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Rahimi, Salerno, and Facial Second Amendment Challenges, Part II

By on November 2, 2023 Categories: , ,

In a previous post, I explored the Supreme Court’s doctrine concerning facial constitutional challenges and its bearing on the Rahimi case. This post further unpacks how the arguments apply to the arguments made by Rahimi and his amici and the potential for exceptions to the Salerno standard in Second Amendment law.   

In the Supreme Court, Rahimi argues that 922(g)(8) is facially invalid. Absent an overbreadth doctrine, he presumably must show that there are “no set of circumstances” in which the statute can be constitutionally applied. His brief does not discuss—or even cite—Salerno. (Neither, to be fair, does the government’s.) Rahimi does argue that “[t]he words of the statute cannot ‘bear a construction rendering it free from constitutional defects,” quoting from a pre-Salerno case, Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964), suggesting his belief that 922(g)(8) indeed has no constitutional applications. And many of his arguments for facial invalidity do not depend on the context in which the statute is applied.[1]

But some of Rahimi’s arguments do suggest that it is the other subsection of the law under review, 922(g)(8)(C)(ii), that renders the statute especially problematic. Recall that (C)(ii) permits restraining orders to qualify that only forbid using physical force but do not contain an express finding of dangerousness. But, again, the order at issue in this case satisfies (C)(i) because it contains the express dangerousness finding that Rahimi posed a credible threat to the safety of the protective order applicant. In the course of arguing for facial invalidity, for instance, Rahimi argues that the statute is not as narrow as the government suggests, pointing to subsection (C)(ii): “it reaches orders with no finding of threat or violence, including orders where the movant admitted the respondent had never been violent.” “In fact,” the brief continues, “§ 922(g)(8)(C)(ii) is broad enough to reach preliminary orders that ‘in uncontested boilerplate’ forbid the parties from abusing each other during run-of-the-mill divorce proceedings.” It even raises examples of other possible applications of that statute that are problematic, noting that the government has prosecuted “prohibited persons who briefly possess someone else’s gun in self-defense” and that courts “routinely reject self-defense, defense-of-others, and necessity defenses.”

None of that, however, is not what happened in the proceedings that made Rahimi subject to 922(g)(8).

Similarly, in the scholars’ amicus brief ostensibly filed on behalf of Rahimi, the authors concede that “there is ample original meaning precedent for limiting an individual’s arms rights based on a judicial finding that the person poses a danger to others.” That finding need not come in a criminal proceeding, they acknowledge. The finding in (C)(i) of a credible threat during a protection order hearing is sufficient. Only (C)(ii) is problematic. Thus, they argue that “[t]he problem could be solved by changing a single word between §922(g)(8)(C)(i) and (ii): ‘or’ to ‘and.’ Making (C)(i) and (C)(ii) conjunctive instead of disjunctive would remedy the infringement in (C)(ii).” The amicus brief clearly conceded that “[b]ecause (C)(i) requires a judicial finding of dangerousness, it does not infringe the Second Amendment.” If that’s the case, then shouldn’t Rahimi lose? The scholars’ brief seems like it would have more appropriately fit as a brief in support of the government—or at most in support of either party. It doesn’t seem to justify reversal of an order based on §922(g)(8)(C)(i).

This discussion raises two important questions for Rahimi and Second Amendment law. First, is there—or should there be—a Second Amendment overbreadth doctrine? And second, assuming there is, should the Court in Rahimi invalidate 922(g)(8) as substantially overbroad? Although a full treatment would require much more than a short blog post, on first blush it seems to me that the answer to both questions should be “no.”

First, overbreadth doctrine is rare—and rarely expressly validated by the Court outside the First Amendment context. It protects against possible chilling of protected conducted. But there’s hardly a concern that individuals will be “chilled” in their exercise of gun rights in the same way they might be chilled from speech. Several courts of appeals have in fact rejected an overbreadth doctrine in the Second Amendment context. Plus, as Justice Thomas has underscored, there might well be institutional concerns about the ability of judges to assess the proportion and value of unconstitutional versus constitutional applications of a statute dealing with firearms. Limiting Second Amendment challenges to those whose particular conduct itself cannot be criminalized does not seem an onerous limit. After all, that is how litigation has proceeded against the federal felon-in-possession prohibition under 18 U.S.C. § 922(g)(1). Not a single court has held the statute facially unconstitutional. (I am not aware of any scholars who have argued that it is, either.) But several courts, like the Third Circuit in Range v. Attorney General, have held that the statute is unconstitutional as-applied to particular challengers. To the extent 922(g)(8) does have any infirmity in the breadth of (C)(ii), the Court could address that in a case in which that provision was actually applied.

Second, even assuming there were a Second Amendment overbreadth doctrine, it is hard to see how Rahimi has carried his burden to show that the overbreadth is “substantially disproportionate to the statute’s lawful sweep.” If (C)(i) is constitutionally permissible (a concession Rahimi does not make, but his legal scholar amici do), then even if there were a Second Amendment overbreadth doctrine, the task would turn to assessing the proportion of (C)(i) applications as compared to (C)(ii) applications. I am not aware of studies about the underlying protective orders giving rise to 922(g)(8) prosecutions, but United States v. Hansen does teach that a fanciful “string of hypotheticals” does not suffice. Hansen faulted the challenger for failing “to identify a single prosecution for ostensibly protected expression in the 70 years” that the relevant provision and its precursors were in effect. If there are a wide variety of constitutional applications and few invalid ones, the ratio does not support facial relief. “Hansen asks us to throw out too much of the good based on a speculative shot at the bad.  This is not the stuff of overbreadth—as-applied challenges can take it from here.” It seems to me that the same is true for 922(g)(8). If there are unconstitutional applications of the law, those can be handled in the normal manner of case-by-case adjudication. But Rahimi, as to whom the statute can be constitutionally applied, cannot secure facial invalidation of the law—at least not without himself demonstrating that a substantial proportion of applications of the statute are under (C)(ii) alone.

The Supreme Court’s decision might not turn on these complexities. The Court could decide—consistent with Rahimi’s primary argument—that there is simply no analogous historical tradition of disarming individuals after proceedings like those sanctioned in 922(g)(8). That would likely require facial invalidation of the law. Or it could decide that the law is valid in full. But, if the Court is concerned about some applications of the statute—and particularly the applications raised in the amicus brief filed in support of Rahimi by some Second Amendment scholars—then it should leave open the possibility of an as-applied challenge in that context. But that is not what happened in this case. Here, the order found that Rahimi presented a credible threat to an intimate partner. That should be enough to dispose of the case. To quote Hansen, “as-applied challenges can take it from here.”

[1] Rahimi argues that “five features” together “conspire” to render the statute facially unconstitutional:

First, the law is a total ban on possession of any type of firearm or ammunition, even in the home. Second, the ban is enforced with severe criminal penalties of up to ten or fifteen years in federal prison. Third, the ban applies to United States citizens who retain all their political and civic rights. Fourth, the ban is not triggered by conviction of an infamous crime; it arises automatically and unavoidably from a civil state-court order, often after a one-sided proceeding, regardless of whether the order itself addresses firearms. Fifth, § 922(g)(8) is a federal, nationwide ban. Whatever the founding generation believed about state and local legislatures’ power to restrict firearm ownership, they would have resisted a federal law purporting to say which citizens could, and which citizens could not, keep firearms.

It is a bit hard to tease out the importance of these individual features. The severity of the penalty itself, for instance, does not seem germane to whether the law facially violates the Second Amendment. So too the fact this is a federal law and not a state one. The other features may be relevant to the facial invalidity of the statute, but the brief does not make these connections express.