Duy Mai v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUY T. MAI, No. 18-36071

Plaintiff-Appellant,

D.C. No.

v. 2:17-cv-00561-RAJ

UNITED STATES OF AMERICA;

UNITED STATES DEPARTMENT OF OPINION

JUSTICE; BUREAU OF ALCOHOL,

TOBACCO, FIREARMS, AND

EXPLOSIVES; FEDERAL BUREAU

OF INVESTIGATION; WILLIAM P.

BARR, Attorney General;

CHRISTOPHER A. WRAY, as

Director of the Federal Bureau of

Investigation; REGINA

LOMBARDO, as Acting Director

of the Bureau of Alcohol,

Tobacco, Firearms, and

Explosives,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Richard A. Jones, District Judge, Presiding

Argued and Submitted December 11, 2019

Seattle, Washington

2 MAI V. UNITED STATES

Filed March 11, 2020

Before: Susan P. Graber and Ronald M. Gould, Circuit

Judges, and David A. Ezra,* District Judge.

Opinion by Judge Graber

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of a

42 U.S.C. § 1983 complaint containing an as-applied Second

Amendment challenge to 18 U.S.C. § 922(g)(4), which

prohibits plaintiff from possessing firearms due to his

involuntary commitment in 1999 to a mental institution for

more than nine months after a Washington state court found

plaintiff to be both mentally ill and dangerous.

Plaintiff argued that § 922(g)(4)’s continued application

to him despite his alleged return to mental health and

peaceableness violated the Second Amendment. The panel

held that, assuming (without deciding) that § 922(g)(4)’s

prohibition burdens Second Amendment rights, intermediate

scrutiny applied. The panel also held that the prohibition on

the possession of firearms by persons, like plaintiff, whom a

*

The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MAI V. UNITED STATES 3

state court has found to be both mentally ill and dangerous is

a reasonable fit with the government’s indisputably important

interest in preventing gun violence. Scientific evidence

supported the congressional judgment that those who have

been committed involuntarily to a mental institution still pose

an increased risk of violence even years after their release

from commitment. The panel therefore concluded that

Section 922(g)(4)’s continued application to plaintiff did not

violate the Second Amendment.

COUNSEL

Vitaliy Kertchen (argued), Tacoma, Washington, for

Plaintiff-Appellant.

Abby C. Wright (argued) and Michael S. Raab, Appellate

Staff; Brian T. Moran, United States Attorney; Joseph H.

Hunt, Assistant Attorney General; Civil Division, United

States Department of Justice, Washington, D.C.; for

Defendants-Appellees.

OPINION

GRABER, Circuit Judge:

Plaintiff Duy Mai recently sought to buy a firearm, but

federal law barred him from doing so. A number of years

ago, Plaintiff was committed involuntarily, for more than

nine months, to a mental institution after a Washington state

court found him to be both mentally ill and dangerous. Title

18 U.S.C. § 922(g)(4) prohibits the possession of firearms

by those, like Plaintiff, whom a state court committed

4 MAI V. UNITED STATES

involuntarily to a mental institution. Plaintiff concedes that

the statutory prohibition on his possession of firearms during

the period of his commitment was constitutional under the

Second Amendment. But Plaintiff here brings an as-applied

challenge to § 922(g)(4), arguing that its continued

application to him despite his alleged return to mental health

and peaceableness violates the Second Amendment. We hold

that, assuming (without deciding) that § 922(g)(4)’s

prohibition burdens Second Amendment rights, intermediate

scrutiny applies. We also hold that the prohibition on the

possession of firearms by persons, like Plaintiff, whom a state

court has found to be both mentally ill and dangerous is a

reasonable fit with the government’s indisputably important

interest in preventing gun violence. Scientific evidence

supports the congressional judgment that those who have

been committed involuntarily to a mental institution still pose

an increased risk of violence even years after their release

from commitment. Section 922(g)(4)’s continued application

to Plaintiff does not violate the Second Amendment. We

therefore affirm the district court’s dismissal of this action.

BACKGROUND1

In October 1999, a Washington state court committed

Plaintiff involuntarily for mental health treatment after he

threatened himself and others. The state court determined

that Plaintiff was both mentally ill and dangerous. Plaintiff’s

1

Because we are reviewing the dismissal of a complaint, we accept

as true its well-pleaded factual allegations. Nayab v. Capital One Bank

(USA), N.A., 942 F.3d 480, 487 (9th Cir. 2019).

MAI V. UNITED STATES 5

commitment lasted more than nine months,2 ending in August

2000. Plaintiff was seventeen years old at the time of

commitment, and his commitment spanned his eighteenth

birthday.

Since his release from commitment in 2000, Plaintiff has

earned a GED, a bachelor’s degree, and a master’s degree.

He is gainfully employed and a father to two children.

According to the complaint, he no longer suffers from mental

illness, and he lives “a socially-responsible, well-balanced,

and accomplished life.”

As a result of Plaintiff’s involuntary commitment,

Washington law prohibited him from possessing a firearm.

Wash. Rev. Code § 9.41.040(2)(a)(iv). Washington law,

though, allows persons to petition for relief from that

prohibition if they meet certain conditions. Id.

§ 9.41.047(3)(a). In 2014, Plaintiff successfully petitioned a

Washington state court for relief. The court found, pursuant

to the requirements of Washington law, that “(1) [Plaintiff] is

no longer required to participate in court-ordered inpatient or

outpatient treatment; (2) [Plaintiff] has successfully managed

the condition related to his commitment; (3) [Plaintiff] no

longer presents a substantial danger to himself, or the public;

and (4) [t]he symptoms related to the commitment are not

reasonably likely to recur.” See id. § 9.41.047(3)(c)

(requiring those findings). Accordingly, the relevant state

law no longer prohibits Plaintiff from possessing a firearm.

