1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 16a0234p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

CLIFFORD CHARLES TYLER, 

Plaintiff-Appellant, 

v. 

HILLSDALE COUNTY SHERIFF’S DEPARTMENT, et al., 

Defendants-Appellees. 

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No. 13-1876 

Appeal from the United States District Court 

for the Western District of Michigan at Grand Rapids. 

No. 1:12-cv-00523—Gordon J. Quist, District Judge. 

Argued: October 14, 2015 

Decided and Filed: September 15, 2016 

Before: COLE, Chief Judge; BOGGS, SILER, BATCHELDER, MOORE, CLAY, 

GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, 

WHITE, STRANCH, and DONALD, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Lucas J. McCarthy, Wyoming, Michigan, for Appellant. Abby C. Wright, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. ON 

BRIEF: Lucas J. McCarthy, Wyoming, Michigan, for Appellant. Abby C. Wright, Michael S. 

Raab, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal 

Appellees. Paul D. Clement, Erin E. Murphy, Stephen V. Potenza, BANCROFT PLLC, 

Washington, D.C., Harry Frischer, PROSKAUER ROSE LLP, New York, New York, Simon J. 

Frankel, Rebecca Jacobs, COVINGTON & BURLING LLP, San Francisco, California, Daniel 

B. Asimow, ARNOLD & PORTER LLP, San Francisco, California, Ronda Cress, Michael 

Kirkman, Kristen Henry, OHIO DISABILITY RIGHTS LAW & POLICY CENTER, INC., 

Columbus, Ohio, for Amici Curiae. 

 GIBBONS, J., delivered the lead opinion in which SILER, COOK, McKEAGUE, 

WHITE, and DONALD, JJ., joined, and ROGERS, J., joined in part. McKEAGUE (pg. 28), and 

WHITE (pp. 29–31), JJ., delivered separate concurring opinions. BOGGS, J. (pg. 32), 

>
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 2 

BATCHELDER, J. (pp. 33–40), in which BOGGS, J., joined, and SUTTON, J. (pp. 41–50), in 

which BOGGS, McKEAGUE, and KETHLEDGE, JJ., joined, delivered separate opinions 

concurring in most of the judgment. ROGERS, J. (pg. 51), delivered a separate opinion 

concurring in the lead opinion in part, dissenting from the result, and joining Part II.B. of the 

dissenting opinion of MOORE, J. MOORE, J. (pp. 52–62), delivered a separate dissent in which 

COLE, C.J., CLAY, GRIFFIN, and STRANCH, JJ., joined, and ROGERS, J., joined in part. 

_________________ 

OPINION 

_________________ 

JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-Appellant Clifford Charles Tyler, a 

prospective gun purchaser, was involuntarily committed thirty years ago following an emotional 

divorce. Despite being three decades removed from this brief depressive episode, and despite a 

currently clean bill of mental health, Tyler is ineligible to possess a firearm because of his prior 

involuntary commitment, pursuant to 18 U.S.C. § 922(g)(4). After the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives (ATF) declined to review his petition for restoration of his 

right to own a firearm, Tyler filed suit in federal court seeking a declaratory judgment that 

§ 922(g)(4) is unconstitutional as applied to him. The district court dismissed Tyler’s suit for 

failure to state a claim. 

Since 2008, the lower courts have struggled to delineate the boundaries of the right 

recognized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).

Tyler’s case presents an important question in light of the Supreme Court’s decision. On the one 

hand, the Heller Court recognized, for the first time, that the Second Amendment protected the 

fundamental right of “law-abiding, responsible citizens” to own firearms. Id. at 635. On the 

other, it recognized that this right was not “unlimited” and observed that longstanding 

prohibitions on the possession of firearms by felons and the mentally ill are “presumptively 

lawful.” Id. at 595, 626–27 n.26. We must decide whether, in consideration of Heller, Tyler, 

“who has been committed to a mental institution,” § 922(g)(4), has a cognizable claim under the 

Second Amendment and, if so, how to properly scrutinize his claim. 

The district court dismissed Tyler’s suit for failure to state a claim, reasoning that 

Heller’s statement regarding “presumptively lawful” prohibitions on the mentally ill foreclosed 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 3 

such claims. The court also observed that § 922(g)(4) would survive intermediate scrutiny. 

Unlike the district court, we do not understand Heller’s pronouncement about presumptively 

lawful prohibitions to insulate § 922(g)(4) from constitutional scrutiny nor do we believe that on 

the record as it currently stands the government has carried its burden to show that § 922(g)(4)’s 

permanent ban is substantially related to the government’s important interests in reducing crime 

and preventing suicide. Because Tyler’s complaint states a valid claim under the Second 

Amendment, we reverse and remand. 

I. Background

A. Statutory and Regulatory Background

 18 U.S.C. § 922(g) of the Gun Control Act prohibits numerous categories of people from 

gun ownership, including convicted felons, § 922(g)(1), habitual drug users, § 922(g)(3), and 

domestic-violence misdemeanants, § 922(g)(9). The act also prohibits anyone “who has been 

adjudicated as a mental defective or who has been committed to a mental institution” from 

possessing a firearm. § 922(g)(4). Federal regulations make clear that “committed to a mental 

institution” applies only to persons who are involuntarily committed by an appropriate judicial 

authority following due process safeguards. See 27 C.F.R. § 478.11 (defining “committed to a 

mental institution”). 

 Besides categorical bans, the Act also includes a relief-from-disabilities program under 

which barred individuals may apply “to the Attorney General for relief from the disabilities 

imposed by Federal laws.” 18 U.S.C. § 925(c). Authority to administer the relief-fromdisabilities program has been delegated to the director of the ATF. 28 C.F.R. § 0.130(a)(1); 

27 C.F.R. § 478.144(b) (providing that “[a]n application for such relief shall be filed . . . with the 

Director [of ATF]”). Under § 925(c), the ATF director is empowered to grant relief if he or she 

is satisfied “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.” Judicial review is 

available in the federal district court of appropriate jurisdiction to “[a]ny person whose 

application for relief . . . is denied by the [ATF].” Id. The reviewing court is empowered to 

“admit additional evidence where failure to do so would result in a miscarriage of justice.” Id. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 4 

The ATF’s decision is reviewed under an arbitrary and capricious standard. United States v. 

Bean, 537 U.S. 71, 77–78 (2002). 

 Section 925(c), however, is currently a nullity. Congress defunded the relief-fromdisabilities program in 1992, noting that reviewing applications was a “very difficult and 

subjective task which could have devastating consequences for innocent citizens if the wrong 

decision is made.” S. Rep. No. 102-353, at 19 (1992). Congress has reaffirmed its 

appropriations restrictions numerous times since then. See Bean, 537 U.S. at 75 n.3 (listing 

subsequent appropriations decisions); Mullis v. United States, 230 F.3d 215, 219 (6th Cir. 2000). 

Moreover, the Supreme Court has held that Congress’s decision to defund the program stripped 

the federal courts of jurisdiction to review claims arising under § 925(c). Bean, 537 U.S. at 78 

(“[T]he absence of an actual denial of [a] respondent’s petition by ATF precludes judicial review 

under § 925(c)”). 

 Still, in early 2008, Congress renewed the possibility that certain prohibited individuals 

could have their right to possess a gun restored. Seeking to remedy weaknesses in the national 

instant criminal background check system (NICS), Congress authorized federal grants to 

encourage the states to supply accurate and up-to-date information to federal firearm databases. 

See NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, § 103, 121 Stat. 2559, 

2567 (2008). Eligibility for the grants is based, in part, on the creation of a relief-fromdisabilities program that allows individuals barred by § 922(g)(4) to apply to have their rights 

restored. Id. at §§ 103, 105, 121 Stat. at 2568–69. 1

 Under qualifying programs, “a State court, 

board, commission, or other lawful authority shall grant the relief . . . if the circumstances 

regarding the disabilities . . . and the person’s record and reputation, are such that the person 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.” Id. § 105(a)(2), 121 Stat. at 2569–70. The state 

program must also “permit[] a person whose application . . . is denied to file a petition with the 

State court of appropriate jurisdiction for a de novo judicial review of the denial.” Id.

 1

Unlike the federal relief-from-disabilities program, which offered relief to all persons prohibited from gun 

possession under federal law, the state programs need only provide relief to individuals “who [have] been 

adjudicated as a mental defective or who [have] been committed to a mental institution.” § 922(g)(4); see Pub. L. 

No. 110-180§ 105(a)(1). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 5 

§ 105(a)(3), 121 Stat. at 2570. The government represented in its supplemental brief that thirtyone states have created qualifying relief programs.2

 Tyler’s home state of Michigan is not one of 

them. 

B. Factual Background

The complaint and attached documents set out the factual background of the case. Tyler 

is a seventy-four-year-old resident of Hillsdale County, Michigan. According to a 2012 

substance-abuse evaluation, in 1985, Tyler’s wife of twenty-three years ran away with another 

man, depleted Tyler’s finances, and then served him with divorce papers. The ordeal left Tyler 

emotionally devastated. He had trouble sleeping and sat at home “in the middle of the 

floor . . . pounding his head.” (DE 1-1, Ex. C, Page ID 23.) Fearing that their father was a 

danger to himself, Tyler’s daughters contacted local police, who transported Tyler to the sheriff’s 

department and began the necessary steps for Tyler to receive a psychological evaluation. 

On January 2, 1986, Tyler, represented by counsel, appeared before the Hillsdale County 

Probate Court. Court documents indicate that Dr. Tamara Marie Tyler3

 examined Tyler. She 

concluded that Tyler required in-patient treatment and petitioned the probate court to have Tyler 

committed. The probate court found by “clear and convincing evidence” that Tyler was mentally 

ill and that because of his illness he could “be reasonably expected within the near future to 

intentionally or unintentionally seriously physically injure [himself] or others, and has engaged 

in an act or acts or made significant threats that are substantially supportive of the expectation.” 

(DE 1-2, Ex. F, Page ID 36.) The court further noted that hospitalization was the only treatment 

method “adequate to meet [Tyler’s] treatment needs.” (Id.) 

The court committed Tyler to Ypsilanti Regional Center “for a period not to exceed 

30 days” and ordered him to undergo further treatment “for a period not to exceed 90 days.” (Id.

at 36–37.) According to his 2012 substance-abuse evaluation, when Tyler arrived at Ypsilanti 

 2

The actual number of states with qualifying relief-from-disabilities programs is uncertain. While the 

government puts the number at thirty-one, the Bureau of Justice Statistics states that as of September 2015, twentynine states have enacted qualifying programs. The Bureau also notes that only twenty-two states received NICS 

Improvement Act funding in 2015. Bureau of Justice Statistics, The NICS Improvement Amendments Act of 2007, 

http://www.bjs.gov/index.cfm?ty=tp&tid=49#2011 (last visited March 17, 2016). 

3

We are not aware that Dr. Tyler has any relation to Appellant. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 6 

Regional Center, he was depressed and had bruises on his head and face. Tyler reported that he 

stayed at the in-patient center for two to four weeks4

 but declined prescription medication for 

fear it would alter his “thinking.” (DE 1-1, Ex. C, Page ID 23.) Tyler also reported that he 

received no follow-up therapy after he was discharged from the hospital. 

After his discharge, Tyler returned home and successfully held a job for the next eighteen 

or nineteen years. He also remarried in 1999. In 2012 Tyler underwent both a substance-abuse 

and a psychological evaluation. During his psychological evaluation, Tyler reported that he has 

“never experienced a depressive episode” other than the one following his divorce. (DE 1-1, Ex. 

B, Page ID 19.) He also stated that he maintains a close relationship with his daughters and that 

he has repaired his relationship with his ex-wife. Dr. Osentoski observed that Tyler’s 

“[c]ognitive ability appeared to be in the average range” and that there was “no evidence of 

thought disorder . . . [or] hallucinatory phenomena.” (Id. at 20.) She also noted that Tyler’s 

personal physician reported no signs of mental illness. Osentoski concluded that Tyler’s 

response to his divorce was a “brief reactive depressive episode,” but that, at the time of his 

evaluation, Tyler did not present any “evidence of mental illness.” (Id.) Tyler’s substance-abuse 

evaluation reveals no issues with alcohol or drug abuse, and it notes that Tyler has had no past 

legal involvement. 

C. Procedural History

 Tyler alleges that, on February 7, 2011, he unsuccessfully attempted to purchase a gun. 

The Hillsdale County Sheriff’s Office informed Tyler that he was ineligible to purchase a firearm 

because the NICS Background Check System indicated that he had previously been committed 

to a mental institution. In August 2011, Tyler appealed the denial to the FBI’s NICS section. On 

January 6, 2012, the NICS section denied Tyler’s appeal, explaining that the NICS Improvement 

Amendments Act of 2007 “provides states with the ability to pursue an ATF-approved relief of 

disability for individuals . . . who have been committed to a mental institution” but that “[u]ntil 

[Michigan] has an ATF approved relief from disabilities program in place [Tyler’s] federal 

 4

Tyler’s 2012 psychological evaluation notes that records from his hospitalization at Ypsilanti Regional 

Center are unavailable because the Hospital closed many years ago. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 7 

firearm rights may not be restored.” (DE 1, Compl. ¶ 33, Page ID 7; DE 1-2, Ex. G, Page ID 39–

40.) 

 On May 21, 2012, Tyler sued various county, state, and federal defendants in federal 

court.5 He alleged that, given Michigan’s lack of relief-from-disabilities program, § 922(g)(4) 

was unconstitutional as applied to him because it operated as an essentially permanent ban on his 

fundamental Second Amendment right to keep and bear arms. Tyler also averred that 

§ 922(g)(4), as applied, violates the equal protection clause and that the government’s failure to 

afford him notice and an opportunity to be heard on the matter violates the Due Process clauses 

of the Fifth and Fourteenth Amendments. 

 The federal defendants moved to dismiss Tyler’s complaint for failure to state a claim, 

pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, 

relying on Heller’s observation that prohibitions on the possession of firearms by the mentally ill 

were presumptively lawful and concluding that Tyler was not within the ambit of the Second 

Amendment as historically understood. The court went on to conclude that § 922(g)(4) would 

survive intermediate scrutiny. The court focused heavily on Congress’s decision to rely on prior 

judicial determinations in commitment proceedings and reasoned that there was a substantial 

relationship between the government’s interest in keeping firearms out of the hands of 

presumptively risky people and § 922(g)(4)’s prohibition, even without a means for postcommitment review. After the court dismissed Tyler’s claims against the federal defendants, the 

remaining parties agreed that the court’s rationale would likewise foreclose claims against the 

county defendants. The parties also recognized and agreed that Tyler’s claims under the Fifth 

and Fourteenth Amendments were coterminous with his Second Amendment claim. Tyler’s 

Second Amendment claim is the only issue on appeal. 

II. Standard of Review

 We review de novo the district court’s dismissal for failure to state a claim. Ass’n of 

Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). We must 

 5

Tyler stipulated to the dismissal of his claims against the state defendants. They are not party to this 

appeal. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 8 

accept the factual allegations in the plaintiff’s complaint as true and construe the complaint in the 

light most favorable to the plaintiff. Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 

716 (6th Cir. 2005). 

III. Analysis

 The Second Amendment provides: “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.” 

U.S. Const. amend. II. The Supreme Court recognized in Heller that the amendment secures “an 

individual right to keep and bear arms” without regard to militia service. 554 U.S. at 577, 595. 

The core right recognized in Heller is “the right of law-abiding, responsible citizens to use arms 

in defense of hearth and home.” Id. at 635. 

 This right, however, is “not unlimited, just as the First Amendment’s right of free speech 

[is] not.” Id. at 595. For example, the Heller court noted that the Second Amendment does not 

confer a right to possess any kind of weapon for whatever reason. Id. at 595, 627 (noting that the 

Second Amendment does not protect “the right of citizens to carry arms for any sort of 

confrontation” and recognizing the “historical tradition of prohibiting the carrying of dangerous 

and unusual weapons” (citations and internal quotation marks omitted)). The Court also 

recognized the government’s power to restrict the “carrying of firearms in sensitive places such 

as schools and government buildings.” Id. at 626. In addition to the what and the where of the 

Second Amendment, the Heller court also identified who the government may presumptively 

regulate. Whereas “law-abiding, responsible citizens” are at the core of the Amendment’s 

protections, “longstanding prohibitions on the possession of firearms by felons and the mentally 

ill” are “presumptively lawful.” Id. at 626–27 & n.26, 635. 

 Tyler’s claim implicates one of these presumptively lawful regulations governing who 

may possess a firearm, § 922(g)(4). He asserts that the Second Amendment forbids Congress 

from permanently prohibiting firearm possession by currently healthy individuals who were long 

ago committed to a mental institution. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 9 

A.

