UNITED STATES DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, APPELLANT V. ANTHONY J. GALIOTO No. 84-1904 In the Supreme Court of the United States October Term, 1984 On Appeal From the United States District Court for the District of New Jersey Jurisdictional Statement TABLE OF CONTENTS Opinion below Jurisdiction Constitutional and statutory provisions involved Statement The question is substantial Conclusion Appendix A Appendix B Appendix C Appendix D OPINION BELOW The opinion of the district court (App., infra, 1a-22a) is reported at 602 F.Supp. 682. JURISDICTION The judgment of the district court (App., infra, 23a) was entered on February 7, 1985. A notice of appeal (App., infra, 24a) was filed on March 7, 1985. On April 25, 1985, Justice Brennan extended the time for docketing the appeal through June 5, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The relevant constitutional and statutory provisions are set out in App., infra, 25a-28a. QUESTIONS PRESENTED Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Gun Control Act of 1968, 18 U.S.C. 921 et seq., prohibits several categories of persons, including felons and individuals who have been committed to mental institutions, from receiving, transporting or shipping firearms in interstate commerce. Title IV also empowers the Secretary of the Treasury to grant relief from these disabilities to certain felons. The questions in this case are: 1. Whether Title IV violates the equal protection and due process components of the Fifth Amendment by imposing firearms disabilities on persons who have been committed to mental institutions without making administrative relief from those disabilities available to such persons. 2. If so, whether the district court erred in remedying the constitutional violation by invalidating all of Title IV's restrictions on the acquisition of firearms by persons who have been committed to mental institutions, rather than by either expanding or nullifying only the administrative relief provision. STATEMENT 1. Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Gun Control Act of 1968 (Gun Control Act), 18 U.S.C. 921 et seq., prohibits any individual who "has been adjudicated as a mental defective or has been committed to any mental institution" from receiving, transporting or shipping a firearm or ammunition in interstate commerce (18 U.S.C. 922(g)(4) and (h)(4)), and makes it unlawful for a federal firearms licensee knowingly to sell a gun to such a person. 18 U.S.C. 922(d)(4). Title IV also imposes identical disabilities on several other categories of persons, including those who have been convicted of a felony. /1/ Similarly, the partially overlapping provisions of Title VII of the Gun Control Act ("Title VII"), 18 U.S.C. App. 1201 et seq., prohibit several categories of persons -- including felons and persons who "ha(ve) been adjudged by a court * * * of being mentally incompetent" (18 U.S.C. App. 1202(a)(1) and (3)) -- from lawfully receiving, possessing or transporting firearms. /2/ Title IV also, in limited circumstances, empowers the Secretary of the Treasury (and through him his delegate, the Director of the Bureau of Alcohol, Tobacco and Firearms (BATF)) to lift the disabilities imposed by Titles IV and VII on certain convicted felons. Under 18 U.S.C. 925(c), a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year may apply to the Secretary for administrative relief; the Secretary may grant the application if he is satisfied "that the circumstances regarding the conviction, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." Ibid. Such relief is not available, however, to felons convicted of crimes "involving the use of a firearm or other weapon or a violation of (18 U.S.C. 921-928) or of the National Firearms Act." 18 U.S.C. 925(c). 2. On May 11, 1971, appellee "suffered an acute mental breakdown" (App., infra, 3a) and voluntarily entered a mental hospital in Summit, New Jersey. He was diagnosed as having experienced "an acute schizophrenic episode with paranoid features" (ibid.). Some three weeks later, after he expressed his intention to leave the hospital within 72 hours, appellee was committed upon the application of his physician (ibid.). /3/ Appellee was discharged from the hospital five days later, on June 4, 1971, upon a finding that his condition had improved (ibid.). On April 27, 1981, appellee obtained a firearms purchaser identification card pursuant to New Jersey law. /4/ Over a year later, in October 1982, a federally-licensed firearms dealer refused to sell appellee a gun after appellee acknowledged that he once had been committed to a mental institution. App., infra, 4a. Appellee then applied to BATF under 18 U.S.C. 925(c), seeking relief from the disability that followed from his commitment. He included a statement from his physician certifying that he "was no longer suffering from any mental disability that would interfere with his handling of firearms" (App., infra, 4a). On April 13, 1984, BATF denied appellee's application, explaining that he remained "'subject to Federal firearms disability because of his commitment'" (id. at 5a (citation omitted)). 