2

The record strongly suggests that a state court committed Plaintiff

involuntarily three separate times during the nine-month period in 1999

and 2000. The complaint is ambiguous on this point. Because the number

of commitments does not alter the analysis, we assume that a state court

committed Plaintiff involuntarily only once, for a period of nine months.

6 MAI V. UNITED STATES

But, as a result of his involuntary commitment, federal

law prohibits Plaintiff from possessing a firearm. Title

18 U.S.C. § 922(g)(4) bars individuals who have been

“committed to a mental institution” from possessing

firearms.3 Federal regulations make clear that the prohibition

does not apply to “a person in a mental institution for

observation or a voluntary admission to a mental institution.”

27 C.F.R. § 478.11. Involuntary commitments comport with

due process only when the individual is found to be both

mentally ill and dangerous. Foucha v. Louisiana, 504 U.S.

71, 80 (1992). Additionally, commitments under state-law

procedures that lack robust judicial involvement do not

qualify as commitments for purposes of § 922(g)(4). United

States v. Rehlander, 666 F.3d 45, 47–49 (1st Cir. 2012). We

agree with the parties that Plaintiff’s involuntary commitment

by the Washington state court—which found Plaintiff to be

both mentally ill and dangerous—qualifies as a

“commitment” for purposes of § 922(g)(4). Section

922(g)(4), then, bars Plaintiff from possessing a firearm.

Federal law provides two potential avenues for relief from

the § 922(g)(4) bar but, as explained below, neither avenue is

currently available to Plaintiff.

First, under 18 U.S.C. § 925(c), Plaintiff may apply to the

United States Attorney General “for relief from the

disabilities imposed by Federal laws with respect to the . . .

3

“It shall be unlawful for any person . . . who has been adjudicated

as a mental defective or who has been committed to a mental institution

. . . [to] possess in or affecting commerce, any firearm or ammunition; or

to receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(4).

MAI V. UNITED STATES 7

possession of firearms.”4 Beginning in 1986, that provision

extended to persons who had been involuntarily committed to

a mental institution. Firearms Owners’ Protection Act, Pub.

L. 99-308, § 105, 100 Stat. 449 (1986). The Attorney

General may, but is not required to, grant relief “if it is

established to his satisfaction that the circumstances

regarding the disability, and the applicant’s record and

reputation, are such that the applicant will not be likely to act

in a manner dangerous to public safety and that the granting

of the relief would not be contrary to the public interest.” Id.;

see United States v. Bean, 537 U.S. 71, 77 (2002) (noting the

discretionary nature of the decision and observing that relief

4

Section 925(c) provides, in relevant part:

A person who is prohibited from possessing . . .

firearms or ammunition may make application to the

Attorney General for relief from the disabilities

imposed by Federal laws with respect to the . . .

possession of firearms, and the Attorney General may

grant such relief if it is established to his satisfaction

that the circumstances regarding the disability, and the

applicant’s record and reputation, are such that the

applicant will not be likely to act in a manner

dangerous to public safety and that the granting of the

relief would not be contrary to the public interest. Any

person whose application for relief from disabilities is

denied by the Attorney General may file a petition with

the United States district court for the district in which

he resides for a judicial review of such denial. The

court may in its discretion admit additional evidence

where failure to do so would result in a miscarriage of

justice. . . . Whenever the Attorney General grants

relief to any person pursuant to this section he shall

promptly publish in the Federal Register notice of such

action, together with the reasons therefor.

8 MAI V. UNITED STATES

may be denied “even when the statutory prerequisites are

satisfied”).

That statutory option, however, is currently foreclosed to

Plaintiff and all others. Since 1992, Congress has prohibited

the use of funds “to investigate or act upon applications for

relief from Federal firearms disabilities under 18 U.S.C.

[§ ]925(c).” Bean, 537 U.S. at 74–75 (alteration in original)

(quoting Treasury, Postal Service, and General Government

Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat.

1729, 1732 (1992)); see also id. at 75 n.3 (citing later

appropriations acts with the same prohibition); Hatfield v.

Barr, 925 F.3d 950, 952 (7th Cir. 2019) (“[S]ince 1992

Congress has withheld funds to implement § 925(c).”).

Congress defunded the program because, among other

reasons, determining eligibility had proved to be 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). Accordingly,

unless Congress chooses in the future to fund the federal

program, any application by Plaintiff for relief pursuant to

§ 925(c) would be futile. See Bean, 537 U.S. at 76 (holding

that, while funding is withheld, judicial review is also

unavailable).

Plaintiff’s second potential avenue for relief is through a

state program that qualifies under 34 U.S.C. § 40915. To

qualify, the state’s program must “permit[] a person who,

pursuant to State law, . . . has been committed to a mental

institution, to apply to the State for relief from the disabilities

imposed by” 18 U.S.C. § 922(g)(4) and other laws. Id.

§ 40915(a)(1). The program also must provide

MAI V. UNITED STATES 9

that a State court, board, commission, or other

lawful authority shall grant the relief, pursuant

to State law and in accordance with the

principles of due process, 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. § 40915(a)(2). Finally, the program must allow a person

to petition the state court “for a de novo judicial review of [a]

denial.” Id. § 40915(a)(3). For a person granted relief under

a qualifying state program, § 922(g)(4)’s prohibition on the

possession of firearms does not apply. Id. § 40915(b).

