Remand Flashcards
The district court never had a chance to take evidence and weigh in on this. Is that a good reason to remand?
I think it would be helpful.
—court never applied framework
—govt didn’t put evidence in the record, relies on law-review articles rather than citing primary sources and discussing historical laws’ particulars
—at a minimum, might be necessary to the as-applied challenge—“develop the facts in an adversarial proceeding”
Cases like Rahimi and Range have not only surfaced a wide variety of laws not explored in depth in the briefs, but they’ve also revealed disagreements about their historical context and how they play into the Bruen analysis. A district court opinion really sifting through that evidence in the first instance would aid this Court’s review.
That is of course within your honors’ discretion, but we don’t think remand is necessary. The government hasn’t asked for a remand to develop the record, even though it’s the government’s burden. And ultimately, if the record is too underdeveloped to discern whether 922(g)(9) is constitutional, then Bruen makes very clear, the government bears the cost of that uncertainty. This Court is entitled to rely on the record that the government created and find that it failed to meet its burden.
Why would we remand? The history is what it is; both sides have briefed it. What could a district court do better?
The benefit would be to create a more developed record in a rapidly evolving area of law. When this motion came before the district court, Bruen hadn’t even been decided. The government submitted the answering brief before any court of appeals had weighed in on any Bruen challenge. Mr. Yates filed his reply within weeks of the initial Range panel opinion, which was subsequently vacated. Since briefing concluded, that Range opinion has been vacated and reheard en banc, and two other courts of appeals have weighed in on Bruen challenges. And each of these opinions adds both history and analysis that would aid this court’s review. Having a district court sift through it all and come to an initial decision would aid this Court’s review.
Should we wait for Rahimi, Range, etc.
Your honor certainly could. If your honors took that route, it might make sense to remand to the district court in the meantime. The court didn’t get a chance to apply the Bruen framework etc.
