United States v. 2020-03-11 | 18-36071 | DUY MAI V. USA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUY T. MAI,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
JUSTICE; BUREAU OF ALCOHOL,
TOBACCO, FIREARMS, AND
EXPLOSIVES; FEDERAL BUREAU
OF INVESTIGATION; WILLIAM P.
BARR, Attorney General;
CHRISTOPHER A. WRAY, as
Director of the Federal Bureau of
Investigation; REGINA
LOMBARDO, as Acting Director
of the Bureau of Alcohol,
Tobacco, Firearms, and
Explosives,
Defendants-Appellees.
No. 18-36071
D.C. No.
2:17-cv-00561-RAJ
OPINION
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted December 11, 2019
Seattle, Washington

MAI V. UNITED STATES2
Filed March 11, 2020
Before: Susan P. Graber and Ronald M. Gould, Circuit
Judges, and David A. Ezra,
*
District Judge.
Opinion by Judge Graber
SUMMARY
**
Civil Rights
The panel affirmed the district court’s dismissal of a
42 U.S.C. § 1983 complaint containing an as-applied Second
Amendment challenge to 18 U.S.C. § 922(g)(4), which
prohibits plaintiff from possessing firearms due to his
involuntary commitment in 1999 to a mental institution for
more than nine months after a Washington state court found
plaintiff to be both mentally ill and dangerous.
Plaintiff argued that § 922(g)(4)’s continued application
to him despite his alleged return to mental health and
peaceableness violated the Second Amendment. The panel
held that, assuming (without deciding) that § 922(g)(4)’s
prohibition burdens Second Amendment rights, intermediate
scrutiny applied. The panel also held that the prohibition on
the possession of firearms by persons, like plaintiff, whom a
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

MAI V. UNITED STATES3
state court has found to be both mentally ill and dangerous is
a reasonable fit with the government’s indisputably important
interest in preventing gun violence. Scientific evidence
supported the congressional judgment that those who have
been committed involuntarily to a mental institution still pose
an increased risk of violence even years after their release
from commitment. The panel therefore concluded that
Section 922(g)(4)’s continued application to plaintiff did not
violate the Second Amendment.
COUNSEL
Vitaliy Kertchen (argued), Tacoma, Washington, for
Plaintiff-Appellant.
Abby C. Wright (argued) and Michael S. Raab, Appellate
Staff; Brian T. Moran, United States Attorney; Joseph H.
Hunt, Assistant Attorney General; Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellees.
OPINION
GRABER, Circuit Judge:
Plaintiff Duy Mai recently sought to buy a firearm, but
federal law barred him from doing so. A number of years
ago, Plaintiff was committed involuntarily, for more than
nine months, to a mental institution after a Washington state
court found him to be both mentally ill and dangerous. Title
18 U.S.C. § 922(g)(4) prohibits the possession of firearms
by those, like Plaintiff, whom a state court committed

MAI V. UNITED STATES4
involuntarily to a mental institution. Plaintiff concedes that
the statutory prohibition on his possession of firearms during
the period of his commitment was constitutional under the
Second Amendment. But Plaintiff here brings an as-applied
challenge to § 922(g)(4), arguing that its continued
application to him despite his alleged return to mental health
and peaceableness violates the Second Amendment. We hold
that, assuming (without deciding) that § 922(g)(4)’s
prohibition burdens Second Amendment rights, intermediate
scrutiny applies. We also hold that the prohibition on the
possession of firearms by persons, like Plaintiff, whom a state
court has found to be both mentally ill and dangerous is a
reasonable fit with the government’s indisputably important
interest in preventing gun violence. Scientific evidence
supports the congressional judgment that those who have
been committed involuntarily to a mental institution still pose
an increased risk of violence even years after their release
from commitment. Section 922(g)(4)’s continued application
to Plaintiff does not violate the Second Amendment. We
therefore affirm the district court’s dismissal of this action.
BACKGROUND
1
In October 1999, a Washington state court committed
Plaintiff involuntarily for mental health treatment after he
threatened himself and others. The state court determined
that Plaintiff was both mentally ill and dangerous. Plaintiff’s
1
Because we are reviewing the dismissal of a complaint, we accept
as true its well-pleaded factual allegations. Nayab v. Capital One Bank
(USA), N.A., 942 F.3d 480, 487 (9th Cir. 2019).

MAI V. UNITED STATES5
commitment lasted more than nine months,
2
ending in August
2000. Plaintiff was seventeen years old at the time of
commitment, and his commitment spanned his eighteenth
birthday.
Since his release from commitment in 2000, Plaintiff has
earned a GED, a bachelor’s degree, and a master’s degree.
He is gainfully employed and a father to two children.
According to the complaint, he no longer suffers from mental
illness, and he lives “a socially-responsible, well-balanced,
and accomplished life.”
As a result of Plaintiff’s involuntary commitment,
Washington law prohibited him from possessing a firearm.
Wash. Rev. Code § 9.41.040(2)(a)(iv). Washington law,
though, allows persons to petition for relief from that
prohibition if they meet certain conditions. Id.
§ 9.41.047(3)(a). In 2014, Plaintiff successfully petitioned a
Washington state court for relief. The court found, pursuant
to the requirements of Washington law, that “(1) [Plaintiff] is
no longer required to participate in court-ordered inpatient or
outpatient treatment; (2) [Plaintiff] has successfully managed
the condition related to his commitment; (3) [Plaintiff] no
longer presents a substantial danger to himself, or the public;
and (4) [t]he symptoms related to the commitment are not
reasonably likely to recur.” See id. § 9.41.047(3)(c)
(requiring those findings). Accordingly, the relevant state
law no longer prohibits Plaintiff from possessing a firearm.
2
The record strongly suggests that a state court committed Plaintiff
involuntarily three separate times during the nine-month period in 1999
and 2000. The complaint is ambiguous on this point. Because the number
of commitments does not alter the analysis, we assume that a state court
committed Plaintiff involuntarily only once, for a period of nine months.

