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PaperclipPerfector  4d ago (text post)   21615 thread views

Culture War Roundup for the week of June 23, 2025

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A culture-war-adjacent court opinion that @The_Nybbler may find entertaining:

  • An 80-year-old man applies for a permit to buy a rifle. The permit is denied, solely because he was involuntarily committed to a psychiatric hospital for four days forty years ago. He applies for expungement of the records of that commitment, so that he can get the permit.

  • The judge denies the application for expungement.

T.B.'s problematic interaction with LifeStream staff raised questions in the court's mind about T.B.'s "candor to the [c]ourt and fundamental issues that are here."

[T.B.] told the people [at LifeStream] that he was suffering from anxiety and depression. And he said he did that because that’s what he thought he had to say in order to get this appointment so that he could get the evaluation. And a concern to me is that he was not particularly honest with these folks about why he wanted this evaluation.

In that vein, the judge took issue with T.B.'s dismissive characterization of the nature of his hospitalization at Ancora versus the hospital record—namely, that after questioning the staff released him.

In the report it says, "unable to contain on open unit; violent outbursts; threatening; severely agitated; threatening others; yelling; demanding; attempted to strangle his wife at home; violent outbursts; tried to tear side rails off of the [bed]". So, this is not a man who showed up at Ancora mildly agitated or upset, but was described by the doctors down there as threatening behavior, so agitated they couldn't talk to him and violent outbursts towards the people on the staff there.

Regarding his present condition, the court noted that despite the medical reports stating he was stable, T.B. exhibited signs of memory problems and a lack of awareness regarding his own medication regimen.

[T.B.] doesn’t even know what medication he’s taking for his [d]iabetes or for his high cholesterol situation or his [h]yperlipidemia. And that, to me, speaks volumes about not that he’s dangerous to the public safety, but why would we give an 80-year-old man, who can’t even be responsible for his own health, access to a firearm that he wants to use for target practice with his friends. You know, is he going to forget to put the safety on the firearm when he isn’t at the range doing target practice? Is he going to forget to secure it in his home so that people who come to visit don’t have access to it? That’s what’s really of concern to this court.

  • The appeals panel affirms. "The trial court reasonably determined that defendant failed to meet his burden to demonstrate the expungement was in the public interest." No second amendment for him!

The thing is that this is not a constitutional challenge, but instead an attempt to expunge his record. Possibly importantly, there are other effects of that besides just the ability to buy a gun. My understanding is that there is no entitlement for the record to be expunged, and it will be at the discretion of the state through their statutory procedure.

Though, it may be possible that making this challenge is necessary before raising a second amendment challenge. Since there is a statutory way that he might be able to get his record expunged, then it would make an as-applied second amendment challenge much weaker. The courts would likely find that the challenge is not ripe as there are other statutory remedies. I'm not sure about this though and possibly going for a second amendment challenge right away could have been the right legal move. Going for a facial challenge is also much harder, as the state can easily show a compelling interest in keeping guns away from the actually mentally ill, and that the law is reasonably tailored to this goal.

After losing this expungement case, the next step is probably to go for a second amendment challenge in federal court. Since his ability to buy a gun has been totally taken away, the burden of proof would then be on the state to affirmatively prove that he's an actual threat. Giving guns to forgetful elderly people might not be ideal but it's their right. Not sure how much of a nut this guy is otherwise, but if he really is then possibly the state could win.

After losing this expungement case, the next step is probably to go for a second amendment challenge in federal court.

No point. The appropriate District and Circuit courts uphold all gun regulations and the Supreme Court has said they don't want to hear it. We've hit the end of the line for gun rights; in as much as they exist they exist in Red states only.

The Supreme Court has also said (repeatedly) that gun laws in place at the founding were permissible, including those on individual who self-disqualified through crime or violence.

Bringing this as a challenge under the Bruen standard is a loser and should absolutely lose.

This man has been convicted of no crime.

That's not the analysis that the Court directed in Bruen. If there was an analogous restriction at the Founding, then it's presumed to be a longstanding restriction.

You can wishcast for a different Bruen that creates a bright line that says nothing short of a conviction suffices. That is not the Bruen that we have today.

These committment laws are all much later than the founding; there was not an analogous restriction at the founding. There were restrictions for crime, but no one has demonstrated crime.

I don't think that's right -- a number of the founding States had restrictions against those unsuitable that did not rest upon a criminal conviction.

For example, PA prohibited firearm ownership to "Any person going about from place to place begging, asking or subsisting upon charity, and for the purpose of acquiring money or living, and who shall have no fixed place of residence, or lawful occupation in the county or city".

Or more aptly, Kansas prohibited transferring a firearm "to any person of notoriously unsound mind". It's hard to imagine "treated for a violent mental illness" as not coterminous with "unsound mind".

For example, PA prohibited firearm ownership to "Any person going about from place to place begging, asking or subsisting upon charity, and for the purpose of acquiring money or living, and who shall have no fixed place of residence, or lawful occupation in the county or city".

This isn't a permanent restriction.

Or more aptly, Kansas

Entered the union in 1861.

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