by Ken Klukowski20 Sep 2016
WASHINGTON—For the first time in U.S. history, a federal appeals court on Friday struck down a federal gun-control law for violating the Second Amendment, meaning that next year the Supreme Court will hear a case that includes the opportunity to abolish citizens’ right to bear arms by overruling the Court’s famous Heller precedent.
Clifford Tyler is a law-abiding and peaceful citizen living in Grand Rapids, Michigan. In 1985, his wife of 23 years was having an adulterous affair. She ran off with the other man and took all of Clifford’s money with her. His daughters found him so upset and depressed, banging his head on the floor, that they called the authorities, fearing he might harm himself.
Tyler was taken before a Michigan judge, who ruled there was sufficient reason to be concerned about the distraught man to commit him to a facility for psychiatric evaluation. A couple weeks later the doctors released him with a clean bill of health, saying that he was a perfectly normal person who had a really horrible day. Tyler continued to be a good citizen, a good employee, got remarried, has been a good father, and eventually even repaired his relationship with his unfaithful ex-wife.
He’s now age 74, and wanted to buy a handgun to keep at home for self-defense. But the government told him that federal law bars him from ever owning a gun, so he went to court to assert his Second Amendment rights.
In 2008, the Supreme Court in District of Columbia v. Heller—one of the most famous decisions ever written by Justice Antonin Scalia—held that the Second Amendment is an individual right, and as such does not allow the federal government to bar law-abiding and peaceable American citizens from keeping a handgun in their home. Heller was a 5-4 decision, and left other gun-rights questions for future cases.
Heller specified that it was not weighing in on certain issues, including laws that prohibit certain people from owning guns. Federal law in 18 U.S.C. § 922(g)(4) is one of these gun-control laws, providing that no one “who has been committed to a mental institution” can own firearms.
In 1986 President Ronald Reagan signed an NRA-supported law advancing Second Amendment rights, including 18 U.S.C. § 925(c), which empowers the Justice Department to restore gun rights if the attorney general finds a particular person to be safe and sane. But Congress stopped funding that program in 1992, canceling out that Reagan-era protection for America’s 90 million gun owners.
So in 2007 Congress passed a new law empowering states to set up their own review process to restore gun rights. Most states have established such a program, but some states—including Michigan, where Tyler lives—have not.
The federal district court in Michigan ruled against Tyler, but a panel of the U.S. Court of Appeals for the Sixth Circuit reversed. The Obama administration petitioned the Sixth Circuit to rehear the case en banc, meaning all the judges on the court—in this case, 16 judges—would reconsider the case.
The petition was granted, and on Sept. 15, by a 10-6 vote in Tyler v. Hillsdale County Sheriff’s Department the full Sixth Circuit struck down 18 U.S.C. § 922(g)(4) as a violation of the Second Amendment, and remanded the case back down to the district court for more hearings. The court noted that Heller said laws that kept mentally ill people from getting guns were allowed under the Second Amendment, but held that Section 922(g)(4) went too far by mandating that any person who has ever been involuntarily committed to a mental institution—even for a single day—can never own a gun for the rest of his or her life.
Writing the lead opinion for six judges of the en banc court (which is less than a majority, but still the controlling opinion in this case), Judge Julia Gibbons explained that similar to several other appeals courts, the Sixth Circuit had recently adopted a two-step process for Second Amendment cases. “The first step asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood,” she wrote. If it does, then “the government bears the burden of justifying the constitutionality of the law under a heightened form of scrutiny.”
Specifically, these judges decided that “intermediate scrutiny”—a term invented decades ago by the Supreme Court—should apply to this type of gun-control law. As Judge Gibbons wrote, intermediate scrutiny requires “(1) the government’s stated objective to be … important and (2) a reasonable fit between the challenged regulation and the asserted objective.” This standard is less stringent than “strict scrutiny,” which is another judge-made test.
The lead opinion noted that the Justice Department in this case failed to cite historical material or other evidence supporting Section 922(g)(4). “In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislature’s power to permanently exclude individuals from a fundamental right based solely on a past involuntary commitment.”
Judge Gibbons continued, “Some sort of showing must be made to support Congress’s adoption of prior involuntary commitments as a basis for a categorical, permanent limitation on the Second Amendment right to bear arms.”
The judges thought this principle applied with special force in this case. “Tyler’s [lawsuit and evidence] suggest that Tyler is thirty years removed from a brief depressive episode and that he has no intervening mental health or substance abuse problems since that time.”