According to the government, “approximately thirty

States” have created qualifying programs. See also Bureau of

Justice Statistics, State Profiles: NICS Act Record

Improvement Program (NARIP) Awards FY 2009–2018,

https://www.bjs.gov/index.cfm?ty=tp&tid=491 (providing

state-by-state information suggesting that thirty states and one

tribe have qualifying programs). As noted above,

Washington law provides a mechanism for persons to petition

for relief from the state-law prohibition on the possession of

firearms. But that mechanism does not qualify under § 40915

because, among other reasons, the factual findings required

by Washington law differ from the factual findings required

by § 40915. Washington law requires a finding that the

person “no longer presents a substantial danger to himself or

herself, or the public.” Wash. Rev. Code § 9.41.047(3)(c)(iii)

(emphasis added). By contrast, the federal standard requires

a determination that “the person will not be likely to act in a

10 MAI V. UNITED STATES

manner dangerous to public safety.” 34 U.S.C. § 40915(a)(2)

(emphasis added). Additionally, § 40915(a)(2) requires a

finding that granting “relief would not be contrary to the

public interest,” while Washington law requires no such

inquiry. In other words, the federal standard is more stringent

than the Washington standard. Accordingly, unless

Washington chooses in the future to create a program that

meets the requirements of § 40915, Plaintiff has no avenue

for relief from § 922(g)(4)’s prohibition.

Plaintiff filed this action in 2017 after he was denied the

purchase of a firearm because of § 922(g)(4). He alleges that

the Department of Justice; the United States Attorney

General; the Federal Bureau of Investigation; and the Bureau

of Alcohol, Tobacco, Firearms, and Explosives (collectively,

“the government”) violated his Second Amendment right to

bear arms and his Fifth Amendment right to due process by

prohibiting him from possessing firearms.

The government moved to dismiss the complaint for

failure to state a claim. The district court granted that motion,

holding that § 922(g)(4) is categorically constitutional under

the Second Amendment and, alternatively, that § 922(g)(4)

satisfies intermediate scrutiny. The court also rejected

Plaintiff’s due process claim. Plaintiff then sought leave to

amend the complaint, which the court denied as futile.

Plaintiff timely appeals.

STANDARD OF REVIEW

We review de novo a district court’s decision to grant a

motion to dismiss, Nayab, 942 F.3d at 487, as well as a

challenge to the constitutionality of statutes, United States v.

Torres, 911 F.3d 1253, 1257 (9th Cir. 2019). “When a

MAI V. UNITED STATES 11

district court determines that further amendment would be

futile, we will affirm the district court’s dismissal on this

basis if it is clear, upon de novo review, that the complaint

could not be saved by any amendment.” Curry v. Yelp Inc.,

875 F.3d 1219, 1228 (9th Cir. 2017) (internal quotation marks

omitted).

DISCUSSION

As this case reaches us, Plaintiff advances only his

Second Amendment claim. He argues that the Second

Amendment requires that he be allowed to possess firearms

notwithstanding his earlier involuntary commitment. He does

not specify the standard by which federal courts should

measure whether persons, like Plaintiff, are sufficiently

rehabilitated for purposes of the Second Amendment.

Notably, though, Plaintiff does not seek the application of the

substantive standards defined in 34 U.S.C. § 40915. He has

never asserted, for example, an equal-protection claim that,

because persons in thirty other states benefit from programs

applying § 40915’s substantive standards, he too is entitled

to relief or to an opportunity to meet those standards. Nor

has he advanced, on appeal, an argument that due process

demands the same results. See Smith v. Marsh, 194 F.3d

1045, 1052 (9th Cir. 1999) (holding that arguments not raised

in the opening brief are forfeited). We therefore do not

consider whether those theories have merit, and we turn to the

only claim on appeal: whether the Second Amendment

requires that Plaintiff be allowed to possess firearms.

The “Second Amendment protects the right to keep and

bear arms for the purpose of self-defense.” McDonald v. City

of Chicago, 561 U.S. 742, 749–50 (2010). But the right is

“not unlimited.” District of Columbia v. Heller, 554 U.S.

12 MAI V. UNITED STATES

570, 595 (2008). The Supreme Court clarified that its

recognition of the Second Amendment right does not “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; accord McDonald, 561 U.S. at 786. Those

prohibitions are “presumptively lawful.” Heller, 554 U.S.

at 627 n.26.

Applying the lessons from Heller and McDonald, we

have adopted a two-step inquiry for assessing whether a law

violates the Second Amendment. Torres, 911 F.3d at 1258.

“This test ‘(1) asks whether the challenged law burdens

conduct protected by the Second Amendment and (2) if so,

directs courts to apply an appropriate level of scrutiny.’” Id.

(quoting United States v. Chovan, 735 F.3d 1127, 1136 (9th

Cir. 2013)).

Whether § 922(g)(4)’s prohibition on the possession of

firearms by persons who have been committed to a mental

institution comports with the Second Amendment is an issue

of first impression in this circuit. But we are guided by our

previous decisions in related contexts. See, e.g., id. at 1264

(holding that § 922(g)(5)’s prohibition on the possession of

firearms by unlawful aliens survives intermediate scrutiny);

Chovan, 735 F.3d at 1142 (holding that § 922(g)(9)’s

prohibition on the possession of firearms by persons

previously convicted of a domestic violence misdemeanor

survives intermediate scrutiny); United States v. Vongxay,

594 F.3d 1111, 1118 (9th Cir. 2010) (holding that

§ 922(g)(1)’s prohibition on the possession of firearms by

felons comports with the Second Amendment).

