Amicus Curiae Brief — Duy T. Mai, Petitioner v. United States, et al.

No. 20-819

══════════════════════════════════════════

IN THE

Supreme Court of the United States

____________________

DUY T. MAI, Petitioner,

v.

UNITED STATES OF AMERICA, ET AL., Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

Brief Amicus Curiae of

Gun Owners of America, Inc.,

Gun Owners Foundation,

Gun Owners of California, Inc., and

Heller Foundation in Support of Petitioner

____________________

*Counsel of Record

ROBERT J. OLSON*

WILLIAM J. OLSON

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

January 19, 2021

══════════════════════════════════════════

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . ii

INTEREST OF THE AMICI CURIAE. . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

I.

THE LOWER COURTS ARE REFUSING TO

FAITHFULLY APPLY HELLER. . . . . . . . . . . . . . . . 5

II. TEXT, HISTORY, AND TRADITION ARE THE

PROPER ANALYTICAL TOOLS. . . . . . . . . . . . . . . 11

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Amendment II. . . . . . . . . . . . . . . . . . . . . . . . 2, passim

STATUTES

18 U.S.C. § 922(g). . . . . . . . . . . . . . . . . . . . . 2, passim

CASES

Caetano v. Massachusetts,

136 S. Ct. 1027 (2016).. . . . . . . . . . . . . . . . . . . . 7

District of Columbia v. Heller,

554 U.S. 570 (2008).. . . . . . . . . . . . . . . . 2, passim

Duncan v. Becerra, 970 F.3d 1133

(9th Cir. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

McDonald v. City of Chicago,

561 U.S. 742 (2010).. . . . . . . . . . . . . . . . . . . . 2, 6

N.Y. State Rifle & Pistol Ass’n v. City of N.Y.,

140 S. Ct. 1525 (2020).. . . . . . . . . . . . . . . . . . . . 6

Rogers v. Grewal, 140 S. Ct. 1865 (2020). . . . . . . . 11

Tyler v. Hillsdale Cty. Sheriff’s Dep’t,

837 F.3d 678 (6th Cir. 2016). . . . . . . . 11, 12, 13

United States v. Chovan, 735 F.3d 1127

(9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

INTEREST OF THE AMICI CURIAE1

Gun Owners of America, Inc. and Gun Owners of

California, Inc. are nonprofit social welfare

organizations, exempt from federal income tax under

Internal Revenue Code (“IRC”) section 501(c)(4). Gun

Owners Foundation and Heller Foundation are

nonprofit educational and legal organizations, exempt

from federal income tax under IRC section 501(c)(3).

Amici organizations were established, inter alia,

for the purpose of participating in the public policy

process, including conducting research, and informing

and educating the public on the proper construction of

state and federal constitutions, as well as statutes

related to the rights of citizens, and questions related

to human and civil rights secured by law.

STATEMENT OF THE CASE

Petitioner was involuntarily committed for mental

health treatment for a brief period of time when he

was a minor. Petitioner was released from his

commitment more than two decades ago and, since

then, has led an exemplary life. A Washington state

court found “Mai doesn’t present a substantial danger

to himself or to the public and ... the symptoms that

led to his commitment are not reasonably likely to

1

It is hereby certified that counsel for Petitioner and for

Respondents have consented to the filing of this brief; that

counsel of record for all parties received notice of the intention to

file this brief at least 10 days prior to its filing; that no counsel for

a party authored this brief in whole or in part; and that no person

other than these amici curiae, their members, or their counsel

made a monetary contribution to its preparation or submission.

2

reoccur.” Mai v. United States, 974 F.3d 1082, 1085

(9th Cir. 2020) (Bumatay, J., dissenting). Under

Washington state law, Petitioner is free to own a

firearm. But the Ninth Circuit took the position that

federal law prohibits those who have “been adjudicated

as a mental defective or [have] been committed to a

mental institution” from ever exercising their Second

Amendment rights. See 18 U.S.C. § 922(g)(4).

