Breaking ranks with other federal appeals courts, and probably setting up a major test case for the Supreme Court, the U.S. Court of Appeals for the Sixth Circuit has ruled that laws imposing controls on the personal right to have a gun must satisfy the most rigorous constitutional test. And, in another split with other courts, it was the first to strike down a federal gun law under the Constitution’s Second Amendment as expanded by the Supreme Court six years ago.

Since the Justices’ ruling in 2008 in District of Columbia v. Heller, finding in the Second Amendment a guarantee of a right to have a gun for personal use, at least in some circumstances, federal courts have struggled with how to apply that ruling in specific cases testing specific gun laws. Before the Sixth Circuit ruled, however, none had declared that gun laws should be judged by a “strict scrutiny” test.

The Sixth Circuit’s decision came on Thursday in the case of Tyler v. Hillsdale County Sheriff’s Department, involving a southern Michigan man, now seventy-three years ago, who was involuntarily sent to a mental institution for only a brief period nearly thirty years ago. He has long functioned normally in society, and is now considered to be mentally healthy and not dangerous.

Because of the brief stay in that institution, however, he is barred for life from having a gun, under the federal law that the Sixth Circuit has now nullified because it failed the “strict scrutiny” test. He is not eligible for a special federal-state program that gives some who are barred by law from gun ownership a chance to become eligible to have a gun, because Michigan does not take part in that program, and he cannot get relief under another federal program that Congress has refused to fund.

If the government appeals the decision, either to the en banc Sixth Circuit or to the Supreme Court, and if the ruling were to be upheld, it could have an impact on gun control laws well beyond the specific limit at issue in this case. It appeared to cast into constitutional doubt at least some of a host of laws, federal and state, that impose categorical bans on groups of individuals — that is, bans that preclude anyone in an excluded group from being able to prove individually that they should have access to guns.

The Sixth Circuit, in the course of its opinion on the specific ban, also examined a series of other federal laws that impose flat bans on specific groups, and suggested that some of those may be able to pass the “strict scrutiny” test — such as, for example, those individuals convicted of serious crimes and those who are actually mentally ill at this time.

While the decision found that the provision of federal gun law that bars guns for anyone ever sent to a mental care facility could not satisfy “strict scrutiny,” the Sixth Circuit did not immediately rule that the individual involved in the case, Clifford Charles Tyler, must be allowed to have a gun right now.

Instead, it gave the federal government a chance, if it wishes to exercise it, to counter the facts of Tyler’s claim that he is mentally fit and not dangerous. If the government does not do so, the Sixth Circuit ruled, a federal trial judge then must declare that specific ban invalid as it applied to Tyler.

The opinion, written by Circuit Judge Danny J. Boggs, extensively canvassed what has been happening in the courts since the Supreme Court’s Heller decision. The opinion conceded that no other appeals court had applied “strict scrutiny” to any gun law and that no other court had struck down a federal gun control law post-Heller.

Senior Circuit Judge Eugene E. Siler joined the opinion without adding any separate views. While Circuit Judge Julia Smith Gibbons noted that she joined the Boggs opinion, she wrote separately to say that she had doubts about adopting the “strict scrutiny” test and said that the mental institution commitment ban could not survive even the lesser test of “heightened scrutiny.”

In most post-Heller rulings on gun rights, courts have been using various forms of the “heightened scrutiny” standard. None could have used the most lenient standard — “rational basis” — because the Supreme Court’s majority did rule that out in the Heller decision.

Judge Boggs’s opinion summoned a series of arguments to support the conclusion that the most demanding standard should be used — including his interpretation of the Heller decision as at least hinting at that, and his view that a “heightened scrutiny” standard has no place in the Constitution.

Although Judge Boggs left no doubt that his ruling was breaking new ground, he did attempt to make it seem somewhat more moderate by saying that federal courts have not adopted hard-and-fast definitions of “strict scrutiny” or of “heightened scrutiny,” and he suggested that, in reality, there may not be much difference between the two standards.

The Justice Department has the option of waiting to see how the Tyler case further unfolds, or it could promptly file for en banc review by the Sixth Circuit, or prepare to appeal to the Supreme Court.

Recommended Citation: Lyle Denniston, Appeals court: Gun control must meet toughest test, SCOTUSblog (Dec. 19, 2014, 8:25 PM), https://www.scotusblog.com/2014/12/appeals-court-gun-control-must-meet-toughest-test/