MAI V. UNITED STATES 13

Decisions by the Third and Sixth Circuits addressing

§ 922(g)(4) also inform our analysis. Those courts have

addressed challenges remarkably similar to Plaintiff’s

challenge here and have reached opposite conclusions. In

both Beers v. Attorney General, 927 F.3d 150, 152 (3d Cir.

2019), petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 9,

2020) (No. 19-864), and Tyler v. Hillsdale County Sheriff’s

Department, 837 F.3d 678, 683–84 (6th Cir. 2016) (en banc),

a state court had committed the plaintiff many years ago to a

mental institution but, according to the plaintiff, he was now

free of mental illness. In both cases, the plaintiff argued that,

as applied to him, § 922(g)(4)’s prohibition violated the

Second Amendment.

The Third Circuit rejected the claim, concluding that

§ 922(g)(4) did not burden conduct protected by the Second

Amendment. Beers, 927 F.3d at 159. Accordingly, the

plaintiff’s alleged return to mental health was irrelevant to the

constitutional analysis. Id.

By contrast, the Sixth Circuit reversed the district court’s

dismissal of the claim and remanded for further proceedings.

Tyler, 837 F.3d at 699. The court first concluded that

§ 922(g)(4) burdened Second Amendment rights and that

intermediate scrutiny applied. Id. at 688–93. The court then

held that § 922(g)(4) did not survive intermediate scrutiny as

applied to the plaintiff because the government had failed to

show that a lifetime prohibition on the possession of firearms

was a reasonable fit with the goals of reducing crime and

suicide. Id. at 693–99.

We turn, then, to our own analysis.

14 MAI V. UNITED STATES

A. Asking Whether § 922(g)(4) Burdens Second

Amendment Rights

We first ask whether the statute at issue “burdens conduct

protected by the Second Amendment.” Torres, 911 F.3d

at 1258 (quoting Chovan, 735 F.3d at 1136). This inquiry

“requires us to explore the amendment’s reach based on a

historical understanding of the scope of the Second

Amendment right.” Id. (internal quotation marks and

brackets omitted). A law does not burden Second

Amendment rights “if it either falls within one of the

‘presumptively lawful regulatory measures’ identified in

Heller or regulates conduct that historically has fallen outside

the scope of the Second Amendment.” Id. (some internal

quotation marks omitted).

The government has presented a strong argument that

both of those inquiries support the conclusion that § 922(g)(4)

does not burden Second Amendment rights. The Supreme

Court identified as presumptively lawful the “longstanding

prohibitions on the possession of firearms by felons and the

mentally ill.” Heller, 554 U.S. at 626. In Vongxay, 594 F.3d

at 1114–15, we held that § 922(g)(1)—the federal prohibition

on the possession of firearms by felons—fell within Heller’s

“presumptively lawful” category. Like the federal prohibition

as to felons, § 922(g)(4) had been on the books for decades

when the Court decided Heller. Similarly, historical evidence

supports the view that society did not entrust the mentally ill

with the responsibility of bearing arms. See, e.g., Beers,

927 F.3d at 157–58 (summarizing the historical evidence).

Plaintiff responds by re-framing the inquiry. He concedes

that a prohibition as to those persons who are presently

mentally ill and dangerous does not implicate the Second

MAI V. UNITED STATES 15

Amendment. But he reads both Heller and the historical

evidence as limited to that circumscribed category: those

who are presently mentally ill. He urges us to agree with the

Sixth Circuit that “historical evidence . . . does not directly

support the proposition that persons who were once

committed due to mental illness are forever ineligible” to

possess a firearm. Tyler, 837 F.3d at 689.

We need not decide which perspective better comports

with the historical evidence. Instead, we follow the “well-

trodden and ‘judicious course’” taken by our court in many

recent cases. Pena v. Lindley, 898 F.3d 969, 976 (9th Cir.

2018) (quoting Woollard v. Gallagher, 712 F.3d 865, 876

(4th Cir. 2013)), petition for cert. filed, __ U.S.L.W. __ (U.S.

Dec. 28, 2018) (No. 18-843). We assume, without deciding,

that § 922(g)(4), as applied to Plaintiff, burdens Second

Amendment rights.

B. Determining the Appropriate Level of Scrutiny

We next “determine the appropriate level of scrutiny to

apply.” Torres, 911 F.3d at 1262. “[L]aws burdening Second

Amendment rights must withstand more searching scrutiny

than rational basis review.” Id. The precise level of

heightened scrutiny depends “on (1) how close the law comes

to the core of the Second Amendment right and (2) the

severity of the law’s burden on the right.” Chovan, 735 F.3d

at 1138 (internal quotation marks omitted). “[T]here has been

near unanimity in the post-Heller case law that, when

considering regulations that fall within the scope of the

Second Amendment, intermediate scrutiny is appropriate.”

Torres, 911 F.3d at 1262 (internal quotation marks omitted).

Strict scrutiny applies only to laws that both implicate a core

16 MAI V. UNITED STATES

Second Amendment right and place a substantial burden on

that right. Id.

