We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
RIGHTS FOR THEE BUT NOT FOR MAI: AS-APPLIED CONSTITUTIONAL CHALLENGES TO 18 U.S.C. § 922(G)(4).
- Authors
SMITHERMAN, C. SETH
- Abstract
The Gun Control Act of 1968 banned those who have been (1) adjudicated as mental defectiues or (2) committed to a mental institution from owning firearms. In themy, affected individuals have a statutory privilege to apply to the Bureau of Alcohol, Tobacco, Firearms and Explosives for relief *om the disabilities imposed by the releuant provision-18 U.S.C. § 922(g)(4)-but because of nearly thirty years of Ju'nding decisions made by Congress, that oppm-tunity has been foreclosed. While Congress has created an alternative relief Mogram voluntarily administered by state gouernments, nearly forty percent of gun owners-over forty-two million Americans-live in states that do not participate. The current scheme has left individuals who preuiously suffered from a mental disability but have since recovered subject to a de facto lifetime ban on firearm oumership-they have no judicial or administrative remedies available to recouer their Second Amendment rights. Therefore, some of the affected individuals have filed as-applied constitutional challenges to § 922(g)(4), and there is a circuit sptit on the merits of these claims. These constitutional d(#iculties persist in the face of Heller v. District of Columbia, which guamnteed an individual right to own a JiTearm. This Note argues that a test based on the text, history, and t, adition of the Second Amendment-rath.er than the two-part scrutiny analysis employed. by an overwhelming majority of courts-is truer to the dicta of Heller, is more consistent with the oliginal public meaning of the Second Amendment, and trrouides an avenue to avoid some of the most difficult interpretatiue challenges associated with applying Heller. Applying such a test to the problem at hand lends support for the follozoing historical (rrguments: first, Foundingera philosophers connected the attachment of civil rights to an individual ability to reason, and second, Anglo-American law considered mental illness to be only a temporan deprivation of that reason. Connecting these premises suggests the Second Amendment allows for a ban on firearm ownership by the mentally ill, but only for so long as the individual remains mentally ill. Any continuing legal disability imposed past the point of recovery is an unconstitutional intrusioll into the territog of the Second Amendment.
- Subjects
UNITED States; CONSTITUTIONAL law; UNITED States. Constitution. 2nd Amendment; GUN laws; DISTRICT of Columbia v. Heller; GUN control in the United States
- Publication
Texas Review of Law & Politics, 2021, Vol 25, Issue 2, p515
- ISSN
1098-4577
- Publication type
Article