“None of the government’s evidence squarely answers the key question at the heart of this case: Is it necessary to forever bar all previously institutionalized persons from owning a firearm?,” the court reasoned. Then noting Congress’s own restoration program in Section 925(c) and the 2007 law allowing for state restoration programs, added, “But the biggest problem for the government is Congress’s most recent answer to this very question: No, it is not.”
Thus, the court concluded that since the Obama administration presented no evidence supporting this statute, “There is no indication of the 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.”
The Sixth Circuit thereby invalidated this federal law, holding, “As we see it, the government may justify § 922(g)(4) in one of two ways: (1) with additional evidence explaining the necessity of § 922(g)(4)’s lifetime ban or (2) with evidence showing that § 922(g)(4) is constitutional as applied to Tyler because he would be a risk to himself or others were he allowed to possess a firearm.”
Judge Jeffrey Sutton wrote a separate opinion, joined by several judges, as to why this federal law must be struck down.
“Keep in mind that Tyler is not demanding a gun today,” he wrote. “He is demanding only what Congress used to permit and what most States still permit: an opportunity to show that he is not a risk to himself or others.”
After a lengthy discussion, Judge Sutton continued, “If there is one thing clear in American law today, it is that the government may not deny an individual a benefit, least of all a constitutional right, based on a sky-high generalization and a skin-deep assumption stemming from a long-ago diagnosis or a long-ago institutionalization.”
“Tyler has presented plenty of evidence that he is just fine,” Judge Sutton concluded.
Judge Karen Moore—a Clinton-appointed liberal who is a perfect example of the sort of judge Hillary Clinton would be expected to nominate to the Supreme Court—wrote an energetic dissent, joined by several other liberal judges. In it, she argued that Tyler should never be allowed to own a gun, and that Congress has all the power it needs to ban gun ownership by many other types of Americans as well.
Judge Moore also argued for the dissenting judges that Heller should be interpreted as saying that the Second Amendment does nothing to block federal gun-control power here, a reading that is utterly incompatible with what Justice Scalia actually wrote.
Although the Cincinnati-based appeals court reached the right result, it did not do so for the right reasons.
In fact, the only judge who followed Justice Scalia’s famous originalist approach in Heller—the method of interpreting the Constitution and all laws according to the original meaning of their words, a method always followed by Justice Clarence Thomas, and often followed by Justice Samuel Alito as well—was Judge Alice Batchelder.
Judge Batchelder faulted both the lead opinion and the dissenting opinion for failing “to give adequate attention to the Second Amendment’s original public meaning in defining the contours of the mental health exception. And it is that meaning, informed as it is by the history and tradition surrounding the right, that counts.”
She continued that the other opinions’ debate over strict and intermediate scrutiny gives “little more than a nod to the originalist inquiry.” This shortchanging of the Supreme Court’s approach in Heller (and many other cases) thereby “radically marginalizes the role played by the text, history, and tradition of the Second Amendment, and it replaces them with a thoroughly modern (and judge empowering) regime of heightened-scrutiny review.”
The appeals court’s taking such a course here “is a forbidden peregrination from the actual meaning of the Constitution into the realm of judicial policymaking.” Instead of fixating on strict or intermediate scrutiny with only a glance at history, the Supreme Court in Heller and McDonald “put the historical inquiry at the center of the analysis, not at the margin.”
Judge Batchelder then explored sources from the time of the Constitution’s writing, examining what they said about mental illness, including the relevant factor here of when a person is unable to distinguish good from evil, and could be deprived by the law of certain rights.
She then noted that “such deprivations were not once-for-all,” and cited numerous sources from the time the Second Amendment was adopted to show that if a person regained their reason and sense of morality, they were no longer regarded as mentally ill.
Judge Batchelder then concluded:
As has been mentioned many times today, the dangers presented by guns are real, frightening, and obvious. Those realities will continue to factor heavily in the scrutiny analysis. Less obvious to the contemporary judicial mind are the Founding-era fears of tyranny and defenselessness that provided the impetus behind the Second Amendment. Whether the Founding generation struck a wise balance in ratifying that amendment is perhaps debatable. What is not debatable is that we— federal judges—are neither philosopher kings empowered to “fix” things according to the dictates of what we fancy is our superior insight, nor rubber stamps, approving whatever laws the legislatures of this country happen to pass. We are bound, rather, by our oath to uphold and defend the Constitution, and we must therefore show restraint when that document restrains us and be active when it commands action.
As important as the Sixth Circuit’s Tyler decision is, that is not the most newsworthy aspect of this case. Because now a federal appeals court has struck down an Act of Congress on constitutional grounds.