As Plaintiff recognizes, intermediate scrutiny applies

here. “[T]he core of the Second Amendment is ‘the right of

law-abiding, responsible citizens to use arms in defense of

hearth and home.’” Chovan, 735 F.3d at 1138 (quoting

Heller, 554 U.S. at 635). In Chovan, we concluded that,

regardless of present-day rectitude, a person convicted long

ago of a domestic-violence misdemeanor was not a “law-

abiding, responsible citizen.” Id. That same logic extends

here: Regardless of present-day peaceableness, a person who

required formal intervention and involuntary commitment

by the State because of the person’s dangerousness is not a

“law-abiding, responsible citizen.” Section 922(g)(4)’s

prohibition thus falls well outside the core of the Second

Amendment right. Id.

We recognize that the burden that § 922(g)(4)’s

prohibition places on Plaintiff is “quite substantial.” Id.

Unless Congress or the Washington legislature enacts a

program relieving him from § 922(g)(4)’s prohibition, the law

“amounts to a ‘total prohibition’ on firearm possession for

[Plaintiff]—in fact, a ‘lifetime ban.’” Id. But we agree with

the Sixth Circuit that, “[l]ike 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 involuntarily

committed.” Tyler, 837 F.3d at 691. Just as intermediate

scrutiny applies to the other lifetime bans in § 922(g), so too

does intermediate scrutiny apply to § 922(g)(4)’s prohibition.

See, e.g., Chovan, 735 F.3d at 1138 (applying intermediate

scrutiny to § 922(g)(9)’s prohibition on the possession of

firearms by those previously convicted of the misdemeanor

MAI V. UNITED STATES 17

of domestic violence); see also Tyler, 837 F.3d at 691–92

(collecting cases from other circuits that have applied

intermediate scrutiny to lifetime bans imposed by § 922(g)).

In conclusion, we join the Sixth Circuit—the only other

circuit court to have addressed the issue—in holding that

intermediate scrutiny applies here. Tyler, 837 F.3d

at 690–92.

C. Applying Intermediate Scrutiny

To satisfy intermediate scrutiny, the government’s

statutory objective must be “significant, substantial, or

important,” and there must be a “reasonable fit” between the

challenged law and that objective. Silvester v. Harris,

843 F.3d 816, 821–22 (9th Cir. 2016) (internal quotation

marks omitted). “A statute need not utilize the least

restrictive means of achieving its interest in order to

withstand intermediate scrutiny.” Torres, 911 F.3d at 1263

(internal quotation marks omitted). “Instead, the statute

simply needs to promote a substantial government interest

that would be achieved less effectively absent the regulation.”

Id. (brackets and internal quotation marks omitted).

Here, two important interests support § 922(g)(4)’s ban

on the possession of firearms by those who were involuntarily

committed to a mental institution: preventing crime and

preventing suicide. See Washington v. Glucksberg, 521 U.S.

702, 730–35 (1997) (recognizing the government’s

“unquestionably important” interest in preventing suicide);

Schall v. Martin, 467 U.S. 253, 264 (1984) (“The legitimate

and compelling state interest in protecting the community

from crime cannot be doubted.” (internal quotation marks

omitted)); Torres, 911 F.3d at 1263 (holding that the

18 MAI V. UNITED STATES

government’s interests in crime control and public safety are

“important”). We agree with the Sixth Circuit that those two

interests “are not only legitimate, they are compelling.”5

Tyler, 837 F.3d at 693.

Congress’ reasoning is straightforward. Firearms

undoubtedly exacerbate acts of violence to others. Bonidy v.

U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015).

Firearms also greatly increase the risk of death by suicide.

See, e.g., Matthew Miller & David Hemenway, Guns and

Suicide in the United States, 359 New Eng. J. Med. 989, 990

(2008) (“A suicide attempt with a firearm rarely affords a

second chance. Attempts involving drugs or cutting, which

account for more than 90% of all suicidal acts, prove fatal far

less often.”); id. at 991 (discrediting as “invalid” the specious

belief that “anyone who is serious enough about suicide to

use a gun would find an equally effective means if a gun were

not available”); id. (concluding that “the availability of lethal

means . . . can make the difference between life and death”).

In enacting § 922(g)(4) and related restrictions, “Congress

sought to . . . keep guns out of the hands of those who have

demonstrated that they may not be trusted to possess a

firearm without becoming a threat to society.” Dickerson v.

New Banner Inst., Inc., 460 U.S. 103, 112 (1983) (quoting

Lewis v. United States, 445 U.S. 55, 63 (1980)), superseded

in other part by statute, as stated in Logan v. United States,

552 U.S. 23, 27–28 (2007); accord Small v. United States,

544 U.S. 385, 393 (2005); Lewis v. United States, 445 U.S.

5

Because we determine that § 922(g)(4) is a reasonable fit for the

government’s interest in preventing suicide, we need not and do not

address whether the statute is also a reasonable fit for the government’s

interest in preventing crime.

MAI V. UNITED STATES 19

55, 63 (1980); Scarborough v. United States, 431 U.S. 563,

572 (1977). Put more succinctly, “Congress’ intent in

enacting [§] 922(g) and [related laws] was to keep firearms

out of the hands of presumptively risky people.” Dickerson,

460 U.S. at 112 n.6. Accordingly, although § 922(g)(4)’s

prohibition takes effect as a result of a past event, the statute

“target[s] a present danger, i.e., the danger posed by [those

who previously have been involuntarily committed to a

mental institution] who bear arms.” Vartelas v. Holder,

566 U.S. 257, 271 (2012) (emphasis added).

The Second Amendment allows categorical bans on

groups of persons who presently pose an increased risk of

violence. See, e.g., United States v. Skoien, 614 F.3d 638,

641 (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 . . . .”). For example, we

upheld the constitutionality of § 922(g)(9)’s ban on the

possession of firearms by domestic violence misdemeanants

because that category of persons has a high rate of domestic

violence recidivism and because the use of firearms by

domestic abusers causes more deaths. Chovan, 735 F.3d

at 1140–41. And we upheld the constitutionality of

§ 922(g)(5)’s ban on the possession of firearms by unlawful

aliens because that category of persons has “an inherent

incentive to . . . evade law enforcement” and, if armed, “could

pose a threat to immigration officers or other law

enforcement.” Torres, 911 F.3d at 1264.

