by Gila Hayes
Several circuit court decisions drew my attention recently. One concerns restoration of firearms rights to plaintiffs who were convicted of non-violent felonies and another addresses restoration of gun rights denied as a result of involuntary commitment for mental health treatment decades ago.
I first read about these decisions in the Volokh Conspiracy (don’t judge based on the name; it is a consortium of law professors and attorneys who write the most interesting commentaries, even if I don’t always agree!). Anyway, getting back to restoration of gun rights, the latest victory comes by a 6th Circuit Court ruling that a gentleman who was committed for mental health treatment in the long-forgotten past should not be prohibited from possessing firearms today if he is now of sound mind.
18 U.S. Code § 922 prohibits a whole slew of folks from possessing firearms, including (but certainly not limited to) someone who “has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;” and anyone who has been involuntarily committed to a mental institution.
As a result, a septuagenarian who thirty years ago spent a few weeks in a mental hospital was denied his gun rights and the BATFE (to which the Attorney General delegates responsibility to consider petitions for removal of the disability) refused to consider his petition for restoration of rights. The 6th Circuit Court decided that the government’s interest in keeping guns out of the hands of mentally ill or suicidal people didn’t apply to this situation. “No government may permanently deny rights based on generalizations stemming from classifications about any individual who once was institutionalized,” opined Judge Jeffrey Sutton. See (http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0234p-06.pdf)
The decision that may open a path for restoration of rights to people who long ago accessed mental health treatment resonates with me a bit more than the other decision, this one from the 3rd Circuit Court of Appeals, finding that people who today are upstanding citizens but convicted of minor crimes decades ago, should not be denied their Second Amendment rights (see http://www2.ca3.uscourts.gov/opinarch/144549p.pdf). Still, both decisions are encouraging in that they challenge the government to explain why it has become essentially impossible to remove these prohibitions despite the assurances in 18 U.S.C. § 925(c) “A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws ... and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”
Other issues arising this month seemed unusually focused on regulatory law, too. I keep telling folks, “The Network is not a law firm!” This we make clear on our website, yet we are regularly asked questions about state gun laws and some of the questions are extremely complex. Consider a recent example:
“I have a carry permit issued in Rensselaer County, NY. The court places a restriction of hunting and target on the permit. I am told that there is nothing in NY law allowing for the restriction, and if I were carrying while not hunting I would only be in violation of a court order, not unlawful carry. So I ask for your opinion on this as well as, if I were to join, and carry, and have to use deadly force in a self defense situation, would I be provided legal representation and other benefits from my membership?”
Oh, boy, there is a lot of room for error in that question! It echoes what Jim Fleming emphasized in this month’s lead interview about the difficulty laypersons face in drawing accurate conclusions if researching the law themselves. Are you reading and interpreting the law correctly? What case law explains the intent of the law? Is the case law you found the most recent? Jim made a great point, and I wish I’d had that conversation before trying to answer the NY non-member’s question. Well, I did the best I could, responding, in part:
The answer to your unlawful carry question should come from an attorney practicing in New York State, as it’s my impression that NY does not have state-wide pre-emption as regards gun laws (http://www.gibsondunn.com/publications/Documents/Tartakovsky-Firearm-Preemption-Laws-ML-09.2013.pdf). If that’s so, your local authority can impose restrictions on your pistol permit...These are complex questions about very complicated laws…consult a NY attorney!
Provision of Network membership benefits hinges on whether you were legal under the local laws to be in possession of the weapon used in the self-defense incident. If it was illegal for you, for example, to carry a gun concealed in a parking lot where you drew and displayed the firearm or shot an assailant, then the Network would have no choice but to withdraw Network support after becoming aware of that fact. Hypothetically, I expect that the Network would likely have first provided the member’s attorney with an initial deposit against fees to consult with the member, and provide counsel and representation as quickly as possible after the self-defense incident. We would likely learn of the violation when conferring with the attorney prior to assisting with funding for bail. If the member was in violation of the law, we would certainly have to decline to participate financially further in their legal defense.
I had exchanged several emails with another correspondent who subsequently joined the Network. He had asked if the Network would pay attorney fees for gun-related but not self defense legal entanglements:
“Is there a provision if a member is charged with brandishing? I have been ‘made’ a couple of times while shopping [when a] cover garment gets caught on [a] grip…it can lead my fellow citizen(s) to summon law enforcement, which may not go well for me.”
I brought this discussion over to this column because we are so frequently asked if the Network will pay attorney fees to defend a member’s gun law violation. To this particular question, I responded:
In an instance of actual brandishing–more accurately called defensive display of a weapon–as part of a self-defense incident, yes, absolutely, the Network provides membership benefits of an immediate fee deposit paid to your attorney. We could not do the same for accidentally letting the gun show, leading to a complaint occurring outside of a self-defense incident. If we were to draw money out of the Legal Defense Fund to provide an attorney every time members have a gun regulation issue not involving self-defense use of force, we quickly wouldn’t have funds for the considerably more serious and more costly representation when a member needs an attorney after the disturbing experience of using force to stop an assailant who is trying to kill or cripple the member.
I’m sorry, but we really do need to reserve the Legal Defense Fund to pay legal expenses for members after the more serious issues that follow self-defense use of force.
After I commented on fielding several similar questions over the weeks that followed, our Network President commented that there are armed citizens, especially those living in extremely restrictive, gun-hostile areas, for whom pre-paid legal services for representation over regulatory matters may actually be more attractive than having their big-dollar legal needs paid for through Network membership benefits. I guess I “get it.”
I’m a big fan of the free market system! Many a small business has gone bankrupt after losing sight of their mission and scattering their energy and resources by trying to be all things to all people. The Network promises to continue to be good stewards of the Legal Defense Fund, so our members have the assistance they need with attorney fees in the days immediately following use of force in self defense, assistance with bail, payment of fees for a fully-staffed trial team, local attorneys and attorney specialists, expert witnesses and other services needed if criminal charges or civil litigation ensues. This is our mission and has been since Day One. That commitment stands unchanged today.
Several pre-paid legal services would be delighted to harvest ten to twenty dollars a month to send an attorney with whom they’ve contracted to address these folks’ gun regulation violations. While I personally don’t want to be stuck with an assigned attorney for the exponentially more serious issues attaching to use of force in self defense, it does make sense that for those with the money to afford it, prepaid legal could help if they need to get out of regulatory law entanglements. Like I said, viva la free market!
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