3. Plaintiff then brought this suit in the United States District Court for the District of New Jersey, arguing that the disability provisions of the federal firearms laws are unconstitutional because they make administrative relief available to felons but not to persons who have been committed to mental institutions. The court accepted this contention, invalidating as inconsistent with the Fifth Amendment's equal protection and due process guarantees the provisions of Title IV that deny persons who have been committed the opportunity to obtain firearms. /5/ The court began its equal protection analysis by concluding that "persons with histories of mental illness are a quasi-suspect class deserving of intensified 'intermediate' scrutiny," so that "any statute treating them differentially must be related to a 'substantial' government interest" (App., infra, 9a). After reaching this conclusion, however, the court expressly declined to rest its holding on the application of such a test (id. at 12a), finding instead that the challenged provisions were wholly irrational. In making this determination, the court first opined that of all the persons affected by the federal firearms laws, "only ex-convicts and former psychiatric patients are classed according to a past occurrence in their lives" (App., infra, 15a (emphasis in original)). And because Section 925(c) permits convicted felons to overcome the statutory disabilities, the court concluded, "out of all the categories of individuals disabled from purchasing firearms, only the former mental patients are permanently disabled on the basis of a past event * * * with no opportunity to establish that, in fact, they are now capable of safe handling" (App., infra, 15a-16a (footnote omitted)). The court then found that this distinction between felons and former mental patients is irrational, explaining that "if anything, the bar would be more logically applied to convicts than to former mental patients, rather than vice versa" (App., infra, 16a). Several factors contributed to this conclusion: "the bar has a punitive aspect" (ibid.); felons have demonstrated that they are capable of criminal activity; and a patient is unlikely to appeal his commitment after he is discharged, "so the propriety of the original commitment may never be fully explored" (id. at 17a). The court also noted that commitment proceedings have fewer procedural protections than do criminal trials, adding that appellee had cited studies showing that such proceedings "are replete with erroneous factual findings" (ibid.). The court therefore found that the distinction drawn by the federal firearms laws between felons and mental patients must have been based upon outdated notions that "ignore() expanding knowledge about the cause of mental illnesses, their reversibility and treatment" (id. at 18a). The court also added an alternative holding: that the challenged provisions violate due process standards because they deny "former mental patients the opportunity to establish that they no longer present the danger against which the statute was intended to guard" (App., infra, 18a). This factor "in effect creates an irrebuttable presumption that one who has been committed, no matter what the circumstances, is forever mentally ill and dangerous" (ibid.). The court found the use of such a presumption irrational because, "without any good faith extrinsic justification * * * it relies on psychiatric evidence introduced in one proceeding to impose a burden on an individual, and then refuses to accept the same evidence when the individual seeks to have the burden removed" (id. at 19a). The court acknowledged that statutes generally prohibiting former mental patients from purchasing firearms are not irrational (App., infra, 21a) and that such regulations serve "a legitimate, indeed substantial, state objective" (id. at 18a). But the court held that such prohibitions are both irrational and unconstitutional if they do "not include some provision for the granting of relief from disability to former mental patients in appropriate cases" (id. at 21a). Because the court believed that it lacked the competence to make administrative relief available to appellee, it simply declared unconstitutional "those provisions of 18 U.S.C. Section 921 et seq. which have been used to deprive (appellee) of his ability to purchase a firearm" (ibid.). THE QUESTION IS SUBSTANTIAL Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted as a central portion of the congressional effort