MAI V. UNITED STATES6
But, as a result of his involuntary commitment, federal
law prohibits Plaintiff from possessing a firearm. Title
18 U.S.C. § 922(g)(4) bars individuals who have been
“committed to a mental institution” from possessing
firearms.
3
Federal regulations make clear that the prohibition
does not apply to “a person in a mental institution for
observation or a voluntary admission to a mental institution.”
27 C.F.R. § 478.11. Involuntary commitments comport with
due process only when the individual is found to be both
mentally ill and dangerous. Foucha v. Louisiana, 504 U.S.
71, 80 (1992). Additionally, commitments under state-law
procedures that lack robust judicial involvement do not
qualify as commitments for purposes of § 922(g)(4). United
States v. Rehlander, 666 F.3d 45, 47–49 (1st Cir. 2012). We
agree with the parties that Plaintiff’s involuntary commitment
by the Washington state court—which found Plaintiff to be
both mentally ill and dangerous—qualifies as a
“commitment” for purposes of § 922(g)(4). Section
922(g)(4), then, bars Plaintiff from possessing a firearm.
Federal law provides two potential avenues for relief from
the § 922(g)(4) bar but, as explained below, neither avenue is
currently available to Plaintiff.
First, under 18 U.S.C. § 925(c), Plaintiff may apply to the
United States Attorney General “for relief from the
disabilities imposed by Federal laws with respect to the . . .
3
“It shall be unlawful for any person . . . who has been adjudicated
as a mental defective or who has been committed to a mental institution
. . . [to] possess in or affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(4).

MAI V. UNITED STATES7
possession of firearms.”
4
Beginning in 1986, that provision
extended to persons who had been involuntarily committed to
a mental institution. Firearms Owners’ Protection Act, Pub.
L. 99-308, § 105, 100 Stat. 449 (1986). The Attorney
General may, but is not required to, grant relief “if it is
established to his satisfaction that the circumstances
regarding the disability, 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.” Id.;
see United States v. Bean, 537 U.S. 71, 77 (2002) (noting the
discretionary nature of the decision and observing that relief
4
Section 925(c) provides, in relevant part:
A person who is prohibited from possessing . . .
firearms or ammunition may make application to the
Attorney General for relief from the disabilities
imposed by Federal laws with respect to the . . .
possession of firearms, and the Attorney General may
grant such relief if it is established to his satisfaction
that the circumstances regarding the disability, 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. Any
person whose application for relief from disabilities is
denied by the Attorney General may file a petition with
the United States district court for the district in which
he resides for a judicial review of such denial. The
court may in its discretion admit additional evidence
where failure to do so would result in a miscarriage of
justice. . . . Whenever the Attorney General grants
relief to any person pursuant to this section he shall
promptly publish in the Federal Register notice of such
action, together with the reasons therefor.

MAI V. UNITED STATES8
may be denied “even when the statutory prerequisites are
satisfied”).
That statutory option, however, is currently foreclosed to
Plaintiff and all others. Since 1992, Congress has prohibited
the use of funds “to investigate or act upon applications for
relief from Federal firearms disabilities under 18 U.S.C.
[§ ]925(c).” Bean, 537 U.S. at 74–75 (alteration in original)
(quoting Treasury, Postal Service, and General Government
Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat.
1729, 1732 (1992)); see also id. at 75 n.3 (citing later
appropriations acts with the same prohibition); Hatfield v.
Barr, 925 F.3d 950, 952 (7th Cir. 2019) (“[S]ince 1992
Congress has withheld funds to implement § 925(c).”).
Congress defunded the program because, among other
reasons, determining eligibility had proved to be a “very
difficult and subjective task which could have devastating
consequences for innocent citizens if the wrong decision is
made.” S. Rep. No. 102-353, at 19 (1992). Accordingly,
unless Congress chooses in the future to fund the federal
program, any application by Plaintiff for relief pursuant to
§ 925(c) would be futile. See Bean, 537 U.S. at 76 (holding
that, while funding is withheld, judicial review is also
unavailable).
Plaintiff’s second potential avenue for relief is through a
state program that qualifies under 34 U.S.C. § 40915. To
qualify, the state’s program must “permit[] a person who,
pursuant to State law, . . . has been committed to a mental
institution, to apply to the State for relief from the disabilities
imposed by” 18 U.S.C. § 922(g)(4) and other laws. Id.
§ 40915(a)(1). The program also must provide

