The Proposed Ban on Gun Possession by Transgender People Would Be Neither Legal Nor Constitutional

Citing "two officials familiar with the internal discussions," CNN reports that "senior Justice Department officials are weighing proposals to limit transgender people's right to possess firearms." It says "Justice Department leadership is seriously considering whether it can use its rulemaking authority" to "declare that people who are transgender are mentally ill and can lose their Second Amendment rights to possess firearms."

This idea is so legally loony that it is hard to believe anyone trained in the law, let alone "senior Justice Department officials," would entertain it. But the New York Post says it has independently confirmed the story, citing "sources familiar with the talks."

The immediate impetus for the proposal, according to both outlets, was the August 27 shooting that killed two children and injured 21 other people at the Annunciation Catholic Church in Minneapolis. Police have identified the perpetrator, who killed herself after attacking the worshipers, as a 23-year-old transgender woman.

After the shooting, CNN says, "some conservative allies of the president quickly claimed that gender dysphoria—the psychological distress and discomfort some people feel when there's a difference between their sex assigned at birth and their gender identity—is a mental illness that should bar citizens from purchasing a firearm." CNN quotes an unnamed Justice Department official who explains that the goal of the contemplated policy would be to "ensure that mentally ill individuals suffering from gender dysphoria are unable to obtain firearms while they are unstable and unwell."

Let us leave aside the point that "gender dysphoria," as defined by the American Psychiatric Association, describes distress stemming from "a marked incongruence between one's experienced/expressed gender and natal gender," as opposed to the alleged instability of people who have already taken steps to relieve that distress. Let us also leave aside the dubious proposition that transgender people, as a group, are especially prone to commit violent crimes, although it is similar to the logic underlying the absurdly broad categories of "prohibited persons" who are barred from possessing firearms under federal law. The main point, legally speaking, is that even those categories are not commodious enough to encompass "mentally ill individuals suffering from gender dysphoria."

Under 18 USC 922(g)(4), it is a felony for anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution" to receive or possess a firearm. Thanks to that provision, anyone who has ever been subjected to involuntary psychiatric treatment permanently loses his Second Amendment rights, no matter how long ago that happened, whether or not he was ever deemed a threat to others, and regardless of his current psychological state.

That policy is both illogical and unjust, but Section 922(g)(4) at least requires a judicial finding or court order. By no stretch of the imagination can it be construed to cover "mentally ill" people generally. The implications of such a rule would be sweeping, since survey data indicate that half of all Americans will qualify for a psychiatric diagnosis at some point in their lives, while a quarter of them do in any given year.

In short, there is no obvious statutory basis for decreeing, via "rulemaking authority," that people with any particular psychiatric diagnosis may not own guns. And even if Congress were to pass such a law, it would not be "consistent with this Nation's historical tradition of firearm regulation"—the Second Amendment test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

"One searches in vain through eighteenth-century records to find any laws specifically excluding the mentally ill from firearms ownership," the U.S. Court of Appeals for the 5th Circuit noted last year in a case involving the federal ban on gun possession by cannabis consumers, quoting a scholar who investigated the subject. "At best, scholars suggest that the tradition was implicit at the Founding because, 'in eighteenth-century America, justices of the peace were authorized to 'lock up' 'lunatics' who were 'dangerous to be permitted to go abroad.'"

This year in a decision involving the same gun provision, the U.S. Court of Appeals for the 8th Circuit held that "nothing in our tradition allows disarmament simply because [someone] belongs to a category of people" that "Congress has categorically deemed dangerous." It noted that "confinement of the mentally ill" has never "operated on an irrebuttable basis."

Last month in a similar case, the U.S. Court of Appeals for the 11th Circuit noted that the United States "has a long history and tradition of disarming individuals it fairly deems as dangerous" (emphasis added). That could include "the mentally ill," but only based on an individualized assessment.

"History and tradition would limit disarmament to dangerous lunatics," U.S. District Judge Patrick Wyrick noted in a 2023 decision that likewise addressed gun ownership by cannabis consumers. The U.S. Court of Appeals for the 10th Circuit recently vacated that decision but endorsed Wyrick's reasoning in nearly all respects, saying "the government must show non-intoxicated marijuana users pose a risk of future danger."

Even when there is a statutory basis for disarming people, in other words, the ban may be unconstitutional as applied to particular individuals unless there is evidence that they pose a danger. The implication is that an unrebuttable, categorical presumption of dangerousness is inconsistent with the Second Amendment. While the Supreme Court has yet to weigh in on these issues, the position embraced by these appeals courts seems to have a solid basis in Bruen.

These observations, in any case, relate to gun restrictions approved by Congress. The Trump administration, by contrast, is reportedly thinking about imposing a new categorical ban by bureaucratic fiat.

CNN notes that "the idea of restricting gun rights has long been a red line for conservatives, with many Republican lawmakers and gun rights groups opposing red flag laws and or other policies aimed at keeping guns away from people suffering from mental health issues." It adds that a Justice Department official "cautioned that any such proposal, should it gain steam, would likely run into legal complications." That is putting it mildly.

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