That means the Obama administration’s solicitor general will now petition the U.S. Supreme Court to grant certiorari to review this case. Under these rare circumstances, it is virtually 100 percent certain that the justices will grant review and hear the case.
That means that the Second Amendment will be back before the Supreme Court in 2017, after a ninth justice has been confirmed to replace Scalia. The Second Amendment has survived twice at the Supreme Court over the past decade, both by only 5-4 votes.
One of the ways that the justices could rule in favor of the federal government would be to overrule Heller, and hold that the Second Amendment does not apply at all to private citizens. [The leftist view of the Second Amendment is that its only meaning is that the federal government cannot stop state governments from arming their National Guard (i.e., “militia”) units with guns.]
So declarations from Donald Trump and Mike Pence that gun rights are in danger is no longer hypothetical. It is now certain. If Hillary Clinton wins the presidency, the Second Amendment can be effectively erased from the U.S. Constitution.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
Arms as generally known in early American law was seen as whatever an infantryman would carry. Swords, knives, handguns and rifles/muskets. Today and infantryman would carry basically the same thing.
Cannons and the like are considered “Battery Weapons” and not all general infantrymen carried explosives, that usually fell to a grenadier.
So, what are arms? Whatever an infantryman carries. Today that would include M4s and the like. The Second Amendment protects them all.
Piled High and Deep DC
Point out the sole purpose of the 2nd Amendment is to provide a recourse to political tyranny, as in the instance of the Battle of Athens, TN in 1946 – a great read for the 2nd Amendment doubters. Personal protection and hunting are simply compliments to the 2nd Amendment… Why do I have 30 Rnd Magazines for my rifle? Because the police have 30 Round mags for theirs…
If the Supreme Court rules in favor of limiting the 2nd Amendment, civil war will be necessary to remove this court from any sort of ruling… The Supreme Court is not perfect and there are somethings worth fighting for!!! Remember Dredd Scott? Was the SCOTUS right in their ruling? No! But they did rule that: “a negro, whose ancestors were imported into [the U.S.], and sold as slaves”, whether enslaved or free, could not be an American citizen and therefore had no standing to sue in federal court, and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States.
Well, civil war can happen again, and I would greatly suggest that there are not enough police to stop us from taking down the liberals in the Supreme Court bent on stealing these rights from us… The Next civil war wont be North vs South. It will be the people vs entrenched politicians, lobbyists, donors and elites of both parties that have made a fortune selling America for personal gain… Don’t even suggest that the military would be called out to control us.. Again read the Battle of Athens, TN, the Guard was called out but refused to fight other soldiers… Americans Soldiers all took an oath to protect our constitution from enemies both foreign and DOMESTIC… It is time these politicians pay for their sins against America!!!
The tree of liberty must be refreshed from time to time with
the blood of patriots & tyrants. it is it’s natural manure. – Thomas Jefferson.
Some want to say that Jefferson never meant murder or internal civil war… I say that is exactly what he meant:
Extract from Thomas Jefferson to William Stephens Smith
Paris Nov. 13. 1787.
the people can not be all, & always, well informed. the part which is wrong [. . .] will be discontented in proportion to the importance of the facts they misconceive. if they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. we have had 13. states independant 11. years. there has been one rebellion. that comes to one rebellion in a century & a half for each state. what country before ever existed a century & half without a rebellion? & what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms. the remedy is to set them right as to facts, pardon & pacify them. what signify a few lives lost in a century or two? the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it’s natural manure.
Our politicians don’t fear us anymore… It is time they do!!! Trump is giving them a good dose and he might be able to prevent a civil war, but then, he might NOT…
SgtFriday Piled High and Deep
Lets finish the quote from the Dred Scott decision. The very section wherein the Supreme Court specifically declared the RIGHTS which a “negro” would have in common with “whites” if they were recognized to be citizens with rights…..the last line in particular………….
“For if they [African-Americans] were so
received, and entitled to tne privileges and immunities of citizens, it
would exempt them from the operation of the special laws and from the
police regulations which they [the slave States] considered necessary
for their own safety. It would give to persons of the negro race, who
were recognized as citizens in any one State of the Union, the right to
enter every other State whenever they pleased, singly or in companies,
without pass or passport, and without obstruction, to sojourn there as
long as they pleased, to go where they pleased at every hour of the day
or night without molestation, unless they committed some violation of
law for which a white man would be punished; and it would give them full
liberty of speech in public and in private upon all subjects upon which
its [a slave State’s] own citizens might speak; to hold public meetings
upon public affairs, and to keep and carry arms wherever they went.”