Similarly, in enacting § 922(g)(4), Congress determined

that, like felons and domestic-violence assailants, those who

have been involuntarily committed to a mental institution also

pose an increased risk of violence. As we explain below,

20 MAI V. UNITED STATES

scientific evidence amply supports that congressional

judgment. Section 922(g)(4)’s prohibition is therefore a

reasonable fit for the government’s laudable goal of

preventing gun violence.

Plaintiff does not challenge that conclusion as a general

matter. Indeed, he concedes that § 922(g)(4)’s prohibition

justifiedly applied to him originally. Instead, Plaintiff brings

an as-applied challenge only. He argues that the continued

application of the prohibition to him is no longer justified

because of the passage of time and his alleged mental health

and peaceableness in recent years. For the reasons that

follow, we disagree.

1. Scientific Evidence Reasonably Supports Congress’

Judgment.

The scientific evidence cited by the government shows an

increased risk of violence for those who have been released

from involuntary commitment. For example, the authors of

one meta-analysis surveyed the available scientific literature

that studied the relationship between a history of mental

illness and the risk of suicide. E. Clare Harris & Brian

Barraclough, Suicide as an Outcome for Mental Disorders: A

Meta-Analysis, 170 Brit. J. Psychiatry 205 (1997) [hereinafter

Suicide Meta-Analysis]. The authors found that studies of

persons released from involuntary commitment reported a

combined “suicide risk 39 times that expected.”6 Id. at 220

(emphasis added). That extraordinarily increased risk of

6

The authors defined the “expected” rate of suicide as either the rate

calculated by the authors of the individual study or the background rate for

the general population of the relevant country, controlling for years of the

study, age, and gender. Suicide Meta-Analysis, supra, at 205.

MAI V. UNITED STATES 21

suicide clearly justifies the congressional judgment that those

released from involuntary commitment pose an increased risk

of suicide.

Plaintiff correctly points out that the scientific evidence

is not a perfect match for his circumstances. For example,

although suicide risk following release from commitment is

extremely high, the risk “seems highest” initially and

“diminishes thereafter.” Id. at 223. Furthermore, the studies

followed the outcomes of those released from involuntary

commitment for up to 8.5 years, whereas Plaintiff was

released from involuntary commitment two decades ago.

Channeling the Sixth Circuit’s analysis, Plaintiff urges us to

conclude that the government’s cited studies are insufficient

to support the congressional judgment that he poses an

increased risk of suicide. Tyler, 837 F.3d at 695–96.

We disagree. In assessing congressional judgment, “we

do not impose an ‘unnecessarily rigid burden of proof,’ and

we allow [the government] to rely on any material

‘reasonably believed to be relevant’ to substantiate its

interests.” Pena, 898 F.3d at 979 (quoting Mahoney v.

Sessions, 871 F.3d 873, 881 (9th Cir. 2017)). That standard

applies because “we are weighing a legislative judgment, not

evidence in a criminal trial.” Id. Thus, we do not require

“scientific precision.” Id. at 984. We ask only whether the

evidence “fairly supports” Congress’ “reasonable”

conclusions. Id. at 979–80 (quoting Jackson v. City of San

Francisco, 746 F.3d 953, 969 (9th Cir. 2014)); see also

Jackson, 746 F.3d at 969 (holding that, even if the relevant

science were “an open question,” that conclusion “is

insufficient to discredit [a legislative body’s] reasonable

conclusions”). When empirical evidence is incomplete, we

“must accord substantial deference to the predictive

22 MAI V. UNITED STATES

judgments of Congress.” Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 665 (1994). “Sound 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.” Id.

Scientific studies show an ever-present increased risk of

violence for those who were committed involuntarily, even

well after they are released. We cannot conclude that,

because no one apparently has published a study beyond

8.5 years after the participants’ release from involuntary

commitment, Congress may not infer that the increased risk

of violence continues after that time period. Importantly, the

studies did not show merely a slight increase in risk for those

involuntarily committed; the studies reported “a suicide risk

39 times that expected.” Suicide Meta-Analysis, supra, at 220

(emphasis added). It was well within Congress’ legislative

discretion to predict that the increased risk would not

plummet to zero in later years.

Closely related studies confirm that suicide risk remains

extremely high for those with a history of mental illness, even

when studies continue beyond a decade after treatment.

“Previously hospitalised patients” were studied for “up to

15 years after discharge from in-patient treatment,” and they

had “a suicide risk seven times that expected.” Id. at 221.

“Community care patients” were studied for up to 12 years,

and they had a “suicide risk almost 13 times that expected.”

Id. “Out-patients” were studied for up to 12 years, and they

had “a suicide risk 18 times that expected.” Id. Studies that

did not differentiate between the types of treatment that

patients received were conducted for up to 15 years and

reported “a suicide risk 11 times that expected.” Id.