MAI V. UNITED STATES9
that a State court, board, commission, or other
lawful authority shall grant the relief, pursuant
to State law and in accordance with the
principles of due process, if the circumstances
regarding the disabilities . . . , and the
person’s record and reputation, are such that
the person 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.
Id. § 40915(a)(2). Finally, the program must allow a person
to petition the state court “for a de novo judicial review of [a]
denial.” Id. § 40915(a)(3). For a person granted relief under
a qualifying state program, § 922(g)(4)’s prohibition on the
possession of firearms does not apply. Id. § 40915(b).
According to the government, “approximately thirty
States” have created qualifying programs. See also Bureau of
Justice Statistics, State Profiles: NICS Act Record
Improvement Program (NARIP) Awards FY 2009–2018,
https://www.bjs.gov/index.cfm?ty=tp&tid=491 (providing
state-by-state information suggesting that thirty states and one
tribe have qualifying programs). As noted above,
Washington law provides a mechanism for persons to petition
for relief from the state-law prohibition on the possession of
firearms. But that mechanism does not qualify under § 40915
because, among other reasons, the factual findings required
by Washington law differ from the factual findings required
by § 40915. Washington law requires a finding that the
person “no longer presents a substantial danger to himself or
herself, or the public.” Wash. Rev. Code § 9.41.047(3)(c)(iii)
(emphasis added). By contrast, the federal standard requires
a determination that “the person will not be likely to act in a

MAI V. UNITED STATES10
manner dangerous to public safety.” 34 U.S.C. § 40915(a)(2)
(emphasis added). Additionally, § 40915(a)(2) requires a
finding that granting “relief would not be contrary to the
public interest,” while Washington law requires no such
inquiry. In other words, the federal standard is more stringent
than the Washington standard. Accordingly, unless
Washington chooses in the future to create a program that
meets the requirements of § 40915, Plaintiff has no avenue
for relief from § 922(g)(4)’s prohibition.
Plaintiff filed this action in 2017 after he was denied the
purchase of a firearm because of § 922(g)(4). He alleges that
the Department of Justice; the United States Attorney
General; the Federal Bureau of Investigation; and the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (collectively,
“the government”) violated his Second Amendment right to
bear arms and his Fifth Amendment right to due process by
prohibiting him from possessing firearms.
The government moved to dismiss the complaint for
failure to state a claim. The district court granted that motion,
holding that § 922(g)(4) is categorically constitutional under
the Second Amendment and, alternatively, that § 922(g)(4)
satisfies intermediate scrutiny. The court also rejected
Plaintiff’s due process claim. Plaintiff then sought leave to
amend the complaint, which the court denied as futile.
Plaintiff timely appeals.
STANDARD OF REVIEW
We review de novo a district court’s decision to grant a
motion to dismiss, Nayab, 942 F.3d at 487, as well as a
challenge to the constitutionality of statutes, United States v.
Torres, 911 F.3d 1253, 1257 (9th Cir. 2019). “When a

MAI V. UNITED STATES11
district court determines that further amendment would be
futile, we will affirm the district court’s dismissal on this
basis if it is clear, upon de novo review, that the complaint
could not be saved by any amendment.” Curry v. Yelp Inc.,
875 F.3d 1219, 1228 (9th Cir. 2017) (internal quotation marks
omitted).
DISCUSSION
As this case reaches us, Plaintiff advances only his
Second Amendment claim. He argues that the Second
Amendment requires that he be allowed to possess firearms
notwithstanding his earlier involuntary commitment. He does
not specify the standard by which federal courts should
measure whether persons, like Plaintiff, are sufficiently
rehabilitated for purposes of the Second Amendment.
Notably, though, Plaintiff does not seek the application of the
substantive standards defined in 34 U.S.C. § 40915. He has
never asserted, for example, an equal-protection claim that,
because persons in thirty other states benefit from programs
applying § 40915’s substantive standards, he too is entitled
to relief or to an opportunity to meet those standards. Nor
has he advanced, on appeal, an argument that due process
demands the same results. See Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999) (holding that arguments not raised
in the opening brief are forfeited). We therefore do not
consider whether those theories have merit, and we turn to the
only claim on appeal: whether the Second Amendment
requires that Plaintiff be allowed to possess firearms.
The “Second Amendment protects the right to keep and
bear arms for the purpose of self-defense.” McDonald v. City
of Chicago, 561 U.S. 742, 749–50 (2010). But the right is
“not unlimited.” District of Columbia v. Heller, 554 U.S.

MAI V. UNITED STATES12
570, 595 (2008). The Supreme Court clarified that its
recognition of the Second Amendment right does not “cast
doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” Id.
at 626–27; accord McDonald, 561 U.S. at 786. Those
prohibitions are “presumptively lawful.” Heller, 554 U.S.
at 627 n.26.
Applying the lessons from Heller and McDonald, we
have adopted a two-step inquiry for assessing whether a law
violates the Second Amendment. Torres, 911 F.3d at 1258.
“This test ‘(1) asks whether the challenged law burdens
conduct protected by the Second Amendment and (2) if so,
directs courts to apply an appropriate level of scrutiny.’” Id.
(quoting United States v. Chovan, 735 F.3d 1127, 1136 (9th
Cir. 2013)).
Whether § 922(g)(4)’s prohibition on the possession of
firearms by persons who have been committed to a mental
institution comports with the Second Amendment is an issue
of first impression in this circuit. But we are guided by our
previous decisions in related contexts. See, e.g., id. at 1264
(holding that § 922(g)(5)’s prohibition on the possession of
firearms by unlawful aliens survives intermediate scrutiny);
Chovan, 735 F.3d at 1142 (holding that § 922(g)(9)’s
prohibition on the possession of firearms by persons
previously convicted of a domestic violence misdemeanor
survives intermediate scrutiny); United States v. Vongxay,
594 F.3d 1111, 1118 (9th Cir. 2010) (holding that
§ 922(g)(1)’s prohibition on the possession of firearms by
felons comports with the Second Amendment).