Obama’s “Civilian Security Force”. From 2008 campaign:
“We cannot continue to rely on our military in order to achieve the national security objectives we’ve set. We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.”
Mr. Dole Raptormann
Eh, that’s sort of right, but largely our armies at the time we’re made up of guys who had weapons, not weapons developed for guys who fight wars.
We had no department of defense, and a ship was the greatest weapon known to man at the time. I can understand the “things you carry” argument, but it should really be “things that are non-exploding single target weapons”
They are the same thing now, but they may not be in the future, as “things you can take with you” evolves. A grenade launcher is handheld, so is a rocket launcher. Those things are for both defense and offense, but they are a fire hazard as well as explosion based, so they don’t make the cut. One day, nuclear warheads will be shot from a rifle (or something of similar size) and the leftists would rip your argument to shreds if you said “well, I can carry it, so it’s fair game”
I think to myself, “what would be the standard defense against a force trying to occupy my land” and the answer is always handgun, rifle, shotgun, and other short range weapons (compared to rockets, per se) An occupier of an invading force wouldn’t bomb your town, since they would want to occupy it later, and rubble is hard to sleep in. Likewise, while I could possibly see american soldiers attacking citizens to “restore order” if things went wrong, I could not see them blowing up an entire city of possible allies just to root out the resistance force. I could be wrong, but I don’t know that we’d ever get that far gone.
Part of our strength is that we travel quite a bit in our own nation, it’s much harder to bomb a hometown or area you used to live than it is to tell yourself you are clearing an area of rebels and doing a location specific raid. I can see troops flooding an area, but not a full on bombing, basically. For troops, you could fight with what they would fight with, minus the larger vehicle or explosive weapons, and still win the day.
With those same weapons you could mount an attack on a tyrannical headquarters or base and have a reasonable chance of success. That’s what I think the 2nd amendment is all about, the bridge between public safety and reasonable expectations of successful resistance when the government turns against you.
Rob Longwood Mr. Dole
The problem with this argument is that during the Revolutionary War individuals also owned cannons and howitzers, as well as warships armed with cannons. Same thing during the War of 1812.
During the War of 1812 privateers attacked British shipping all the way to the English channel and one one instance attacked English shipping near the Philippines. These Privateers were authorized by and operated with US Government knowledge.
This blows the theory that only hand held weapons were allowed by the Second amendment.
Ever go to the Big Sandy shoot? You will see private ownership of mini-guns, crew served weapons, anti-tank weapons, howitzers, and tanks, all fully functional and lighting up the range in a massive wall of fire.
Mini-guns that you see on helicopter gunships are in private ownership. I could rip a battalion sized element in half with one.
Funny thing is that you never hear about these private citizens going on mass murder sprees. I wonder why not?
Infinitely Linear Hoosier
I actually have seen some of the displays you mentioned. From my understanding, those who own and operate these shows/weapons, must undergo extensive background checks and be certified in said weapons usage….basically, someone with money can not simply walk in and purchase these same weapons and take em’ out to the firing range and start lighting things up.
lhecker51 Mr. Dole
I ask you: What is the primary intent of the 2nd Amendment? The answer lies in the commentary of it’s originators. Once you know the primary intent, the fatal flaws in your argument become apparent and obvious.
I can’t wait so I will answer for you:
The Second Amendment is not about hunting or the defense of your home. It’s intent as supported by the commentary of it’s authors, was a check to the government’s power. Our founding fathers were students of history and wanted to not make the mistake many countries had by disarming the people. They stated clearly this intent in SEVERAL documented commentaries and debates.
How can the 2nd amendment be effective if we limit the citizen when there is no limit on the government’s standing armed forces?
The false assumption is that the citizen cannot be trusted with an RPG. I am a combat veteran and have observed the citizens of third world nations armed to the teeth and at war with their own government and one thing I do know is they do not use them to victimize their own citizens as they would quickly be dealt with. One assumes that if law abiding adults had access to howitzers, the nation would erupt into chaos and destruction.
Once the intent of the 2nd Amendment is clear, there is no getting around the fact that the law abiding citizen should NOT be limited.
A quick tidbit of info: Fully functional crew served weapons such as machine guns, mini-guns, armored tanks, howitzers, rocket launchers, etc, are already legally owned by private citizens, When was the last time you encountered an event that they used these weapons of mass destruction to murder on a massive scale? The answer is never.
Both anti-gun and pro-gun proponents are guilty of not understanding the intent of the 2nd Amendment and both use slippery slope arguments to defend their opposition to citizens owning weapons other than rifles and pistols and they do not have any support for this argument.
