Gimme Back My Gun: Mental Health and Firearms Reinstatement

Sean O’Donnell

Clifford Tyler is a 70 year old man who enjoys pistol marksmanship as a hobby and values his right to bear arms.FN1 In 1986 he went through an “emotionally devastating divorce” which led him to thoughts of suicide.FN2 Mr. Tyler is from rural Michigan, where the only treatment option for someone experiencing suicidal ideations in the 1980s was hospitalization in the Ypsilanti State Mental Hospital.FN3 On January 2, 1986 Mr. Tyler was adjudicated mentally defective and involuntarily committed because there was a risk that he might commit suicide. Records of his forced hospitalization and treatment no longer exist and the Ypsilanti State Hospital has since been demolished and sold to build a Toyota plant.FN4 The only thing that still stands of Mr. Tyler’s divorce is the label which the court gave him 27 years ago; mentally defective.

Mr. Tyler attempted to legally purchase a firearm in February of 2011 and was informed by the Hillsdale County Sheriff’s Department that he was not eligible to purchase firearms because he had been deemed “mentally defective or involuntarily committed to a mental institution” nearly 30 years before.FN5  Mr. Tyler has never been arrested, has no history of mental illness or treatment since 1986, and is an upstanding citizen in every sense. Tyler challenged the “mentally defective” label in a federal action in the Western District of Michigan as a violation of his Second Amendment right to bear arms and Fifth Amendment right to due process.FN6 His case was dismissed by the trial court because the Supreme Court has commanded from on high that nothing shall “cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill.FN7 Clearly though, Clifford Tyler is no longer the intended target of the wise public policy of keeping firearms away from the dangerously mentally ill. If anyone deserves to get their guns back, it’s this guy. So what’s the problem?

Federal law allows gun reinstatement only in cases where the U.S. Attorney General approves reinstatement by a finding that the individual is not dangerous to society and reinstatement is in the public interest; this authority has been delegated to the ATF.FN8 “[S]ince 1992 Congress has expressly denied funding to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ‘to investigate or act upon applications for relief from Federal firearms disabilities’.”FN9 In 2008, Congress created an “alternative route for relief from federal prohibitions: states may elect to establish an ATF-approved [Relief from Disabilities Program].”FN10

Essentially, federal statute leaves it to the states to promulgate the means by which someone adjudicated as mentally defective can petition for reinstatement of their federal right to legally access firearms. The state’s reinstatement regime must be approved by the Bureau of Alcohol, Tobacco, Firearms, and Explosives in order for any state approved restoration to be given effect in federal law.FN11 Most states have no process to allow reinstatement of firearm rights. The only state in the 6th Circuit which has a firearms reinstatement regime for the mentally defective is Kentucky; Kentucky’s regime is not approved by the ATF.FN12 Short of a letter from the Attorney General himself, there is no form of redress for anyone living in the 6th Circuit to have their right to possess firearms reinstated once they have overcome mental illness.FN13 Here’s the kicker, convicted felons may have their rights reinstated with permission of the court.FN14 Although it is certainly a high bar for reinstatement of the firearm rights of a felon, at least felons in every state have a forum in which to vindicate their rights. The mentally ill in most states have been hung out to dry by their Congress and state legislatures.

So why would anybody who values their Second Amendment rights seek treatment unless it is absolutely necessary? The answer is, they wouldn’t. The Gun Control Act of 1968 is a direct disincentive to those law abiding gun owners who might choose not to seek treatment for a nascent mental health issue because of fear that an over-zealous doctor will convince a judge that they are “mentally defective.” This seems likely to happen given the constant state of flux and discord among the medical community about how to diagnose and treat those who might be having suicidal ideations.FN15 Many believe this law has a disproportionate impact on gun-owning veterans deemed mentally defective as a result of the wounds sustained due to their patriotic service.FN16 Even the often criticized Veterans Administration has instituted measures which allow veterans to at least challenge their classification as mentally defective in an administrative setting.FN17 The existence of the VA reinstatement regime is acknowledgement of the reality of the situation; gun owners with newly emerging mental health issues are less likely to seek treatment if they believe they will have their rights stripped permanently.

So here’s the bottom line. If the government labels you mentally defective for whatever reason, your Second Amendment rights can be permanently stripped. For most people though, there’s nothing they can do to demonstrate that you are no longer a danger. Everyone can agree that the mentally ill should not have access to firearms if they pose a serious threat to themselves or others, but placing the sick on the same plane as those who have knowingly committed crimes is an affront to individual liberty and unduly penalizes people for illnesses which are beyond their control.

First year law students learn that mental culpability should be the basis of the imposition of state sponsored restrictions on individual rights. The law currently ignores that maxim in favor of the judicially convenient label of “adjudicated mentally defective,” instead of focusing on the real reason for this policy, the existence of a threat to public safety. Once the threat no longer exists (in many cases this will never happen), individual liberty should be restored. Those with mental illnesses should not be penalized more than criminals who have been declared culpable by a jury of their peers. Further government sponsored stigmatization is not the answer. It’s wrong to look at Mr. Tyler as “presumptively risky” without at least considering that he might no longer be a danger.FN18 Curing this inequity lies in funding the ATF investigatory process, establishing state restoration regimes, and promoting a greater understanding of mental illness within the legal community. Fundamentally, this problem was created by a Congress which chose to penalize people like Clifford Tyler by saddling them with an unshakable label instead of focusing on their most important job; protecting the citizenry.

<FN1. John Agar, Second Amendment Rights Violated Over Long Past Mental-Health Issue, Hillsdale Man Says, mLive (July 27, 2012 2:00 PM),

FN2. Tyler v. Holder, 2013 US Dist. LEXIS 11511, *2-3 (W.D. Mich. 2013).

FN3. Agar, supra note 1.

FN4. Id.

FN5. Tyler, 2013 U.S. Dist. LEXIS 11511, at *2-3.

FN6. Id. at *1.

FN7. D.C. v. Heller, 554 U.S. 570, 626-27 (2008).

FN8.  18 U.S.C. § 925(c) (2012).

FN9. See, Treasury, Postal Service and General Government Appropriations Act 1993, Pub. L. No. 102-393, 106 Stat. 1729, 1732.

FN10. Tyler, 2013 U.S. Dist. LEXIS 11511, at *4.

FN11. Id.

FN12. Michael Luo, Some With Histories of Mental Illness Petition to Get Their Gun Rights Back, N.Y. Times (July 2, 2011)

FN13. Id.

FN14. Stephen P. Halbrook, Firearms Law Deskbook §2:29 (Thomsan Rueters 2010).

FN15. Elana Premack Sandler, DSM-5’s Proposed Suicidal Behavior Disorder: Can Defining a New Disorder Help Those at Risk for Suicide?, Psychology Today (May 23, 2012)….

FN16. Veterans Gun Rights a Sticky Issue in Defense Bill, (Dec. 3, 2012)…

FN17. Id.

FN18. Tyler, 2013 U.S. Dist. LEXIS 11511, at *15-16.