MAI V. UNITED STATES13
Decisions by the Third and Sixth Circuits addressing
§ 922(g)(4) also inform our analysis. Those courts have
addressed challenges remarkably similar to Plaintiff’s
challenge here and have reached opposite conclusions. In
both Beers v. Attorney General, 927 F.3d 150, 152 (3d Cir.
2019), petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 9,
2020) (No. 19-864), and Tyler v. Hillsdale County Sheriff’s
Department, 837 F.3d 678, 683–84 (6th Cir. 2016) (en banc),
a state court had committed the plaintiff many years ago to a
mental institution but, according to the plaintiff, he was now
free of mental illness. In both cases, the plaintiff argued that,
as applied to him, § 922(g)(4)’s prohibition violated the
Second Amendment.
The Third Circuit rejected the claim, concluding that
§ 922(g)(4) did not burden conduct protected by the Second
Amendment. Beers, 927 F.3d at 159. Accordingly, the
plaintiff’s alleged return to mental health was irrelevant to the
constitutional analysis. Id.
By contrast, the Sixth Circuit reversed the district court’s
dismissal of the claim and remanded for further proceedings.
Tyler, 837 F.3d at 699. The court first concluded that
§ 922(g)(4) burdened Second Amendment rights and that
intermediate scrutiny applied. Id. at 688–93. The court then
held that § 922(g)(4) did not survive intermediate scrutiny as
applied to the plaintiff because the government had failed to
show that a lifetime prohibition on the possession of firearms
was a reasonable fit with the goals of reducing crime and
suicide. Id. at 693–99.
We turn, then, to our own analysis.

MAI V. UNITED STATES14
A.Asking Whether § 922(g)(4) Burdens Second
Amendment Rights
We first ask whether the statute at issue “burdens conduct
protected by the Second Amendment.” Torres, 911 F.3d
at 1258 (quoting Chovan, 735 F.3d at 1136). This inquiry
“requires us to explore the amendment’s reach based on a
historical understanding of the scope of the Second
Amendment right.” Id. (internal quotation marks and
brackets omitted). A law does not burden Second
Amendment rights “if it either falls within one of the
‘presumptively lawful regulatory measures’ identified in
Heller or regulates conduct that historically has fallen outside
the scope of the Second Amendment.” Id. (some internal
quotation marks omitted).
The government has presented a strong argument that
both of those inquiries support the conclusion that § 922(g)(4)
does not burden Second Amendment rights. The Supreme
Court identified as presumptively lawful the “longstanding
prohibitions on the possession of firearms by felons and the
mentally ill.” Heller, 554 U.S. at 626. In Vongxay, 594 F.3d
at 1114–15, we held that § 922(g)(1)—the federal prohibition
on the possession of firearms by felons—fell within Heller’s
“presumptively lawful” category. Like the federal prohibition
as to felons, § 922(g)(4) had been on the books for decades
when the Court decided Heller. Similarly, historical evidence
supports the view that society did not entrust the mentally ill
with the responsibility of bearing arms. See, e.g., Beers,
927 F.3d at 157–58 (summarizing the historical evidence).
Plaintiff responds by re-framing the inquiry. He concedes
that a prohibition as to those persons who are presently
mentally ill and dangerous does not implicate the Second

MAI V. UNITED STATES15
Amendment. But he reads both Heller and the historical
evidence as limited to that circumscribed category: those
who are presently mentally ill. He urges us to agree with the
Sixth Circuit that “historical evidence . . . does not directly
support the proposition that persons who were once
committed due to mental illness are forever ineligible” to
possess a firearm. Tyler, 837 F.3d at 689.
We need not decide which perspective better comports
with the historical evidence. Instead, we follow the “well-
trodden and ‘judicious course’” taken by our court in many
recent cases. Pena v. Lindley, 898 F.3d 969, 976 (9th Cir.
2018) (quoting Woollard v. Gallagher, 712 F.3d 865, 876
(4th Cir. 2013)), petition for cert. filed, __ U.S.L.W. __ (U.S.
Dec. 28, 2018) (No. 18-843). We assume, without deciding,
that § 922(g)(4), as applied to Plaintiff, burdens Second
Amendment rights.
B.Determining the Appropriate Level of Scrutiny
We next “determine the appropriate level of scrutiny to
apply.” Torres, 911 F.3d at 1262. “[L]aws burdening Second
Amendment rights must withstand more searching scrutiny
than rational basis review.” Id. The precise level of
heightened scrutiny depends “on (1) how close the law comes
to the core of the Second Amendment right and (2) the
severity of the law’s burden on the right.” Chovan, 735 F.3d
at 1138 (internal quotation marks omitted). “[T]here has been
near unanimity in the post-Heller case law that, when
considering regulations that fall within the scope of the
Second Amendment, intermediate scrutiny is appropriate.”
Torres, 911 F.3d at 1262 (internal quotation marks omitted).
Strict scrutiny applies only to laws that both implicate a core

