Salerno Flashcards
Bruen said that the Second Amendment was equal to other rights. Your arguments would place it above other rights. If we can infringe other rights of the accused, why not this one?
No, your honor. While rights can sometimes be infringed following criminal accusation, courts have always individually considered and evaluated the proposed infringement under the applicable constitutional standards. To dispense with the standards applicable Second Amendment claims and instead affirm under Salerno would be to single out the Second Amendment. It would also have troubling implications for other rights if this Court held that Salerno foreclosed any constitutional challenge to conditions imposed under Salerno-style procedures. That’s not how this Court treats even supervised release conditions, which arise after conviction when defendants are no longer presumed innocent.
I don’t really get why affirming under Salerno would allow for rights infringements without an individualized showing. Doesn’t Salerno require individualization?
• It depends on which version of the government’s argument one is attending to. There’s a strong version of the government’s argument that says that the greater power to detain logically implies a lesser power to subject releasees to any “lesser” infringement on liberty—or alternatively, because they can restrict some important rights following criminal accusation, they can restrict any right. That’s plainly untrue for the reasons given in the parties’ briefs and Civil Rights Corp’s amicus brief.
• But your honor is right that there is a weaker version that saying that Salerno blesses any release condition imposed so long as the BRA’s procedures are followed. But Salerno’s facts and reasoning just don’t support that. Salerno addresses only Fifth and Eighth Amendment facial challenges to detention procedures, and it explicitly says that it doesn’t rule on any other aspect of the Bail Reform Act. So it just doesn’t make sense to say that it disposes of this Second Amendment challenge to a release condition imposed in the circumstances of this case.
Why shouldn’t we apply interest balancing here? After all, Bruen wasn’t about pretrial release.
• That’s correct, Bruen’s facts don’t match the facts here, but its reasoning extends to the challenge here. That’s because Bruen adopted a generally applicable “standard for applying the Second Amendment.” And the reasoning of Supreme Court precedent controls as well as the facts.