 Like several of our sister circuits, we have adopted a two-step framework to resolve 

Second Amendment challenges. United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); 

United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United States v. Chester (Chester 

I), 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 

2010). The first step “asks whether the challenged law burdens conduct that falls within the 

scope of the Second Amendment right, as historically understood.” Greeno, 679 F.3d at 518 

(citing Chester I, 628 F.3d at 680). If the government establishes that the challenged law 

regulates activity outside the scope of the Second Amendment as understood at the time of the 

framing of the Bill of Rights, the activity is unprotected and the law is not subjected to further 

constitutional scrutiny. Id. If, however, the historical evidence is inconclusive or suggests that 

the regulated activities—or in our case the regulated individuals—are not categorically 

unprotected, then we must ascertain the appropriate level of scrutiny and examine the “strength 

of the government’s justification for restricting or regulating the exercise of Second Amendment 

rights.” Id. (quoting Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011). Heller rejected 

rational-basis review but otherwise left the issue open. 554 U.S. at 628 n.27. Thus, unless the 

conduct at issue is categorically unprotected, the government bears the burden of justifying the 

constitutionality of the law under a heightened form of scrutiny. 

 Before beginning our two-step inquiry, however, we must answer a threshold question: 

To what extent does Heller itself provide an answer to the constitutionality of § 922(g)(4) as 

applied to Tyler? As noted above, the Heller Court recognized that the Second Amendment 

secures and protects an individual right to keep and bear arms. 554 U.S. at 595. But the Court 

also noted that the right was “not unlimited” and cautioned that “nothing in [its] opinion should 

be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and 

the mentally ill.” Id. at 595, 626. The Heller Court called these longstanding prohibitions 

“presumptively lawful.” Id. at 627 n.26. The Court’s assurances confirm that the Second 

Amendment is not an absolute barrier to congressional regulation of firearms and that some 

categorical prohibitions are assumed to be constitutional. See United States v. Carter (Carter I), 

669 F.3d 411, 420–21 (4th Cir. 2012); United States v. Skoien (Skoien II), 614 F.3d 638, 641 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 10 

(7th Cir. 2010) (en banc) (“[S]ome categorical disqualifications are permissible: Congress is not 

limited to case-by-case exclusions of persons who have been shown to be untrustworthy with 

weapons . . . .”). However, in making this observation, the Court expressly noted that it was not 

“clarify[ing] the entire field” of the Second Amendment, and, importantly, the Court reserved for 

later cases an exploration of the historical justifications for its enumerated prohibitions. Heller, 

554 U.S. at 635. 

Heller does not resolve this case on its own terms. While we “are obligated to follow 

Supreme Court dicta,” United States v. Marlow, 278 F.3d 581, 588 n.7 (6th Cir. 2002) (citation 

omitted), Heller only established a presumption that such bans were lawful; it did not invite 

courts onto an analytical off-ramp to avoid constitutional analysis.6 A presumption implies “that 

there must exist the possibility that the ban could be unconstitutional in the face of an as-applied 

challenge.” United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (applying intermediate 

scrutiny in challenge to § 922(g)(1)); Chester I, 628 F.3d at 679 (“[T]he phrase ‘presumptively

lawful regulatory measures’ suggests the possibility that one or more of these ‘longstanding’ 

regulations ‘could be unconstitutional in the face of an as-applied challenge.’” (quoting Williams, 

616 F.3d at 692)). We do not take Heller’s “presumptively lawful” dictum to foreclose 

§ 922(g)(4) from constitutional scrutiny. The mere fact that Congress created a categorical ban 

does not give the government a free pass; it must still be shown that the presumption applies in 

the instant case.7 See Williams, 616 F.3d at 692. As the Seventh Circuit has recognized, the 

Heller Court’s observation regarding the presumptive lawfulness of longstanding bans is 

precautionary, not conclusive: 

 6

“Some courts have treated Heller’s listing of ‘presumptively lawful regulatory measures,’ for all practical 

purposes, as a kind of ‘safe harbor,’” but “[t]his approach . . . approximates rational-basis review, which has been 

rejected by Heller.” Chester I, 628 F.3d at 679; see also United States v. McCane, 573 F.3d 1037, 1049 (10th Cir. 

2009) (Tymkovich, J., concurring) (“Rather than seriously wrestling with how to apply this new Second 

Amendment rule, . . . courts will continue to simply reference the applicable Heller dictum and move on.”). 

7

Two courts of appeals have refused to rely solely on Heller to resolve constitutional challenges to 

§ 922(g)(3), which makes it a crime for habitual drug addicts to possess a gun while they are abusing illegal 

substances. See Carter I, 669 F.3d at 420; United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010). Despite 

the fact that “[k]eeping guns away from habitual drug users is analogous to disarming felons,” Yancey, 621 F.3d at 

684, these courts have subjected § 922(g)(3) to a heightened form of means-end scrutiny. Id. at 683; Carter I, 

669 F.3d at 417. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 11 

Instead of resolving questions such as the one we must confront, the Justices have 

told us that the matters have been left open. The language . . . warns readers not 

to treat Heller as containing broader holdings than the Court set out to establish: 

that the Second Amendment creates individual rights, one of which is keeping 

operable handguns at home for self-defense. What other entitlements the Second 

Amendment creates, and what regulations legislatures may establish, were left 

open. The opinion is not a comprehensive code; it is just an explanation for the 

Court’s disposition. 

Skoien II, 614 F.3d at 640 (emphasis added). 

 Refusing to give Heller conclusive effect in this case is particularly proper given 

§ 922(g)(4)’s lack of historical pedigree. Heller’s analytical structure and its conclusions 

command resort to historical evidence in determining the scope of the Second Amendment. 

Although the Supreme Court observed that bans on gun possession by the mentally ill are 

“longstanding,” Heller, 554 U.S. at 626, “legal limits on the possession of firearms by the 

mentally ill . . . are of 20th Century vintage.” Skoien II, 614 F.3d at 641. Indeed, § 922(g)(4) 

was not enacted until 1968. Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213, 1220. 

As will be explained in more detail below, the parties have produced scant historical evidence 

conclusively supporting a permanent ban on the possession of guns by anyone who has been 

committed to a mental institution. In the absence of such evidence, it would be odd to rely solely 

on Heller to rubber stamp the legislature’s power to permanently exclude individuals from a 

fundamental right based on a past involuntary commitment. 

Heller spoke of bans on “the mentally ill.” 554 U.S. at 626. While we can only guess 

whether the Heller Court had in mind § 922(g)(4) as opposed to state restrictions, or no 

particular restriction at all8

 —we note that § 922(g)(4) does not use the phrase “mentally ill,” nor 

does it attempt to prohibit all currently mentally ill persons from firearm possession. Rather, the 

statute uses prior judicial adjudications—incompetency and involuntary commitment—as 

proxies for mental illness. See United States v. Rehlander, 666 F.3d 45, 50 (1st Cir. 2012) 

(“[S]ection 922(g)(4) does not bar firearms possession for those who are or were mentally ill and 

dangerous, but (pertinently) only for any person ‘who has been adjudicated as a mental 

defective’ or ‘has been committed to a mental institution.’”). Prior involuntary commitment is 

 8

The Heller Court did not cite § 922(g)(4) or any other provision of § 922(g) for that matter. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 12 

not coextensive with current mental illness: a point the government concedes in its brief, and a 

point Congress recognized when it enacted the NICS Improvement Amendments Act, thereby 

allowing states to restore the right to possess a gun to persons previously committed. 153 Cong. 

Rec. 28,948 (2007) (statement of Rep. C. McCarthy) (“[r]ecogniz[ing] that mental illness is not 

necessarily a permanent impediment” and noting that the NICS “would . . . allow States to 

establish procedures that permit a person disqualified on the basis of legal mental illness to prove 

to the State that he or she no longer poses a danger to society.”) Therefore, we may not resolve 

this case solely in reliance on Heller’s precautionary language, as we did in rejecting a Second 

Amendment challenge to a denial of an expungement motion in a case involving § 922(g)(1)’s 

bar on the possession of firearms by felons. See United States v. Carey, 602 F.3d 738, 740–41 

(6th Cir. 2010).9

 To rely solely on Heller’s presumption here would amount to a judicial endorsement of 

Congress’s power to declare, “Once mentally ill, always so.” This we will not do. Heller’s

presumption of lawfulness should not be used to enshrine a permanent stigma on anyone who 

has ever been committed to a mental institution for whatever reason. Some sort of showing must 

be made to support Congress’s adoption of prior involuntary commitments as a basis for a 

categorical, permanent limitation on the Second Amendment right to bear arms. This conclusion 

is particularly appropriate in this case. Tyler’s complaint and supporting documents suggest that 

Tyler is thirty years removed from a brief depressive episode and that he has had no intervening 

mental health or substance abuse problems since that time. This factual scenario calls into 

question the applicability of § 922(g)(4)’s lifetime ban to Tyler and likewise calls into question 

the applicability of Heller’s presumption of lawfulness to his Second Amendment claim. With 

this understanding in place, we proceed to consider Tyler’s claim under our two-step framework. 

B. Greeno Step One

Greeno’s first step asks “whether the challenged law burdens conduct that falls within the 

scope of the Second Amendment right, as historically understood.” 679 F.3d at 518 (citation 

 9

A felony conviction, unlike an adjudication of incompetence or involuntary commitment, “trigger[s] a 

number of disabilities, many of which impact fundamental constitutional rights.” United States v. Barton, 633 F.3d 

168, 175 (3d. Cir. 2011) (citing cases where the Supreme Court upheld laws disenfranchising felons and restricting 

felons’ fundamental right to travel). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 13 

omitted). Laws that regulate activity “falling outside the terms of the right as publicly 

understood when the Bill of Rights was ratified” will survive constitutional scrutiny. Id. (citation 

omitted). Because the relevant portion of § 922(g)(4) prohibits a class of persons—those with a 

prior involuntary commitment—we must determine whether those people, rather than their 

conduct, fall completely outside the reach of the Second Amendment. See Chester I, 628 F.3d at 

680; Skoien II, 614 F.3d at 649 (Sykes, J., dissenting). The government bears the burden at step 

one to conclusively demonstrate that the challenged statute burdens persons historically 

understood to be unprotected. See Greeno, 679 F.3d at 518. 

 The government relies on both historical sources and historical scholarship to trace 

§ 922(g)(4)’s historical lineage. First, it refers to “a proposal offered by the Pennsylvania antifederalist faction at the Pennsylvania Convention.” (CA6 R. 43, Appellee Br. at 17.) The 

proposal states in relevant part that “no law shall be passed for disarming the people or any of 

them, unless for crimes committed, or real danger of public injury from individuals.” The 

Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania 

to Their Constituents, 1787, reprinted in 2 Bernard Schwartz, The Bill of Rights, A Documentary 

History 665 (1971) (emphasis added). The government also cites Samuel Adams’s proposal at 

the Massachusetts ratifying convention. The proposal recommended that “the said Constitution 

be never construed to authorize Congress . . . to prevent the people of the United States who are 

peaceable citizens, from keeping their own arms.” Id. at 675, 681 (emphasis added). While 

these sources provide a clear basis for Heller’s recognition that “law-abiding, responsible 

citizens” are at the core of the Second Amendment, they move us no closer to an understanding 

of which individuals were considered part of that group in 1791. 

 The government also posits that Second Amendment scholars “agree that the right to bear 

arms was tied to the concept of a virtuous citizenry.” (Appellee Br. at 18 (quoting Yancey, 

621 F.3d at 684–85).) But, again, that the Founders understood the Amendment to protect the 

virtuous does not explain who was counted among that class. In an attempt to justify the lack of 

historical evidence, the government relies on a passage from Yancey explaining that “the absence 

of historical statutory prohibitions on firearm possession [by the mentally ill] may have been the 

consequence of the fact that ‘in eighteenth-century America, justices of the peace were 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 14 

authorized to lock up lunatics who were dangerous.’” 621 F.3d at 685 (quoting Carlton F.W. 

Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse 

Dixit, 60 Hastings L.J. 1371, 1377 (2009)). However, Professor Larson, in the same article 

relied on by Yancey, noted that “[o]ne searches in vain through eighteenth-century records to 

find any laws specifically excluding the mentally ill from firearms ownership.” 60 Hastings L.J. 

at 1376. 

 Ultimately, we agree with the district court that the “historical evidence cited by Heller

and [the government] does not directly support the proposition that persons who were once 

committed due to mental illness are forever ineligible to regain their Second Amendment rights.” 

(DE 28, Opinion, Page ID 239–40.) 

 Despite the lack of conclusive historical support, however, the district court, relying on 

Heller’s “presumptively lawful” dictum, concluded that “the government has satisfied its burden 

of establishing that the Second Amendment, as historically understood, does not extend to 

[Tyler].” (Id. at 240.) The government urges this same conclusion on appeal. It argues that “the 

Supreme Court’s statement in Heller that restrictions on gun ownership by the mentally ill and 

felons are ‘presumptively lawful’ indicates that prohibiting these groups of individuals from 

possessing firearms does not implicate the Second Amendment.” (CA6 R. 62, Appellee’s 

Supplemental Br. at 8.) Given that the district court came to what we see as contradictory 

conclusions about the place of mentally ill persons within the historical scope of the Second 

Amendment, the need arises to clarify how the Heller Court’s “presumptively lawful” language 

should inform our two-step analysis. 554 U.S. at 627 n.26. 

 To be certain, Heller’s dictum bears an uncertain relationship with the two-pronged 

approach we use to analyze Second Amendment claims.10 This tension is particularly acute in 

 10Other courts of appeals have had trouble reconciling Heller’s “presumptively lawful” language with a 

two-pronged approach that looks to history and then applies traditional means-end scrutiny. See NRA v. ATF (NRA 

I), 700 F.3d 185, 196 (5th Cir. 2012) (“It is difficult to discern whether [Heller’s exceptions], by virtue of their 

presumptive validity, either (i) presumptively fail to burden conduct protected by the Second Amendment, or 

(ii) presumptively trigger and pass constitutional muster under a lenient level of scrutiny.”); Chester I, 628 F.3d at 

679 (“It is unclear to us whether Heller was suggesting that ‘longstanding prohibitions’ such as these were 

historically understood to be valid limitations on the right to bear arms or did not violate the Second Amendment for 

some other reason.”). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 15 

cases like Tyler’s where the regulation at issue is of the type expressly mentioned by the Heller 

court. In mapping Heller’s “presumptively lawful” language onto the two-step inquiry, it is 

difficult to discern whether prohibitions on felons and the mentally ill are presumptively lawful 

because they do not burden persons within the ambit of the Second Amendment as historically 

understood, or whether the regulations presumptively satisfy some form of heightened meansend scrutiny. Ultimately, the latter understanding is the better option. See Chester I, 628 F.3d at 

679 (“[E]ven if the listed regulations were not historical limitations on the scope of the Second 

Amendment, the Court could still have viewed the regulatory measures as ‘presumptively 

lawful’ if it believed they were valid on their face under any level of means-end scrutiny 

applied.”). The Heller Court expressly declined to expound upon the historical justifications for 

bans on firearm possession by felons and the mentally ill. 554 U.S. at 635. In the face of what is 

at best ambiguous historical support, it would be peculiar to conclude that § 922(g)(4) does not 

burden conduct within the ambit of the Second Amendment as historically understood based on 

nothing more than Heller’s observation that such a regulation is “presumptively lawful.” 

554 U.S. at 627 n.26. We proceed to step two, then, with an understanding that people who have 

been involuntarily committed are not categorically unprotected by the Second Amendment. 

C. Greeno Step Two

Under Greeno, if the government does not meet its burden of establishing that the 

regulated conduct fell outside the scope of the Second Amendment as historically understood at 

the framing, then we proceed to analyze “the strength of the government’s justification for 

restricting or regulating the exercise of Second Amendment rights.” 679 F.3d at 518. It is here 

where we must decide and apply the appropriate level of scrutiny. Because Heller rules out 

rational basis, the choice is between intermediate and strict scrutiny. 554 U.S. at 628 n.27 (“If all 

that was required to overcome the right to keep and bear arms was a rational basis, the Second 

Amendment would be redundant with the separate constitutional prohibitions on irrational laws, 

and would have no effect.”); see also Chester I, 628 F.3d at 682. Given Heller’s focus on “core” 

Second Amendment activity, our choice of scrutiny level should be informed by “(1) ‘how close 

the law comes to the core of the Second Amendment right,’ and (2) ‘the severity of the law’s 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 16 

burden on the right.’” United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013) (quoting 

Ezell, 651 F.3d at 703); see also Chester I, 628 F.3d at 682. 

Although Tyler’s position on the appropriate level of scrutiny has changed during the 

pendency of his appeal, before the en banc court he asserts that strict scrutiny is appropriate. He 

maintains that (1) he “is the sort of responsible, law-abiding citizen that Blackstone and the 

Supreme Court have recognized” at the core of the Second Amendment, and that (2) § 922(g)(4) 

completely and permanently extinguishes his core right to use a firearm in defense of hearth and 

home and thus triggers strict scrutiny. (CA6 R.53, Appellant’s Supplemental Br. at 8–9.) 

We will take these arguments in turn. 

