PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

________________ 

No. 19-1927 

________________ 

JOHN DOE I; JOHN DOE II, 

 Appellants 

v. 

GOVERNOR OF PENNSYLVANIA; 

ATTORNEY GENERAL PENNSYLVANIA; 

COMMISSIONER PENNSYLVANIA STATE POLICE; 

PENNSYLVANIA STATE POLICE 

________________ 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D. C. Civil No. 2-16-cv-06039) 

District Judge: Honorable Joel H. Slomsky 

________________ 

Argued on December 9, 2019 

Before: RESTREPO, ROTH and FISHER, Circuit Judges 

(Opinion filed: October 14, 2020) 
2 

James W. Porter, III (ARGUED) 

Bradley Arant Boult Cummings 

1819 Fifth Avenue North 

One Federal Place 

Birmingham, AL 35203 

Marc A. Nadone 

James P. Sweeney 

Tara S. Woodward 

Bradley Arant Boult Cummings 

1615 L Street, N.W. 

Suite 1350 

Washington, DC 20036 

 Counsel for Appellants 

Claudia M. Tesoro (ARGUED) 

Office of Attorney General of Pennsylvania 

1600 Arch Street 

Suite 300 

Philadelphia, PA 19103 

 Counsel for Appellees 

 
3 

Adam J. Kraut 

Joshua Prince 

Prince Law Offices 

646 Lenape Road 

Bechtelsville, PA 19505 

Counsel for Amicus Appellants 

Allegheny County 

Sportsmens League; Firearms 

Owners Against Crime; 

Gun Owners Foundation; Second 

Amendment Organization 

Peter A. Patterson 

David H. Tompson 

Cooper & Kirk 

1523 New Hampshire Avenue, N.W. 

Washington, DC 20036 

 Counsel for Amicus Appellant 

Pennsylvania Federation of 

Sportsmen and Conservationists 

________________ 

OPINION 

________________ 

ROTH, Circuit Judge 

John Doe I and John Doe II were evaluated on an 

emergency basis pursuant to Pennsylvania Mental Health 
4 

Procedures Act (MHPA) Section 302 and were found in need 

of inpatient treatment. Section 6105(c)(4) of the Pennsylvania 

Uniform Firearms Act (PUFA) prohibits “[any] person who 

has been . . . committed to a mental institution for inpatient care 

and treatment under [MHPA] [S]ection 302” from possessing 

firearms. The Does challenge PUFA § 6105(c)(4)’s 

constitutionality on its face. They argue that it deprives those, 

who are certified committable under MHPA § 302, of their 

Second Amendment rights without procedural due process. 

For the reasons below, we hold that the Does have failed to 

raise a proper challenge to Pennsylvania’s statutory scheme. 

We will therefore affirm the judgment of the District Court. 

I.

A very brief sketch of the facts is necessary to provide 

context for the Does’ claim. Doe I was certified committable 

in 2011 after he became depressed and his mother took him to 

an emergency room for an emergency evaluation. Doe II was 

certified committable in 1996 after police brought him to a 

hospital upon learning that he had threatened to harm himself. 

Both Does’ commitment certification records were reported to 

and recorded in the Pennsylvania Instant Check System and the 

National Instant Criminal Background Check System 

databases. As a result, they were prohibited from purchasing 

firearms when they later attempted to do so. 

The Does filed this action in the District Court for the 

Eastern District of Pennsylvania, alleging that PUFA § 

6105(c)(4) is facially unconstitutional because it deprives all 

those, who are committed under MHPA § 302, of their Second 

Amendment rights without procedural due process. The 

District Court denied the Does’ Motion for Summary 
5 

Judgment and granted summary judgment to the Pennsylvania 

defendants. It held that although those committed under 

MHPA § 302 have a protected liberty interest in the right to 

bear arms, PUFA § 6105(c)(4) provides sufficient procedural 

protections before depriving them of their Second Amendment 

rights. The Does appealed.1

II. 

Because the Does mount a facial, rather than an asapplied challenge, we begin with the relevant statutes. 

