Thursday, September 10, 2020

Mai v. United States (9th Cir. - Sept. 10, 2020)

Not surprisingly, eight of the conservative judges on the Ninth Circuit (including all but three of the Trump appointees) dissent from the refusal to rehear en banc the latest Second Amendment opinion, which held that individuals who had been involuntarily committed to a mental health facility do not possess a constitutional right to own guns.

Obviously the underlying issue evokes strong feelings on both sides, and it's a high-profile case, so my particular perspective probably won't add much.

Nonetheless, I read Judge Bumatay's dissent, and did have a thought worth sharing (if only briefly).

Judge Bumatay's most persuasive concept, to me, was his principal that the Second Amendment shouldn't be treated as a "second-class" constitutional right.  He says -- and there's some weight to this, I think -- that we don't deprive people who've at some point been declared mentally ill of their First Amendment rights, for example.  Or their Fourth Amendment rights.  Or a wide variety of other liberties.  Sure, we take away some of these rights during their active institutionalization.  But after they're released, we mostly give 'em back all the rights they lost.  That's the principal, he says.  So we should do the same thing here.  Take away their rights while they're actively mentally ill, but restore 'em thereafter.

Now, one can readily understand the argument that guns are different; that there's little harm in letting a formerly institutionalized patient speak on a street corner or be protected from unreasonable searches and seizures, but as for giving the guy a gun, that's different, and a much greater risk of harm.  As history has occasionally quite starkly demonstrated.

But you also nonetheless see the counterargument.  "No, it's not different.  Same principle.  You get your rights back.  Sure, you did something wrong -- you were a active threat to yourself or others, so we put you in a hospital against your express wishes.  But once you're out, you're out.  We treat you like everyone else.  You get your rights back."

That strikes a fairly resonant chord with me.

But it'd strike a more resonant chord if the people who uttered that principle consistently believed and applied it.  Otherwise it just seems like a claim.  And as I read Judge Bumatay's dissent, I could not help but pretty much instantly think that all the arguments he's making apply with equal -- if not greater -- force to giving people who've at once point been in prison back their constitutional right to vote.  A principle with which I'm quite positive the vast majority of judges who joined Judge Bumatay's dissent (if not all of them) most definitely do not agree.  'Cause I'm quite confident that the fundamental right to vote is amongst the most important of political rights, and definitely shouldn't be given "second class" status either.  Yet we feel quite confident saying that if you've been in prison once, you should have your right to vote taken away foreverRegardless of how "reformed" or "good" you are now.

That's a belief that seems, to me, directly contrary to the one Judge Bumatay and his colleagues express.

Not surprisingly, Judge Butmatay has a response to this.  Down on page 25 of the dissent, he says that he's okay with the legal principle "once a convict, always a convict,” but not okay with “once mentally ill, always mentally ill.”

I just deny why you should believe the first of these.  Yes, they're technically different.  But it's the very same principle behind both of these aphorisms.  Sure, we know full well that just because you've once been mentally ill, that doesn't necessarily mean that you're currently mentally ill, and so (arguably) the presumption against you owning a gun shouldn't apply.  But we also know full well that just because you've once committed a crime, that also doesn't necessarily mean that you're currently a criminal or shouldn't possess the most basic political right of having a minimal say on the identity of the political leaders entitled to govern you.  To say that the former stereotype is wrong but the latter is perfectly okay just strikes me as both factually wrong and, to a degree, at least, fairly hypocritical.

It might be entirely consistent to say "Well, people guilty of a crime are constitutionally treated differently that people institutionalized for mental illness, and while I don't agree with the former, I'm nonetheless bound to treat them that way."  But even that's not true.  The Fourteenth Amendment just implies (at most) that states can take away the right of felons to vote, not that it should (and certainly not that it must).  If those who agreed with Judge Bumatay were the type of people who stood up and said "We firmly believe in letting bygones be bygones, and believe that you shouldn't have one's critical constitutional liberties taken away for any reason that's based solely on something that you formerly did -- mental illness, crime, whatever," then, I gotta say, I'd really respect that.  That's a strong argument.

But that's most definitely not what they're saying here.  They're saying:  "I believe in giving people back their guns notwithstanding their past sins, but not their right to vote; that's completely different."  That's a far, far less persuasive vision.

Of course, you can go the other way too, and say that people who believe in giving criminals back the right to vote but not giving the mentally ill back their guns are equally hypocritical.  But I think at least a decent argument that whereas giving a former criminal the right to vote doesn't result in pretty much any concrete harm to anyone, giving a formerly mentally ill person a gun might well result in a harms that are very much concrete.

All the time?  Of course not.  Most of the time?  I definitely doubt it.  Sometimes?  For sure.

Not sure you can say the same thing about voting.  At all.

So there's a powerful argument here.  I'm just not sure that I believe it given the central "caveat" that its authors enthusiastically embrace.