To hold, as Tyler requests, that he is at the core of the Second Amendment despite his 

history of mental illness would cut too hard against Congress’s power to categorically prohibit 

certain presumptively dangerous people from gun ownership. As the Seventh Circuit 

recognized, the Heller Court understood that Congress’s power to enact categorical 

disqualifications was “part of the original meaning” of the Second Amendment. Skoien II, 

614 F.3d at 640. Reviewing § 922(g)(4) under strict scrutiny would invert Heller’s presumption 

that prohibitions on the mentally ill are lawful. See Lac Vieux Desert Band of Lake Superior 

Chippewa Indians v. Mich. Gaming Control Bd., 276 F.3d 876, 879 (6th Cir. 2002) (noting that 

under strict scrutiny, “[w]e start by presuming that the ordinance is unconstitutional”).11 

Moreover, “[t]he risk inherent in firearms and other weapons distinguishes the Second 

Amendment right from other fundamental rights that have been held to be evaluated under a 

strict scrutiny test.” Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015). In light 

 11In his Heller dissent, Justice Breyer concluded that it would be inappropriate to apply strict scrutiny to 

the majority’s enumerated, presumptively lawful prohibitions: 

Respondent proposes that the Court adopt a “strict scrutiny” test, which would 

require reviewing with care each gun law to determine whether it is “narrowly 

tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 

521 U.S. 74, 82 (1997); see Brief for Respondent 54–62. But the majority 

implicitly, and appropriately, rejects that suggestion by broadly approving a set 

of laws—prohibitions on concealed weapons, forfeiture by criminals of the 

Second Amendment right, prohibitions on firearms in certain locales, and 

governmental regulation of commercial firearm sales—whose constitutionality 

under a strict-scrutiny standard would be far from clear. 

554 U.S. at 688 (Breyer, J., dissenting). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 17 

of this cogent difference, we should caution against imposing too high a burden on the 

government to justify its gun safety regulations, particularly where Congress has chosen to rely 

on prior judicial determinations that individuals pose a risk of danger to themselves or others. 

Tyler also argues that § 922(g)(4) completely and permanently extinguishes his core right 

to use a firearm in defense of hearth and home, and this heavy burden triggers strict scrutiny. 

Tyler gets it half right. In one way, § 922(g)(4) is a severe restriction. It permanently prohibits 

Tyler from possessing all types of firearms, even in his home. In another way, however, 

§ 922(g)(4) is narrow. Like the other provisions of § 922(g), § 922(g)(4) does not burden the 

public at large; it burdens only a narrow class of individuals who are not at the core of the 

Second Amendment—those previously adjudicated mentally defective or previously 

involuntarily committed. See United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010) (opting 

to apply intermediate scrutiny to § 922(g)(8) in part because the “statute[] prohibit[s] the 

possession of firearms by [a] narrow class[] of persons who, based on their past behavior, are 

more likely to engage in domestic violence”). We add that the permanence of § 922(g)(4)’s 

prohibition does not necessarily require us to apply strict scrutiny. Sections 922(g)(1) and (9), 

which also impose permanent bans, have been consistently reviewed under intermediate scrutiny. 

See Chovan, 735 F.3d at 1138 (applying intermediate scrutiny in challenge to § 922(g)(9));

United States v. Booker, 644 F.3d 12, 25 (1st Cir. 2011) (applying the equivalent of intermediate 

scrutiny to § 922(g)(9)); United States v. Staten, 666 F.3d 154, 159 (4th Cir. 2011) (applying 

intermediate scrutiny in challenge to § 922(g)(9)); Chester I, 628 F.3d at 682–83 (same); 

Williams, 616 F.3d at 692–93 (applying intermediate scrutiny in challenge to § 922(g)(1)). 

With strict scrutiny put aside, there is only one choice left: intermediate scrutiny. 

Intermediate scrutiny is preferable in evaluating challenges to § 922(g)(4) and similar 

prohibitions. See Bonidy, 790 F.3d at 1126 (reasoning that “intermediate scrutiny makes sense in 

the Second Amendment context” because of the inherent risk that the right of self-defense poses 

to others). Such an approach “appropriately places the burden on the government to justify its 

restriction[], while also giving [Congress] considerable flexibility to regulate gun safety.” Id.

Section 922(g)(4) does not burden the core of the Second Amendment right, but it does place a 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 18 

substantial burden on conduct and persons protected by the Second Amendment. Accordingly, 

we conclude that intermediate scrutiny is the appropriate standard.12

Many of our sister circuits have also held that intermediate scrutiny is applicable. In the 

wake of Heller, the federal courts of appeals have heard numerous constitutional challenges to 

the various prohibitions enumerated in § 922(g). A non-exhaustive review of these cases reveals 

a near unanimous preference for intermediate scrutiny.13 As noted previously, courts have 

consistently applied intermediate scrutiny to § 922(g)(9)’s ban on convicted domestic-violence 

misdemeanants. See Chovan, 735 F.3d at 1137–38; Staten, 666 F.3d at 159; Booker, 644 F.3d at 

25; Chester I, 628 F.3d at 682–83; Skoien II, 614 F.3d at 641–42 (requiring “some form of 

strong showing” approximating intermediate scrutiny). The Fourth Circuit has applied 

intermediate scrutiny to § 922(g)(3), which prohibits gun possession by drug addicts and 

unlawful users of controlled substances. See Carter I, 669 F.3d at 417; see also Yancey, 

621 F.3d at 683 (declining to pick a specific form of scrutiny but requiring a “strong showing 

that [§ 922(g)(3)] was substantially related to an important governmental objective”). The 

Seventh Circuit has also applied intermediate scrutiny to § 922(g)(1)’s ban on gun ownership by 

felons. Williams, 616 F.3d at 692. Likewise, the Fourth and Tenth Circuits have subjected 

§ 922(g)(8), which disallows gun possession by individuals subject to domestic protective orders, 

to intermediate scrutiny.14 United States v. Mahin, 668 F.3d 119, 124 (4th Cir. 2012); United 

States v. Chapman, 666 F.3d 220, 226 (4th Cir. 2012); Reese, 627 F.3d at 802. 

 12We do not suggest that strict scrutiny will never be applicable in a Second Amendment challenge to a 

gun regulation. As the Fourth Circuit noted, “[t]he Second Amendment is no more susceptible to a one-size-fits-all 

standard of review than any other constitutional right. Gun-control regulations impose varying degrees of burden on 

Second Amendment rights, and individual assertions of the right will come in many forms.” Chester I, 628 F.3d at 

682 (citation omitted). 

13Some courts have declined to wade “into the ‘levels of scrutiny’ quagmire.” Skoien II, 614 F.3d at 642. 

Greeno, which necessitates selection of an appropriate level of scrutiny, forecloses this option. 679 F.3d at 518. 

Nevertheless, even those courts that have avoided the scrutiny morass have adopted inquiries approximating 

traditional intermediate scrutiny. See, e.g., Booker, 644 F.3d at 25 (requiring “a substantial relationship between the 

restriction and an important governmental objective”); Yancey, 621 F.3d at 683; Skoien II, 614 F.3d at 641–42 

(requiring “some form of strong showing” that the law is “substantially related to an important governmental 

objective”). 

14Judge Sutton would have the Court jettison tiers of scrutiny altogether and adopt an individualized 

approach to the Second Amendment instead. While his approach has some logical appeal, we will not strike out on 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 19 

D. Applying Intermediate Scrutiny

While the vocabulary of intermediate scrutiny varies across courts, “all forms of the 

standard require (1) the government’s stated objective to be significant, substantial, or important; 

and (2) a reasonable fit between the challenged regulation and the asserted objective.” Chovan, 

735 F.3d at 1139 (citation omitted); see also Clark v. Jeter, 486 U.S. 456, 461 (1988). “All that 

is required is ‘a fit that is not necessarily perfect, but reasonable; that represents not necessarily 

the single best disposition but one whose scope is in proportion to the interest served.’” Neinast 

v. Bd. of Trs. of Columbus Metro. Library, 346 F.3d 585, 594 (6th Cir. 2003) (quoting Bd. of Trs. 

of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). Because a perfect fit is not required, the 

government need not prove that there is “no burden whatsoever on [the claimant’s] . . . right 

under the Second Amendment.” Chapman, 666 F.3d at 228. 

i. Important Governmental Interest

The animating interest of § 922(g) “was to keep firearms out of the hands of 

presumptively risky people.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6 (1983); 

see also Huddleston v. United States, 415 U.S. 814, 824 (1974) (“The principal purpose of the 

federal gun control legislation . . . was to curb crime by keeping ‘firearms out of the hands of 

those not legally entitled to possess them because of age, criminal background, or 

incompetency.’” (quoting S. Rep. No. 90–1501, at 22 (1968)). In addition to this general 

interest, the government offers two additional rationales more specifically related to § 922(g)(4): 

protecting the community from crime and preventing suicide. See 114 Cong. Rec. 21,829 (1968) 

(statement of Rep. Bingham) (noting Congress’s purpose in § 922(g)(4) to “cut down or 

eliminate firearms deaths caused by persons who are not criminals, but who commit sudden, 

unpremeditated crimes with firearms as a result of mental disturbances”). These interests are not 

only legitimate, they are compelling. See Washington v. Glucksberg, 521 U.S. 702, 735 (1997); 

Schall v. Martin, 467 U.S. 253, 264 (1984); see also United States v. Salerno, 481 U.S. 739, 747 

(1987) (“There is no doubt that preventing danger to the community is a legitimate regulatory 

goal.”); United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011) (“Although the 

 our own analytical path and part ways with nearly all of the circuit courts to analyze gun regulations, including 

§ 922(g), post-Heller. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 20 

government’s interest need not be ‘compelling’ under intermediate scrutiny, cases have 

sometimes described the government’s interest in public safety in that fashion.”). 

ii. Is § 922(g)(4) Substantially Related to the Government’s Interest?

The question then becomes one of fit. The government must establish a reasonable fit 

between its important objectives of public safety and suicide prevention and its permanent ban 

on the possession of firearms by persons adjudicated to be mentally unstable, some of them long 

ago. See Chovan, 735 F.3d at 1140. Under intermediate scrutiny, “[t]he burden of justification 

is demanding and it rests entirely on the State.” United States v. Virginia, 518 U.S. 515, 533 

(1996). In discharging this burden, the government can rely on a wide range of sources, 

including legislative history, empirical evidence, case law, and even common sense, but it may 

not “rely upon mere ‘anecdote and supposition.’” Carter I, 669 F.3d at 418 (quoting United 

States v. Playboy Enter. Grp., Inc., 529 U.S. 803, 822 (2000)). 

The quantity and quality of support necessary “to satisfy heightened judicial scrutiny of 

legislative judgments will vary up or down with the novelty and plausibility of the justification 

raised.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000). While the Constitution may 

not require a specific method of proof, the Fourth Circuit’s experience with §§ 922(g)(3) and (9) 

illustrates that some reference to legislative findings, academic studies, or other empirical data is 

necessary to support the categorical disarmament of citizens, regardless of whether that 

disarmament is permanent or temporary. 

In Chester I, the Fourth Circuit remanded a challenge to § 922(g)(9), which imposes a 

permanent ban on convicted domestic-violence misdemeanants. 628 F.3d at 674. In that case, 

the government offered “numerous plausible reasons why the disarmament of domestic violence 

misdemeanants is substantially related to an important government goal,” but failed “to offer 

sufficient evidence” of such a substantial relationship. Id. at 683.15 Likewise, another panel of 

 15After remand and another appeal, the court found that § 922(g)(9) satisfied intermediate scrutiny. 

The court relied on an intervening case, Staten, 666 F.3d at 166–67, where the government presented evidence 

showing that “the actual recidivism rate among domestic violence misdemeanants . . . is at least 33.3%” and that 

nearly half of all homicides of females nationally were committed by a domestic partner. United States v. Chester, 

(Chester II), 514 F. App’x 393, 395 (4th Cir. 2013) (citing Staten, 666 F.3d at 167). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 21 

the Fourth Circuit remanded a challenge to § 922(g)(3) despite the fact that its prohibition, unlike 

§ 922(g)(9), has a “limited temporal reach” which “tracks the ongoing choices of individuals 

either to remain drug users or to quit drug abuse.” Carter I, 669 F.3d at 419, 421. In that case, 

the government chose “not to rely on academic research or other empirical data to demonstrate 

the connection between drug use and gun violence.” Id. at 418. While it recognized that the 

“record need not be as fulsome as that necessary to justify § 922(g)(9),” the court faulted the 

government’s decision to argue that § 922(g)(8)’s fit was “a matter of common sense.” Id. at 

418–19. 

As noted previously, the ban imposed by § 922(g)(4) on Tyler, and persons similarly 

situated to Tyler, is effectively permanent. Because § 925(c)’s relief-from-disabilities program 

remains unfunded and because Michigan has not chosen to create a qualifying relief program 

under the 2008 NICS Amendments, there is no path available for Tyler to seek the restoration of 

his Second Amendment right. The same is true for others barred by § 922(g)(4) in at least 

nineteen other states. Thus, some evidence of the continuing need to disarm those long ago 

adjudicated mentally ill is necessary to justify § 922(g)(4)’s means to its ends. 

The government relies on both legislative history and empirical evidence to support 

§ 922(g)(4). First, it points to legislative observations about the role of mental illness in two 

public tragedies, the school shooting at Virginia Tech and a shooting in New York. As Congress 

observed, individuals with proven histories of mental illness and with recent involuntary 

commitments perpetrated both shootings. (CA6 R.62 Appellee’s Supplemental Br. at 18–19 

(citing Pub. L. No. 110-180, §§ 2(9) & 121 Stat. at 2560; 153 Cong. Rec. H16926 (daily ed.) 

(Dec. 19, 2007) (statement of Rep. Boucher).))16 This is compelling evidence of the need to bar 

firearms from those currently suffering from mental illness and those just recently removed from 

an involuntary commitment. It does not, however, answer why Congress is justified in 

permanently barring anyone who has been previously committed, particularly in cases like 

 16Seung-Hui Cho was committed less than two years before the tragedy at Virginia Tech. See Brigid 

Schulte and Chris L. Jenkins, Cho Didn’t Get Court-Ordered Treatment, Washington Post, May 7, 2007, 

http://www.washingtonpost.com/wp-dyn/content/article/2007/05/06/AR2007050601403.html. Peter Troy was 

committed less than a year before he shot and killed two people in New York. See Bruce Lambert, Nassau Agency 

Lost Track of Suspect Before Killings, N. Y. Times, March 20, 2002, 

http://www.nytimes.com/2002/03/20/nyregion/nassau-agency-lost-track-of-suspect-before-killings.html?ref=topics. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 22 

Tyler’s, where a number of healthy, peaceable years separate the individual from their troubled 

history. 

In addition to these legislative observations, the Brady Center to Prevent Gun Violence 

has supplied studies showing that those with a past suicide attempt are more likely than the 

general public to commit suicide at a later date and that firearms are the most likely method for 

committing suicide.17 (CA6 R. 70, Brady Center Amicus Br., at 12 & n.7 (citing Attempters’ 

Longterm Survival, Harvard Univ. Sch. of Pub. Health; Suicide and Self-Inflicted Injury, Centers 

for Disease Control & Prevention (Feb. 6, 2015), http://www.cdc.gov/nchs/fastats/suicide.htm).) 

This evidence helps to explain why it might be reasonable to prevent those with a past suicide 

attempt from ever possessing firearms, but it does not fully justify the need to permanently 

disarm anyone who has been involuntarily committed for whatever reason. Importantly, nothing 

in this record suggests that Tyler has ever attempted suicide or that a significant proportion of 

individuals prohibited by § 922(g)(4) have attempted suicide. 

Likewise, the evidence relied on by the government in its motion to dismiss and seized on 

by Judge Moore’s dissent highlights why it may be appropriate to prohibit firearm ownership by 

currently mentally ill individuals and those who were recently committed, but it does little to 

justify § 922(g)(4)’s inflexible, lifetime ban. See Slip Op. at 57–59 (Moore, J., dissenting); 

(DE 23, Gov’t Mot. to Dismiss, Page ID 171–73 (citing Frederick E. Vars & Amanda Adcock 

Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 Wake Forest L. Rev. 1, 21 (2013)).) 

One of the studies cited indirectly by the government, a meta-analysis of studies of those with 

prior involuntary commitments, clouds rather than clarifies the connection between prior 

commitment and future dangerousness. 48 Wake Forest L. Rev. at 21–22 (citing E. Clare Harris 

& Brian Barraclough, Suicide as an Outcome for Mental Illness: A Meta-Analysis, 170 Brit. J. 

