In Pennsylvania, a single physician’s signature can disarm a Pennsylvanian indefinitely. 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.
Supreme Court Examines Gun Rights and Due Process
This is a public policy choice. In June, in United States v. Hemani, the U.S. Supreme Court examined a mechanism similar to Pennsylvania’s. Ali Hemani, who “uses marijuana a few times a week,” was prosecuted under section 922(g)(3) of the Gun Control Act of 1968 for keeping a gun at home. The government cited founding-era “habitual drunkard” laws as an 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 due process before individuals lost any rights. Section 922(g)(3), by contrast, divests individuals of their right to bear arms at the time they become an unlawful user until they end their drug use without any process.
Subsections (g)(1) and (g)(4) of section 922 disarm felons and those 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.” The footnote shelters these bans only because they include process.
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 raises the question of whether such a person receives “some manner of pre-deprivation process.” Answering this requires two steps: determining what the U.S. Constitution considers due process and what Pennsylvania’s statute provides.
Due Process and the Right to Contest
At a minimum, due process means a chance to learn what facts cost someone a right and the opportunity to contest them. This aligns with footnote 6. In Connecticut Department of Public Safety v. Doe, a man on the state sex-offender registry sought a hearing to prove he was not dangerous.
He lost: Due process does not grant a hearing “to establish a fact that is not material” to the statute. Connecticut’s registry relied on conviction alone, a fact the offender already had a chance to contest. This mirrors footnote 6. Section 922(g)(1) rests on a conviction, and section 922(g)(4) applies to those “adjudicated as a mental defective” or “committed to a mental institution.” Each is a fact determined in a contestable proceeding.
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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. This 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, Pennsylvania’s law gives patients no chance to contest their loss of rights before the disability attaches. Pennsylvania may argue this was an emergency. While this may justify the hold and examination in some cases, it does not justify a firearms disability that can last decades. Vitek v. Jones makes this distinction. Nebraska moved a prisoner to a mental hospital based on a physician’s findings. The Court addressed Pennsylvania’s likely objection: “The medical nature of the inquiry… does not justify dispensing with due process requirements.”
Pennsylvania’s Law Lacks Due Process Elements
In this context, due process has a familiar shape. The Supreme Court’s decision in Goldberg v. Kelly outlined six elements: timely and adequate notice detailing reasons for the loss of a right; an effective opportunity to respond, confront adverse witnesses, and present evidence; retained counsel if desired; an impartial decisionmaker; a decision based on the hearing record; and a statement of reasons and evidence relied on. Pennsylvania’s law provides none of these elements.
In its defense, Pennsylvania may cite Parham v. J.R., where a mother sought to commit her son, and the Court held 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. However, Parham still required “some kind of inquiry” by a “neutral factfinder.” It allows some of Goldberg’s elements to be waived when the consequence is medical, such as mandatory psychiatric care. It does not permit waiving all elements. The deprivation in Parham differs from Pennsylvania’s mental health law, where the medical judgment also extinguishes a constitutional right—a non-medical consequence.
Pennsylvania knows how to provide due process. The Mental Health Procedures Act places a judge or mental health review officer between the citizen and the loss, appoints counsel, requires written findings and reasoning, allows confronting and cross-examining witnesses, and mandates clear and convincing evidence. Two of Pennsylvania’s potential defenses are worth addressing. A felony conviction is independently verifiable. A doctor’s conclusion that someone is severely mentally disabled is that doctor’s judgment alone—reached without any Goldberg elements.
The second defense is that this has been litigated and lost. In Doe v. Governor of Pennsylvania, individuals involuntarily committed under Pennsylvania’s mental health law challenged the law tying mental health adjudication to firearm denial. The district court held a hearing on dangerousness “is not relevant to the statutory scheme and has no value,” as the statute does not depend on it. Under this heading, the court ruled an involuntarily committed person is entitled to no pre-deprivation procedure. This may be true about dangerousness, but Pennsylvania’s statute does not hinge on dangerousness. It depends on the physician’s certification—the one fact no one can contest before the disability attaches.
Pennsylvania’s Existing Rights-Protective Mechanism for Mental Health Interventions
Pennsylvania has a rights-protective system for involuntary mental health interventions ordered by courts or mental health officers. However, this mechanism is not applied to examinations ordered by physicians, which result in most disabilities.