U.S.A. – -(Ammoland.com)- A man who was involuntarily committed to a mental institution as an adolescent, but who has since been shown “free of depression” and “not considered a significant risk” by “multiple psychologists,” is prohibited from ever owning a gun by federal law, an act of deliberate indifference by the Ninth Circuit Court of Appeals “decided” Thursday. By refusing to consider an earlier panel decision, Thai refugee, and now citizen, Duy Mai will forever be condemned to government infringement of his right to keep and bear arms over a commitment order issued when he was 17 that expired 20 years ago.
That’s despite no further history of mental, criminal, and substance abuse issues, positive testimony from friends and family, “a stellar academic and professional career,” a stable and loving family life, and a Washington court agreeing that his rights have been restored under state law.
The bottom line: Denial of rights by a three-judge panel will be allowed to stay. The full court isn’t interested in pursuing the matter further.
“The panel judges have voted to deny Appellant’s petition for rehearing,” Thursday’s order declared. “The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration … Appellant’s petition for rehearing and petition for rehearing en banc…are DENIED.”
And here’s the upshot from the panel’s decision filed last March:
“We emphasize that we reach only Plaintiff’s Second Amendment challenge and that our holding is limited to § 922(g)(4)’s prohibition on those who have ‘been committed to a mental institution.’ We emphatically do not subscribe to the notion that ‘once mentally ill, always so.’ We accept, as we must and as we have no reason to doubt, that Plaintiff is no longer mentally ill. We decide only that § 922(g)(4)’s application to him withstands Second Amendment scrutiny.”
In other words, “We know the guy is being hosed but sorry – Catch 22 applies.”
Arguments can go back and forth citing legal minutiae and levels of scrutiny and precedent, and if you want a concise legal analysis of what’s going on, you won’t do better than Reason’s “The Volokh Conspiracy” blog. For those who would rather just cut to the chase, some observations in the dissent break it down in terms every supporter of the Second Amendment understands and properly resents the hell out of:
“To the rational observer, it is apparent that our court just doesn’t like the Second Amendment very much. We always uphold restrictions on the Second Amendment right to keep and bear arms. Show me a burden—any burden—on Second Amendment rights, and this court will find a way to uphold it.” *
That’s unacceptable. The mandate from the Bill of Rights is “shall not be infringed.” The mandate from the Preamble is “to secure the Blessings of Liberty.” The mandate from the Declaration is “consent of the governed.”
The next time some supposedly “pro-gun” politician or “gun rights organization leader” starts talking “mental health” as a “solution” that can help get the gun-grabbers off our backs, throw Mai v. U.S. back at him. Then demand he spells out the specifics about how what he’s proposing won’t ultimately play into the hands of the citizen disarmers and make things worse.
* The dissent also mentioned a case (p45) featured in exclusive AmmoLand reports but virtually ignored by mainstream media, when it observed “There was a glimmer of good sense in Young v. Hawaii, where a panel of our court held that the Second Amendment ‘encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.’”
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
“When tyranny becomes law, rebellion becomes duty.” I will give a cookie to whomever can say WHO quoted THAT!
Thomas Jefferson, who also said “We are not to expect to be translated from despotism to liberty in a featherbed.”
I will need your mailing address to ship a cookie.
USMC0351Grunt,
TJ SAID it, YOU quoted it.
Thomas Jefferson said everything good…….:) 🙂 🙂
But but but …
He owned slaves.
Well to that I say: I don’t want to be a slave.
When the State becomes Slave Master, Rebellion is inevitable.
Almost,
“When all other rights are taken away, the right of rebellion is made perfect.”
Thomas Paine
“Those who make peaceful revolution impossible will make violent revolution inevitable.” -John F. Kennedy
This is just a foreshadowing of whats to come under Red Flag laws.
Fuck the 9th Circus.
@David – Legal question. 922 applies to involuntary confinement. Mai was 17 at time of confinement, thus in many states legally incapable of consent. Did his parents consent to his confinement? If so, as they consented for their minor (and thus incompetent) child? Wouldn’t this make it voluntary confinement, and thus outside scope of 922?
Why is this not the case? I cannot imagine his lawyers wouldn’t have pursued this if it applies.
Applying this logic, (Incompetent, minor of 17) I am curious to see what happens then in the Kyle Rittenhouse matter?
USMC… – being thoughtful and articulate, you are really messin’ with the USMC image!
Not an issue in Kyle’s case, though that corrupt DA is trying to make it one. WI law prohibits those under 18 having firearms in public. THEN the next couple of sections of that law carve out exceptions. One of them plainly says that sixteen and older persons may posses loaded long guns in public.. its down with the unting exclusins/exceptionis, but does not limit the exception to hunting sutuations. Thus he was NOT in violatioin of WI law by possessing that long gu in public. Further, he initially possessed that weapon on PRIVATE PROPERTY, over which the law does… Read more »
IMOA, If this goes to trial his attorney should have compiled all of the video of the incident to be shown to the jury by now. He was the victim and a violent mob pursued him until he was forced to defend himself on three separate occasions. hopefully there won’t be any outside influences that turn his trial into a kangaroo court.
authoritarian governments throughout history have and will use any and all measures to restrict civil rights for its citizens. they always have and always will. America has slowly become an authoritarian system of government. unless we get rid of the leftists career employees, district attorneys and politicians it will only get worse.
Unless you are useful to the little kings and queens starting at the HOA level all the way to the multi alphabet agency’s of state and federal gov, you are already a unindicted felon. Live free or Die!
part of why I refuse to make my home in any HOA controlled space. County governments are bad enough, Don’t need a cadre of out-to-pasture vigilante wanna be nannies telling me what colour and brand of paint I MUST USE when its time to repaint my house.
If Mai was 17 when he was committed, was he a citizen of the U.S. at that time? If he wasn’t and became a citizen later do we allow someone to become a citizen with partial rights and not enjoy all the freedoms of the constitution.
Sounds like a double standard by the government for Mai.
Would moving to a different part of the country change court venue? Why anyone expects anything but a bad outcome from the Ninth, is beyond me.
@David – I consider myself pro-gun and I think mental health can play a role. May I suggest a compromise. I know that many consider compromise a dirty word, but I mean it in the sense that everyone gives a little to get more. Compromise is to modify terms of 922 to only apply for term of confinement plus a defined (and limited) period thereafter. Other side of compromise would be mandated provision of some level of mental health care, be it improved and expanded facilities for severe cases (removing them from prison in many cases) or subsidies for outpatient… Read more »
Using the ADA as a guide:
1) Term of commitment – okay, maybe.
2) Upon discharge: no.
An individual who has received treatment for a disability has a RECORD of a disability – that individual is protected by the ADA.
David,
It’s a shame that The American with Disabilities Act cannot help here.
With regard to governments, it only applies to the States under Title II.
The fascist and unconstitutional status of being an non-incarcerated “prohibited person” vis a vis the 2nd amendment, again who is not incarcerated and is not a “prohibited person” regarding ANY OTHER right, is the most dangerous quasi legal concept of our time.