Psychiatry 205 (1997)). While the study did find that previously committed individuals have a 

suicide risk “thirty-nine times greater than that expected,” it explained that this risk was greatest 

 17In its initial brief, the government relied on statistics from the National Institute of Mental Health 

(“NIMH”) showing that prior suicide attempt is a risk factor for later suicide completion. (See CA6 R. 32, Appellee 

Br. at 26.) The hyperlink supplied by the government does not lead to a webpage supporting this proposition, but 

other information on the NIMH’s website does explain that a prior suicide attempt is a significant risk factor for 

suicide. See Thomas Insel, Director’s Blog, The Under-recognized Public Health Crisis of Suicide, Sept. 10, 2010, 

http://www.nimh.nih.gov/about/director/2010/the-under-recognized-public-health-crisis-of-suicide.shtml. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 23 

“following short first admissions.” 170 Brit. J. Psychiatry at 220. Moreover, of the 14,000 

patients studied in the meta-analysis, 98% were studied for only a year following their 

commitment, and the remaining 2% were studied anywhere from 2.5 to 8.5 years postcommitment. Id. at 219–20. The study ultimately concluded that “[s]uicide risk seems highest at 

the beginning of treatment and diminishes thereafter.” Id. at 223. In support of its motion to 

dismiss, the government also presented evidence that relapse and readmission are common 

following an initial commitment, (see DE 23, Gov’t Mot. to Dismiss, Page ID 174), but the 

studies the government relied on only analyzed behavior over 1-year and 22-month periods 

respectively and, thus, do not explain why a lifetime ban is reasonably necessary. (See id.) 

In its amicus brief, the States United to Prevent Gun Violence notes that after 

Connecticut began preventing individuals with prior commitments from purchasing firearms, the 

state “saw a 53% reduction in rates of violent crime perpetrated by such individuals.” (CA6 R. 

81, Amicus Br. at 11.) This may be evidence that prohibiting gun possession lowers violent 

crime rates, but the data does not meaningfully compare previously committed individuals’ 

propensity for violence with that of the general population. And without such a comparison, the 

data is insufficient to justify § 922(g)(4)’s perpetual curtailment of a constitutional right. Add to 

that the findings of a study cited by Tyler in his briefs before this court, which compares the rates 

of violence committed by individuals discharged from psychiatric inpatient facilities and the 

general population in the same communities. (CA6 R. 19, Appellant Br. at 47–48 (citing Henry 

J. Steadman, et al., Violence by People Discharged from Acute Psychiatrict Inpatient Facilities 

and by Others in the Same Neighborhoods, 55 Archives Gen. Psychiatry 393 (1998)).) The 

authors found that, when controlling for substance abuse problems, the rates of violent acts 

perpetrated by involuntarily committed patients and the general population in one community in 

Pittsburgh was “statistically indistinguishable.” 55 Archives Gen. Psychiatry at 400. Moreover, 

the study’s “most unexpected finding [was] the decline in the proportion of subjects engaging in 

violence over time.” Id. The authors opined that “[r]ates of violence may peak around the time 

of hospital admission, when patients are in acute crisis, and remain high for a period of time after 

discharge because many patients still have active mental disorders after they leave the hospital.” 

Id. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 24 

The government has not presented sufficient evidence of the continued risk presented by 

persons who were previously committed. Such evidence has been integral in decisions 

upholding other portions of § 922(g) that impose permanent bans. For instance, the Fourth 

Circuit, in upholding § 922(g)(9) under intermediate scrutiny, relied on empirical studies 

estimating the overall domestic violence recidivism rate to be between 35% and 80% and arrived 

at “a conservative conclusion . . . that the actual recidivism rate among domestic violence 

misdemeanants (including re-arrests and unreported incidents) is at least 33.3%.” Staten, 

666 F.3d at 166–67. The court also noted that “the Seventh Circuit sitting en banc and the 

First Circuit have relied upon this same social science evidence to conclude that the recidivism 

rate among domestic violence misdemeanants is high.” Id. at 166 (citing Booker, 644 F.3d at 26; 

Skoien II, 614 F.3d at 644); see also Chovan, 735 F.3d at 1140 (relying on the same evidence 

cited in Skoien II, 614 F.3d at 644, to conclude that “a high rate of domestic violence recidivism 

exists”). Likewise, the Seventh Circuit also upheld § 922(g)(1) under intermediate scrutiny 

based, in part, on a study that showed the likelihood that convicted robbers, like the 

plaintiff, were highly likely to recidivate. Williams, 616 F.3d at 693 (citing Note, Selective 

Incapacitation: Reducing Crime Through Predictions of Recidivism, 96 Harv. L. Rev. 511, 515 

& n.24 (1982)). 

Relatedly, the temporal limitation of other § 922(g) bans has been a key consideration in 

finding that those regulations pass muster under heightened scrutiny. See, e.g., Mahin, 668 F.3d 

at 125 (noting that § 922(g)(8) is “exceedingly narrow” because it only applied “for the limited 

duration of [a] domestic violence protective order”); Carter I, 669 F.3d at 419 (upholding 

§ 922(g)(3) under intermediate scrutiny in large part because “Congress tailored [§ 922(g)(3)] to 

cover only the time period during which it deemed [drug users] to be dangerous”); Chapman, 

666 F.3d at 228 (finding that § 922(g)(8) satisfied intermediate scrutiny’s reasonably fit 

requirement in large part because its regulatory sweep was limited to the duration of a domestic 

violence protective order); Yancey, 621 F.3d at 686–87 (upholding § 922(g)(3) under 

intermediate scrutiny, in part, because plaintiff “could regain his right to possess a firearm 

simply by ending his drug abuse” and “[i]n that sense, the restriction in § 922(g)(3) is far less 

onerous than those affecting felons and the mentally ill”). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 25 

None of the government’s evidence squarely answers the key question at the heart of this 

case: Is it reasonably necessary to forever bar all previously institutionalized persons from 

owning a firearm? But perhaps the biggest problem for the government is Congress’s most 

recent answer to this very question: No, it is not. From 1986 to 1992, federal law provided a 

relief-from-disabilities program whereby individuals prohibited by federal law from possessing 

firearms could “appl[y] to the Attorney General for relief from [their] disabilities.” § 925(c). 

In 1992, Congress defunded this program, noting that reviewing applications was a “very 

difficult and subjective task which could have devastating consequences for innocent citizens if 

the wrong decision is made.” S. Rep. No. 102-353, at 19 (1992). In 2008, Congress changed its 

mind. It authorized federal grants to the states for their help in shoring up the NICS instant 

background check system after a gunman with “a proven history of mental illness” killed dozens 

at Virginia Tech. See NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, § 2(9) 

(Findings), 122 Stat. 2559, 2560 (2008). To receive federal funds, states are required to create a 

relief-from-disabilities program that allows individuals barred by § 922(g)(4) to apply to have 

their rights restored. Id. at §§ 103, 105, 122 Stat. at 2568–69. According to the government, 

thirty-one states currently have such relief programs. The NICS Improvement Amendments Act 

is a less restrictive alternative to the permanent bar created by § 922(g)(4). It is a clear indication 

that Congress does not believe that previously committed persons are sufficiently dangerous as a 

class to permanently deprive all such persons of their Second Amendment right to bear arms. 

The government urges a comparison of this case to Chapman, where the Fourth Circuit 

rejected an as-applied challenge to § 922(g)(8). 666 F.3d at 231. The court observed that the 

statute’s constitutionality was not undermined even though it may be “somewhat over-inclusive” 

because “not every person who falls within[] it would misuse a firearm . . . if permitted to 

possess one.” Id. Based on this passage, the government concludes that § 922(g)(4) “would not 

be unconstitutional even if plaintiff could demonstrate that there were some number of people 

who were involuntarily committed to a mental institution in the past, but pose no greater risk of 

firearms violence than the general public currently.” (CA6. R. 62, Supplemental Br. at 17.) 

We agree. Under intermediate scrutiny, a statute can permissibly regulate more conduct (or 

more people) than necessary. However, the amount of overreach must be reasonable, and it is 

the government’s burden, not Tyler’s, to prove that § 922(g)(4)’s “scope is in proportion to the 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 26 

interest served.” Neinast, 346 F.3d at 594 (quoting Fox, 492 U.S. at 480). In this light, the 

passage from Chapman has limited usefulness. First, § 922(g)(8) is not analogous to § 922(g)(4) 

because § 922(g)(8)’s bar is limited to the duration of a domestic court order. Second, without 

any longitudinal evidence documenting that previously committed people, on average, pose a 

greater threat of violence than members of the general public, we have no way of knowing if 

§ 922(g)(4)’s permanent ban is “somewhat over-inclusive” or if it is much more so. 

We recognize that “[s]ound policymaking often requires legislators to forecast future 

events and to anticipate the likely impact of these events based on deductions and inferences for 

which complete empirical support may be unavailable.” Turner Broad. Sys., Inc. v. FCC, 

512 U.S. 622, 665 (1994). And we recognize that in the context of gun safety, “the expense and 

other difficulties of individual determinations” may necessitate “the inherent imprecision of a 

prophylactic rule.” Weinberger v. Salfi, 422 U.S. 749, 777 (1975). Our opinion should not be 

taken to call into question Congress’s power to regulate categorically in this arena.18 However, 

§ 922(g)(4) imposes a lifetime ban on a fundamental constitutional right. More evidence than is 

currently before us is required to justify such a severe restriction. 

 18Here, we should address Tyler’s claim, which is echoed in Judge Sutton’s concurrence, that “the Second 

Amendment affords him at least an opportunity to demonstrate he is the safe, sane, stable individual his doctors say 

he is and to thereby demonstrate that § 922(g)(4) no longer remains constitutional as applied to him.” CA6 R.19, 

Appellant Br. at 43–44); see also Slip. Op at 45 (Sutton, J., concurring). This position goes too far. We will not 

read Heller to require an individualized hearing to determine whether the government has made an improper 

categorization, and we question the institutional capacity of the courts to engage in such determinations. In Bean, 

the Supreme Court addressed whether the federal courts had jurisdiction to review, in the first instance, a relieffrom-disability application under § 925(c). 537 U.S. at 72–73. The Court expressed significant doubt about the 

ability of courts to conduct a de novo review, noting that “[w]hether an applicant is ‘likely to act in a manner 

dangerous to public safety’ presupposes an inquiry into that applicant’s background—a function best performed by 

the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation.” 

Id. at 77. Further, the Court noted that “the ‘public interest’ standard calls for an inherently policy-based decision 

best left in the hands of an agency.” Id.; see also Mullis, 230 F.3d at 219 (noting that “[w]hile district courts are 

well equipped to make credibility judgments and factual determinations, they are without the tools necessary to 

conduct a systematic inquiry into an applicant's background”). Given these doubts, we feel it unwise to reject 

traditional tiers of scrutiny analysis in favor of individualized determinations. 

That said, providing Tyler a hearing is certainly one option the government has at its disposal, assuming 

Congress is willing to appropriate money to the Executive for such determinations. But it is not required to justify 

the statutory scheme under intermediate scrutiny—although, we imagine that if Congress were to fund the review 

provision embodied in 18 U.S.C. § 925(c), it would likely render § 922(g)(4) constitutional under any form of 

scrutiny. Likewise, on remand, the government may, if it chooses, attempt to prove that § 922(g)(4) is constitutional 

as applied to Tyler because he is not the peaceable, healthy, and responsible citizen he claims to be in his complaint. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 27 

 We cannot conclude, based on the current record, that the government has carried its 

burden to establish a reasonable fit between the important goals of reducing crime and suicides 

and § 922(g)(4)’s permanent disarmament of all persons with a prior commitment. There is no 

indication of the continued risk presented by people who were involuntarily committed many 

years ago and who have no history of intervening mental illness, criminal activity, or substance 

abuse. Indeed, Congress’s evidence seems to focus solely on the risk posed by those presently 

mentally ill and who have been recently committed. Any prospective inference we may draw 

from that evidence is undercut by Congress’s recognition, in the 2008 NICS Amendments, that a 

prior involuntary commitment need not be a permanent impediment to gun ownership. 

IV. Conclusion

 Thus, we conclude that Tyler has a viable claim under the Second Amendment and that 

the government has not justified a lifetime ban on gun possession by anyone who has been 

“adjudicated as a mental defective” or “committed to a mental institution,” 18 U.S.C. 

§ 922(g)(4). Because there are a number of separate opinions in this case, it is imperative that 

we clearly state the next steps. As I read the opinions, ten of us would reverse the district court; 

six of us would not. And at least twelve of us agree that intermediate scrutiny should be applied, 

if we employ a scrutiny-based analysis. It seems therefore that, given the views of the court, the 

proper resolution of the case is to reverse and remand to the district court for the application of 

intermediate scrutiny to determine the statute’s constitutionality as applied to Tyler. As we see 

it, the government may justify § 922(g)(4) in one of two ways: (1) with additional evidence 

explaining the necessity of § 922(g)(4)’s lifetime ban or (2) with evidence showing that 

§ 922(g)(4) is constitutional as applied to Tyler because he would be a risk to himself or others 

were he allowed to possess a firearm. 

 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 28 

_________________ 

CONCURRENCE 

_________________ 

 McKEAGUE, Circuit Judge, concurring. I find myself in agreement both with the 

majority’s analysis and with Judge Sutton’s concurrence. I agree with Judge Sutton that the 

Heller Court was referring to the “mentally ill” in the present sense. Mental illness is not static, 

so it cannot be constitutional to permanently prevent Clifford Tyler from exercising his Second 

Amendment right without affording him some sort of process to demonstrate that the nonpermanent label of “mentally ill” no longer applies to him. In that respect, I agree with Judge 

Sutton that selecting a tier of scrutiny is not necessary to resolve this case. I also agree that it 

would be fruitless to give the government a second bite at the apple to show that 18 U.S.C. 

§ 922(g)(4), sans relief-from-disability process, is adequately tailored. Tyler has stated a claim 

for relief and is entitled to the process necessary to demonstrate he is fit to possess a gun. 

Yet many of our sister circuits have held tiers of scrutiny apply in the Second 

Amendment context, and in United States v. Greeno, 679 F.3d 510 (6th Cir. 2012), our circuit 

adopted a two-step approach to (1) determine “whether the challenged law burdens conduct that 

falls within the scope of the Second Amendment” and (2) apply “the appropriate level of 

scrutiny” to determine whether the law is constitutional. Greeno, 679 F.3d at 518. Heller did 

not mandate this approach, but it also did not foreclose it. If we continue to apply Greeno’s twostep analysis, I fully agree with the majority’s choice of intermediate scrutiny. I also agree that 

the government has fallen woefully short of demonstrating the required reasonable fit between 

§ 922(g)(4) and the government’s substantial interests. 

Until the Supreme Court clarifies its preferred approach, I agree with the majority and

Judge Sutton in that once mentally ill does not mean always mentally ill, and under either 

analytical route we must reverse the district court’s decision. 

 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 29 

_________________ 

CONCURRENCE 

_________________ 

 HELENE N. WHITE, Circuit Judge, concurring. I agree with the lead opinion that the 

government has not met its burden under intermediate scrutiny. I write separately to address a 

few additional points. 

At this stage of the proceedings, we must assume that Tyler is not mentally ill, and so I 

agree with the lead opinion that we deal here with a prohibition on gun ownership by a person 

who falls within the ambit of the Second Amendment. The question then is whether Congress’s 

choice to disqualify anyone “who has been adjudicated as a mental defective or who has been 

committed to a mental institution,” 18 U.S.C. § 922(g)(4), is a constitutionally permissible proxy 

for “the mentally ill,” or, applying intermediate scrutiny, is substantially related to, and a 

“reasonable fit” with, the government’s important interests in reducing crime and preventing 

suicide. 

My colleagues’ concurring opinions find clarity and certainty that eludes me. Judge 

Sutton posits an on/off switch, apparently derived from Heller, that inquires, “Is the individual 

properly characterized as a felon today or as mentally ill today in a way that makes him 

dangerous to himself or others?” Concurring Op. at 47 (Sutton, J.). Similarly, Judge Batchelder 

appears to argue that, consistent with the common understanding of rights when the Second 

Amendment was ratified, the right to keep and bear arms must be restored once the individual 

regains his “reason.” Concurring Op. at 36–38 (Batchelder, J.). I readily accept the premise that 

“once mentally ill does not mean always mentally ill,” Concurring Op. at 45 (Sutton, J.), but the 

translation of that truth into the asserted right to an individualized “present-tense” determination 

is less clear, as are the contours of such a determination, or what constitutes having regained 

reason. 

I am uncertain whether, apart from the permanence of the disqualification, my concurring 

colleagues accept § 922(g)(4) as a permissible proxy for “the mentally ill,” or whether they 

conclude that Congress cannot constitutionally rely on a state adjudication that someone should 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 30 

be involuntarily committed or is a “mental defective” as conclusive evidence of mental illness. 