MHPA § 301(a) defines those who may be required to 

undergo involuntary emergency examination and mental 

health treatment. It provides that “[w]henever a person is 

severely mentally disabled and in need of immediate 

treatment,” he “may be made subject to involuntary emergency 

examination and treatment.”2

 This section further provides 

that a “person is severely mentally disabled when, as a result 

of mental illness, his capacity to exercise self-control, 

judgment and discretion in the conduct of his affairs and social 

relations or to care for his own personal needs is so lessened 

that he poses a clear and present danger of harm to others or 

to himself.”3

1

 The District Court had jurisdiction pursuant to 28 U.S.C. § 

1331, and we have jurisdiction under 28 U.S.C. § 1291. We 

review grants of summary judgment de novo. Foehl v. United 

States, 238 F.3d 474, 477 (3d Cir. 2001). 

2

 50 Pa. C.S. § 7301(a). 

3 Id. (emphasis added). 
6 

“Clear and present danger” is determined in accordance 

with MHPA § 301(b). Under that provision, a clear and present 

danger to others exists if, within the past thirty days, the person 

being evaluated has “inflicted or attempted to inflict serious 

bodily harm on another” and is reasonably likely to do so 

again.4

 Clear and present danger can also be established if a 

person is a danger to himself. Such a danger exists if any of 

three situations has arisen within the past thirty days: (1) the 

person has been unable to care for himself such that, absent 

adequate treatment, “death, serious bodily injury or serious 

physical debilitation would ensue within 30 days”; (2) the 

person “has attempted suicide” and, absent adequate treatment, 

is reasonably likely to commit suicide; or (3) the person has 

engaged in substantial actual or attempted self-mutilation and, 

absent adequate treatment, actual self-mutilation is reasonably 

probable.5

MHPA § 302 authorizes emergency examinations “at a 

treatment facility upon the certification of a physician stating 

the need for such examination,” upon a warrant issued by the 

county mental health administrator, or “upon application by a 

physician or other authorized person who has personally 

observed conduct showing the need for such examination.”6

 A 

person taken to a facility for this purpose “must be examined 

by a physician within two hours of arrival” to determine 

whether he “is severely mentally disabled . . . and in need of 

immediate treatment.”7

 Only individuals who are found by an 

examining physician to be “severely mentally disabled” and to 

4 Id. § 7301(b)(1). 

5 Id. § 7301(b)(2). 

6 Id. § 7302(a). 

7 Id. § 7302(b). 
7 

pose a “clear and present danger of harm” to themselves or 

others can be involuntarily committed pursuant to MHPA § 

302.8

Once a person is certified committable under MHPA § 

302, section 6105(c)(4) of PUFA automatically prohibits him 

from owning or possessing firearms. This restriction under 

Pennsylvania law also applies to deprive individuals of their 

gun rights under federal law.9

 Pennsylvania does, however, 

provide three post-deprivation remedies to those who seek 

recovery of their firearm rights: (1) a determination by a court 

that an applicant is not a risk to himself or others,10 (2) a 

challenge to the accuracy of the mental health record,11 and (3) 

an expungement of the commitment record because of 

insufficient evidence.12

III. 

The Does argue that they and all others, who have been 

prohibited from possessing firearms under PUFA § 6105(c)(4) 

and MHPA § 302, have been stripped of a protected liberty 

interest under the Fourteenth Amendment: their Second 

Amendment right to bear arms. The Second Amendment 

8 Id. § 7301(b)(a). 

9

 18 Pa. C.S. § 6105(c)(4); 18 U.S.C. § 922(g)(4). 

10 Id. § 6105(f)(1). Relief under this statute would also result 

in restoration of firearm rights under federal law. See U.S. 

Department of Justice, Bureau of Alcohol, Tobacco, Firearms 

and Explosives, ATF Form 321012, Certification of Qualifying 

Relief from Disabilities Program (March 2016). 

11 18 Pa. C.S. § 6111.1(e). 

12 Id. § 6111.1(g)(2). 
8 

states: “A well regulated Militia, being necessary to the 

security of a free State, the right of the people to keep and bear 

Arms, shall not be infringed.”13 In District of Columbia v. 

Heller, the Supreme Court determined that at the “core” of the 

Second Amendment is the right of “law-abiding, responsible 

citizens to use arms in defense of hearth and home.”14 The 

Court in Heller emphasized, however, that there are 

“presumptively lawful regulatory measures” that can restrict 

that right, and that the Court was decidedly not “cast[ing] doubt 

on longstanding prohibitions on the possession of firearms by 

felons and the mentally ill.”15 

We have consistently hewed to the exceptions that 

Heller preserved.16 As we stated in Beers v. Att’y Gen. United 

States, 17 to determine whether a category of people is excluded 

from the Second Amendment under Heller, “we look at the 

historic, traditional justifications for barring a class of 

individuals from possessing guns.” In Beers, we held that the 

plaintiff lacked a right to bear arms because he was part of “the 

13 Id. amend. II. 

14 554 U.S. 570, 635 (2008). And the right applies to the states 

through the Fourteenth Amendment. See McDonald v. City of 

Chicago, 561 U.S. 742, 791 (2010). 