to curb the "real(,) * * * urgent and * * * increasing" problem of firearm abuse. S. Rep. 1097, 90th Cong., 2d Sess. 78 (1968). It serves this purpose through the use of general prophylactic rules designed "broadly to keep firearms away from * * * persons Congress classified as potentially irresponsible and dangerous." Barrett v. United States, 423 U.S. 212, 218 (1976). By invalidating Title IV's restrictions on the acquisition of firearms by potentially unstable persons -- and by doing so in a way that permits even a demonstrably incompetent or insane individual to obtain a gun -- the district court's decision substantially frustrates the congressional purpose, with serious consequences for public safety. Because the decision below misconceives the nature of the federal firearms statutes and misstates the role of the courts in addressing Fifth Amendment challenges to congressional legislation, plenary review by this Court is warranted. 1. a. At the outset, the district court's holding that the challenged provisions of Title IV lack a rational basis was grounded on a misconception of the relevant statutory scheme. Despite the court's suggestion to the contrary, persons with a history of commitment /6/ are not the only ones subjected to permanent disabilities by the firearms laws. Instead, Title IV presents "a carefully constructed package of gun control legislation" (Scarborough v. United States, 431 U.S. 563, 570 (1977)) that, in combination with Title VII, /7/ is designed to keep firearms out of the hands of several "categories of presumptively dangerous persons." Lewis v. United States, 445 U.S. 55, 64 (1980). See Dickerson v. New Banner Institute, Inc., 450 U.S. 103, 112 n.6, 119 (1983). In addition to individuals with a history of commitment, these provisions impose lifetime firearms disabilities on felons who commit firearms violations or crimes involving the use of a weapon (18 U.S.C. 922(d)(1), (g)(1) and (h)(1), 18 U.S.C. App. 1202(a)(1)), persons who are discharged from the armed forces under dishonorable circumstances (18 U.S.C. App. 1202(a)(2)), and individuals who renounce American citizenship (18 U.S.C. App. 1202(a)(4)) -- groups linked to one another by the congressional judgment that each contains significant numbers of "especially risky people." United States v. Bass, 404 U.S. 336, 345 (1971). As the district court itself acknowledged, the inclusion on this list of persons with a history of commitment cannot be labeled irrational. It seems plain that "'(n)o one can dispute the need to prevent * * * mental incompetents * * * from buying, owning, or possessing firearms.'" Huddleston v. United States, 415 U.S. 814, 828 (1974), quoting 114 Cong. Rec. 21784 (1968) (remarks of Rep. Celler). And given this Court's judgment that "(t)he subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach" (Addington v. Texas, 441 U.S. 418, 430 (1979)), a history of commitment serves as a reasonable trigger for Title IV's restrictions. Cf. Lewis, 445 U.S. at 66 ("Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm."); New Banner, 460 U.S. at 120. b. In finding the challenged provisions irrational, the district court accordingly focused its attention not on Title IV's basic restrictions, but rather on 18 U.S.C. 925(c), which makes administrative relief from the lifetime disabilities available to certain felons. Again, however, the district court overstated the extent to which persons with a history of commitment are accorded differential treatment. Section 925(c) does not grant all felons rights that are withheld from former mental patients: the relief provision is a narrow one that generally excludes the felons who most clearly pose a risk of dangerous behavior -- that is, those who have committed firearms offenses or crimes involving weapons. /8/ See New Banner, 460 U.S. at 117. Section 925(c) does make relief available to the presumptively less dangerous category of felons who committed weaponless crimes, while Congress did not create in Title IV a parallel administrative mechanism that would attempt to identify and provide equivalent relief to nondangerous persons with a history of commitment. But this distinction appears to have been intentionally drawn, /9/ and plainly was based on the congressional belief that, whatever the nature of any "subsequent curative events," a "person (who has been committed), though unfortunate, (is) too much of a risk to be allowed firearms privileges." New Banner, 460 U.S. at 116. That risk undoubtedly is a real one. This Court has indicated that civil commitment /10/ may be ordered only in the presence of clear and convincing evidence that the individual involved presents a danger to himself or others, a showing that presumably is satisfied only in the presence of some objective indicia of abnormality. See Addington v. Texas, 