Assuming these are constitutionally permissible proxies, as I believe they are, does a person so 

adjudicated have the right to put the government to its proofs immediately after being released 

from confinement, or would some period of disqualification without the opportunity for an 

individualized determination of mental health pass constitutional muster? If the person is not 

presently mentally ill,1 how does the potential for relapse factor in, if at all? And, if the on/off 

switch is a function of mental illness and reason, how does dangerousness enter into the 

equation?2 Further, what is the legal status of a person whose condition after release from 

involuntary commitment requires ongoing treatment or medication, but who functions normally 

and responsibly with that treatment or medication—is that person mentally ill or entitled to a 

restoration of the right to keep and bear arms? Also, is the statutory test of Section 105 

sufficient—that the circumstances of the adjudication or commitment, “and the person’s record 

and reputation, are such that the person 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”—or is it too 

far removed from the constitutionally permissible disqualification of mental illness? See NICS 

Improvement Amendments Act of 2007, Pub. L. No. 110–180, § 105. Although the on/off, 

present-reason inquiries posited by the concurring judges appear on the surface to be simple and 

straightforward, they have the potential to be less workable than the means-end scrutiny the 

opinions reject. 

In an ideal world, every disability or privilege would be subject to accurate individual 

adjudication based on individual facts, but, assuming such adjudication is even possible in the 

 1

It is unclear whether Judge Batchelder finds mere mental illness a sufficient disqualification, or whether 

insanity, i.e., the loss of reason, is required to remove someone from the ambit of the Second Amendment. 

2

It is also unclear to me how the on/off switch operates with respect to felons. I understand Judge Sutton to 

accept as constitutional the permanent bar on gun possession by all felons, even non-violent ones, but the rationale 

and even some of the language advocating the present-tense inquiry applies to felons as well. Separate and apart 

from the on-switch being engaged in error due to misidentification—which is a red-herring—criminality is no more 

permanent than mental illness; just as mental illness is cured, felons are rehabilitated, and just as formerly mentally 

ill persons have achieved greatness, so have rehabilitated felons. Further, although Judge Sutton finds it self-evident 

that the lifetime disqualification cannot be applied to felons who have been pardoned, this is a function of statute. 

See 18 U.S.C. § 921(a)(20). A pardoned felon has not had the off switch engaged in error; rather, he has been 

forgiven. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 31 

present context,3 the Constitution permits legislative judgments and proxies, provided the 

regulation satisfies the appropriate level of scrutiny. I agree with the lead opinion and Judge 

Moore’s dissent that this court is better equipped to apply means-ends scrutiny to Congress’s 

chosen test for mental illness than to devise a new “on/off” or “restored-to-reason” test that 

offers only the illusion of certainty. Courts have long applied means-end scrutiny in the First 

Amendment context and many of our sister circuits have applied this framework to Second 

Amendment challenges as well. 

The question remains whether § 922(g)(4) is a reasonable fit with the important 

governmental interest in preventing crime and suicide. The definitional fit—adjudication as a 

mental defective or involuntary commitment—is patently reasonable, but the durational fit is 

troubling. As the lead opinion explains, although the government has connected mental illness 

with crime and suicide, it has failed to provide adequate support for a lifetime disqualification of 

persons previously committed. Therefore, because the government has not, on this record, met 

its burden to establish a reasonable fit between § 922(g)(4)’s permanent disqualification and the 

government’s important interests in reducing crime and suicides, remand is necessary. 

 

 3

Congress permitted the states to enact relief-from-disability programs, and mandated the Section 105 

program as a condition of participation in grant programs, Pub. L. No. 110–180, § 103, but Congress also found that 

ATF officials who had been charged with administering the defunded federal relief-from-disabilities program 

determined that it was virtually impossible to know with any certainty the present dangerousness of persons who had 

once been committed due to mental illness, see H.R. Rep. No. 102-618, at 14 (1992). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 32 

_______________________________________________ 

CONCURRING IN MOST OF THE JUDGMENT 

_______________________________________________ 

BOGGS, Circuit Judge, concurring in most of the judgment. Each of today’s opinions 

holding that the district court should be reversed makes excellent points with respect to this hotly 

controverted issue and the complicated structure that Congress has established, and I have joined 

each of them. I write separately to add to the number of opinions only to state the following. 

 Because the majority of the court has determined not to revisit our precedent in Greeno, 

which requires that we choose and apply a level of scrutiny, I believe that the analysis I laid out 

in the panel’s now-vacated opinion is correct so long as we are bound by Greeno. The proper 

level of scrutiny is strict scrutiny, as with other fundamental constitutional rights, and under that 

standard of review, the district court’s opinion cannot stand for the reasons stated in that opinion. 

 In light of the view of the majority of the court, however, I acknowledge that the 

directions given in the lead opinion to the district court are appropriate under the opinion’s 

intermediate-scrutiny standard of review. 

 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 33 

_______________________________________________ 

CONCURRING IN MOST OF THE JUDGMENT 

_______________________________________________ 

BATCHELDER, Circuit Judge, concurring in most of the judgment. I agree with the 

lead opinion that the district court erred in concluding that Tyler could not prevail under 

Greeno’s two-step test, and I also agree with many of the points made in Judge Sutton’s opinion 

concurring in most of the judgment, including that there is no need to apply a tiers-of-scrutiny 

test to this case and that there is no need to remand it for further proceedings. I write separately 

because the two-step Greeno test employed by the lead opinion and by the second half of Judge 

Moore’s dissent fails to give adequate attention to the Second Amendment’s original public 

meaning in defining the contours of the mental health exception. And it is that meaning—as 

Heller and McDonald make unmistakably clear—informed as it is by the history and tradition 

surrounding the right, that counts. See District of Columbia v. Heller, 554 U.S. 570, 634–35 

(2008); McDonald v. City of Chicago, 561 U.S. 742, 768 (2010) (controlling opinion). 

By giving little more than a nod to the originalist inquiry, the Greeno test radically 

marginalizes the role played by the text, history, and tradition of the Second Amendment, and it 

replaces them with the thoroughly modern (and judge empowering) regime of heightenedscrutiny review. Such review, in all its manifold forms, is at bottom an exercise in weighing 

present costs and benefits. Considering those costs and benefits in this case is more than “an 

expedition we need not take,” Sutton, J., Concurring Op. 6, it is a forbidden peregrination from 

the actual meaning of the Constitution into the realms of judicial policymaking. The Supreme 

Court has at every turn rejected the use of interest balancing in adjudicating Second Amendment 

cases. Heller, 554 U.S. at 634–35; McDonald, 561 U.S. at 790–91 (controlling opinion). As 

Heller explained, “Constitutional rights are enshrined with the scope they were understood to 

have when the people adopted them, whether or not future legislatures or (yes) even future 

judges think that scope too broad. . . . Like the First[ Amendment], [the Second] is the very 

product of an interest balancing by the people.” 554 U.S. at 634–35.

True, heightened scrutiny review has become de rigueur in First Amendment 

jurisprudence, and Heller never said explicitly that it has no place in Second Amendment cases. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 34 

But it does not follow from this that we may rely on history only when determining the outer 

boundary of the right, or that we may subject that right, even down to its very core, to whatever 

form of heightened scrutiny we deem “appropriate.” United States v. Greeno, 679 F.3d 510, 518 

(6th Cir. 2012). The whole tenor of Heller and McDonald cuts against that approach. See Heller 

v. District of Columbia (Heller II), 670 F.3d 1244, 1282 (D.C. Cir. 2011) (Kavanaugh, J., 

dissenting); Darrell A.H. Miller, Retail Rebellion and the Second Amendment, 86 Ind. L.J. 939, 

967 (2011) (“[B]oth Heller and McDonald indicate strongly that standards of scrutiny are just 

shorthand for unguided interest balancing.”). Both cases conspicuously refrain from engaging in 

anything resembling heightened scrutiny review, and, unlike the Greeno test, both put the 

historical inquiry at the center of the analysis, not at the margin. The Greeno test is, moreover, 

incompatible with McDonald’s assurance that Second Amendment cases will not “require judges 

to assess the costs and benefits of firearms restrictions and thus to make difficult empirical 

judgments in an area in which they lack expertise.” 561 U.S. at 790–91. 

To be sure, [Heller] noted in passing that D.C.’s handgun ban would fail under 

any level of heightened scrutiny or review the Court applied. But that was more 

of a gilding-the-lily observation about the extreme nature of D.C.’s law—and 

appears to have been a pointed comment that the dissenters should have found 

D.C.’s law unconstitutional even under their own suggested balancing approach—

than a statement that courts may or should apply strict or intermediate scrutiny in 

Second Amendment cases. We know as much because the Court expressly 

dismissed Justice Breyer’s [interest-balancing] approach and went on to 

demonstrate how courts should consider Second Amendment bans and 

regulations—by analysis of text, history, and tradition. 

Heller II, 670 F.3d at 1282 (Kavanaugh, J., dissenting) (citations omitted). 

 Nothing in Heller’s discussion of “longstanding prohibitions” suggests otherwise. Quite 

the opposite: in refuting the charge in Justice Breyer’s dissent that these prohibitions were ipse 

dixit, the Court explained that “there will be time enough to expound upon the historical 

justifications for the exceptions we have mentioned if and when those exceptions come before 

us.” Heller, 554 U.S. at 635. There is no reason for lower court judges to pass the time by 

applying heightened scrutiny—or, as the dissent would have it, by dispensing with review 

entirely—while we wait for the Supreme Court to step in and do the historical analysis it has 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 35 

promised.1 Moreover, in embracing an approach largely divorced from the text, history, and 

tradition of the Second Amendment, I fear that we are well on our way to doing what Heller and, 

more importantly, the People who ratified the Second Amendment, forbade: “decid[ing] on a 

case-by-case basis whether the right is really worth insisting upon.” Id. at 634. 

Of course, “[h]istorical analysis can be difficult,” McDonald, 561 U.S. 742, 803 (Scalia, 

J., concurring), especially when, as here, we have less historical evidence than we might wish. 

As one scholar has explained, “[t]he presence of ‘distracted’ persons or ‘lunatics’ in colonial 

America—perhaps due to their small numbers—aroused few expressions of public concern or 

fear. Insanity was not perceived as a social problem requiring formal public policies.” Gerald 

N. Grob, The Mad Among Us: A History of the Care of America’s Mentally Ill 15 (1994). Thus, 

as the lead opinion notes, “[o]ne searches in vain through eighteenth-century records to find any 

laws specifically excluding the mentally ill from firearms ownership.” Carlton F.W. Larson, 

Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 

60 Hastings L.J. 1371, 1376 (2009). Moreover, as Judge Boggs noted in the panel opinion of 

this case, mental institutions were a novelty at the time of the Founding: the first mental hospital 

in the colonies did not open until 1772. Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308, 321 

n.10 (6th Cir. 2014) (quoting Albert Deutsch, The Mentally Ill in America: A History of their 

Care and Treatment from Colonial Times 40 (2d ed. 1940)). 

But does it follow from this lack of evidence that, as Judge Boggs speculated, it “may . . . 

be futile” to ask “whether firearm possession by persons previously committed to a mental 

institution fell within the historical scope of the Second Amendment”? Id. I do not think so. 

The lack of an exact historical antecedent is no more troubling here than it is in a First 

Amendment case involving internet communications, see Reno v. Am. Civil Liberties Union, 

 1

The lead opinion says that Greeno should be retained because it thinks it would be unwise to “strike out 

on our own analytical path and part ways with nearly all of the circuit courts to analyze gun regulations.” Lead Op. 

22 n. 14. I understand the desire to keep in step with our sister circuits, of course, but I do not think that in 

adjudicating fundamental rights we should value uniformity over fidelity to the law, especially in an area where the 

law is still developing rapidly. Moreover, discarding Greeno hardly entails striking out on our own—the “analytical 

path” was first cut in Heller. It is the lower courts, both we and our sister circuits, that have departed from that path, 

engaging in “narrowing from below,” see Richard M. Re, Narrowing Supreme Court Precedent from Below, 

104 Geo. L.J. 921, 962–63 (2016), by implementing the increasingly indeterminate framework of heightened 

scrutiny review, see Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2326–28 (2016) (Thomas, J., 

dissenting) (describing the breakdown of the tiers-of-scrutiny doctrines in recent Supreme Court cases). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 36 

521 U.S. 844, 849 (1997), or a Fourth Amendment case involving searches conducted using 

thermal-imaging cameras, see Kyllo v. United States, 533 U.S. 27, 31–35 (2001). By examining 

the Founding generation’s conception of “right,” as well as the principles of Founding-era 

mental-health law, we can come to a quite definite conclusion in this case. 

To begin with, if we are to adjudicate decisions involving eighteenth-century 

codifications of rights, it makes sense that we should first give some attention to what that word 

was understood to mean. Providing a comprehensive definition of such a rich term would, of 

course, be a complicated task, one that would go far beyond the scope of this brief concurring 

opinion. For today, it is sufficient to note that the idea of right was intimately connected with the 

idea of reason, a term that referred not only to the “faculty of the mind by which it distinguishes 

truth from falsehood [and] enables the possessor to deduce inferences from facts or from 

propositions,” but also to the mind’s ability to distinguish “good from evil.” 2 Noah Webster, An 

American Dictionary of the English Language (1828). 

Thus, the influential eighteenth-century political philosopher Burlamaqui distinguished 

between “right” and “power,” explaining that “power is a physical quality; it is a power of acting 

in the full extent of our natural strength and liberty: but the idea of right is more confined. . . . 

[It] is a moral quality. . . . [T]he use of our faculties becomes a right, only so far as it is 

approved by reason, and is found agreeable to [it].” 1 Jean-Jacques Burlamaqui, The Principles 

of Natural and Politic Law 82 (Thomas Nugent, trans., Petter Korkman, ed., Liberty Fund 2006) 

(1747) (emphasis added). Similarly, Locke described the natural state of man, the condition in 

which he had all of his natural rights, as a state of perfect freedom cabined only by “the law of 

nature,” which he defined as the rule “of reason and common equity, which is that measure God 

has set to the actions of men, for their mutual security.” John Locke, Two Treatises of 

Government (1691), reprinted in 4 John Locke, The Works of John Locke 207, 339, 342 (12th ed. 

1824) (emphasis added). This view was widely accepted by the Founding generation. For 

example, in his magisterial Lectures on Law, Founding Father and law professor James Wilson 

explained that there could be no right “to do mischief to any one” as this would “transgress . . . 

the law of nature,” which he defined as God’s law “communicated to us by reason and 

conscience.” James Wilson, Lectures on Law (1804), reprinted in James Wilson, Collected 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 37 

Works of James Wilson 415, 498, 1055–56 (Kermit L. Hall & Mark David Hall, eds., Liberty 

Fund 2007) (emphasis added). 

The emphasis on reason is significant, for, according to Founding-era legal definitions, an 

insane person was someone who had lost his reason. See 1 William Blackstone, Commentaries

*304 (“A lunatic, or non compos mentis, is one who hath had understanding, but by disease, 

grief, or other accident hath lost the use of his reason.”); Henry F. Buswell, The Law of Insanity 

in its Application to the Civil Rights and Capacities and Criminal Responsibility of the Citizen

17 (1885) (explaining that, to be found legally insane under longstanding English and American 

law, a person must be found to harbor a “belief of facts which no rational person would have 

believed, and [must exhibit] the inability to be reasoned out of such belief” (footnotes omitted)). 

An insane person was similar to a minor who had not yet attained the age of reason—both were 

unable, by definition, to exercise their rights because rights could, in the central case, be 

exercised only by those possessing reason. Conversely, an insane person could not justly be 

subjected to many of the obligations that corresponded to those rights, such as criminal liability. 

See Buswell, supra, at 33, 418–19. 

This understanding was well reflected in Founding-era legal doctrine. As Professor 

Larson has noted, in “eighteenth-century America, justices of the peace were authorized” to 

order the “confine[ment] [of] individuals with dangerous mental impairments.” Larson, supra, at 

1377–78 (citing Henry Care, English Liberties, or the Free-born Subject’s Inheritance 329 (6th 

ed. 1774)). From this it follows a fortiori that the government could also disarm such persons, 

since confining implies first disarming. Id. 

But this is not to say that mere suspicion of serious mental illness was sufficient at 

common law to deprive someone of his rights. With the exception of “dangerous lunatics,” who 

could be arrested by anybody, see Buswell, supra, at 33–34, the common law prohibited the 

warrantless arrest of those thought to have lost their reason, and it allowed for the deprivation of 

the fundamental right to liberty or the fundamental right to control one’s property only upon a 

valid judgment from a civil tribunal, see id. at 26–28. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 38 

Significantly, such deprivations were not once-for-all. Since at least the time of Edward I 

(1239–1307), the English legal tradition provided that those who had recovered their sanity 

should have their rights restored. See 1 Frederick Pollock & Frederic William Maitland, 

The History of English Law Before the Time of Edward I 507–08 (1898). As one early 

nineteenth-century legal treatise put it, “[a] lunatic is never to be looked upon as irrecoverable.” 

Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy 73 (1807). And “the law 

always imagines, that the[] accidental misfortunes [i.e., the misfortunes that caused the lunacy] 

may be removed.” 1 Blackstone, supra, at *304–*05; see also Care, supra, at 329 (“[A lunatic] is 

to be kept . . . locked up only so long as such lunacy or disorder shall continue, and no longer.”). 