Despite Washington State’s affirmation that

Petitioner is part of “the people” protected by the

Second Amendment, the Ninth Circuit blocks his

exercise of his Second Amendment rights. And,

because federal courts across the United States

blatantly ignore this Court’s Second Amendment

holdings, treating “the true palladium of liberty” like

a “constitutional orphan,” this Court needs to grant

the petition and restore order.

SUMMARY OF ARGUMENT

Practically speaking, the Ninth Circuit has never

found a Second Amendment violation it won’t

countenance. The circuit court accomplishes this by

applying a watered-down interest balancing test that

it dubs “intermediate scrutiny.” Despite this Court’s

crystal-clear holdings in District of Columbia v. Heller,

554 U.S. 570, 600 (2008) and McDonald v. City of

Chicago, 561 U.S. 742 (2010), explaining that Second

Amendment rights are not subject to federal judges’

estimation of their usefulness or propriety, the Ninth

Circuit deliberately and unabashedly continues to

treat the Second Amendment like a second-class right,

showing — as Judge VanDyke described it — a

3

“demonstrated dislike of things that go bang.” Mai,

974 F.3d at 1097.

This Court’s opinion in District of Columbia v.

Heller began by interpreting the text of the Second

Amendment. See id. at 576. First, the Court described

“the People” to whom the Amendment applies. Id. at

579. Second, the Court explained the “arms” that are

protected. Id. at 581. Finally, the court laid out the

scope of the verbs “keep” and “bear.” Id. at 582. After

that, the Court confirmed its view of the text by

examining the historical treatment of the Second

Amendment. Id. at 600-619.

This comprehensive, textually based analysis set

forth in Heller governs how the lower courts are to

analyze a Second Amendment challenge to a law

infringing persons, arms, or activities. The Ninth

Circuit, however, bypasses this mandate, applying

what it calls “intermediate scrutiny,” but which in

reality is scrutiny-in-name-only, and has proven

infinitely malleable to permit judges to reach whatever

result they desire.

In this matter, the Ninth Circuit applied its

version of “intermediate scrutiny,” which it claims

requires only that the “government’s statutory

objective ... be significant, substantial, or important,

and [that] there ... be a reasonable fit between the

challenged law and that objective.” Mai v. United

States, 952 F.3d 1106, 1115 (9th Cir. 2020) (citations

and punctuation omitted). If those prerequisites are

met, then it is permissible for government to infringe

rights that the Constitution states “shall not be

4

infringed.” In this case, the court asserted that “two

important [government] 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.” Id. at 1116.

Based on these vague justifications, the Ninth

Circuit upheld the federal ban being applied even to

those who were committed for mental care long ago,

despite not now suffering from any form of mental

illness. At the same time, the court acknowledged

that, while “§ 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.” Id. at 1116 (cleaned up).

The lower court also recognized that “§ 922(g)(4)’s

prohibition places” a substantial burden on Petitioner’s

exercise of Second Amendment rights. Id. at 1115.

As a statutory matter, the federal government

interprets § 922(g)(4)’s prohibited categories to not

only include those with serious, debilitating, lifelong

mental handicaps, but to also include those such as

veterans suffering from PTSD, and perhaps soon to

include senior citizens who occasionally forget where

they left their car keys. There is little support for the

view that § 922(g)(4) was ever intended to apply to

someone like Petitioner. However, if § 922(g)(4) is

properly read to apply to Petitioner, then it would be

unconstitutional on its face, because merely once

having suicidal thoughts, or a diagnosis of clinical

depression, does not mean that a person is not part of

“the people” to whom the Second Amendment applies.

5

Despite the Ninth Circuit’s assertion that it has

“no reason to doubt[] that [Petitioner] is no longer

mentally ill” and that it does “not subscribe to the

notion that once mentally ill, always so” (id. at 1121,

punctuation omitted), the Ninth Circuit’s watereddown intermediate scrutiny analysis allowed it to

reach the court’s desired result: Section 922(g)(4)’s

ban on previously committed individuals, even as a

juvenile, was found to be a “reasonable fit for the

congressional goal of reducing gun violence.” Id. at

1120.

