SMU Law Review Forum

A "Second-Class Right" For "Second-Class Citizens"

Benjamin A. Rice, Southern Methodist University, Dedman School of LawFollow

Abstract

In McDonald v. City of Chicago, the Supreme Court countenanced against treating the Second Amendment as a “second-class right.” Against this admonition, congressional defunding of federal restorative programs has rendered the amendment a second-class right for an ever-increasing and much-maligned group of people: those who have been adjudicated as mentally ill. In a majority of states, those who have been involuntarily committed at any point in their lives to a mental health institution lose the right to bear arms for life. Taking guns out of the hands of those who have enjoyed decades of good mental health after a brief stint of treatment stigmatizes all who have battled mental illness and unfairly treats them as “second-class citizens,” undeserving of their constitutionally guaranteed rights.

This Comment seeks to show that even in the ever-evolving jurisprudence of the Second Amendment, the lifetime ban currently imposed on this group fails under all forms of constitutional analysis. This Comment updates current scholarship by addressing two as-of-yet undiscussed circuit court cases and looking to the ascendent “historical approach” to Second Amendment challenges, in which courts look to the text, history, and tradition of the right to determine constitutionality. Then, it looks to tiered scrutiny, proposing that courts examine challenges to the current effective ban under the lens of strict scrutiny and disproving the oft-cited government interests.