MAI V. UNITED STATES16
Second Amendment right and place a substantial burden on
that right. Id.
As Plaintiff recognizes, intermediate scrutiny applies
here. “[T]he core of the Second Amendment is ‘the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.’” Chovan, 735 F.3d at 1138 (quoting
Heller, 554 U.S. at 635). In Chovan, we concluded that,
regardless of present-day rectitude, a person convicted long
ago of a domestic-violence misdemeanor was not a “law-
abiding, responsible citizen.” Id. That same logic extends
here: Regardless of present-day peaceableness, a person who
required formal intervention and involuntary commitment
by the State because of the person’s dangerousness is not a
“law-abiding, responsible citizen.” Section 922(g)(4)’s
prohibition thus falls well outside the core of the Second
Amendment right. Id.
We recognize that the burden that § 922(g)(4)’s
prohibition places on Plaintiff is “quite substantial.” Id.
Unless Congress or the Washington legislature enacts a
program relieving him from § 922(g)(4)’s prohibition, the law
“amounts to a ‘total prohibition’ on firearm possession for
[Plaintiff]—in fact, a ‘lifetime ban.’” Id. But we agree with
the Sixth Circuit that, “[l]ike the other provisions of § 922(g),
§ 922(g)(4) does not burden the public at large; it burdens
only a narrow class of individuals who are not at the core of
the Second Amendment—those . . . previously involuntarily
committed.” Tyler, 837 F.3d at 691. Just as intermediate
scrutiny applies to the other lifetime bans in § 922(g), so too
does intermediate scrutiny apply to § 922(g)(4)’s prohibition.
See, e.g., Chovan, 735 F.3d at 1138 (applying intermediate
scrutiny to § 922(g)(9)’s prohibition on the possession of
firearms by those previously convicted of the misdemeanor

MAI V. UNITED STATES17
of domestic violence); see also Tyler, 837 F.3d at 691–92
(collecting cases from other circuits that have applied
intermediate scrutiny to lifetime bans imposed by § 922(g)).
In conclusion, we join the Sixth Circuit—the only other
circuit court to have addressed the issue—in holding that
intermediate scrutiny applies here. Tyler, 837 F.3d
at 690–92.
C.Applying Intermediate Scrutiny
To satisfy intermediate scrutiny, the government’s
statutory objective must be “significant, substantial, or
important,” and there must be a “reasonable fit” between the
challenged law and that objective. Silvester v. Harris,
843 F.3d 816, 821–22 (9th Cir. 2016) (internal quotation
marks omitted). “A statute need not utilize the least
restrictive means of achieving its interest in order to
withstand intermediate scrutiny.” Torres, 911 F.3d at 1263
(internal quotation marks omitted). “Instead, the statute
simply needs to promote a substantial government interest
that would be achieved less effectively absent the regulation.”
Id. (brackets and internal quotation marks omitted).
Here, two important interests support § 922(g)(4)’s ban
on the possession of firearms by those who were involuntarily
committed to a mental institution: preventing crime and
preventing suicide. See Washington v. Glucksberg, 521 U.S.
702, 730–35 (1997) (recognizing the government’s
“unquestionably important” interest in preventing suicide);
Schall v. Martin, 467 U.S. 253, 264 (1984) (“The legitimate
and compelling state interest in protecting the community
from crime cannot be doubted.” (internal quotation marks
omitted)); Torres, 911 F.3d at 1263 (holding that the

MAI V. UNITED STATES18
government’s interests in crime control and public safety are
“important”). We agree with the Sixth Circuit that those two
interests “are not only legitimate, they are compelling.”
5

Tyler, 837 F.3d at 693.
Congress’ reasoning is straightforward. Firearms
undoubtedly exacerbate acts of violence to others. Bonidy v.
U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015).
Firearms also greatly increase the risk of death by suicide.
See, e.g., Matthew Miller & David Hemenway, Guns and
Suicide in the United States, 359 New Eng. J. Med. 989, 990
(2008) (“A suicide attempt with a firearm rarely affords a
second chance. Attempts involving drugs or cutting, which
account for more than 90% of all suicidal acts, prove fatal far
less often.”); id. at 991 (discrediting as “invalid” the specious
belief that “anyone who is serious enough about suicide to
use a gun would find an equally effective means if a gun were
not available”); id. (concluding that “the availability of lethal
means . . . can make the difference between life and death”).
In enacting § 922(g)(4) and related restrictions, “Congress
sought to . . . keep guns out of the hands of those who have
demonstrated that they may not be trusted to possess a
firearm without becoming a threat to society.” Dickerson v.
New Banner Inst., Inc., 460 U.S. 103, 112 (1983) (quoting
Lewis v. United States, 445 U.S. 55, 63 (1980)), superseded
in other part by statute, as stated in Logan v. United States,
552 U.S. 23, 27–28 (2007); accord Small v. United States,
544 U.S. 385, 393 (2005); Lewis v. United States, 445 U.S.
5
Because we determine that § 922(g)(4) is a reasonable fit for the
government’s interest in preventing suicide, we need not and do not
address whether the statute is also a reasonable fit for the government’s
interest in preventing crime.

MAI V. UNITED STATES19
55, 63 (1980); Scarborough v. United States, 431 U.S. 563,
572 (1977). Put more succinctly, “Congress’ intent in
enacting [§] 922(g) and [related laws] was to keep firearms
out of the hands of presumptively risky people.” Dickerson,
460 U.S. at 112 n.6. Accordingly, although § 922(g)(4)’s
prohibition takes effect as a result of a past event, the statute
“target[s] a present danger, i.e., the danger posed by [those
who previously have been involuntarily committed to a
mental institution] who bear arms.” Vartelas v. Holder,
566 U.S. 257, 271 (2012) (emphasis added).
The Second Amendment allows categorical bans on
groups of persons who presently pose an increased risk of
violence. See, e.g., United States v. Skoien, 614 F.3d 638,
641 (7th Cir. 2010) (en banc) (“[S]ome categorical
disqualifications are permissible: Congress is not limited to
case-by-case exclusions of persons who have been shown to
be untrustworthy with weapons . . . .”). For example, we
upheld the constitutionality of § 922(g)(9)’s ban on the
possession of firearms by domestic violence misdemeanants
because that category of persons has a high rate of domestic
violence recidivism and because the use of firearms by
domestic abusers causes more deaths. Chovan, 735 F.3d
at 1140–41. And we upheld the constitutionality of
§ 922(g)(5)’s ban on the possession of firearms by unlawful
aliens because that category of persons has “an inherent
incentive to . . . evade law enforcement” and, if armed, “could
pose a threat to immigration officers or other law
enforcement.” Torres, 911 F.3d at 1264.
Similarly, in enacting § 922(g)(4), Congress determined
that, like felons and domestic-violence assailants, those who
have been involuntarily committed to a mental institution also
pose an increased risk of violence. As we explain below,