15 Heller, 554 U.S. at 626. 

16 See, e.g., Binderup v. 

Attorney General United States of America, 836 F.3d 336, 

347-48 (3d Cir. 2016) (en banc); United States v. Marzzarella, 

614 F.3d 85, 89-92 (3d Cir. 2010). 

17 927 F.3d 150, 153 (3d Cir. 2019), vacated on other grounds, 

Beers v. Barr, No. 19-864, 2020 WL 2515441 (U.S. May 18, 

2020).
9 

historically-barred class of mentally ill individuals who were 

excluded from Second Amendment protection.”18 In 

configuring the “historically-barred class,” we concluded that 

it consists of “individuals who were considered dangerous to 

the public or to themselves.”19

As to who is vested with authority to determine that one 

is a danger to oneself or the public, and on what grounds that 

person may do so, we now make explicit what was implicit in 

Beers, that we defer to the relevant statute’s reasonable 

standards and designations. The relevant statute in Beers was 

18 U.S.C. § 922(g)(4), which prohibits firearm possession in 

instances where one has been determined “a danger to himself 

or others” “as a result of . . . mental illness.”20 In Beers we 

deferred to § 922(g)(4) and to MHPA §§ 302–04, under which 

the plaintiff had been involuntarily committed, in concluding 

that he was a danger to himself or others as a result of mental 

illness.21 

In the case at bar, PUFA § 6105(c)(4) and MHPA § 302 

are the relevant statutes for determining that an individual is a 

danger to himself or others as a result of mental illness; it is to 

these statutes that we defer. We find no reason to second-guess 

the adequacy of Pennsylvania’s requirement under MHPA § 

302 that a physician determine that one is a danger to himself 

or others as a result of mental illness and is “severely mentally 

disabled . . . and in need of immediate treatment.” Thus, once 

a person has been involuntarily committed under MHPA § 302, 

18 Id. at 157. 

19 Id. 20 Id. 21 Id. 
10 

that person has joined the class of those historically without 

Second Amendment rights. 

Left without a Second Amendment right, the Does can 

make only two challenges. They can challenge MHPA § 302 

on procedural due process grounds—that is, that MHPA § 302 

provides inadequate procedure before involuntarily 

temporarily committing someone. Or they can challenge 

PUFA § 6105(c)(4) on substantive Second Amendment 

grounds—that is, that involuntary temporary commitment does 

not fall under Heller’s mental illness exception and therefore 

PUFA § 6105(c)(4) is substantively unconstitutional. The 

Does have made it expressly clear that they are bringing neither 

challenge.22 In presenting an appeal, parties must formulate 

the correct challenge on their own and brief us accordingly. 

“[W]e will not manufacture arguments [for them].”23 

IV. 

For the above reasons, we will affirm the order of the 

District Court, granting defendants’ Motion for Summary 

Judgment. 

22 Pet. Br. 17, 20-21. 

23 Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 

957, 987 (9th Cir. 2011) (first alteration “[w]” in original; the 

change to “[W]” is added here.) (quoting Greenwood v. FAA, 

28 F.3d 971, 977 (9th Cir. 1994)). 
1 

John Doe I, et al. v. Governor of Pennsylvania, et al., No. 19-

1927 

FISHER, Circuit Judge, concurring in the judgment. 

The majority affirms the District Court’s opinion on the 

basis that the Does have failed to raise a proper challenge to 

Pennsylvania’s statutory scheme. To come to that conclusion, 

my colleagues hold that “once a person has been involuntarily 

committed under MHPA § 302, that person has joined the class 

of those historically without Second Amendment rights.” Maj. 

Op. III. However, I believe that the issue of whether Section 

302 committees retain their Second Amendment right to 

possess firearms is a close question. Because we do not need 

to reach this issue in order to decide the case before us, it is, as 

a matter of judicial restraint, best left for another day. 