As I stated prior, no citizen owner possessing weapons of mass destruction have ever used them in a criminal manner. If there is no problem, why are folks insisting there is and insisting there is no rational argument supporting a citizen ever needing a weapon of mass destruction? It is because the primary intent of the 2nd Amendment still eludes them.
As a veteran combat leader I have witnessed, and in fact, supported insurgencies in third world nations. It is amazing to see how effective armed law abiding citizens are at keeping the unstable among them in check. It seems to me that even the unstable value their lives and therefore behave even when armed.
The intent is inescapable and suggests that the people may be too lightly armed to maintain that balance of power.
Sigma K Raptormann
The Second Amendment does not protect your rights to carry. It bars the government from taking away the ability to carry. Meaning: the 2A is a prohibition on government. It is an ‘Anti-Right’.
You have to look at it like that. If you look at it as a right given to you, it then becomes something that can be taken away.
The meaning in the constitution is an anti-right. Meaning it restricts the government not the citizen.
That means to bear arms can not be restricted. You view the constitution as giving rights. That would mean it could be used to take them away. It is a limiting document on uncle Sam not a limiting document on people…
Infinitely Linear Hoosier
Amen! Governments have ‘authority’ and citizens have ‘Rights’, created and natural. Government authority can be revoked if the People so Choose and Government only has the authority to restrict ‘Created Rights’ and not ‘Unalienable Rights’. Anyone who does not understand this is either ignorant, a Liberal or anti-American.
Infinitely Linear Hoosier Grateful
The words ‘unalienable’ and ‘inalienable’ are etymologically identical….they both mean “incapable of being transferred to another or others”. Yes, ‘unalienable’ is the word used in the original drafts of the United States Constitution, but in later drafts, the variant ‘inalienable’ was used without changing the meaning one iota.
I agree that it is important to be literal when referring to the United States Constitution, but I frankly find all the infighting between the usage of ‘unalienable’ and ‘inalienable’ when both words are etymologically identical and were BOTH used in official drafts and subsequent copies of the Constitution.
Infinitely Linear Hoosier
Yes! The Constitution details the limitations our Founding Fathers placed on the Federal Government, reserving said powers to the States and the sovereign citizen. The Bill of Rights only purpose is to ‘codify’ what our Founding Fathers all agreed were, are and always will be Natural Rights…..untouchable by any government and reserved solely to every human being.
Unfortunately, while you, I and an all too small minority of people understand that the first 10 amendments are not rights granted but restrictions against government interference in the exercise of those God given rights by all free men, the majority of people left and right are under the mistaken assumption that the Constitution grants rights. In fact some of the wiser Anti-Federalist patriots opposed even including the Bill of Rights in the Constitution because it could be misconstrued that these natural God given rights are somehow bestowed on the people by the Government. And of course what the Government permits it can also restrict.
“The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon…. [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order.”
– Thomas M. Cooley, General Principles of Constitutional Law, Third Edition 
Daniel Geeman • 17 hours ago
I think it is so clear that felons should be allowed to own guns. The fact that there are laws against it does not prevent it from happening. I have many reasons for my belief that felons should be allowed to own guns, but among them is the problem of creating second-class citizens. There are far too many aspects of the status of being a felon which equates to a life sentence without parole. The system becomes punitive to the point that rehabilitation becomes absolutely discouraged and impossible. This is actually a violation of the constitution where punishments are concerned as every felony becomes a life sentence.
An exception to this might be, perhaps felons which involve the use of firearms or murder, but outside of that, if a person can complete their sentence, that should be the end of it. That doesn’t mean employers are not allowed to make their own assessments on that basis, but the rights guaranteed under the constitution are not negotiable and nor should they be.
There is no exception stipulated in the second amendment and to my knowledge there is no amendment to the constitution which enables modification of the second amendment.
I’ve heard it reasoned that the 2nd amendment applies to “arms” of which the modern semi-automatic rifles, pistols and shotguns would certainly apply. L.A.Ws would be considered “artillery” in the originalist terminology and would thus not be protected. So when you hear the reductio ad absurdem argument from leftists that gun rights activists want people to be able to own missile launchers etc., my understanding is that it centers on what is considered “arms” using the founders terminology.
Most importantly, the term of art “the militia” is defined in great detail in the federal and most state constitutions as being comprised of EVERY Freeman of legal age, who was not otherwise specifically barred by past felony convictions.
The SCOTUS has been deliberately misdefining “militia” since 1934, and illegally enforcing these ridiculous laws via an extraordinarily expansive interpretation of the Commerce Clause.
“No free man shall ever be debarred the use of arms.” – Thomas Jefferson