granted, judgment vacated sub
nom. Azano Matsura v. United States, 140 S. Ct. 991 (2020), and cert.
denied, 140 S. Ct. 1265 (2020); Pena v. Lindley, 898 F.3d 969, 979 (9th
Cir. 2018); Mahoney v. Sessions, 871 F.3d 873, 882–83 (9th Cir. 2017);
Bauer v. Becerra, 858 F.3d 1216, 1226–27 (9th Cir. 2017); Silvester v.
Harris, 843 F.3d 816, 829 (9th Cir. 2016).
MAI V. UNITED STATES 45
rights in a way that was no greater than was essential, this
test would have been a poor fit for direct restrictions on
Second Amendment rights (i.e., 18 U.S.C. § 922(g)(4)) even
if we hadn’t plied it with diazepam.
C. The Panel Doubles Down on “Relaxed” Heightened
Scrutiny.
Mai quotes Torres, which quoted Fyock, and that’s how
we arrived at our present predicament. Mai, 952 F.3d at
1116 (quoting Torres, 911 F.3d at 1263 (upholding
prohibition on illegal aliens possessing firearms)). In our
Second Amendment cases, therefore, a reasonable fit under
intermediate scrutiny demands only that the regulation
“simply needs to ‘promote[] a substantial government
interest that would be achieved less effectively absent the
regulation.’” Torres, 911 F.3d at 1263 (quoting Fyock, 779
F.3d at 1000) (quotation marks omitted); Mai, 952 F.3d at
1116. The result? The end of any regulatory tailoring and
the advent of limitless regulatory overbreadth.
There was a glimmer of good sense in Young v. Hawaii,
where a panel of our court held that the Second Amendment
“encompasses the right of a responsible law-abiding citizen
to carry a firearm openly for self-defense outside of the
home.” 896 F.3d 1044, 1048 (9th Cir. 2018), reh’g en banc
granted, 915 F.3d 681 (9th Cir. 2019). That panel astutely
recognized and avoided the same problem we see in Mai—
that the reasonable fit standard was significantly weaker than
it ought to be:
According to the dissent, the only question a
court must answer under intermediate
scrutiny is whether the government action
promotes a substantial government interest
that would be achieved less effectively absent
46 MAI V. UNITED STATES
the regulation. That is incomplete, because a
court must also determine whether the
government action burdens substantially
more protected conduct than is necessary to
further that interest. Thus, while
intermediate scrutiny surely does not require
the government to pursue the least restrictive
means of achieving an important interest, the
substantial overbreadth or impreciseness of a
government action must be considered.
Id. 1072–73 (cleaned up; internal citations omitted) (quoting
Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 213–14,
(1997)). Refreshing indeed—an insistence that overbreadth
be a salient consideration in the reasonable fit analysis! But
our en banc court reasserted our errant orthodoxy and
vacated Young. Young v. Hawaii, 915 F.3d 681, 682 (9th
Cir. 2019).
In Mai’s as-applied challenge, § 922(g)(4) clearly
burdens substantially more protected conduct than is
necessary to advance Congress’s interests (disarming “the
mentally ill”). The statute’s permanent, total burden on
Mai’s Second Amendment right is far more restrictive than
necessary to further the government’s interest in preventing
gun violence. Yet the panel and the precedent it cites simply
omit that additional prong of the test.
Instead, the panel applied our court’s adulterated and
incomplete version of the “reasonable fit” standard—a
standard that in its current form (with our downward
modifications) is unfit to size up even neutral regulations
that incidentally burden free speech rights. But basic logic
(constitutional and otherwise) tells us that we should demand
a closer regulatory fit for a law that directly burdens a
MAI V. UNITED STATES 47
fundamental right than that which imposes neutral,
incidental burdens on a fundamental right. If the panel had
undertaken real heightened scrutiny, or even just faithfully
applied the test as articulated in O’Brien, Albertini, Ward, or
Colacurcio, § 922(g)(4) could not have withstood Mai’s
challenge.
It’s time to face reality: the requirement we applied in
Fyock, Torres, and Mai is no requirement at all.
Government burdens on the Second Amendment may not
always need to fit into skinny jeans, but they should never
come dressed in clown pants. The current “reasonable fit”
standard makes it embarrassingly easy for the government to
sustain its regulations. Heightened scrutiny should have
some, well, height. Our en banc court spurned a golden
opportunity to reaffirm that intermediate scrutiny is, indeed,
a form of heightened scrutiny.
D. This Circuit Treats the Second Amendment Like a
Second-Class Constitutional Right. 5
To the rational observer, it is apparent that our court just
doesn’t like the Second Amendment very much. We always
uphold restrictions on the Second Amendment right to keep
and bear arms. 6 Show me a burden—any burden—on
5
See Peruta v. Cty. of San Diego, 824 F.3d 919, 945 (9th Cir. 2016)
(en banc) (Callahan, J., dissenting) (“The Second Amendment is not a
‘second-class’ constitutional guarantee.” (citing McDonald v. City of
Chicago, 561 U.S. 742, 780 (2010))).