441 U.S. 418, 431-433 (1979); O'Connor v. Donaldson, 422 U.S. 563, 576 (1975). And once such a showing has been made, subsequent predictions about future dangerousness cannot be stated with confidence; as this Court has noted, at least "some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are 'fundamentally of very low reliability'" (Estelle v. Smith, 451 U.S. 454, 472 (1981) (citation omitted)), /11/ a problem that may be compounded if an individual's "subsequent curative event" turns on his voluntary continuation of medication or other therapy. Cf. New York City Transit Authority v. Beazer, 440 U.S. 568, 591-592 (1979). Of course, the district court may well have been correct in its view that the uncertain nature of psychiatric judgments occasionally leads to mistaken commitments. App., infra, 17a. See Parham v. J.R., 442 U.S. 584, 612-613 (1979); id. at 628-629 (opinion of Brennan, J.). But Congress certainly was entitled to conclude that persons whose psychiatric problems were serious enough to have called for commitment or for an adjudication of incompetence may pose unusual risks of "becom(ing) dangerous" (114 Cong. Rec. 14773 (1968) (remarks of Sen. Long); cf. id. at 21829 (remarks of Rep. Bingham)) and to err on the side of caution in determining which psychiatric judgments should be given force. In these circumstances, Congress was under no obligation to base its legislative efforts on the district court's assessment of the "expanding" body of knowledge relating to the causes and treatment of mental illness (App., infra, 18a). To the contrary, it is the relatively uncertain and evolving nature of psychiatry that itself makes expansive restrictions on the acquisition of firearms by those with a history of commitment necessary to fulfill the "broad prophylactic purpose" of Title IV (New Banner, 460 U.S. at 118). That Congress chose not to impose equally absolute restrictions on a limited and arguably more predictable category of felons -- who may be better able than those with a history of mental illness voluntarily to conform their conduct to the law's requirements -- hardly makes the legislative scheme as a whole irrational. See generally Schweiker v. Wilson, 450 U.S. 221, 234-235 (1981); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976); Dandridge v. Williams, 397 U.S. 471, 486-487 (1970). 2. This conclusion -- that the challenged provisions of Title IV "rationally advance() a reasonable and identifiable governmental objective" (Wilson, 450 U.S. at 235) -- should end the equal protection inquiry, for the district court clearly erred in its lengthy dictum on the propriety of applying "intermediate scrutiny" to the classifications at issue in this case. The district court concluded that regulations directed at "former mental patients" must be regarded as "'quasi-suspect'" to forestall the danger that such legislation may be grounded on "'inaccurate and stereotypic fears.'" App., infra, 10a, quoting J.W. v. City of Tacoma, 720 f.2d 1126, 1130-1131 (9th Cir. 1983). The district court's approach, however, entirely disregards the equal protection analysis set out in this Court's decisions. /12/ a. While this Court has looked to a number of criteria in determining whether regulations directed at given groups should be labeled "suspect" or "quasi-suspect" (see generally Plyler v. Doe, 457 U.S. 202, 216-218 n.16 (1982); San Antonio School District v. Rodriguez, 411 U.S. 1, 28 (1973)), it invariably has held that classifications demanding heightened scrutiny have one necessary hallmark: "what differentiates (suspect classes) from * * * nonsuspect statuses * * * is that (a suspect) characteristic frequently bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (footnote omitted). See Murgia, 427 U.S. at 313; Mathews v. Lucas, 427 U.S. 495, 505 (1976); id. at 518 (Stevens, J., dissenting). Because "for most legislative purposes there simply are no meaningful differences" between members of a suspect or quasi-suspect class and the rest of the population (Toll v. Moreno, 458 U.S. 1, 20 (1982) (Blackmun, J., concurring)), regulations burdening such classes "in themselves supply a reason to infer antipathy" (Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979)), and therefore "demand close judicial scrutiny" (Toll, 458 U.S. at 21 (Blackmun, J., concurring)). Regulations directed at persons with a demonstrated history of serious mental illness plainly do not fall into this category. /13/ It is beyond dispute that "many of the mentally ill do have reduced ability for personal relations, for economic activity, and for political choice," so that any differential treatment accorded such individuals will be "related, even if imperfectly, to real inabilities from which many of the mentally ill suffer." Doe v. Colautti, 592 F.2d 704, 711 (3d Cir. 1979). Indeed, by