As-applied Flashcards
Doesn’t Lewis v. United States prevent us from entertaining an as-applied challenge here? Don’t you have to bring that as a collateral attack?
No, your honor. Lewis prevents defendants from defending against a gun charge by attacking the validity of the underlying conviction. We’re not doing that here. We agree that the underlying conviction is valid. Our challenge is to the state’s ability to rely on that conviction to permanently deprive Mr. Yates of his rights.
Let’s say we’re not willing to accept a facial challenge. What rule should we use to decide an as-applied challenge?
The burden is on the government, and the line the government has offered up here is “dangerousness.” To prevail on an as-applied challenge, the government must (1) provide sufficient historical support for that line, and (2) prove that Mr. Yates exhibits the kind of dangerousness that would historically lead to lifetime disarmament. Here the government hasn’t done either, and I think the best way to approach that is to look at the particular historical laws the government cited.
surety laws
amicus represents a wide variety of clients in varying circumstances, I don’t think I’m prepared to take a position on that on amicus’s behalf.
• But I will say that what’s notable about Mr. Yates’s case to me is that Mr. Yates was convicted of one incident, 16 years before purchasing the firearm at issue here, and has no other criminal history.
What is the Idaho statute here like? Does it criminalize reckless conduct or any of the other things you’ve been complaining about?
The mens rea for this offense is “intentional” or “willful.” It does, however, criminalize unlawful “touching.”
How would we even adjudicate as-applied challenges as a practical/procedural matter?
I agree that it would raise a variety of difficult procedural and constitutional questions.
At a minimum, due process requires facts be developed in an adversarial proceeding before a judge.
But critically, the burden is on the government to prove that applying this law to Mr. Yates is consistent with our historical traditions. If the government can’t come up with an administrable way to do that, then it hasn’t met its burden and Mr. Yates conviction must be reversed. And this makes sense. To paraphrase a Judge Sutton concurrence in a case called Tyler v. Hillsdale County, it’s common to create prophylactic rules that overprotect constitutional rights but unheard of to under protect constitutional rights.
it would depend on what rule your honors adopted. [Need to brainstorm]
What should we make of the fact that Mr. Yates was accused of rape? Aren’t we bound by Chovan to consider that allegation, even though Mr. Yates was not convicted?
—Not part of this case or conviction
—no opportunity for adversarial testing
—little incentive to object to PSR facts
—due process requires remand
your honor, because Chovan held that that conduct should be considered as part of the means-ends balancing analysis. Whether it should be considered as part of the historical analysis is a different question. And the answer would depend on the comparator—what kind of conduct the historical regulation criminalized and whether it required a conviction
What about restoration of rights? I know it’s defunded but is there any way for us to approximate that?
• I don’t think the statute would empower your honors to do so, because it allows only for judicial review of an Attorney General’s denial of an application. But your honor could certainly entertain a suit for a declaratory judgment that 922 did not apply to a particular individual. That’s the procedural posture and Range and Binderup.
Could we recognize an as-applied challenge on the front end, before a person purchased a gun, but not on the back end, as a defense to a crime?
• I think the answer to that is “no.” A statute is either unconstitutional as applied, or it’s not. I don’t think there’s a way to say that it would be unconstitutional in one procedural posture, but not in another
What if the person has been arrested 20 times on credible domestic violence charges in the intervening years but never been convicted?
If those arrests were taken into account as part of the analysis, the defendant would have to have a constitutionally adequate way to challenge those allegations and the court would have to take into account any procedural differences with the historical law. But while there might be debates over process is due, I don’t think a court would be categorically disqualified from considering those incidents.
Bruen purposes, I think the question would be whether those arrests allowed the government to draw the connection to a historical tradition of regulation. An important piece of context would necessarily be the Founders’ commitment to the rights of the accused and the presumption of innocence
What should we make of the fact that Mr. Yates was initially charged with rape and then pled down?
For Bruen purposes, I think the question would be whether those arrests allowed the government to draw the connection to a historical tradition of regulation. An important piece of context would necessarily be the Founders’ commitment to the rights of the accused and the presumption of innocence. [Should I emphasize that there’s nothing in the record about this??]
Have we recognized as-applied challenges in this context? If not, why should we?
As-applied constitutional challenges are generally available, and this Court’s precedent doesn’t foreclose an as-applied challenge here.
• [(g)(1) is different - there’s a question as to whether regulations on Heller’s presumptively lawful list are categorically lawful or whether they admit as-applied challenges. But (g)(9) didn’t make the list. United States v. Torres, 789 F. App’x 655, 658 (9th Cir. 2020)]
• United States v. Phillips, 827 F.3d 1171, 1176 (9th Cir. 2016)
This just seems crazy and unadministrable.
• If so, your honor, that would be a reason to find in Mr. Yates’s favor, not in the government’s. It is the government’s responsibility to show that 922(g)(9) is constitutional. If the government can’t prove that 922(g)(9) is constitutional generally, and it can’t come up with a reasonable way to distinguish between constitutional and unconstitutional applications, then the law must fall. As Judge Sutton pointed out in his dissent in Tyler v. Hillsdale County Sherrif’s Dept., it’s normal to have prophylactic rules that overprotect constitutional rights but unheard of to have rules the under-protect.
Could Mr. Yates have had his civil rights restored?
• As I understand it, misdemeanor convictions do not result in a loss of civil rights, so there is no mechanism to restore his civil rights. I also don’t think he’s eligible to have the conviction expunged. So, I think he’d only be able to bear arms again if he were pardoned
We don’t have any details about the offense. Whose burden was it to come forward with those details?