MAI V. UNITED STATES20
scientific evidence amply supports that congressional
judgment. Section 922(g)(4)’s prohibition is therefore a
reasonable fit for the government’s laudable goal of
preventing gun violence.
Plaintiff does not challenge that conclusion as a general
matter. Indeed, he concedes that § 922(g)(4)’s prohibition
justifiedly applied to him originally. Instead, Plaintiff brings
an as-applied challenge only. He argues that the continued
application of the prohibition to him is no longer justified
because of the passage of time and his alleged mental health
and peaceableness in recent years. For the reasons that
follow, we disagree.
1.Scientific Evidence Reasonably Supports Congress’
Judgment.
The scientific evidence cited by the government shows an
increased risk of violence for those who have been released
from involuntary commitment. For example, the authors of
one meta-analysis surveyed the available scientific literature
that studied the relationship between a history of mental
illness and the risk of suicide. E. Clare Harris & Brian
Barraclough, Suicide as an Outcome for Mental Disorders: A
Meta-Analysis, 170 Brit. J. Psychiatry 205 (1997) [hereinafter
Suicide Meta-Analysis]. The authors found that studies of
persons released from involuntary commitment reported a
combined “suicide risk 39 times that expected.”
6
Id. at 220
(emphasis added). That extraordinarily increased risk of
6
The authors defined the “expected” rate of suicide as either the rate
calculated by the authors of the individual study or the background rate for
the general population of the relevant country, controlling for years of the
study, age, and gender. Suicide Meta-Analysis, supra, at 205.

MAI V. UNITED STATES21
suicide clearly justifies the congressional judgment that those
released from involuntary commitment pose an increased risk
of suicide.
Plaintiff correctly points out that the scientific evidence
is not a perfect match for his circumstances. For example,
although suicide risk following release from commitment is
extremely high, the risk “seems highest” initially and
“diminishes thereafter.” Id. at 223. Furthermore, the studies
followed the outcomes of those released from involuntary
commitment for up to 8.5 years, whereas Plaintiff was
released from involuntary commitment two decades ago.
Channeling the Sixth Circuit’s analysis, Plaintiff urges us to
conclude that the government’s cited studies are insufficient
to support the congressional judgment that he poses an
increased risk of suicide. Tyler, 837 F.3d at 695–96.
We disagree. In assessing congressional judgment, “we
do not impose an ‘unnecessarily rigid burden of proof,’ and
we allow [the government] to rely on any material
‘reasonably believed to be relevant’ to substantiate its
interests.” Pena, 898 F.3d at 979 (quoting Mahoney v.
Sessions, 871 F.3d 873, 881 (9th Cir. 2017)). That standard
applies because “we are weighing a legislative judgment, not
evidence in a criminal trial.” Id. Thus, we do not require
“scientific precision.” Id. at 984. We ask only whether the
evidence “fairly supports” Congress’ “reasonable”
conclusions. Id. at 979–80 (quoting Jackson v. City of San
Francisco, 746 F.3d 953, 969 (9th Cir. 2014)); see also
Jackson, 746 F.3d at 969 (holding that, even if the relevant
science were “an open question,” that conclusion “is
insufficient to discredit [a legislative body’s] reasonable
conclusions”). When empirical evidence is incomplete, we
“must accord substantial deference to the predictive

MAI V. UNITED STATES22
judgments of Congress.” Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 665 (1994). “Sound policymaking often
requires legislators to forecast future events and to anticipate
the likely impact of these events based on deductions and
inferences for which complete empirical support may be
unavailable.” Id.
Scientific studies show an ever-present increased risk of
violence for those who were committed involuntarily, even
well after they are released. We cannot conclude that,
because no one apparently has published a study beyond
8.5 years after the participants’ release from involuntary
commitment, Congress may not infer that the increased risk
of violence continues after that time period. Importantly, the
studies did not show merely a slight increase in risk for those
involuntarily committed; the studies reported “a suicide risk
39 times that expected.” Suicide Meta-Analysis, supra, at 220
(emphasis added). It was well within Congress’ legislative
discretion to predict that the increased risk would not
plummet to zero in later years.
Closely related studies confirm that suicide risk remains
extremely high for those with a history of mental illness, even
when studies continue beyond a decade after treatment.
“Previously hospitalised patients” were studied for “up to
15 years after discharge from in-patient treatment,” and they
had “a suicide risk seven times that expected.” Id. at 221.
“Community care patients” were studied for up to 12 years,
and they had a “suicide risk almost 13 times that expected.”
Id. “Out-patients” were studied for up to 12 years, and they
had “a suicide risk 18 times that expected.” Id. Studies that
did not differentiate between the types of treatment that
patients received were conducted for up to 15 years and
reported “a suicide risk 11 times that expected.” Id.

