Facial Flashcards
Does Salerno apply here? Ordinarily, facial challenges are disfavored, aren’t they?
Rahimi recognizes two reasons why facial Second Amendment challenges can succeed. First, Bruen itself allowed the plaintiffs to raise a facial challenge, and they struck down the proper cause requirement on its face. Second, the court held that “if a statute is inconsistent with the Second Amendment’s text and historical understanding, then it falls under any circumstances.” In other words, statutes that fail the Bruen test also fail under Salerno. And I’d add a third reason, which is that the Supreme Court has compared the Second Amendment to the First Amendment. It makes sense that if the facial overbreadth challenges can be brought to the First Amendment, so too can they be raised in the Second Amendment context.
How do you know that Bruen struck down the statute on its face?
• Because of the Court’s holding. The Court held, “Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.” If this were an as-applied challenge, the holding would have been circumstance-specific. The Court would have held that under these circumstances–and they would enumerate the particular circumstances present in the plaintiffs’ case–the state’s application of the law was unconstitutional.
Aren’t there at least some circumstances in which this would be constitutional? For instance, someone holds a gun to their spouse’s head, yet their somehow allowed to plead down to a DVM. That’s constitutional right?
Not under the Bruen text, your honor, because you still ask whether the regulation was consistent with our historical tradition. And if the answer was no, then the regulation would be unconstitutional. The analysis doesn’t turn on any individual person’s conduct.
No, your honor, because (g)(9) doesn’t premise liability on the conduct. It premises liability on the bare fact of a qualifying misdemeanor conviction. And the Bruen test focuses on whether that statute falls within our historical traditions of regulation.
It depends on exactly what your honor is asking. If the question is, “could Congress draft a statute disarming people who hold guns their spouses’ heads,” then the answer would likely be “yes.” But that doesn’t save a statute like 922(g)(9), which permanently disarms anyone with a DVM. Bruen holds that “if a statute is inconsistent with the Second Amendment’s text and historical understanding, then it falls under any circumstances.” So, we’re looking at the conduct criminalized in the statute, then comparing it to the historical tradition.
Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).