The Ninth Circuit’s willful circumvention of

Second Amendment rights should not be allowed to

continue, and it is high time for this Court to clear up

any confusion that the lower courts have created as to

how Heller’s mandate should be applied.

ARGUMENT

I.

THE LOWER COURTS ARE REFUSING TO

FAITHFULLY APPLY HELLER.

In Heller, this Court specifically disallowed the

methodology that lower courts routinely employ to

analyze Second Amendment challenges. Justice

Scalia’s opinion for the Court expressly rejected the

position of dissenting Justice Breyer, who had

proposed “a judge-empowering ‘interest-balancing

inquiry’ that ‘asks whether the statute burdens a

protected interest in a way or to an extent that is out

of proportion to the statute’s salutary effects upon

other important governmental interests.’” Heller at

6

634. If Justice Breyer’s rejected position sounds like

the two-step test, created by lower federal courts to

implement Heller, that is because it is. In the instant

case, the Ninth Circuit applied the two-step test it had

created out of whole cloth in United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013), asking atextual

questions like “‘(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.’” Mai v. United States,

952 F.3d 1106, 1115 (9th Cir. 2020). Of course, the

Second Amendment does not read “shall not be

infringed severely.”

The Ninth Circuit’s willful disregard for Heller and

McDonald should come as no surprise. Courts across

the country do the same thing and, to date, their

rulings have been allowed to stand. Yet this Court has

refused to enforce its rulings and, indeed, has

neglected its Second Amendment jurisprudence.

Justices Alito, Thomas, and Gorsuch shared their

concern in N.Y. State Rifle & Pistol Ass’n v. City of

N.Y., 140 S. Ct. 1525, 1544 (2020) that the “mode of

review in [N.Y. State Rifle] is representative of the way

Heller has been treated in the lower courts. If that is

true, there is cause for concern.” Justice Kavanaugh

also shared that concern and invited this Court to

“address that issue soon…” Id. at 1527. Thus far,

however, this Court has not done so, which has

allowed the lower courts, both federal and state, to run

roughshod over the rights of Americans.2

2

For example, even after this Court’s unanimous per curiam

opinion in Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), there

are states where stun guns are still banned. See Roberts v.

Ballard, Civil Action No. 1:18-cv-00125(HG-RT) and O’Neil, et al.

7

It is common knowledge that there has been no

worse circuit in which to litigate a Second Amendment

challenge than the Ninth Circuit. To date, the Ninth

Circuit has a perfect anti-gun record — there has not

been one post-Heller case that has resulted in a finding

that the government (either state or federal) infringed

on Second Amendment rights. On the rare occasion

that a panel of the court “goes rogue” in support of the

Second Amendment, the case is immediately taken en

banc (sometimes sua sponte) and overturned.3 Judge

Bumatay’s dissent in the instant case reports on the

Ninth Circuit’s hostility to the Second Amendment:

[t]o the rational observer, it is apparent

that our court just doesn’t like the Second

Amendment very much. We always

uphold restrictions on the Second

Amendment right to keep and bear arms.

Show me a burden — any burden — on

Second Amendment rights, and this court

will find a way to uphold it. Even when

our panels have struck down laws that

violate the Second Amendment, our court

rushes in en banc to reverse course. See,

e.g., Teixeira v. County of Alameda, 873

F.3d 670, 690 (9th Cir. 2017) (en banc)

(reversing panel’s invalidation of a

regulation prohibiting the right to

purchase and sell firearms); Peruta v.

v. Neronha, et al., Civil Action No. 1:19-cv-00612-WES-PAS.

3

The Ninth Circuit has a petition for en banc rehearing pending

in Duncan v. Becerra, 970 F.3d 1133 (9th Cir. 2020), which it has

neither granted nor denied as of the filing of this brief.

8

County of San Diego, 824 F.3d 919, 942

(9th Cir. 2016) (en banc) (reversing

panel’s invalidation of city law requiring

showing of special self-defense need to

obtain conceal carry permit where open

carry was also prohibited); Young v.