This comports with the Founding-era conception of rights because that which a person recovered 

when he overcame a serious mental illness was his reason, the faculty necessary to exercise his 

rights.2

As I noted at the outset, it is true that § 922(g)(4) has no direct ancestors in the eighteenth 

century. But if the government could not, on the basis of mental illness, irrevocably deprive 

someone of his fundamental right to liberty (and thus of any firearms) or his fundamental right to 

control his property, why should it be permitted to irrevocably deprive him of the fundamental 

right to keep and bear arms? The answer is that it should not. Why else would Heller use the 

phrase “the mentally ill,” rather than “those who once suffered from mental illness”? 

It might be argued that guns should be subject to different rules because they are so 

dangerous. But while the dangerousness of guns may be relevant when considering what kind of 

showing someone must make to get his gun rights back, that fact cannot justify treating gun 

rights as fundamentally different from other rights. See McDonald, 561 U.S. at 780 (“[The right 

to keep and bear arms is not] a second-class right, subject to an entirely different body of rules 

than the other Bill of Rights guarantees.”) (controlling opinion). Indeed, it is not as if the 

restoration of the recovered person’s liberty and ability to control his property did not carry with 

 2

Not only was this the view at the time of the Founding, it is also, as Judge Sutton has ably explained, 

undoubtedly correct. Indeed, I am aware of no era or culture that has not recognized that mental illness can 

sometimes be overcome. See, e.g., Daniel 4:28–36 (“And at the end of the days [of my madness] I Nebuchadnezzar 

lifted up mine eyes unto heaven, and mine understanding returned unto me, and I blessed the most High.” (emphasis 

added)) (King James); further see generally History of Mental Disorders, Wikipedia (April 26, 2016, 1:09 AM), 

https://en.wikipedia.org/wiki/History_of_mental_disorders. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 39 

it serious risks either. And, as Heller noted, while it is true that, in the decades before the 

Founding, the right to bear arms was often treated by English courts with far less respect than 

other fundamental rights, see 3 Joseph Story, Commentaries on the Constitution of the United 

States § 1891 (1833) (noting that English common-law courts had circumscribed the right to bear 

arms to the point where it was “more nominal than real, as a defensive privilege”), that is not 

how we may treat that right, see Heller, 554 U.S. at 608; McDonald, 561 U.S. at 780 (controlling 

opinion). 

The key fact is that, at the time of the Founding, no fundamental right could lawfully be 

circumscribed to the extent that § 922(g)(4) regulates gun rights. That provision thus 

unconstitutionally “infringes” upon Tyler’s right to keep and bear arms. U.S. Const. amend. II. 

Indeed, because it gives him no means to challenge the prohibition, it does far more than 

“infringe” upon that right, it extirpates it. 

The lead opinion largely gets the ultimate answer right. But its conclusions are far less 

certain than those offered by a Heller-style historical analysis. For the reasons I have laid out 

above, the Greeno framework gives me little confidence that this court will not in future cases go 

from taking rights seriously to seriously taking rights. As has been mentioned many times today, 

the dangers presented by guns are real, frightening, and obvious. Those realities will continue to 

factor heavily in the scrutiny analysis. Less obvious to the contemporary judicial mind are the 

Founding-era fears of tyranny and defenselessness that provided the impetus behind the Second 

Amendment. Whether the Founding generation struck a wise balance in ratifying that 

amendment “is perhaps debatable.” Heller, 554 U.S. at 636. What is not debatable is that we—

federal judges—are neither philosopher kings empowered to “fix” things according to the 

dictates of what we fancy is our superior insight, nor rubber stamps, approving whatever laws the 

legislatures of this country happen to pass. We are bound, rather, by our oath to uphold and 

defend the Constitution, and we must therefore show restraint when that document restrains us 

and be active when it commands action. We must, in other words, say “what the law is.” 

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). That task, difficult though it may 

sometimes be, is straightforward: “A law either infringes a constitutional right, or not; there is no 

room for the judiciary to invent tolerable degrees of encroachment.” Whole Woman’s Health v. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 40 

Hellerstedt, 136 S. Ct. 2292, 2329–30 (2016) (Thomas, J., dissenting). The Second Amendment 

is part of our law; it is a constitutional right possessed by citizens against their governments. 

Rather than continuing to subject it—as required by Greeno—to a means–ends evaluation guided 

by our own sense of what is important, we should take this opportunity to overrule Greeno. For, 

as Heller warned, “A constitutional guarantee subject to future judges’ assessments of its 

usefulness is no constitutional guarantee at all.” 554 U.S. at 634. 

Accordingly, I agree that this case must be reversed, and although for the foregoing 

reasons I do not believe a remand is necessary, under the circumstances of this case I agree to a 

remand, either for entry of judgment in favor of Tyler, or to permit the district court to conduct a 

hearing into whether Tyler falls under Heller’s category of “the mentally ill.” 

 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 41 

_______________________________________________ 

CONCURRING IN MOST OF THE JUDGMENT 

_______________________________________________ 

 SUTTON, Circuit Judge, concurring in most of the judgment. The federal government 

has determined that, because Clifford Tyler spent thirty days in a mental-health institution in 

1986, that makes him mentally ill for life. With that horizon-less generalization in hand, the 

government claims authority to deny Tyler the fundamental right to possess a gun for the rest of 

his days, even though Tyler has presented evidence that, some thirty years later, he does not 

present a risk to himself or others, and even though the government has not presented any 

individualized evidence about Tyler’s fitness to possess a gun but has instead relied on 

stereotypes about the mentally ill. That is where this case starts and ends—and that is all anyone 

needs to know to resolve it. 

Tyler is entitled to present evidence about whether he would be a risk to himself or others 

if allowed to own a gun—as Congress once recognized when it funded a program for individuals 

to obtain precisely this relief from the federal government. 18 U.S.C. § 925(c). Congress’s 

decision in 1992 to cut the funds for that program and Michigan’s unwillingness to fill the void 

with a comparable program of its own do not turn off Tyler’s right to show that he, like most 

Americans, has the constitutional right to own a gun. 

 1. The Second Amendment establishes a fundamental right for American citizens to 

possess a gun. District of Columbia v. Heller, 554 U.S. 570, 595, 628 (2008); McDonald v. City 

of Chicago, 130 S. Ct. 3020, 3036, 3042 (2010). 

2. Heller recognizes an exception for some Americans—to respect “longstanding 

prohibitions on the possession of firearms by felons and the mentally ill.” 554 U.S. at 626–27. 

3. The statute at issue today, 18 U.S.C. § 922(g), purports to be the kind of prohibition 

that Heller was referring to. It applies to felons and the mentally ill. And it says, as pertinent 

here: “It shall be unlawful for any person . . . (1) who has been convicted in any court of, a 

crime punishable by imprisonment for a term exceeding one year; [or] . . . (4) who has been 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 42 

adjudicated as a mental defective or who has been committed to a mental institution . . . to . . . 

possess in or affecting commerce[] any firearm.” 

4. Think of the Heller exception as an off switch to the right to bear arms and of § 922(g) 

as Congress’s effort to define it. The statute describes two classes of individuals unable to 

possess a gun: felons (anyone convicted of a crime punishable by more than one year in prison) 

and the mentally ill (anyone “adjudicated as a mental defective or who has been committed to a 

mental institution”). Heller did not define these exceptions; it had no reason to. But no one in 

our case denies these historically grounded and sensible explanations behind the exceptions: 

Legislatures have authority (1) to impose lifetime gun-possession bans on felons as a safety 

measure and as a legitimate consequence of a felony conviction and (2) to keep weapons out of 

the hands of those who, due to psychiatric challenges, pose a risk to themselves or others. 

Nor does anyone deny that Heller must have been referring to “felons” and “the mentally 

ill” in the present tense. Heller does not stand for the proposition that anyone ever convicted of a 

felony falls outside the Second Amendment’s protections. Otherwise, Congress could ban gun 

possession by anyone with a felony to their name, even if the conviction was later expunged or 

the individual was pardoned. Cf. 18 U.S.C. § 921(a)(20). So too with mental illness. One’s 

status as a “felon” or as “mentally ill” may change over the course of a lifetime, and Heller

creates an exception only for those who currently fall into these categories, not for anyone who 

ever did. 

5. Congress first enacted a felon-in-possession ban in 1938, but it did not give felons a 

way to regain their right to bear arms until thirty years later. Federal Firearms Act, Pub. L. No. 

75-785, § 2(f), 52 Stat. 1250, 1251 (1938); An Act to Strengthen the Federal Firearms Act, Pub. 

L. No. 87-341, 75 Stat. 757, 757 (1961); Omnibus Crime Control and Safe Streets Act of 1968, 

Pub. L. No. 90-351, sec. 902, §§ 921(b)(3), 922(f), 925(c), 82 Stat. 197, 228, 231, 233. The 

initial relief program in 1968 allowed the Secretary of the Treasury to grant an exemption from 

the firearm ban for certain felons who could show (1) they were not likely to conduct themselves 

“in an unlawful manner” and (2) “that the granting of the relief would not be contrary to the 

public interest.” Sec. 902, § 925(c), 82 Stat. at 233; see sec. 902, § 921(a)(17), 82 Stat. at 228. 

Congress re-enacted a slightly modified form of this relief program the same year as part of the 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 43 

Gun Control Act of 1968. Pub. L. No. 90-618, sec. 102, § 925(c), 82 Stat. 1213, 1225. That is 

also when Congress codified the felon-in-possession ban in its modern form and enacted the 

mental-illness provision before us today. Sec. 102, § 922(h)(1), (4), 82 Stat. at 1220–21. As of 

1968, Congress thus prohibited firearm possession by felons, by anyone “who ha[d] been 

adjudicated as a mental defective,” and by anyone “who ha[d] been committed to any mental 

institution.” But only felons had a chance to gain relief from the ban. 

That changed in 1986, when Congress expanded the relief program to ensure that anyone 

barred from possessing a firearm could seek an exemption, including those once deemed 

mentally ill. Firearms Owners’ Protection Act, Pub. L. No. 99-308, sec. 105, § 925(c), 100 Stat. 

449, 459 (1986). The new provision also stated that, if the Secretary denied an exemption, the 

individual could seek review in federal district court. Id. This relief program continued to 

operate until 1992, when Congress defunded it. Treasury, Postal Service, and General 

Government Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992). 

In 2008, Congress replaced the program with one that offered funding to States that set up their 

own relief regime. Thus far, thirty-one States have set up their own programs. Fed. Gov’t Supp. 

Br. 4. Michigan is not one of them. At no point has Congress required States to set up such 

programs. See Printz v. United States, 521 U.S. 898, 935 (1997). 

6. At issue in today’s case is whether Congress may create status-based prohibitions on 

the right to bear arms without permitting individuals to show that the federal government has 

impermissibly characterized them. Surely it is common ground that the Second Amendment 

requires the federal government to allow an individual to possess a gun when it makes a 

classification mistake—when it engages the off switch in error. Say John R. Smith tries to 

purchase a gun but is told that he cannot do so based on a governmental record that says John R. 

Smith has a felony conviction or once stayed in a mental-health institution. Smith claims not to 

be the Smith listed as a felon or listed as residing in an institution. The government ignores 

Smith’s entreaties, and the firearm sale never goes through. Because Heller tells us that the 

Second Amendment protects “the right of law-abiding, responsible citizens” (like Smith) to 

possess a gun, and because the government has denied Smith that right, it has violated Smith’s 

Second Amendment rights. 554 U.S. at 635. Any other conclusion would give the government 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 44 

unanswerable authority to deny guns (or for that matter any constitutional right) to whomever it 

pleases, regardless of whether it has correctly classified the individual as subject to a permissible 

prohibition on his right to bear arms. 

7. The only difference between that hypothetical and this case is a related 

characterization problem. It’s not that the government has confused Clifford Tyler with another 

Clifford Tyler; it’s that the government assumes that the mental health of Clifford Tyler in 1986 

is the mental health of Clifford Tyler in 2016. If the individual has ever “been adjudicated as a 

mental defective” or “has been committed to a mental institution,” says the government, that is 

that: He necessarily is a risk to himself or others for the rest of his life and thus may not possess 

a gun for the rest of his life. That is a remarkable proposition. It would be one thing if the 

government were making this argument in 1927. See Buck v. Bell, 274 U.S. 200. But it is not. 

No one today, I would have thought, thinks a prior institutionalization necessarily equals a 

present mental illness. 

 8. Keep in mind that Tyler is not demanding a gun today. He is demanding only what 

Congress used to permit and what most States still permit: an opportunity to show that he is not 

a risk to himself or others. And keep in mind that the only evidence in this case shows that he 

has a clean bill of mental health, he poses no danger to himself or others, and the health 

challenges that led him to enter a mental-health facility for thirty days thirty years ago are long 

gone. All that the government offers in response is an astonishingly broad generalization: that a 

prior institutionalization makes him unfit today. 

9. That generalization cannot be squared with history and tradition. What determines the 

scope of the right to bear arms are the “historical justifications” that gave birth to it. Heller, 

552 U.S. at 635. Our common law heritage has long recognized that mental illness is not a 

permanent condition. See 1 William Blackstone, Commentaries *304–05; A. Highmore, 

A Treatise on the Law of Idiocy and Lunacy 104 (1807); see generally Batchelder, J., Concurring 

Op. 37–38. And that generalization makes even less sense today. See, e.g., Foucha v. 

Louisiana, 504 U.S. 71, 77–78 (1992). If there is one thing clear in American law today, it is 

that the government may not deny an individual a benefit, least of all a constitutional right, based 

on a sky-high generalization and a skin-deep assumption stemming from a long-ago diagnosis or 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 45 

a long-ago institutionalization. Once depressed does not mean always depressed; once mentally 

ill does not mean always mentally ill; and once institutionalized does not mean always 

institutionalized. 

 10. That is all there is to this case. Clifford Tyler has presented unrebutted evidence that 

he is not a risk to himself or others today. If he is right, he has a constitutional right to possess a 

gun. The government may not deny him that right based on a stigmatizing generalization arising 

from a mental health problem three decades old. It must give him an opportunity to show that he 

has the constitutional right to own a gun, all through a process focused on him—not 

generalizations about “mental defective[s]” or occupants of “mental institution[s],” as the statute 

infelicitously puts it—and one that will allow Tyler and the government a chance to introduce 

evidence about his capacity to possess a gun. 

 11. Tiers of review have nothing to do with it. That’s simply an expedition we need not 

take. Would we ask in a case of misidentification—John R. Smith’s case—whether intermediate 

or strict scrutiny applies to the government’s classification of him as a felon? I doubt it. Would 

we ask in the case of an individual, once a felon but no longer one due to a pardon, whether 

intermediate or strict scrutiny applies to the government’s continuing classification of him as a 

felon? I doubt it. In both of these cases, I would hope, we would say that, because the individual 

has plausibly alleged that the government placed him in the wrong category, he has a right to 

show as much in order to protect his right to possess a gun. So too for an individual once 

classified as mentally ill but who no longer is. 

 The First Amendment offers a useful analogy. Say the government claims it may 

regulate a particular type of speech because it is obscene and thus unprotected. See Miller v. 

California, 413 U.S. 15, 23, 36–37 (1973). A court would not look to tiers of scrutiny to figure 

out whether the government correctly classified the speech; it would independently evaluate 

whether the speech is in fact obscene. Just so here. The government has assumed power to deny 

guns to those who were once institutionalized on the theory that they necessarily remain mentally 

ill and thus are unprotected. That is wrong—not because of anything this or that tier of review 

tells us but because institutionalization and mental illness are not ever-lasting synonyms. Just as 

the government may not ban protected speech by labeling it obscene, it may not deny a gun to a 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 46 

protected individual by labeling him mentally ill for life. What is true for the First Amendment 

is true for the Second. 

 I do not mean to propose that we “jettison tiers of scrutiny altogether” for either the First 

or Second Amendment. Lead Op. 19 n.14. Whatever utility they may have elsewhere, they have 

no role to play here. Just as we determine whether a speech restriction is content neutral before 

deciding “the level of scrutiny applicable” to the speech, we have no need to rule on what level 

of scrutiny is appropriate for the Heller exception when the Heller exception does not apply. 

Connection Distrib. Co. v. Holder, 557 F.3d 321, 329 (6th Cir. 2009) (en banc). 

 12. The parties, the majority, and the dissent make much of, and at times dispute, the 

statistical links among mental illness, institutionalization, and gun violence. That is all well and 

good—if the individual still has a mental illness. But that is the only question that matters today. 