definition persons whose psychological problems are serious enough to demand commitment or an adjudication of incompetence have exhibited instability or an inability to function in society, characteristics that undoubtedly are relevant to legislation -- like Title IV -- that relates to public safety. /14/ See page 11 & note 3, supra. There accordingly is no reason for the courts to presume that restrictions such as those found in Title IV were inspired by an unreasoning antipathy towards the mentally ill. To the contrary, the application of such a presumption, with its concomitant heightened scrutiny, would threaten to invalidate a significant body of legislation that is based on readily articulable and self-evidently legitimate concerns. b. While this consideration suffices to dispose of the district court's intermediate scrutiny analysis, it should be noted that the other criteria set out in this Court's equal protection decisions also militate against treatment of Title IV's classifications as quasi-suspect. The class of all present and former mental patients is not a discrete one; "mental illness covers a broad() spectrum of disorders and is * * * difficult to define." Cleburne Living Center, Inc. v. City of Cleburne, 726 F.2d 191, 198 n.11 (5th Cir. 1984), cert. granted, No. 84-468 (Nov. 13, 1984). /15/ Cf. Rodriguez, 411 U.S. at 28. And there is no reason to believe that the general category of formerly institutionalized individuals has been "relegated to * * * a position of political powerlessness." Ibid. Cf. Romeo v. Youngberg, 644 F.2d 147, 163 n.35 (3d Cir. 1980) (noting that the mentally retarded often are formally excluded from participation in the political process), vacated on other grounds, 457 U.S. 307 (1982). /16/ Because there accordingly are no special factors at work in this area that may "curtail the operation of those processes ordinarily to be relied upon to protect minorities" (United States v. Carolene Products Co., 304 U.S. 144, 152-153 n.4 (1938)), there is no special call for close judicial scrutiny of restrictions affecting persons with a history of commitment. /17/ c. Finally, although the Court need not reach the question, it is worth adding that Title IV's restrictions would survive even elevated scrutiny, because they bear a "close and substantial relationship to important governmental objectives." Feeney, 442 U.S. at 273. See Mississippi University for Women v. Hogan, 458 U.S. 718, 724-725 (1982). The federal interest in preventing the misuse of firearms is, of course, nothing short of "urgent." United States v. Biswell, 406 U.S. 311, 317 (1972). See Lewis, 445 U.S. at 63, citing S. Rep. 1097, supra, at 76-78; H.R. Rep. 1577, 90th Cong., 2d Sess. 7 (1968); S. Rep. 1501, 90th Cong., 2d Sess. 22-23 (1968). This interest is directly served by the Gun Control Act's "sweeping prophylaxis" against the acquisition of firearms by "presumptively dangerous persons." Lewis, 445 U.S. at 63-64. And the inclusion on this list of those with a history of commitment is not "an 'accidental byproduct of a traditional way of thinking'" (Heckler v. Mathews, No. 82-1050 (Mar. 5, 1984), slip op. 15-16, quoting Califano v. Goldfarb, 430 U.S. 199, 223 (1977) (Stevens, J., concurring)); it is, instead, grounded on objective indicia of possible instability. The district court nevertheless suggested that Congress might have tailored Title IV's restrictions more precisely by permitting the acquisition of firearms by individuals with a commitment history who have demonstrated that they are not dangerous. But, as noted above, "(e)ven under the best of circumstances psychiatric diagnosis and therapy decisions are fraught with uncertainties." Parham, 442 U.S. at 629 (opinion of Brennan, J.). Any limitation on the broad congressional restriction -- that is, any room for the application of questionable psychiatric judgments about future dangerousness -- accordingly threatens to frustrate the congressional purpose. Because any mistake would have an immediate and disastrous effect on the public welfare, Congress was entitled to proceed in the gun control field with all the caution it deemed necessary. 