MAI V. UNITED STATES23
In sum, although the scientific evidence suggests that
Plaintiff’s increased risk of suicide decreases over time,
nothing suggests that it ever dissipates entirely.
7
Scientific
evidence thus fairly supports the congressional judgment that
those who have been involuntarily committed to a mental
institution continue to pose an increased risk of violence even
many years after their release from commitment. See
Chovan, 735 F.3d at 1142 (rejecting an as-applied challenge
to § 922(g)(9)’s prohibition on a domestic violence
misdemeanant because he had not “directly proved that if a
domestic abuser has not committed domestic violence for
fifteen years, that abuser is highly unlikely to do so again”).
Plaintiff has asserted that, because he was released from
commitment years ago, no longer suffers from mental illness,
and has been peaceable in recent years, the Second
Amendment requires that he be allowed to possess firearms.
But we emphasize that we are assessing congressional
judgment about a category of persons, not about Plaintiff
himself. As described above, scientific evidence reasonably
supports the congressional judgment about that category of
persons. We agree with the Sixth Circuit that the Second
Amendment does not demand “an individualized hearing” to
assess Plaintiff’s own personal level of risk. Tyler, 837 F.3d
at 698 n.18; see also Torres, 911 F.3d at 1264 n.6 (holding
7
In other contexts, scientific consensus exists that, over time, a
particular increased risk dissolves entirely. For example, the
American Cancer Society reports that, fifteen years after quitting smoking,
a former smoker’s “risk of coronary heart disease is that of a non-
smoker’s.” Am. Cancer Soc’y, Benefits of Quitting Smoking Over Time,
https://www.cancer.org/healthy/stay-away-from-tobacco/benefits-of-
quitting-smoking-over-time.html. We have located nothing similar in the
present context.

MAI V. UNITED STATES24
that, under intermediate scrutiny, some amount of over-
inclusiveness for a firearms prohibition is permissible).
But even if we were to consider his personal situation,
Plaintiff’s own anecdotal evidence of his psychological
evaluations in 2014 confirms what the scientific literature
explains: Although his present level of risk is lower than it
was around the time of his commitment, his history of mental
illness remains a scientifically recognized factor in evaluating
his current level of risk. One of Plaintiff’s doctors wrote that
a history of mental illness is “associated with higher risk of
aggression.” Plaintiff’s results on one psychological test
showed less of a risk than “the base rate for individuals with
a psychiatric history”; one doctor concluded that he has a
“low risk for future violence”; and another doctor concluded
that he does not “represent[] a significant suicide risk.” But
nothing in the record suggests that Plaintiff’s level of risk is
nonexistent or that his level of risk matches the risk
associated with a similarly situated person who lacks a
history of mental illness.
2.Congress Has Not Reconsidered Its Judgment.
Congress’ 2008 enactment of 34 U.S.C. § 40915 does not
affect our analysis. As described above, § 40915 allows
states to create their own “relief from disabilities” programs.
The Sixth Circuit held that § 40915 “is a clear indication that
Congress does not believe that previously committed persons
are sufficiently dangerous as a class” to prohibit them from
possessing firearms. Tyler, 837 F.3d at 697. We understand
Congress’ enactment of § 40915 differently.
Congress enacted § 40915 as part of the NICS
Improvement Amendments Act of 2007 (“NIAA”), 34 U.S.C.

MAI V. UNITED STATES25
§§ 40902–40941. As its name suggests, the NIAA aimed to
improve the National Instant Criminal Background Check
System (“NICS”), the federal background-check system that
includes a database listing persons who have been
disqualified from possessing firearms. Id. § 40902. Congress
passed the NIAA in response to horrible acts of gun violence
by those with a history of mental illness. Id. § 40902(8)–(9).
All of the NIAA’s substantive provisions other than § 40915
seek to improve the information contained in the federal
database. See, e.g., id. § 40911 (requiring federal agencies to
share information); id. §§ 40912–40914 (encouraging states
to share information).
The NIAA was a political compromise that included
§ 40915’s avenue for relief for some of the least dangerous
only in exchange for greatly improved enforcement as to all
the rest, including the most dangerous.
8
Congress’ statutory
extension of grace to some persons as part of a political
compromise aimed at preventing gun violence does not affect
our constitutional analysis. We do not read the NIAA as
disturbing the longstanding congressional judgment—
supported by scientific evidence—that those who were
8
See, e.g., 153 Cong. Rec. 15,676 (2007) (“In order to move the
legislation to the floor, it was necessary to make some accommodations
[including the addition of § 40915] to incorporate the concerns of gun
owners.” (statement of Rep. Conyers)); id. at 15,677 (“This legislation
represents a true compromise . . . [with] two diverse groups . . . , the NRA
and the Brady Group, coming together to help work out this legislation,
and both had some benefits from it.” (statement of Rep. Castle)); accord
153 Cong. Rec. 36,338 (2007) (“[T]his compromise legislation . . .
respects the rights of gun owners and, at the same time, makes sure that
the NICS system will work more effectively.” (statement of Sen. Leahy)).