6
See, e.g., Torres, 911 F.3d at 1264–65 (upholding ban on illegal
aliens possessing firearms); Pena, 898 F.3d at 973 (upholding ban on
purchasing particular firearms); Mahoney, 871 F.3d at 883 (upholding
limitations on police officers using department-issued firearms); Bauer,
858 F.3d at 1227 (upholding use of firearm sales fees to fund
48 MAI V. UNITED STATES
Second Amendment rights, and this court will find a way to
uphold it. Even when our panels have struck down laws that
violate the Second Amendment, our court rushes in en banc
to reverse course. See, e.g., Teixeira v. County of Alameda,
873 F.3d 670, 690 (9th Cir. 2017) (en banc) (reversing
panel’s invalidation of a regulation prohibiting the right to
purchase and sell firearms); Peruta v. County of San Diego,
824 F.3d 919, 942 (9th Cir. 2016) (en banc) (reversing
panel’s invalidation of city law requiring showing of special
self-defense need to obtain conceal carry permit where open
carry was also prohibited); Young v. Hawaii, 896 F.3d 1044,
1074 (9th Cir. 2018) (discussed above), reh’g en banc
granted, 915 F.3d 681 (9th Cir. 2019). 7 Other rights don’t
enforcement efforts against illegal firearm purchasers); Silvester, 843
F.3d at 829 (upholding 10-day waiting period for purchasers who have
already cleared a background check in less than 10 days); Fyock, 779
F.3d at 1001 (upholding city’s ban on high-capacity magazines); Jackson
v. City & County of San Francisco, 746 F.3d 953, 970 (9th Cir. 2014)
(upholding city’s firearm and ammunition regulations); Chovan, 735
F.3d at 1142 (upholding ban on domestic violence misdemeanants
owning firearms despite not committing domestic violence for 15 years);
United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010)
(upholding ban on felons possessing firearms).
7
Very recently, a panel of our court struck down another California
regulation as violating the Second Amendment. See Duncan v. Becerra,
No. 19-55376, 2020 WL 4730668, at *2 (9th Cir. Aug. 14, 2020). Given
our court’s history recounted above, court observers are of course
already forecasting an inevitable en banc reversal. See, e.g., Don
Thompson, 9th Circuit ends California ban on high-capacity magazines,
WASH. POST (Aug. 14, 2020) (“We expect an en banc panel will rehear
the case and correct this … out-of-step decision.”) (source omitted),
https://www.washingtonpost.com/national/9th-circuit-ends-california-
ban-on-high-capacity-magazines/2020/08/14/f77751cc-de52-11ea-b4f1-
25b762cdbbf4_story.html.
MAI V. UNITED STATES 49
receive such harsh treatment. 8 There exists on our court a
clear bias—a real prejudice—against the Second
Amendment and those appealing to it. That’s wrong. Equal
justice should mean equal justice.
III. CONCLUSION
The panel’s bootstrapping, class-based approach to
defining those at the “core” of the Second Amendment is
unjust and antithetical to controlling case law. Here, our
court’s unacknowledged antipathy toward the Second
Amendment forced the panel into the unenviable position of
condoning the perverse result of “once mentally ill, always
so,” notwithstanding its authentic disapproval of that
obviously immoral canard.
Our toothless “heightened” scrutiny of Second
Amendment restrictions is broken, and not accidentally so.
8
See e.g., Nat’l Inst. of Family & Life Advocs. v. Harris, 839 F.3d
823, 845 (9th Cir. 2016) (holding law requiring anti-abortion pregnancy
centers to provide notice of publicly funded family-planning services,
including abortions, did not violate First Amendment), rev’d and
remanded sub nom. Nat’l Inst. of Family & Life Advocs. v. Becerra, 138
S. Ct. 2361 (2018); Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1179
(9th Cir. 2018) (holding California statute prohibiting retailers from
imposing surcharge on payments by credit card violated First
Amendment); Latta v. Otter, 771 F.3d 456, 476 (9th Cir. 2014) (holding
states’ anti-gay marriage laws violated Equal Protection Clause and due
process); deLaurier v. San Diego Unified Sch. Dist., 588 F.2d 674, 684
(9th Cir. 1978) (holding school district’s mandatory maternity leave
policy did not violate Equal Protection Clause); Valley Broad. Co. v.
United States, 107 F.3d 1328, 1336 (9th Cir. 1997) (holding federal ban
prohibiting broadcast advertisements of casino gambling violated First
Amendment); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th
Cir. 1997) (holding “state program setting goals for ethnic and sex
characteristics of construction subcontractors” violated Equal Protection
Clause).
50 MAI V. UNITED STATES
But Second Amendment rights are fundamental, and
litigants attempting to vindicate theirs deserve better than
what we’re currently offering, for “[t]he very enumeration
of the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting
upon.” Heller, 554 U.S. at 634.
I respectfully dissent.