3. There is one additional flaw in the district court's equal protection analysis: even if that court was correct in its finding that appellee has made out an equal protection violation, its choice of remedy was erroneous. The equal protection violation in this case (if one exists) plainly is not Title IV's basic restriction on appellee's opportunity to purchase a firearm; it lies, rather, in the denial of "equal treatment" to appellee that is embodied in 18 U.S.C. 925(c)'s provision of administrative relief to certain felons but not to persons with a history of commitment. Mathews, slip op. 10. See App., infra, 16a-18a. Upon finding a violation of this sort, the district court had "'two remedial alternatives.'" Mathews, slip op. 9, quoting Welsh v. United States, 398 U.S. 333, 361 (1970) (Harlan, J., concurring in the result). It could have "declare(d) (Section 925(c)) a nullity and ordered that its benefits" -- that is, the availability of administrative relief -- "not extend to the class that the legislature intended to benefit, or it (could have) extend(ed) the coverage of the statute to include those who are aggrieved by the exclusion." Mathews, slip op. 9. In choosing between these remedies, the court was obligated to "accommodate as fully as possible the policies and judgments expressed in the statutory scheme as a whole." Califano v. Westcott, 443 U.S. 76, 89-91 (1979) (opinion of Powell, J.). See Mathews, slip op. 9 n.5. The district court, however, chose neither of these alternatives. Instead, it invalidated all of Title IV's underlying restrictions on the acquisition of firearms by those who have been committed to a mental institution or adjudicated incompetent, a ruling that makes it lawful even for individuals who presently are under an order of commitment to purchase a firearm. Because this action went far beyond what was necessary to correct the asserted denial of equal treatment, it was (despite the government's apparent suggestion to the contrary below) beyond the "constitutional competence" of the court. Westcott, 443 U.S. at 91. And even if the court's chosen remedy otherwise was within its authority to grant, that remedy -- far more than either the simple extension or the outright nullification of Section 925(c) -- plainly acted to "'circumvent the intent of the legislature'" (Mathews, slip op. 9 n.5, quoting Westcott, 443 U.S. at 94 (opinion of Powell, J.)), for Congress made clear beyond dispute its intention to keep firearms out of the hands of persons who have suffered from "mental disturbances." 114 Cong. Rec. 21829 (1968) (remarks of Rep. Bingham). See id. at 21780 (remarks of Rep. Sikes); id. at 21784 (remarks of Rep. Celler; id. at 21791 (remarks of Rep. Thompson); id. at 21835 (remarks of Rep. Gilbert); ibid. (remarks of Rep. Bolton); ibid. (remarks of Rep. Hanna); id. at 22251 (remarks of Rep. Scheuer); id. at 22270 (remarks of Rep. Fino); ibid. (remarks of Rep. Cohelan); id. at 13868 (remarks of Sen. Long). In the event that this Court affirms the district court's constitutional judgment, then, it nevertheless must vacate that court's invalidation of those portions of the Gun Control Act that impose disabilities on persons with a history of commitment. 4. The district court's alternative holding, which turned on its conclusion that the challenged provisions of Title IV create a constitutionally infirm "irrebutable presumption," is equally flawed. As this Court repeatedly has made clear, legislation that satisfies equal protection requirements "'is perforce consistent with the due process requirement of the Fifth Amendment.'" Weinberger v. Salfi, 422 U.S. 749, 770 (1975), quoting Richardson v. Belcher, 404 U.S. 78, 81 (1971). The question for due process purposes therefore "is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule." Salfi, 422 U.S. at 777. The district court concluded that it was irrational for Congress to base the imposition of firearms disabilities on a psychiatric determination, while declining to lift those disabilities in response to subsequent psychiatric evidence. App., infra, 19a. As noted above, however, civil commitment generally can be ordered only in response to clear evidence that the individual involved presents a danger to himself or others. See page 11, supra. Once this showing has been made, it hardly seems irrational, given the "fallibility of medical and psychiatric diagnosis" (Parham, 442 U.S. at 609), for Congress to have concluded that such an individual poses a greater than normal risk of again "becoming a threat to society." Scarborough, 431 U.S. at 572, quoting 114 Cong. Rec. 14773 (1968) (remarks of Sen. Long). And if a person's psychological difficulties have proven severe enough to require commitment or an adjudication of incompetence, Congress certainly has the discretion to err on the side of safety in determining whether that individual should be accorded an opportunity to obtain a gun. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General CHARLES A. ROTHFELD Assistant to the Solicitor General JOHN F. CORDES MARGARET E. CLARK Attorneys JUNE 1985 /1/ The other enumerated categories are fugitives from justice (18 U.S.C. 922(d)(2), (g)(2) and (h)(2)) and persons who are users of, or addicted to, certain drugs. 