Hawaii, 896 F.3d 1044, 1074 (9th Cir.

2018) (discussed above), reh’g en banc

granted, 915 F.3d 681 (9th Cir. 2019).

Other rights don’t receive such harsh

treatment. There exists on our court a

clear bias — a real prejudice — against

the Second Amendment and those

appealing to it. [Mai v. United States,

974 F.3d 1082, 1104-05 (9th Cir. 2020)

(Bumatay, J., dissenting).4]

4

Fn. 6 of Judge Bumatay’s dissent catalogs additional cases from

the Ninth Circuit upholding various Second Amendment

restrictions:

Torres, 911 F.3d at 1264-65 (upholding ban on

illegal aliens possessing firearms); Pena, 898 F.3d

at 973 (upholding ban on purchasing particular

firearms); Mahoney, 871 F.3d at 883 (upholding

limitations on police officers using departmentissued firearms); Bauer, 858 F.3d at 1227

(upholding use of firearm sales fees to fund

enforcement efforts against illegal firearm

purchasers); Silvester, 843 F.3d at 829 (upholding

10-day waiting period for purchasers who have

already cleared a background check in less than

10 days); Fyock, 779 F.3d at 1001 (upholding city’s

ban on high-capacity magazines); Jackson v. City

& County of San Francisco, 746 F.3d 953, 970

(9th Cir. 2014) (upholding city’s firearm and

ammunition regulations); Chovan, 735 F.3d at

1142 (upholding ban on domestic violence

misdemeanants owning firearms despite not

9

Judge VanDyke echoed Judge Bumatay’s concern,

noting the court’s disdain for the “four-letter word:

guns.” Id. at 1097 (VanDyke, J., dissenting).

Courts, including the Ninth Circuit, have largely

been able to circumvent the Second Amendment

through development and application of a clever test

which purports to be derived from Heller, but which in

reality strays far afield from Heller’s mandate that

Second Amendment challenges must be analyzed on a

textual, then historical, then traditional basis.5 To be

sure, the Second Amendment clearly sets out the

elements which govern its application: “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.

Thus, it should suffice merely to ask if a challenged

law infringes upon an American’s right to keep and

bear arms. If that answer is in the affirmative, then a

constitutional violation has occurred. In this case,

these questions answer themselves.

In this case, Petitioner was deemed banned, for life,

from keeping and bearing arms under § 922(g)(4),

because the federal government believes he cannot be

trusted with a firearm, notwithstanding his home

state of Washington having taken the opposing

committing domestic violence for 15 years);

United States v. Vongxay, 594 F.3d 1111, 1118

(9th Cir. 2010) (upholding ban on felons

possessing firearms). [Mai, 974 F.3d at 1104 n.6.]

5

In many cases, reference to the text alone is adequate.

10

position. Petitioner’s ban is not because he committed

a crime or because he is too young to exercise his right,

but rather merely because at one point in his life he

suffered from a mental illness and was involuntarily

committed for mental health treatment. Petitioner

does not currently suffer from a mental illness, but

suffered from mental health problems. So, despite the

Ninth Circuit’s assertion that “[w]e emphatically do

not subscribe to the notion that ‘once mentally ill,

always so,’” it held § 922(g)(4)’s lifetime ban for

someone not currently suffering from mental illness

perfectly constitutional. Mai, 952 F.3d at 1121.

Interestingly enough, many of the provisions in 18

U.S.C. § 922(g) are not understood to operate in a

similar fashion. For example, § 922(g)(3) prohibits

from firearm possession a person who “is an unlawful

user of or addicted to any controlled substance,” and it

is clear that this prohibition is for current unlawful

users or those currently addicted to controlled

substances — not those who have ever unlawfully used

a controlled substance (even if they “didn’t inhale”).

Rather, this federal prohibiting factor is a temporary

moratorium on a person’s Second Amendment rights.