Therefore, I respectfully disagree with the majority’s reasoning 

and concur in the judgment only. I would affirm the District 

Court on less contentious grounds: that, assuming without 

deciding that Section 302 committees retain their Second 

Amendment right to possess firearms—and thus have a 

protected liberty interest—there is no Fourteenth Amendment 

violation because the State’s post-deprivation procedures 

provide Section 302 committees adequate due process. 

The Does argue that PUFA § 6105(c)(4) is facially 

unconstitutional because it deprives them, and all other 

similarly situated individuals, of the right to bear arms without 

due process of law. They sought a declaration that PUFA § 

6105(c)(4) violates Fourteenth Amendment procedural due 

process as to those whose only disqualifying event is that they 

were certified committable under MHPA § 302. 

We use a two-pronged analysis to evaluate whether a 

law violates the Fourteenth Amendment’s Due Process Clause. 

The court must ask whether there is a protected life, liberty, or 
2 

property interest at stake, and if so, whether the procedures 

afforded amount to “due process of law.” Robb v. City of 

Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984) (citing Bd. of 

Regents of State Colls. v. Roth, 408 U.S. 564, 569-72 (1972)). 

Therefore, we would normally begin our analysis by evaluating 

the asserted protected liberty interest. However, the Supreme 

Court has warned that when confronted with difficult 

questions, we should “confine ourselves to deciding only what 

is necessary to the disposition of the immediate case.” 

Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 373 (1955); 

see also Lyng v. Nw. Indian Cemetery Protective Assn., 485 

U.S. 439, 445 (1988) (“A fundamental and longstanding 

principle of judicial restraint requires that courts avoid 

reaching constitutional questions in advance of the necessity of 

deciding them.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 

288, 347 (1936) (Brandeis, J., concurring) (“It is not the habit 

of the court to decide questions of a constitutional nature unless 

absolutely necessary to a decision of the case.” (citation 

omitted)). 

Because Pennsylvania’s post-deprivation procedures 

provide Section 302 committees with adequate due process, 

regardless of whether the Does have a protected liberty 

interest, we need not decide in this case whether they retain a 

Second Amendment right to possess firearms. 

Assuming, then, that the Does have a protected liberty 

interest, the question becomes whether the procedures afforded 

amount to “due process of law.” Robb, 733 F.2d at 292. The 

Does first contend that they are entitled to pre-deprivation 

procedures before being permanently deprived of their Second 

Amendment rights. However, such procedures are not 

constitutionally required in every case. “[T]he Supreme Court 

‘has recognized, on many occasions, that where a State must 

act quickly, or where it would be impractical to provide 
3 

predeprivation process, postdeprivation process satisfies the 

requirements of the Due Process Clause.’” Nat’l Amusements 

Inc. v. Borough of Palmyra, 716 F.3d 57, 62 (3d Cir. 2013) 

(quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997)). In 

Gilbert, for example, the Court held that a police officer 

arrested on drug charges was not entitled to notice and a 

hearing prior to being suspended without pay because of the 

state’s significant interest in the officer’s immediate 

suspension. 520 U.S. at 932-34. 

To determine what procedures the Constitution requires 

in a particular case, including whether pre-deprivation 

procedures are required and whether post-deprivation 

procedures are constitutionally adequate, a court must consider 

three factors: 

First, the private interest that will be affected by 

the official action; second, the risk of an 

erroneous deprivation of such interest through 

the procedures used, and the probable value, if 

any, of additional or substitute procedural 

safeguards; and finally, the Government’s 

interest, including the function involved and the 

fiscal and administrative burdens that the 

additional or substitute procedural requirement 

would entail. 

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 

As noted, I assume, under the first factor, that a Section 

302 committee has a protected liberty interest in the right to 

bear arms. The other factors, however, weigh in favor of 

finding that pre-deprivation procedures are not necessary in 

this case. As to the second factor, risk of erroneous deprivation 

is low because a Section 302 committee had to have posed a 

“clear and present danger” to himself or others at the time of 
4 

his commitment. A physician would have had to examine the 

individual, and only if the physician makes this determination 

is the individual committed under Section 302. Furthermore, 

additional pre-deprivation safeguards have little value here. 