MAI V. UNITED STATES 23

In sum, although the scientific evidence suggests that

Plaintiff’s increased risk of suicide decreases over time,

nothing suggests that it ever dissipates entirely.7 Scientific

evidence thus fairly supports the congressional judgment that

those who have been involuntarily committed to a mental

institution continue to pose an increased risk of violence even

many years after their release from commitment. See

Chovan, 735 F.3d at 1142 (rejecting an as-applied challenge

to § 922(g)(9)’s prohibition on a domestic violence

misdemeanant because he had not “directly proved that if a

domestic abuser has not committed domestic violence for

fifteen years, that abuser is highly unlikely to do so again”).

Plaintiff has asserted that, because he was released from

commitment years ago, no longer suffers from mental illness,

and has been peaceable in recent years, the Second

Amendment requires that he be allowed to possess firearms.

But we emphasize that we are assessing congressional

judgment about a category of persons, not about Plaintiff

himself. As described above, scientific evidence reasonably

supports the congressional judgment about that category of

persons. We agree with the Sixth Circuit that the Second

Amendment does not demand “an individualized hearing” to

assess Plaintiff’s own personal level of risk. Tyler, 837 F.3d

at 698 n.18; see also Torres, 911 F.3d at 1264 n.6 (holding

7

In other contexts, scientific consensus exists that, over time, a

particular increased risk dissolves entirely. For example, the

American Cancer Society reports that, fifteen years after quitting smoking,

a former smoker’s “risk of coronary heart disease is that of a non-

smoker’s.” Am. Cancer Soc’y, Benefits of Quitting Smoking Over Time,

https://www.cancer.org/healthy/stay-away-from-tobacco/benefits-of-

quitting-smoking-over-time.html. We have located nothing similar in the

present context.

24 MAI V. UNITED STATES

that, under intermediate scrutiny, some amount of over-

inclusiveness for a firearms prohibition is permissible).

But even if we were to consider his personal situation,

Plaintiff’s own anecdotal evidence of his psychological

evaluations in 2014 confirms what the scientific literature

explains: Although his present level of risk is lower than it

was around the time of his commitment, his history of mental

illness remains a scientifically recognized factor in evaluating

his current level of risk. One of Plaintiff’s doctors wrote that

a history of mental illness is “associated with higher risk of

aggression.” Plaintiff’s results on one psychological test

showed less of a risk than “the base rate for individuals with

a psychiatric history”; one doctor concluded that he has a

“low risk for future violence”; and another doctor concluded

that he does not “represent[] a significant suicide risk.” But

nothing in the record suggests that Plaintiff’s level of risk is

nonexistent or that his level of risk matches the risk

associated with a similarly situated person who lacks a

history of mental illness.

2. Congress Has Not Reconsidered Its Judgment.

Congress’ 2008 enactment of 34 U.S.C. § 40915 does not

affect our analysis. As described above, § 40915 allows

states to create their own “relief from disabilities” programs.

The Sixth Circuit held that § 40915 “is a clear indication that

Congress does not believe that previously committed persons

are sufficiently dangerous as a class” to prohibit them from

possessing firearms. Tyler, 837 F.3d at 697. We understand

Congress’ enactment of § 40915 differently.

Congress enacted § 40915 as part of the NICS

Improvement Amendments Act of 2007 (“NIAA”), 34 U.S.C.

MAI V. UNITED STATES 25

§§ 40902–40941. As its name suggests, the NIAA aimed to

improve the National Instant Criminal Background Check

System (“NICS”), the federal background-check system that

includes a database listing persons who have been

disqualified from possessing firearms. Id. § 40902. Congress

passed the NIAA in response to horrible acts of gun violence

by those with a history of mental illness. Id. § 40902(8)–(9).

All of the NIAA’s substantive provisions other than § 40915

seek to improve the information contained in the federal

database. See, e.g., id. § 40911 (requiring federal agencies to

share information); id. §§ 40912–40914 (encouraging states

to share information).

The NIAA was a political compromise that included

§ 40915’s avenue for relief for some of the least dangerous

only in exchange for greatly improved enforcement as to all

the rest, including the most dangerous.8 Congress’ statutory

extension of grace to some persons as part of a political

compromise aimed at preventing gun violence does not affect

our constitutional analysis. We do not read the NIAA as

disturbing the longstanding congressional judgment—

supported by scientific evidence—that those who were

8

See, e.g., 153 Cong. Rec. 15,676 (2007) (“In order to move the

legislation to the floor, it was necessary to make some accommodations

[including the addition of § 40915] to incorporate the concerns of gun

owners.” (statement of Rep. Conyers)); id. at 15,677 (“This legislation

represents a true compromise . . . [with] two diverse groups . . . , the NRA

and the Brady Group, coming together to help work out this legislation,

and both had some benefits from it.” (statement of Rep. Castle)); accord

153 Cong. Rec. 36,338 (2007) (“[T]his compromise legislation . . .

respects the rights of gun owners and, at the same time, makes sure that

the NICS system will work more effectively.” (statement of Sen. Leahy)).

26 MAI V. UNITED STATES

involuntarily committed to a mental institution pose an

increased risk of violence even years after their release.9

3. Section 922(g)(4) Is a Reasonable Fit for Preventing

Suicide.