18 U.S.C. 922(d)(3), (g)(3) and (h)(3). /2/ Also subject to disabilities under Title VII are convicted felons (18 U.S.C. App. 1202(a)(1)); persons who have been discharged from the armed forces under dishonorable conditions (18 U.S.C. App. 1202(a)(2)); persons who have renounced United States citizenship (18 U.S.C. App. 1202(a)(4)); and aliens illegally present in the United States (18 U.S.C. App. 1202(a)(5)). /3/ Appellee's commitment required a judicial finding that there "exist(ed) in the patient a diagnosed mental illness of such degree and character that the person, if discharged, (would) probably imperil life, person or property." N.J. Stat. Ann. Section 30:4-48 (West 1981). /4/ Such a card, which in New Jersey must be obtained prior to the purchase of a firearm, may not be issued to a person "who has ever been confined for a mental disorder * * * unless (he) produce(s) a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms." N.J. Stat. Ann. Section 2C:58-3.c.3 (West Supp. 1984-1985). /5/ Although appellee's complaint noted that he was subject to disabilities under Title VII as well as under Title IV, the district court's opinion does not discuss Title VII and the court's order does not invalidate Title VII's disability provisions. The court did not explain the reason for this omission. /6/ For convenience, the phrase "persons with a history of commitment" will be used to refer to all of the categories of persons described in 18 U.S.C. 922(d)(4), (g)(4) and (h)(4), and 18 U.S.C. App. 1202(a)(3) -- that is, persons who have been "adjudicated as a mental defective," "committed to a mental institution," or "adjudged * * * mentally incompetent." /7/ Title VII was intended to "complement" Title IV (United States v. Bass, 404 U.S. 336, 342 (1971)); the Court accordingly has "treated Titles VII and IV as in pari materia." Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 117 (1983). See generally United States v. Batchelder, 442 U.S. 114, 120 (1979). /8/ The legislative history confirms the relatively narrow scope that Congress envisioned for Section 925(c). The Federal Firearms Act, ch. 850, Section 2(d), 52 Stat. 1251 (repealed 1968), originally prohibited all persons convicted of a "crime of violence" from receiving a firearm, but contained no relief provision. The crime of violence limitation was deleted in 1961, and the Act's disabilities extended to reach any person convicted of a federal felony. See Pub. L. No. 87-342, 75 Stat. 757. An administrative relief provision -- the predecessor to Section 925(c) -- was first enacted in 1965; it permitted the Secretary to grant relief when he believed that the applicant would "not be likely to conduct his operations in an unlawful manner." Pub. L. No. 89-184, 79 Stat. 788. This provision was intended to afford relief to licensed firearms manufacturers who committed felonies wholly unrelated to the firearms business, and who in the absence of a relief provision would be forced out of business. See. S. Rep. 666, 89th Cong., 1st Sess. 2-3 (1965). The relief provision was carried over without change as Section 925(c) of Title IV. Pub. L. No. 90-351, Section 902, 82 Stat. 233. Congress subsequently substituted the current "not (be) likely to act in a (dangerous) manner" standard for the standard relating to the lawfulness of the applicant's conduct of his business. See H.R. Conf. Rep. 1956, 90th Cong., 2d Sess. 33 (1968). /9/ During the debate on Title IV it was noted that the bill did not provide relief for "those who have been committed to a mental institution who have subsequently been cured and have had their rights as citizens restored to them." 114 Cong. Rec. 21805 (1968) (remarks of Rep. Sikes). Representative Celler, the bill's floor manager, responded simply that "we incline to the view that a mental defective should not be permitted to ship, transport or receive a gun" (ibid.). Although opponents of the bill suggested "the draftsmanship of an amendment so that someone could be relieved of this disability" (ibid. (remarks of Rep. MacGregor)), it appears that no such amendment was offered. /10/ The Gun Control Act's disabilities also apply to persons who have been found not guilty of a crime by reason of insanity. Redford v. United States Department of the Treasury, 691 F.2d 471, 473 (10th Cir. 1982). /11/ Indeed, it has been suggested that in many cases "psychiatrists show no abilities to predict accurately future violent behavior beyond that expected by chance." Steadman & Cocozza, Psychiatry, Dangerousness and the Repetitively Violent Offender, 69 J. Crim. L. & Criminology 226, 231 (1978). See also Lambert, Sherwood & Fitzpatrick, Predicting Recidivism Among First Admissions at Tennessee's State Psychiatric Hospitals, 34 Hosp. & Community Psychiatry 951 (1983) (recidivism risk profile developed by researchers found too inaccurate to be clinically useful). /12/ This Court has reserved judgment on the question "what standard of review applies to legislation expressly classifying the mentally ill as a discrete group" (Wilson, 450 U.S. at 231 