One physician’s signature can disarm a Pennsylvanian indefinitely.
A Pennsylvanian can lose the right to keep and bear arms in an afternoon. No judge signs anything. No hearing is held. A physician performs a quick exam and fills out a form. The statute does the rest, and nobody has to tell the patient. If the patient wants the right back, the burden falls on that patient: Find a lawyer, file a petition, ask a court—all after the fact.
That is a public policy choice, and in June in United States v. Hemani the U.S. Supreme Court looked hard at a mechanism similar to Pennsylvania’s. Ali Hemani “uses marijuana a few times a week,” and the government prosecuted him under section 922(g)(3) of the Gun Control Act of 1968 for keeping a gun at home. The government pointed to founding-era “habitual drunkard” laws as a supposed analog. Those laws, the Court found, differ from section 922(g)(3) on every metric. What matters is how the old laws worked. They typically provided some type of due process before individuals lost any of their rights. Section 922(g)(3), by contrast, divest individuals of their right to bear arms at the time they become an unlawful user until they end their drug use without any process.
As in so many other famous Supreme Court cases, the real action was in a footnote—in this case, footnote 6. Subsections (g)(1) and (g)(4) of section 922 are the part of federal gun law that disarms felons and people who have been adjudicated mentally defective or committed to a mental institution. The Court noted that both “involve some manner of pre-deprivation process before an individual’s Second Amendment rights are lost. For that reason, they differ from subsection (g)(3) and nothing in the Court’s opinion “should be taken to cast doubt on them.” So the footnote shelters those two types of bans only because process comes with them.
Pennsylvania’s law puts that to the test. Under the Mental Health Procedures Act, a physician’s certification authorizes an individual’s detention for up to 120 hours, and the examining physician’s certification during that hold costs the citizen the right to possess a firearm indefinitely, until a court restores his rights. Footnote 6 forces the question whether such a person would have received “some manner of pre-deprivation process” first. Answering it takes two steps: What does the U.S. Constitution count as due process, and what does Pennsylvania’s statute provide?
In United States v. Rahimi, the Court said that complaints about how a gun prohibition gets imposed—who decides, on what showing, with what chance to respond—“appear to sound in due process rather than the Second Amendment” and declined to decide any such complaint because none was raised. That is not a barrier to adjudication. It is a signpost: Look to the government’s obligation to provide due process.
So what does the U.S. Constitution count as due process? At a minimum, a chance to learn what facts cost you some right and the opportunity to contest them. That lines up with footnote 6. In Connecticut Department of Public Safety v. Doe, a man on the state sex-offender registry wanted a hearing to prove that he was not dangerous. He lost: Due process gives nobody a hearing “to establish a fact that is not material” to the statute, and Connecticut’s registry turned on conviction alone, “a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.” That is footnote 6, restated. Section 922(g)(1) of the Gun Control Act rests on a conviction; section 922(g)(4) reaches a person “adjudicated as a mental defective” or “committed to a mental institution.” Each is a fact determined in a proceeding the citizen could contest.
Now step two: A physician must examine the person within two hours of arrival and record his findings. If the physician certifies that inpatient care is necessary, a Pennsylvania firearms disability attaches automatically and indefinitely. That starts a 60-day clock to sell or transfer any guns, running “from the date of the imposition of the disability.” No statutory provision requires anyone to tell him about the disability, at his examination or after.
Critically in a post-Hemani world, the Pennsylvania law gives patients no chance to contest their loss of rights before the disability attaches. Pennsylvania’s answer will be that this was an emergency. Perhaps it will be in some cases, and that may justify the hold and the examination. It does not justify the firearms disability, which can outlast the hold by decades. Vitek v. Jones makes the distinction. Nebraska moved a prisoner to a mental hospital on a physician’s findings. But the Court reasoned that although a conviction and sentence take away the right to go free, “they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections.” The Court answered the objection that Pennsylvania will make: “The medical nature of the inquiry… does not justify dispensing with due process requirements.”