To meet intermediate scrutiny, the government must

demonstrate that § 922(g)(4) is a “reasonable fit” for the goal

of reducing gun violence. Torres, 911 F.3d at 1263. As

described above, Congress reasonably concluded that

restricting firearms from persons with an increased risk of

violence advances the goal of reducing gun violence. Section

922(g)(4) thus appears to be a “reasonable fit” for the

government’s important interest. See id. (holding that, to

meet intermediate scrutiny, a “statute simply needs to

promote a substantial government interest that would be

achieved less effectively absent the regulation.” (brackets and

internal quotation marks omitted)).

But we also must consider the availability, or

unavailability, of avenues of relief from categorical, lifetime

bans. Fisher v. Kealoha, 855 F.3d 1067, 1071 (9th Cir. 2017)

(per curiam); Chovan, 735 F.3d at 1142. Plaintiff presently

9

Nor could Congress’ extension of grace to some persons alter the

meaning of the Second Amendment. Like many constitutional provisions,

the Second Amendment establishes a floor below which Congress may not

legislate. But if Congress chooses to legislate well above that floor—for

example, by allowing categories of persons to possess firearms even

though Congress could restrict possession—that legislation has no effect

on the meaning of the Second Amendment. See, e.g., Bracy v. Gramley,

520 U.S. 899, 904 (1997) (holding that “the Due Process Clause of the

Fourteenth Amendment establishes a constitutional floor, not a uniform

standard” and noting the existence of many laws that legislate above that

constitutional minimum).

MAI V. UNITED STATES 27

has no avenue for seeking relief from § 922(g)(4)’s

prohibition. Unless Congress funds the “relief from

disabilities” program defined in § 925(c) or the Washington

legislature creates a “relief from disabilities” program

pursuant to § 40915,10 federal law prohibits Plaintiff from

possessing a firearm. This case thus differs from challenges

to other lifetime bans imposed by § 922(g), because those

provisions allow persons to seek relief from the lifetime ban

in certain circumstances. See, e.g., Chovan, 735 F.3d at 1142

(noting the avenues for relief, such as a gubernatorial pardon,

available to domestic-violence misdemeanants).

Several factors lead us to conclude that § 922(g)(4)

nevertheless remains a reasonable fit for the congressional

goal of reducing gun violence. First, the governmental

interest at stake is compelling. The statute does not merely

aim to protect financial interests. Nor is the statute merely a

modest, incremental improvement in fighting crime. See,

e.g., Pena, 898 F.3d at 981–86 (upholding the

constitutionality of a law requiring some firearms to

“microstamp” identifying information onto discharged

bullets). The interest at stake here is preventing horrific acts

of violence. Suicide affects not only its immediate victim;

family members, friends, and the community as a whole

suffer immensely. Even a small decrease in the number of

suicides is, therefore, a significant public benefit.

10

That possibility is not fanciful. Soon after the Third Circuit rejected

the plaintiff’s challenge to § 922(g)(4) in Beers, 927 F.3d 150, the federal

government approved Pennsylvania’s state program under § 40915.

Petition for cert. 23 (U.S. Jan. 9, 2020) (No. 19-864). The plaintiff in

Beers is “now licensed to possess a firearm and has obtained one.” Id.

28 MAI V. UNITED STATES

Second, as discussed above, the scientific evidence

strongly suggests that the increased risk is not tiny. The

available studies, though an imperfect match for Plaintiff’s

precise circumstances, have found that those released from

involuntary commitment are 39 times more likely to commit

suicide than those not previously committed.

Finally, § 922(g)(4)’s prohibition as to those who were

committed involuntarily applies not to persons who

theoretically might be dangerous at some point in their lives.

Instead, it applies only to those who were found, through

procedures satisfying due process, actually dangerous in the

past.11 By limiting the prohibition to those with a

demonstrated history of dangerousness, § 922(g)(4) is more

narrowly tailored than other lifetime prohibitions that we

have upheld, such as § 922(g)(1)’s prohibition as to felons,

both violent and non-violent. See United States v. Phillips,

827 F.3d 1171, 1175–76 (9th Cir. 2016) (upholding

§ 922(g)(1)’s lifetime ban as applied to someone convicted of

the “non-violent” felony of misprision).

In sum, we hold that § 922(g)(4)’s prohibition on those

who have been involuntarily committed to a mental

institution is a reasonable fit for the important goal of

reducing gun violence. The district court therefore correctly

granted the government’s motion to dismiss. Because the

factual allegations in the proposed amended complaint do not

affect our analysis, the district court correctly denied, as

futile, Plaintiff’s motion for leave to amend the complaint.

11

As applied to Plaintiff, a state court found him dangerous at least

once, and possibly three times. See supra, note 2.

MAI V. UNITED STATES 29

CONCLUSION

The federal prohibition on Plaintiff’s possession of

firearms because of his past involuntary commitment

withstands Second Amendment scrutiny. Those who are no

longer mentally ill, but who were committed involuntarily

years ago, unquestionably pose less of a risk of violence now

than when a state court found them to be mentally ill and

dangerous. But scientific evidence reasonably supports the

congressional judgment that they nevertheless still pose an

increased risk of violence. The Second Amendment allows

Congress to further its goal of preventing gun violence by

barring Plaintiff from possessing a firearm.

We emphasize that we reach only Plaintiff’s Second

Amendment challenge and that our holding is limited to

§ 922(g)(4)’s prohibition on those who have “been committed

to a mental institution.” We emphatically do not subscribe to

the notion that “once mentally ill, always so.” We accept, as

we must and as we have no reason to doubt, that Plaintiff is

no longer mentally ill. We decide only that § 922(g)(4)’s

application to him withstands Second Amendment scrutiny.

AFFIRMED.