MAI V. UNITED STATES26
involuntarily committed to a mental institution pose an
increased risk of violence even years after their release.
9
3.Section 922(g)(4) Is a Reasonable Fit for Preventing
Suicide.
To meet intermediate scrutiny, the government must
demonstrate that § 922(g)(4) is a “reasonable fit” for the goal
of reducing gun violence. Torres, 911 F.3d at 1263. As
described above, Congress reasonably concluded that
restricting firearms from persons with an increased risk of
violence advances the goal of reducing gun violence. Section
922(g)(4) thus appears to be a “reasonable fit” for the
government’s important interest. See id. (holding that, to
meet intermediate scrutiny, a “statute simply needs to
promote a substantial government interest that would be
achieved less effectively absent the regulation.” (brackets and
internal quotation marks omitted)).
But we also must consider the availability, or
unavailability, of avenues of relief from categorical, lifetime
bans. Fisher v. Kealoha, 855 F.3d 1067, 1071 (9th Cir. 2017)
(per curiam); Chovan, 735 F.3d at 1142. Plaintiff presently
9
Nor could Congress’ extension of grace to some persons alter the
meaning of the Second Amendment. Like many constitutional provisions,
the Second Amendment establishes a floor below which Congress may not
legislate. But if Congress chooses to legislate well above that floor—for
example, by allowing categories of persons to possess firearms even
though Congress could restrict possession—that legislation has no effect
on the meaning of the Second Amendment. See, e.g., Bracy v. Gramley,
520 U.S. 899, 904 (1997) (holding that “the Due Process Clause of the
Fourteenth Amendment establishes a constitutional floor, not a uniform
standard” and noting the existence of many laws that legislate above that
constitutional minimum).

MAI V. UNITED STATES27
has no avenue for seeking relief from § 922(g)(4)’s
prohibition. Unless Congress funds the “relief from
disabilities” program defined in § 925(c) or the Washington
legislature creates a “relief from disabilities” program
pursuant to § 40915,
10
federal law prohibits Plaintiff from
possessing a firearm. This case thus differs from challenges
to other lifetime bans imposed by § 922(g), because those
provisions allow persons to seek relief from the lifetime ban
in certain circumstances. See, e.g., Chovan, 735 F.3d at 1142
(noting the avenues for relief, such as a gubernatorial pardon,
available to domestic-violence misdemeanants).
Several factors lead us to conclude that § 922(g)(4)
nevertheless remains a reasonable fit for the congressional
goal of reducing gun violence. First, the governmental
interest at stake is compelling. The statute does not merely
aim to protect financial interests. Nor is the statute merely a
modest, incremental improvement in fighting crime. See,
e.g., Pena, 898 F.3d at 981–86 (upholding the
constitutionality of a law requiring some firearms to
“microstamp” identifying information onto discharged
bullets). The interest at stake here is preventing horrific acts
of violence. Suicide affects not only its immediate victim;
family members, friends, and the community as a whole
suffer immensely. Even a small decrease in the number of
suicides is, therefore, a significant public benefit.
10
That possibility is not fanciful. Soon after the Third Circuit rejected
the plaintiff’s challenge to § 922(g)(4) in Beers, 927 F.3d 150, the federal
government approved Pennsylvania’s state program under § 40915.
Petition for cert. 23 (U.S. Jan. 9, 2020) (No. 19-864). The plaintiff in
Beers is “now licensed to possess a firearm and has obtained one.” Id.

MAI V. UNITED STATES28
Second, as discussed above, the scientific evidence
strongly suggests that the increased risk is not tiny. The
available studies, though an imperfect match for Plaintiff’s
precise circumstances, have found that those released from
involuntary commitment are 39 times more likely to commit
suicide than those not previously committed.
Finally, § 922(g)(4)’s prohibition as to those who were
committed involuntarily applies not to persons who
theoretically might be dangerous at some point in their lives.
Instead, it applies only to those who were found, through
procedures satisfying due process, actually dangerous in the
past.
11
By limiting the prohibition to those with a
demonstrated history of dangerousness, § 922(g)(4) is more
narrowly tailored than other lifetime prohibitions that we
have upheld, such as § 922(g)(1)’s prohibition as to felons,
both violent and non-violent. See United States v. Phillips,
827 F.3d 1171, 1175–76 (9th Cir. 2016) (upholding
§ 922(g)(1)’s lifetime ban as applied to someone convicted of
the “non-violent” felony of misprision).
In sum, we hold that § 922(g)(4)’s prohibition on those
who have been involuntarily committed to a mental
institution is a reasonable fit for the important goal of
reducing gun violence. The district court therefore correctly
granted the government’s motion to dismiss. Because the
factual allegations in the proposed amended complaint do not
affect our analysis, the district court correctly denied, as
futile, Plaintiff’s motion for leave to amend the complaint.
11
As applied to Plaintiff, a state court found him dangerous at least
once, and possibly three times. See supra, note 2.

MAI V. UNITED STATES29
CONCLUSION
The federal prohibition on Plaintiff’s possession of
firearms because of his past involuntary commitment
withstands Second Amendment scrutiny. Those who are no
longer mentally ill, but who were committed involuntarily
years ago, unquestionably pose less of a risk of violence now
than when a state court found them to be mentally ill and
dangerous. But scientific evidence reasonably supports the
congressional judgment that they nevertheless still pose an
increased risk of violence. The Second Amendment allows
Congress to further its goal of preventing gun violence by
barring Plaintiff from possessing a firearm.
We emphasize that we reach only Plaintiff’s Second
Amendment challenge and that our holding is limited to
§ 922(g)(4)’s prohibition on those who have “been committed
to a mental institution.” We emphatically do not subscribe to
the notion that “once mentally ill, always so.” We accept, as
we must and as we have no reason to doubt, that Plaintiff is
no longer mentally ill. We decide only that § 922(g)(4)’s
application to him withstands Second Amendment scrutiny.
AFFIRMED.