The District Court aptly observed, for example, that “[n]othing 

in [PUFA § 6105(c)(4)] suggests that only Section 302 

committees on the more dangerous or severe end of the mental 

health spectrum are subject to the firearms prohibition. Thus, a 

hearing to determine where a Section 302 committee falls on 

that spectrum is not relevant to the statutory scheme and has no 

value.” J.A. 38. Finally, the third factor also weighs against the 

necessity of a pre-deprivation hearing. Pennsylvania has a 

prevailing interest in public safety and ensuring that potentially 

dangerous individuals are not permitted to own deadly 

weapons. 

Thus, as two of the three Mathews factors weigh against 

the Does, in my view the District Court correctly concluded 

that Section 302 committees’ due process right does not require 

pre-deprivation procedures. 

The Does next argue that, even if pre-deprivation 

remedies are not constitutionally required here, the available 

post-deprivation remedies are constitutionally inadequate. 

There are three post-deprivation procedures available to an 

individual who seeks to lift the firearm restriction imposed by 

PUFA § 6105(c)(4) as a result of a Section 302 commitment. 

First, an individual can file a petition in the Court of Common 

Pleas, asserting that he is no longer mentally ill and should be 

allowed to own a gun. 18 Pa. Cons. Stat. § 6105(f)(1). Both 

state and federal firearm rights are restored “if the court 

determines that the applicant may possess a firearm without 

risk to the applicant or any other person.” Id. This process 

allows for a full evidentiary hearing in the Court of Common 
5 

Pleas at which both parties have the right to present evidence 

and cross-examine witnesses. 

The predominant thrust of the Does’ argument was that 

there is no meaningful due process because PUFA § 6105(f)(1) 

cannot undo the federal firearms disqualification. However, 

since July 1, 2019, relief under this provision also results in 

restoration of firearm rights under federal law. See U.S. 

Department of Justice, Bureau of Alcohol, Tobacco, Firearms 

and Explosives, ATF Form 321012, Certification of Qualifying 

Relief from Disabilities Program (March 2016). 

Second, an individual can seek to have his Section 302 

commitment expunged by “petition[ing] the court to review the 

sufficiency of the evidence upon which the commitment was 

based.” 18 Pa. Cons. Stat. § 6111.1(g)(2). Successful 

expungement under this section results in the restoration of 

both state and federal firearms rights. 

Third, an individual can submit a challenge to the 

Pennsylvania State Police that contests the accuracy of his or 

her mental health record. 18 Pa. Cons. Stat. § 6111.1(e). “If the 

challenge is ruled invalid,” the individual has “the right to 

appeal the decision to the Attorney General” of Pennsylvania, 

at which point an Administrative Law Judge will hold a 

hearing de novo. Id. § 6111.1(e)(3). The Administrative Law 

Judge’s decision may be appealed to the Pennsylvania 

Commonwealth Court. Id. § 6111.1(e)(4). 

Where a state provides adequate post-deprivation 

remedies, it does not violate the Due Process Clause. Parratt 

v. Taylor, 451 U.S. 527, 538–39 (1981), overruled on other 

grounds by Daniels v. Williams, 474 U.S. 327 (1986). PUFA’s 

three post-deprivation remedies are adequate because they 

satisfy the Mathews test. 

A Section 302 committee’s liberty interest (which is 

assumed for my purposes here) must be weighed against the 
6 

state’s strong interest in public safety and, hence, in proceeding 

cautiously before permitting individuals who once “pose[d] a 

clear and present danger” to reacquire firearms. 50 Pa. Stat. § 

7301(a). Given that the risk of erroneous deprivation is low and 

that the value of additional procedural safeguards is negligible 

in this case, the balance weighs against the Does. The risk of 

erroneous deprivation can still be low even if not every 

questioned deprivation is undone—there may be real reasons 

for not restoring every Section 302 committee’s firearms 

rights. According to Pennsylvania State Police statistics, fortyone Section 302 committees pursued restoration through one 

of the three available post-deprivation procedures in 2017. Of 

that number, seventeen individuals were successful. It is also 

no longer the case that a successful PUFA § 6105(f) petitioner 

cannot have his federal rights restored. See ATF Form 321012. 

Thus, there is nothing “permanent” about PUFA § 6105(c)(4), 

as the Does suggest. Appellants’ Br. 40. 

As the District Court correctly determined that the three 

post-deprivation procedures satisfy due process, there is no 

Fourteenth Amendment violation, and I would affirm on that 

basis. 

For these reasons, I concur in the judgment affirming 

the District Court.