Anything else is a distraction. The focal point is that mental illness is not invariably a permanent 

condition, the premise by the way of a significant branch of the medical profession (psychiatry) 

that is devoted to ensuring that any such diagnosis does not become a life sentence. As the Ohio 

Disability Rights Law & Policy Center confirms in its amicus brief, one-half to two-thirds of 

patients with schizophrenia “significantly improved or recovered” over the course of long-term 

studies, “including some cohorts of very chronic cases.” Disability Rights Amicus Br. 7; see 

Courtenay M. Harding & James H. Zahniser, “Empirical Correction of Seven Myths About 

Schizophrenia with Implications for Treatment,” 90 Acta Psychiatrica Scandinavica 140, 140–41 

(1994). The federal government (at least part of the federal government) agrees, as the 

Department of Health and Human Services correctly explains that “people with mental health 

problems get better and many recover completely.” U.S. Dep’t of Health & Human Servs., 

Mental Health Myths and Facts, https://goo.gl/Ga6dJ8 (last visited July 28, 2016). 

 Nor is Clifford Tyler the only American who has overcome a mental illness. Think of 

John F. Nash Jr., the Nobel Prize-winning mathematician who spent time in and out of mental 

institutions but who, “seemingly against all odds, . . . appeared to overcome the illness that had 

afflicted him for so long” later in life. Emily Langer, “John F. Nash Jr. Dies; Nobel Laureate’s 

Life Story Inspired ‘A Beautiful Mind,’” Washington Post, May 24, 2015, https://goo.gl/3gz5b6; 

Erica Goode, “John F. Nash Jr., Math Genius Defined by a ‘Beautiful Mind,’ Dies at 86,” N.Y. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 47 

Times, May 24, 2015, http://goo.gl/kAmTVk. Or of Georgia O’Keeffe, who entered a New York 

hospital in the midst of a nervous breakdown but whose recovery ushered in one of her most 

productive artistic periods. Dennis Abrams, Georgia O’Keeffe 90–91, 94–96 (2009). I could go 

on and on identifying other accomplished individuals, including U.S. Presidents, who have 

overcome serious mental illnesses. Jonathan R. T. Davidson et al., “Mental Illness in U.S. 

Presidents Between 1776 and 1974: A Review of Biographical Sources,” 194 Journal of 

Nervous & Mental Disease 47, 49 (2006). 

13. All we need to know to resolve this case is that Heller creates an on-off switch to the 

right to bear arms, that the government’s decision to engage or disengage that right for any 

individual is not beyond challenge, and that this is a present-tense inquiry: Is the individual 

properly characterized as a felon today or as mentally ill today in a way that makes him 

dangerous to himself or others? Tyler has plausibly alleged that the government’s 

characterization of him is inaccurate, and he is entitled to relief in the absence of contrary 

evidence about him. As the amicus brief for the Ohio Disability Rights Law & Policy Center 

confirms, a considerable body of research and caselaw shows that this outcome is undeniably the 

right one. Case after case laments (and corrects) the unfair generalizations that once applied to 

individuals with mental health challenges. The key insight is that no government may 

permanently deny rights based on generalizations stemming from classifications about any 

individual who once was institutionalized. 

The government may not, for instance, deny driver’s licenses to formerly institutionalized 

individuals without a hearing; single out group homes housing the intellectually disabled by 

requiring them to seek special-use zoning permits; ask applicants broad questions about their 

mental health history before granting them occupational licenses; or place special limitations on 

institutionalized individuals’ ability to make their own healthcare decisions. See, e.g., 

Gargagliano v. Sec’y of State, 233 N.W.2d 159, 162–68 (Mich. Ct. App. 1975) (driver’s 

licenses); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447–50 (1985) (special use 

permits); Clark v. Va. Bd. of Bar Examiners, 880 F. Supp. 430, 441–46 (E.D. Va. 1995) 

(occupational licenses); Hargrave v. Vermont, 340 F.3d 27, 31, 34–39 (2d Cir. 2003) (healthcare 

decisions). The principle also manifests itself in cases addressing when committed individuals 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 48 

must be released from confinement, all of which show that institutionalization does not amount 

to a permanent determination of mental illness or dangerousness. E.g., Foucha, 504 U.S. at 75–

83; Jones v. United States, 463 U.S. 354, 361–69 (1983). And it manifests itself in the 

Americans with Disabilities Act and the Rehabilitation Act, both of which forbid governments 

from “den[ying] . . . benefits” to otherwise “qualified individual[s]” solely “by reason of [their] 

disability” or because they are “regarded as having” a disability. 29 U.S.C. §§ 705(9)(B), 

794(a); 42 U.S.C. §§ 12102(1), 12132. Just as one’s physical condition changes over the course 

of a lifetime, worsening at some moments and improving at others, one’s mental condition 

changes as well. A key lesson of disability rights law is that governments may not treat dynamic 

features as static and immutable. 

 14. What appears to be driving the government’s position are two related fears: (1) that 

lots of other individuals will start seeking hearings if we grant relief to Tyler, and (2) that some 

individuals previously deemed mentally incompetent still should not possess a gun today. As to 

the first concern, no one would get a hearing without making a threshold showing, premised on 

medical evidence, that they are fit to possess a gun. If there is a risk that the government will be 

swamped with applications, it is in the best position to prove it. The federal government after all 

operated a relief program from 1986 to 1992, and yet it offers no evidence—none—that it was 

flooded by applications from those who had once been institutionalized or received a 

disqualifying diagnosis. Neither does the government provide any evidence that the thirty-one 

States that offer such programs have faced problems in operating them. Fed. Gov’t Supp. Br. 4. 

 As to the second concern, the answer is similar. Tyler does not seek anything more than 

the relief program that once existed at the federal level and that now exists in many States 

outside Michigan. Where is the evidence that these programs did not then, or do not now, 

properly perform the needed screening function? Where is the evidence from the federal 

experience from 1986 to 1992 or from the States in recent years that they could not perform this 

assessment safely and without exposing the public to undue risks? And if the federal 

government is skeptical of its capacity to properly perform the screening procedure, why is it 

encouraging the States to do just that? 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 49 

Nor is there any reason in fact to distrust the screening procedure. The individual will 

have to make a threshold showing that he can possess a gun safely today. The government may 

present contrary evidence if it wishes. And the administrative or judicial decision—essentially a 

factfinding—will receive deference in any later challenge to it. 

 15. I disagree with the lead opinion that we can leave the decision whether to give Tyler 

more process to the district court. That assumes different district courts could reach different 

decisions about whether to let Tyler present evidence about his mental health on this record. I 

don’t see how that could be so. Tyler has presented plenty of evidence that he is just fine and the 

government has presented nothing but generalizations to match it. So long as the government 

refuses to address Tyler’s individual circumstances, he is entitled to both a hearing and relief, 

and no district court judge could fairly conclude otherwise. Giving the government one more 

chance to “justify” its “lifetime ban” on gun possession by those who were involuntarily 

committed is a doomed errand. Lead Op. 27. What evidence could possibly show that onceinstitutionalized individuals invariably have current mental illnesses? 

 16. I disagree with the dissent for a different reason. It not only thinks that the 

government could meet its burden; it thinks it already has. The dissent cannot deny that the 

government has applied § 922(g)(4) to prohibit gun possession by mentally healthy individuals 

like Tyler. But it thinks that intermediate scrutiny permits the government to cast a sufficiently 

wide net to permit a prior diagnosis to be a proxy for a present health condition in view of the 

risk posed by other less healthy individuals. Dissent at 56–62. It is not uncommon in 

constitutional law to create rules that prophylactically over-protect constitutional rights. See

Miranda v. Arizona, 384 U.S. 436, 467–79 (1966); Mapp v. Ohio, 367 U.S. 643, 655–60 (1961). 

Less common, indeed unprecedented, is the attempt to create a judicial rule that prophylactically 

under-protects individual constitutional rights. I would not go down that road. 

* * * 

When all is said and done, this case turns on the recognition that mental illness is not a 

permanent classification, and yet the government has treated it as such in denying Tyler a gun. 

Through numerous thoughtful opinions in this case, no judge has challenged this point: Mental 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 50 

illness is not a fixed state of mind. Unable to shake the conclusion that follows from that agreedupon premise, I would reverse the district court’s decision and hold that Tyler has stated a claim 

for relief under the Second Amendment and is entitled to the kind of process the government 

once provided to show that he is fit to possess a gun. Under these circumstances, the district 

court’s decision should be reversed, and the case should be remanded to the district court either 

to enter judgment for Tyler or to permit the district court to hold a hearing over whether Tyler is 

currently “mentally ill.” 

 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 51 

___________________________________________________ 

CONCURRING IN PART AND DISSENTING IN PART 

___________________________________________________ 

ROGERS, J., dissenting. I join Parts I, II, III.A-C, and Part III.D.i of the lead opinion. 

However, for the reasons given in Part II.B of Judge Moore’s dissent, § 922(g)(4) meets the 

requirements of intermediate scrutiny. The judgment of the district court dismissing Tyler’s suit 

in its entirety should accordingly be affirmed. 

 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 52 

_________________ 

DISSENT 

_________________ 

KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent because I 

believe that we can resolve the constitutionality of 18 U.S.C. § 922(g)(4) on Heller’s own terms, 

as we have done for the felon-dispossession provision of § 922(g)(1), and thus there is no need to 

conduct the two-step inquiry of United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). 

Moreover, if the two-step inquiry were to apply, I believe that § 922(g)(4) survives intermediate 

scrutiny. Accordingly, I would uphold § 922(g)(4) as constitutional and affirm the district court 

without need for remand. 

I. 

I disagree with the lead opinion’s conclusion that Heller itself does not provide an answer 

to the constitutionality of § 922(g)(4). As the lead opinion notes, the Supreme Court in District 

of Columbia v. Heller, 554 U.S. 570, 595 (2008), recognized that although the Second 

Amendment bestowed an individual right, this “right was not unlimited, just as the First 

Amendment’s right of free speech was not.” Specifically, the Court cautioned: 

[N]othing in our opinion should be taken to cast doubt on longstanding 

prohibitions on the possession of firearms by felons and the mentally ill, or laws 

forbidding the carrying of firearms in sensitive places such as schools and 

government buildings, or laws imposing conditions and qualifications on the 

commercial sale of arms. 

Id. at 626–27. In an accompanying footnote, the Court noted that it “identif[ied] these 

presumptively lawful regulatory measures only as examples; our list does not purport to be 

exhaustive.” Id. at 627 n.26. 

We have relied on this language in Heller to reject Second Amendment challenges to 

felon-in-possession convictions under § 922(g)(1) without examining history or applying any 

level of means–end scrutiny. See United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010); see 

also United States v. Khami, 362 F. App’x 501, 507 (6th Cir. 2010) (“[O]ur sister Circuits have 

found that the pronouncement in Heller . . . is sufficient to dispose of the claim that § 922(g)(1) 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 53 

is unconstitutional.”). This is because we have found that Heller’s inclusion of felondispossession statutes in its list of “longstanding prohibitions” reflects that the Second 

Amendment “is specifically limited in the case of felon prohibitions.” Carey, 602 F.3d at 741

(citing Heller, 554 U.S. at 626–27). The same must be true for prohibitions on the possession of 

firearms by the mentally ill, a “longstanding prohibition[]” explicitly mentioned in the same 

passage. Accordingly, we should evaluate Second Amendment challenges to § 922(g)(4) just as 

we evaluate Second Amendment challenges to § 922(g)(1). 

The lead opinion’s reasoning for using a different approach to evaluate challenges to 

§ 922(g)(4), as opposed to § 922(g)(1), is not persuasive. First, resolving this case under 

Heller’s own terms would not require taking “an analytical off-ramp to avoid constitutional 

analysis.” Lead Op. at 10. The lead opinion cites cases criticizing an approach that “treat[s] 

Heller’s listing of ‘presumptively lawful regulatory measures[]’ . . . as a kind of ‘safe harbor.’” 

United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010); see Lead Op. at 10 n.6. But the 

“safe harbor” analysis that the Fourth Circuit was criticizing in Chester is an approach that some 

courts have used to evaluate laws that are “unlisted” in Heller’s “presumptively lawful” passage, 

such as § 922(g)(9)’s dispossession of domestic-violence misdemeanants. Id. at 679 (emphasis 

added). Under this approach, courts rely on Heller to uphold these laws—without conducting an 

inquiry into means–end scrutiny—if “they deem [an unlisted law] to be analogous to those 

measures specifically listed in Heller.” Id. (emphasis added); see, e.g., United States v. White, 

593 F.3d 1199, 1206 (11th Cir. 2010) (“We see no reason to exclude § 922(g)(9) from the list of 

longstanding prohibitions on which Heller does not cast doubt.”). In assessing the 

constitutionality of § 922(g)(4), by contrast, no analogy is needed. “[P]rohibition[] on the 

possession of firearms by . . . the mentally ill,” Heller, 554 U.S. at 626, is “specifically listed in 

Heller.” Chester, 628 F.3d at 679. Indeed, it is listed directly beside another “permissible” 

prohibition—possession by felons. See Heller, 554 U.S. at 626, 635. Accordingly, relying 

explicitly on Heller’s “presumptively lawful” language to resolve Second Amendment 

challenges to § 922(g)(4), as we do with challenges to § 922(g)(1), would be a direct application 

of the Supreme Court’s language regarding the scope of Heller and the meaning of the Second 

Amendment. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 54 

Second, the lead opinion reasons that we cannot rely on Heller conclusively “given 

§ 922(g)(4)’s lack of historical pedigree.” Lead Op. at 11. But again, the lead opinion fails to 

offer a persuasive reason for why this demands treating challenges to § 922(g)(4) differently than 

challenges to § 922(g)(1). The lead opinion quotes the Seventh Circuit in noting that “legal 

limits on the possession of firearms by the mentally ill . . . are of 20th Century vintage.” Id. 

(alteration in original) (quoting United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010)). The 

lead opinion’s ellipsis omits a single significant word: “also.” See Skoien, 614 F.3d at 641 

(emphasis added). This “also” refers to felon-dispossession statutes, which Skoien discussed in 

the same paragraph. See id. The Seventh Circuit in Skoien recognized that “[t]he first federal 

statute disqualifying felons from possessing firearms was not enacted until 1938[,] . . . 147 years 

after the states ratified the Second Amendment.” Id. at 640. “[T]he ban on possession by all 

felons”—as opposed to only violent felons—“was not enacted until 1961.” Id. (citing Pub. L. 

No. 87-342, 75 Stat. 757); see also Chester, 628 F.3d at 679 (“Federal felon dispossession laws, 

for example, were not on the books until the twentieth century, and the historical evidence and 

scholarly writing on whether felons were protected by the Second Amendment at the time of its 

ratification is inconclusive.”).191 Section 922(g)(4) was enacted in 1968, seven years later. 

Skoien, 614 F.3d at 641 (citing Pub. L. No. 90-618, 82 Stat. 1213, 1220). If the relevant 

historical marker is the ratification of the Second Amendment, a seven-year (or even thirty-year) 

delay between enactment of § 922(g)(1) and § 922(g)(4) hardly justifies differential treatment on 

the basis of “historical pedigree.” 

Third, the lead opinion suggests that we may not rely exclusively on Heller’s discussion 

of bans on “the mentally ill” because § 922(g)(4) “does not use the phrase ‘mentally ill,’ nor does 

it attempt to prohibit all currently mentally ill persons from firearm possession.” Lead Op. at 11. 

This does not support disregarding Heller’s language. In recognizing “longstanding prohibitions 

on the possession of firearms by . . . the mentally ill,” 554 U.S. at 626, the Heller Court was 

 1

According to Professor Larson, the first state law providing for felon disarmament “was enacted in New 

York in 1897,” with others following in the beginning of the 20th century. Carlton F.W. Larson, Four Exceptions in 

Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009). 

Thus, even using the earliest state law as a basis, felon-dispossession statutes did not exist at the time of the Second 

Amendment’s ratification and, at the most, are only three years removed from being of “20th century vintage” 

themselves. See Skoien, 614 F.3d at 641. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 55 

almost certainly referring to § 922(g)(4). There are a number of firearm-related restrictions in 

federal law, but only one—§ 922(g)(4)—could plausibly be interpreted as seeking to restrict the 

rights of the “mentally ill,” however defined. Although § 922(g)(4) does not explicitly use the 

phrase “mentally ill,” the statute—reasonably read—sets out two ways in which individuals can 

fall into one classification: that of being “mentally ill” for the purposes of firearm dispossession. 

In selecting involuntary commitment and incompetency as the metrics for dispossession, 

Congress chose to “piggyback on determinations made in prior judicial proceedings to establish 

status” for the purposes of the statute, rather than relying on a “free floating” definition of 

current mental illness. United States v. Rehlander, 666 F.3d 45, 50 (1st Cir. 2012) (emphasis 

omitted). When the Heller Court spoke of bans on possession for the “mentally ill,” it was 

referring to § 922(g)(4) and its definitions. 