n.13), although several lower courts have used a rational basis test in assessing the constitutionality of statutes classifying persons on the basis of a history of institutionalization. Doe v. Colautti, 592 F.2d 704, 711 (3d Cir. 1979) (rejecting attempt to preliminarily enjoin enforcement of state statute governing benefits for inmates of private mental institutions); United States v. Jones, 569 F.Supp. 395 (D.S.C. 1983) (rejecting equal protection challenge to 18 U.S.C. 922(h)(4)). Cf. Legion v. Richardson, 354 F.Supp. 456 (S.D.N.Y.), aff'd, 414 U.S. 1058 (1973) (addressing challenge to Medicare and Medicaid provisions affecting patients in psychiatric hospitals). The Ninth Circuit has held that the mentally ill do constitute a quasi-suspect class (J.W. v. City of Tacoma, 720 F.2d 1126 (1983)); its decision, however, was influenced by the substance of the challenged regulation -- an ordinance hampering the establishment of group homes for former mental patients in residential neighborhoods -- which, in the court of appeals' view, denied the affected individuals a right "essential to (their) full participation in society." Id. at 1129. /13/ As a preliminary matter, it is far from clear that Title IV in fact subjects those with a history of commitment, "as a discrete group, to special or subordinate treatment." Wilson, 450 U.S. at 231. While Section 925(c) withholds administrative relief from such individuals, "in so doing it imposes equivalent deprivation on other groups who are not mentally ill" (450 U.S. at 231) -- that is, it makes administrative relief equally unavailable to certain felons, to drug addicts, to fugitives from justice, to those dishonorably discharged from the armed forces, to individuals who have renounced United States citizenship, and to aliens illegally present in the United States. The challenged provisions thus make "a distinction not between the mentally ill and a group composed of non-mentally ill" (id. at 232), but between presumptively dangerous and presumptively nondangerous persons. In these circumstances, the district court erred in reading the challenged provisions in isolation as "classify(ing) directly on the basis of mental health." Id. at 231 (footnote omitted). /14/ Similarly, given the fallibility of psychiatric diagnosis and the uncertainties concerning the causes and development of mental illness (see pages 11-12 & note 11, supra), a history of mental illness also is relevant to government regulation bearing on public safety. Certainly, once the presumptive relevance of an existing psychological abnormality is granted, a physician's opinion about changes in the mental state of a given patient should not affect the degree of constitutionally-mandated scrutiny accorded government classifications involving that patient. /15/ Cleburne, which currently is before the Court, presents the question whether classifications based on mental retardation must be viewed as quasi-suspect. Regardless of the Court's disposition of that issue, however, there are additional, independent reasons not to adopt such a standard of review in the instant case. As noted in text -- and as the Cleburne panel itself recognized (726 F.2d at 198 n.11) -- mental illness covers a far wider range of ailments than does mental retardation. Mental illness also raises greater safety concerns than does retardation (see ibid.), a factor that points up the likely relevance of a history of commitment to the government's legitimate regulatory ends. And persons with a history of commitment, in contrast to the mentally retarded, generally have not been denied the right to participate in the political process. Cf. id. at 197-198 & n.10. /16/ It is undeniable that commitement to a mental institution is an event that often is misunderstood, and one that may have unfortunate and unfair social consequences for the committee. See Addington, 441 U.S. at 425-426. As this Court has noted, however, "what is truly 'stigmatizing' is the symptomatology of a mental or emotional illness," rather than commitment itself. Parham, 442 U.S. at 601. See id. at 601 n.12. This consideration suggests that disparate treatment accorded those with a history of commitment is grounded more on objective considerations than on "irrational discrimination" (Toll, 458 U.S. at 20 (Blackmun, J., concurring)); certainly, regulations singling out such persons are of a different order than those classifying on the basis of race, religion, national origin or sex. See generally Plyer, 457 U.S. at 216-217 n.14. /17/ While the Court also has made use of heightened scrutiny in cases bearing on the exercise of fundamental rights (see, e.g., Murgia, 427 U.S. at 312-313), the opportunity to acquire a firearm has not been held to fall within this category. See United States v. Miller, 307 U.S. 174 (1939). APPENDIX