Process, when it is due in this context, has a familiar shape. The Supreme Court’s decision in Goldberg v. Kelly set out six elements: timely and adequate notice detailing the reasons for the loss of a right; an effective opportunity to answer, confronting adverse witnesses and presenting evidence; retained counsel if desired; an impartial decisionmaker; a decision resting on the record made at the hearing; and a statement of the reasons and the evidence relied on. Pennsylvania’s law supplies none of the six elements. In its defense, Pennsylvania will reach for Parham v. J.R., where a mother sought to commit her son and the Court held that a doctor could make that call: The decision-maker need not be “law trained,” “a staff physician will suffice,” and no “formal or quasi-formal hearing” is required. But Parham still required “some kind of inquiry” by a “neutral factfinder.” It says that some of Goldberg’s elements can be dispensed with when the consequence of the judgment is medical, such as mandatory psychiatric care. It does not say all of them can. And the deprivation in Parham was unlike that under Pennsylvania’s mental health law, where the medical judgment also extinguishes a constitutional right—a consequence that is not medical at all.
Pennsylvania knows how to provide due process. The Mental Health Procedures Act puts a judge or a mental health review officer between the citizen and the loss, appoints that citizen counsel, require written findings and reasoning, let that citizen confront and cross-examine witnesses, and require clear and convincing evidence.
Two defenses Pennsylvania might raise are worth meeting. The first: A hearing would be pointless because the trigger is automatic, and there is “nothing to consider at the hearing except the independently verifiable fact.” A felony conviction is independently verifiable. A doctor’s conclusion that someone is severely mentally disabled is that doctor’s judgment alone—reached, here, without any of the Goldberg elements.
The second defense is that this has been litigated and lost. In Doe v. Governor of Pennsylvania, litigated before Hemani, individuals involuntarily committed under Pennsylvania’s mental health law challenged the law that tied that mental health adjudication to the denial of the right to possess firearms. The district court held that a hearing on where an individual “falls on that spectrum” of dangerousness “is not relevant to the statutory scheme and has no value,” because the statute depriving citizens of firearm possession does not turn on the answer—and, under a heading saying so, held that an involuntarily committed person is entitled to no pre-deprivation procedure at all. That may be right about a hearing on dangerousness. But the Pennsylvania statute does not turn on dangerousness. It turns on the physician’s certification—and that is the one fact that nobody is given a hearing at which to contest before the disability attaches. When the case reached the U.S. Court of Appeals for the Third Circuit, Judge Michael D. Fisher, concurring in that court’s decision affirming the district court’s holding, made an argument worth meeting: The risk of erroneous deprivation is low because a physician “would have had to examine the individual, and only if the physician makes this determination is the individual committed.” That argument treats the certification as self-verifying, which is what footnote 6 now puts in issue. The Third Circuit affirmed without reaching that issue. It found “no reason to second-guess” the requirement that a physician make the determination—and then told future litigants where the openings are: Challenge the mental health adjudication on procedural due process grounds or the associated deprivation of firearm possession rights on Second Amendment grounds. The original plaintiffs, the court noted, “made it expressly clear that they are bringing neither challenge.” Footnote 6 makes the first of those claims worth bringing now.
We can see why Pennsylvania prefers the current arrangement: Individualized adjudication costs money; automatic triggers are cheap. The tradeoff is real. But with involuntary mental health interventions ordered by courts or mental health officers, Pennsylvania already built a rights-protective mechanism. It simply does not use it for the examinations ordered by physicians, which produce most of the disabilities.
Within a week of deciding Hemani, the Court in Wolford v. Lopez struck down a Hawaii firearm law for “flipping the default rule on private property open to the public.” Solely on the basis of a physician’s signature, Pennsylvania’s law also flips a default rule, switching off Second Amendment rights until a citizen who was never told his rights might be in jeopardy finds a lawyer and asks a court to switch them back on. Now that we have Hemani, we may find out sooner rather than later whether extinguishing a core civil right without any pre-deprivation process still passes muster.