Finally, I fail to see how Tyler’s “lifetime ban” under § 922(g)(4) “calls into question the 

applicability of Heller’s presumption of lawfulness” to the statute. Lead Op. at 12. Section 

925(c)’s relief-from-disabilities program is unavailable to individuals dispossessed under 

§ 922(g)(1), just as it is unavailable to individuals dispossessed under § 922(g)(4). Nonetheless, 

we rely on Heller to dispossess felons—even if the individual committed a non-violent felony 

and even if the crime happened thirty years in the past—because Congress chose to dispossess 

all felons in § 922(g)(1) and Heller described this prohibition as a “presumptively lawful 

regulatory measure[].” 554 U.S. at 626; see Carey, 602 F.3d at 741. This same reasoning 

applies to prohibitions on the “mentally ill,” and the lead opinion has not offered a meaningful 

distinction. 

In sum, given Heller’s explicit language that “prohibitions on the possession of firearms 

by felons” are “presumptively lawful,” we have rejected Second Amendment challenges to 

§ 922(g)(1) without inquiry into means–end scrutiny. Prohibitions on possession by the 

“mentally ill” are included in the same sentence of Heller as prohibitions on possession by 

felons. Heller thus instructs that the Second Amendment is “specifically limited in the case of” 

prohibitions on possession by the mentally ill. See Carey, 602 F.3d at 741; see also Heller, 

554 U.S. at 626–27. Because I do not believe that it is necessary to apply Greeno’s two-step 

framework, I would find § 922(g)(4) constitutional under Heller’s own terms. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 56 

II. 

A. 

Assuming that the two-step framework of Greeno applies, I agree that we should review 

§ 922(g)(4) under intermediate scrutiny.2 I disagree, however, that a remand is necessary to 

resolve the question of whether § 922(g)(4) withstands intermediate scrutiny because I believe 

that the government has met its burden. 

To begin, I wholeheartedly agree with the lead opinion that intermediate scrutiny is 

appropriate to evaluate challenges to possession prohibitions such as § 922(g)(4) because 

intermediate scrutiny requires the government to justify its firearm laws while simultaneously 

“giving [Congress] considerable flexibility to regulate gun safety.” Bonidy v. USPS, 790 F.3d 

1121, 1126 (10th Cir. 2015); see Lead Op. at 17–18. But we should be mindful of the Second 

Amendment context in applying intermediate scrutiny, as well. As recently recognized, “the 

nature of firearms regulation requires ample deference to the legislature” under intermediate 

 2

Judge Sutton’s concurrence eschews a means–ends analysis and remarks that, because the problem is one 

of “misidentification,” “[t]iers of review have nothing to do with it.” Sutton Concurring Op. at 45. This is incorrect. 

As stated infra, in enacting § 922(g), Congress intended to reduce firearm-related homicide and suicide. See R. 23 

(Gov’t Mot. to Dismiss at 33–34) (Page ID #170–71). In so doing, Congress prohibited firearm possession for 

certain categories of individuals, including those who pose a potential risk for firearm violence based on a 

demonstrated history of mental illness. As discussed supra, Congress did not choose to enact in § 922(g) a “free 

floating prohibition” on possession by individuals who are currently “mentally ill and dangerous.” Rehlander, 666 

F.3d at 50. Rather, Congress chose two categories—rooted in “prior judicial proceedings”—“to establish status” for 

the purposes of the statute, id. (emphasis omitted): individuals “who ha[ve] been adjudicated as a mental defective” 

and individuals “who ha[ve] been committed to a mental institution.” § 922(g)(4). It is undisputed that Tyler falls 

into the latter category; he has not been misidentified. The question for our court to answer is whether Congress’s 

chosen categories of dispossession—and Congress’s chosen length of dispossession—are sufficiently related to 

Congress’s interest. This is a question of means–ends scrutiny, and it is a question that our court is well equipped to 

handle. 

Further, in avoiding a scrutiny inquiry, Judge Sutton’s concurrence makes much of the “unrebutted 

evidence” that Tyler has presented “that he is not a risk to himself or others today.” See Sutton Concurring Op. at 

45. This overstates the posture of this case and the evidence in the record. Tyler’s complaint says only the 

following about his mental condition: (1) that in 1986, he was involuntarily committed, and (2) that he “currently is 

not a risk to himself or to other people and does not have issues with substance abuse.” R. 1 (Compl. at 6) (Page ID 

#6). Tyler’s complaint refers to two attached medical evaluations. Id. The first reports that Tyler has average 

cognitive ability and “no evidence of thought disorder,” but notes that one administered test was “rendered invalid.” 

R. 1-1 (Osentoski Eval. at 2) (Page ID #20). The report concludes that “[t]here is no evidence of mental illness 

within this evaluation.” Id. The second medical evaluation reports that “[f]rom all the information [Tyler] provided 

it does not appear that [Tyler] has a substance abuse problem.” R.1-1 (Rozelle Eval. at 3) (Page ID #24). This is 

hardly “plenty of evidence,” see Sutton Concurring Op. at 49, and because we confront this issue in the context of a 

motion to dismiss, see R. 23 (Gov’t Mot. to Dismiss) (Page ID #124), there is an understandable lack of rebuttal 

evidence in the record regarding Tyler’s condition. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 57 

scrutiny because “[f]irearm policy is a ‘complex and dynamic’ issue implicating ‘vast amounts 

of data’” that “is either incomplete or influenced by partisanship.” Heller v. District of 

Columbia, 801 F.3d 264, 282 (D.C. Cir. 2015) (Henderson, J., concurring in part and dissenting 

in part) (internal quotations omitted). The legislature—as opposed to the judiciary—is “far 

better equipped . . . to make sensitive public policy judgments (within constitutional limits) 

concerning the dangers in carrying firearms and the manner to combat those risks.” Id. (internal 

quotation marks omitted). And significantly, in evaluating firearm laws, the consequences are 

real. See id.; see also Bonidy, 790 F.3d at 1126. Judicial restraint is particularly appropriate 

because “[w]e do not wish to be even minutely responsible for some unspeakably tragic act of 

mayhem because in the peace of our judicial chambers we miscalculated as to Second 

Amendment rights.” United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011). Here, I 

believe that the record contains sufficient evidence for our court to conclude that § 922(g)(4) is 

“substantially related” to the government’s compelling interests in preventing gun violence 

against others and, particularly, preventing firearm-related suicide. See Clark v. Jeter, 486 U.S. 

456, 461 (1988). 

B. 

First, § 922(g)(4) is substantially related to the government’s compelling interest in 

preventing gun violence against others. The government presented to the district court several 

studies demonstrating a link between mental illness and an increased risk of violence. See R. 23 

(Mot. To Dismiss at 33–34) (Page ID #171–72). The link between involuntary commitments and 

firearm violence has also been borne out in empirical research relating to gun-control policy. As 

the States United to Prevent Gun Violence provides in its amicus brief, “when Connecticut began 

reporting records of mental health adjudications to the federal NICS database in 2007—thereby 

preventing individuals with prior civil commitments, but no previously disqualifying criminal 

history, from passing a background check,” Connecticut “saw a 53% reduction in rates of violent 

crime perpetrated by such individuals.” See States United to Prevent Gun Violence Amicus Br. 

at 11. 

Second, and more significantly, § 922(g)(4) is substantially related to the government’s 

compelling interest in preventing firearm-related suicide. The data related to suicide risk for 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 58 

individuals who are mentally ill—and, specifically, individuals previously subjected to an 

involuntary commitment—is stark. The government cited several empirical studies in its motion 

to dismiss in the district court demonstrating the link between mental illness, firearms, and 

suicide. For example, the government cited studies and articles suggesting that “[n]inety percent 

(or more) of suicide victims in the United States suffered from mental illness.” R. 23 (Gov’t 

Mot. to Dismiss at 34 n.23) (Page ID #171) (quoting Frederick E. Vars & Amanda Adcock 

Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 Wake Forest L. Rev. 1, 21 (2013)). 

A law review article relied upon by the government further reports that individuals released after 

involuntary commitments, specifically, had “a suicide risk thirty-nine times greater than 

expected.” Vars & Adcock Young, supra, at 22 (emphasis added); see also R. 23 (Gov’t Mot. to 

Dismiss at 35) (Page ID #172) (discussing higher rate of suicide “among people who have 

previously been committed”). 

Moreover, the government presented evidence about the disproportionately lethal rate of 

suicides involving firearms as opposed to suicides using other means. R. 23 (Gov’t Mot. to 

Dismiss at 35–36) (Page ID #172–73). As one report shows, although the total fatality rate for 

all methods of suicide is nine percent, the fatality rate for suicide by firearm is eighty-five 

percent. Means Matter, Lethality of Suicide Method, Harv. Univ. Sch. of Pub. Health, 

http://www.hsph.harvard.edu/means-matter/means-matter/case-fatality (last visited April 7, 

2016); see Brady Ctr. to Prevent Gun Violence Amicus Br. at 11–13. This higher mortality rate 

is particularly troubling given that, as the government provides, “[h]aving a gun in the home [is] 

a strong risk factor for gun-related suicide . . . but [is] inversely related to committing suicide 

with a nonfirearm method.” R. 23 (Gov’t Mot. to Dismiss at 35–36) (Page ID #172–73) (quoting 

Douglas J. Wiebe, Homicide and Suicide Risks Associated With Firearms in the Home: A 

National Case-Control Study, 41 Annals of Emergency Med. 771, 777 (June 2003)). 

“Importantly, not having a gun appears to deter a substantial number of suicide attempts 

altogether, rather than simply steering the victim to alternative means.” Vars & Adcock Young, 

supra, at 19 (citing Matthew Miller & David Hemenway, Guns and Suicide in the United States, 

359 New Eng. J. of Med. 989, 990 tbl. (2008)). 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 59 

The government has also established that the permanent nature of the disability is 

substantially related to its compelling interests. In its motion to dismiss, the government 

presented evidence to the district court regarding the high rate of relapse for individuals who 

have previously been involuntarily committed. See R. 23 (Gov’t Mot. to Dismiss at 37) (Page ID 

#174). Given the strong potential for relapse, and the difficulty in determining which previously 

committed individuals will pose further danger to themselves or others, Congress permissibly 

chose a broad prohibition. The rationale behind this policy choice is illustrated by Congress’s 

experience administering § 925(c)’s federal relief-from-disabilities program. Congress found 

that, under the program, “ATF officials [were] required to guess whether . . . a person committed 

to a mental institution can be entrusted with a firearm,” and after “spend[ing] many hours 

investigating . . . there [was] no way to know with any certainty whether the applicant [was] still 

a danger to public safety.” H.R. Rep. No. 102-618, at 14 (1992). Congress recognized that if an 

ATF official made an incorrect determination, “a mistake could have devastating consequences 

for innocent citizens.” Id.

The lead opinion seemingly does not fault Congress for enacting, and then defunding, 

§ 925(c); rather, the lead opinion focuses on “Congress chang[ing] its mind” in 2008 when it 

enacted the NICS Improvement Amendments Act. See Lead Op. at 25. But it is unclear why 

Congress’s decision to enact this law in 2008 affects the analysis of § 922(g)(4). As the 

government argues, “Congress may permissibly enact laws more protective of constitutional 

rights than is required by the Constitution,” and its decision to do so does not mean that its 

original action was contrary to the Second Amendment. See Federal Appellees Supp. Br. at 21. 

As discussed above, the government has provided evidence demonstrating that § 922(g)(4), as 

enacted, is substantially related to achieving the government’s compelling interest in preventing 

violence and suicide. That Congress chose to permit forms of discretionary relief to disabled 

individuals—either federally or through the states—does not undermine this conclusion. 

The lead opinion emphasizes that the “NICS Improvement Amendments Act is a less 

restrictive alternative to the permanent bar created by § 922(g)(4).” Lead Op. at 25. But it is 

well settled that “intermediate scrutiny does not require that a regulation be the least intrusive 

means of achieving the relevant government objective,” including when the law at issue relates 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 60 

to Second Amendment rights. Masciandaro, 638 F.3d at 474. Moreover, the federal relief-fromdisabilities program of § 925(c) is also “a less restrictive alternative to the permanent bar,” and 

thus, under the lead opinion’s reasoning, should similarly demonstrate that Congress does not 

feel that § 922(g)(4)’s disability should be permanent. Section 925(c)’s relief-from-disabilities 

program, however, applies to all of § 922(g)’s disabilities. If Congress’s decision to create a 

relief-from-disabilities program indicates Congress’s skepticism regarding the scope of the 

originally enacted law, as the lead opinion indicates, then Congress’s decision to enact § 925(c) 

should equally cast doubt on the scope of each of § 922(g)’s disabilities. But this cannot be the 

case. 

At bottom, the NICS Improvement Amendments Act is not meaningfully different than 

other federal firearm provisions that permit a state to choose to restore rights to a state citizen 

prevented by federal law from owning a firearm based on a prior state-level adjudication. For 

example, under § 921(a)(33)(B)(ii), a person whose “conviction [for a domestic-violence 

misdemeanor] has been expunged or set aside” or who “has had civil rights restored” by a state 

“shall not be considered to have been convicted” of a misdemeanor crime of domestic violence 

for the purposes of federal firearm law. Section 921(a)(20) provides substantially the same for 

felony convictions. See also McGrath v. United States, 60 F.3d 1005, 1009 (2d Cir. 1995) 

(explaining that, in enacting § 921(a)(20), “Congress sought to accommodate a state’s judgment 

that a particular person or class of persons is, despite a prior conviction, sufficiently trustworthy 

to possess firearms”). These provisions, like the NICS Improvement Amendments Act, are 

consistent with the overall purpose of the Gun Control Act of 1968, which is “to assist the States 

effectively to regulate firearms traffic within their borders.” H.R. Rep. No. 90-1577, at 4411 

(1968); see Federal Appellees Supp. Br. at 20-21. Unlike the lead opinion, I cannot read 

Congress’s decision to allow states to choose to create a relief-from-disabilities program for 

persons dispossessed by § 922(g)(4) as “a clear indication that Congress does not believe that 

previously committed persons are sufficiently dangerous as a class to permanently deprive” them 

of the right to bear arms. Lead Op. at 25. Congress’s decision to enact the NICS Improvement 

Amendments Act does not alter the fact that § 922(g)(4), as originally enacted, is constitutional. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 61 

The government has established that individuals released from involuntary commitment 

have a higher rate of suicide than the general population, and that these numbers are substantial. 

See R. 23 (Gov’t Mot. to Dismiss at 35) (Page ID #172); see also Vars & Adcock Young, supra, 

at 22. The government has demonstrated that ownership of a firearm is a risk factor for suicide 

and that firearms are disproportionately lethal as compared to other means. See R. 23 (Gov’t 

Mot. to Dismiss at 35–36) (Page ID #172–73). The government has also provided research 

related to the rate of relapse for individuals who have been involuntarily committed, see id. at 37 

(Page ID #174), and has persuasively demonstrated the difficulty inherent in making 

individualized assessments of dangerousness based on a past history of mental illness. 

See Federal Appellees Supp. Br. at 14; see also H.R. Rep. No. 102-618, at 14. “These 

established facts along with logic and common sense” demonstrate “that the government has 

carried its burden of establishing a reasonable fit between the substantial government objective 

of reducing” firearm violence and prohibiting individuals with prior involuntary commitments 

from possessing firearms. See United States v. Staten, 666 F.3d 154, 167 (4th Cir. 2011). Under 

intermediate scrutiny, this analysis does not change simply because Congress could have 

selected narrower alternatives. As the Ninth Circuit recognized in upholding § 922(g)(9)’s 

permanent dispossession of domestic-violence misdemeanants in the face of a Second 

Amendment challenge, Congress “could have easily created a limited duration rather than 

lifetime ban,” or Congress “could have created a good behavior clause under which individuals 

without new domestic violence arrests or charges within a certain number of years of conviction 

would automatically regain their rights to possess firearms.” United States v. Chovan, 735 F.3d 

1127, 1142 (9th Cir. 2013). “But Congress did not do so.” Id. The same is true here. Certainly, 

Congress could have enacted a firearm disability that disarmed only individuals who are 

currently involuntarily committed, or Congress could have limited § 922(g)(4)’s disability to 

individuals involuntarily committed within the last ten, twenty, or thirty years. The question 

under intermediate-scrutiny review is whether the law that Congress did enact is substantially 

related to the government’s interests, not whether it is the least restrictive law or the wisest 

policy decision. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 217–18 (1997). 

C. 
No. 13-1876 Tyler v. Hillsdale County Sheriff’s Dept., et al. Page 62 

In enacting § 922(g)(4), “Congress permissibly created a broad statute,” with an “express 

intent to establish a ‘zero tolerance policy’ towards guns” and individuals with a demonstrated 

history of mental illness. See Chovan, 735 F.3d at 1142. Under intermediate scrutiny—and 

mindful of the context within which we evaluate this law—I believe that the government has 

demonstrated that § 922(g)(4) is substantially related to Congress’s objectives of reducing the 

substantial homicide and suicide rates caused by firearms. I would therefore hold that 

§ 922(g)(4) is constitutional under intermediate-scrutiny review without any need to remand to 

the district court for further evidentiary development. For these reasons, and for the reasons 

expressed in Part I, supra, I respectfully dissent.