The same applies to the prohibition on aliens “illegally

or unlawfully in the United States” (§ 922(g)(5)(A)) as,

once that alien cures the defect in status, that section

no longer bans possession. The same applies to a

myriad of other disqualifications in § 922(g), including

§ 922(g)(8) (being subject to a restraining order) and

§ 922(g)(2) (being a fugitive from justice).

11

II.

TEXT, HISTORY, AND TRADITION ARE

THE PROPER ANALYTICAL TOOLS.

As Justice Thomas’ recent dissent from the denial

of certiorari in Rogers v. Grewal, 140 S. Ct. 1865 (2020)

explains, “[t]he Second Amendment provides no

hierarchy of ‘core’ and peripheral rights” (id. at 1867),

and is not subject to “means-ends scrutiny” or “‘a

tripartite binary test with a sliding scale and a

reasonable fit.’” Id. (citation omitted). But these

truths are apparently lost on the lower courts.

In analyzing § 922(g)(4), a court must look first at

the text, and for confirmation at the historical

tradition of disarming those who have been

adjudicated mentally defective. That did not occur

below. First, presumably no one would dispute that

Petitioner is part of “the people” to whom the Second

Amendment applies, since he is an American who

currently suffers from no mental health issues and has

no other state or federal disqualifications that would

prevent him from possessing firearms.

What is more, the historical record confirms a

complete absence of any historical antecedent for

modern statutes like § 922(g)(4). Indeed, as Judge

Bumatay noted, “[i]t should come as no surprise[] that

scholars have ‘search[ed] in vain through eighteenthcentury records to find any laws specifically excluding

the mentally ill from firearms ownership.’” Mai, 974

F.3d at 1088.

There is a split in the circuits. The Sixth Circuit in

Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678 (6th

12

Cir. 2016) delved into § 922(g)(4) and found that it

lacked a “historical pedigree.” Tyler at 687.6 Likewise,

that court ruled that “[p]rior involuntary commitment

is 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.” Id. at 687-88.

In Tyler, the Sixth Circuit concluded that “Tyler

has a viable claim under the Second Amendment and

... 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.’”

Id. at 699.

Judge Batchelder’s

concurrence in most of the judgment in Tyler went

even further, and looked at the history of what it

described as insanity/lunacy in individuals. Judge

Batchelder likened an insane individual to that of “a

minor who had not yet attained the age of reason [as]

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.” Id. at 705 (Batchelder, J.,

concurring). Judge Batchelder found that “such

6

As Judge Collins noted in his dissent from the denial of

rehearing en banc, “the panel’s application of intermediate

scrutiny here is seriously flawed and creates a direct split with

the Sixth Circuit. That alone is enough to warrant en banc

review.” Mai, 974 F.3d at 1097 (Collins, J., dissenting). It also

merits this Court’s review as well.

13

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.” Id. at 706.

Judge Batchelder concluded that “[t]he 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.” Id. at 707.

Judge Bumatay’s dissent in the instant case does

what the panel below should have done: it first

analyzed the text, then the history, and then the

tradition of § 922(g)(4)’s ban on those afflicted with

mental illness. Judge Bumatay found that “[g]iven the

paucity of Founding-era laws specifically prohibiting

gun ownership by the mentally ill, we are better

served by exploring the dominant thinking on mental

illness in that period. On this, the evidence is clear:

temporary mental illness didn’t lead to a permanent

deprivation of rights.” Mai, 974 F.3d at 1089

(Bumatay, J., dissenting). “At the time of the

Founding, the idea that the formerly mentally ill were

permanently deprived of full standing in the

community was nowhere to be found.” Id. at 1090.

Because the text, history, and tradition

demonstrate that § 922(g)(4) does not pass

constitutional muster, and a split in the circuits exists,

this Court should grant certiorari to again instruct the

lower courts on the proper analysis required in cases

alleging infringements of Second Amendment rights.

Any further delay will continue the multitude of

infringements on the people’s right to keep and bear

14

arms, which the Second Amendment commands “shall

not be infringed.”

CONCLUSION

For the reasons stated above, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

*Counsel of Record

ROBERT J. OLSON*

WILLIAM J. OLSON

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

January 19, 2021