[00:00:00] Speaker 00: United States v. Kelly, 6194. [00:00:04] Speaker 00: Please proceed when you're ready. [00:00:07] Speaker 01: Good morning, Your Honors. [00:00:07] Speaker 01: Laura Deskin on behalf of Mr. LeQuevin Kelly. [00:00:11] Speaker 01: I am here to argue that 922G3 is facially unconstitutional. [00:00:18] Speaker 01: I understand that facial challenges can be difficult, but I want to explain further why I believe that 922G3 [00:00:30] Speaker 01: is facially constitutional. [00:00:32] Speaker 01: First, the government is incorrect that all it must do is point to one hypothetical application of the statute that would not violate the Second Amendment. [00:00:42] Speaker 01: In Doe, from this circuit, this court rejected the argument that all the government must do is imagine a hypothetical situation [00:00:52] Speaker 01: in which a statute could be constitutionally applied. [00:00:56] Speaker 01: And Rahimi did not abrogate Doe in that sense. [00:01:00] Speaker 01: Rahimi criticized the Fifth Circuit's concern that domestic violence protective orders, when it was analyzing 922-G8, that they could issue unfairly or as a tactical device in divorce proceedings. [00:01:16] Speaker 01: They kept referring back to that [00:01:20] Speaker 01: concern, which really sounded in due process and not the Second Amendment issue at hand. [00:01:25] Speaker 01: And then we mislook it to what Rahimi actually did in that case. [00:01:29] Speaker 01: They did, just as this court did in Doe, they weren't looking at hypothetical applications. [00:01:35] Speaker 01: They were looking at the terms of the statute itself. [00:01:38] Speaker 03: So I think... Well, Rahimi says the government need only demonstrate that Section 922G8 is constitutional in some of its applications. [00:01:49] Speaker 01: Correct. [00:01:49] Speaker 01: It did say that, but then what did it do? [00:01:52] Speaker 01: It didn't, it could have held, well, 922G8 is constitutional. [00:01:58] Speaker 01: Let's just look at Rahimi himself. [00:02:01] Speaker 01: This is a very dangerous individual who I think in that case he had demonstrated through previous conduct that he was a dangerous individual. [00:02:10] Speaker 01: The defense in that case couldn't even argue against that. [00:02:16] Speaker 01: No. [00:02:17] Speaker 03: I mean, there's a significant difference between the two. [00:02:20] Speaker 03: And you've made a facial challenge here. [00:02:22] Speaker 03: I guess I'm not persuaded that the government has to do anything other than show us that there is an application of the statute that is not unconstitutional in order for it to survive a facial challenge. [00:02:40] Speaker 01: Well, I think that you could go back to Salerno itself. [00:02:46] Speaker 01: where this idea came from. [00:02:47] Speaker 01: There as well, they were looking at exactly what are the terms of that statute, that being the Bail Reform Act, which had many provisions, many things that the government had to prove in order to find a person dangerous such that they could hold them in detention. [00:03:08] Speaker 01: And so they looked at all those prongs to say, well, we think that in that case, due process is not violated, nor is the Eighth Amendment. [00:03:16] Speaker 01: And in 922 G8, they were looking at this statute that says that requires a finding, a judicial finding, that a person represents a credible threat to the physical safety of an intimate partner or child. [00:03:30] Speaker 01: That's what they were looking at. [00:03:31] Speaker 03: So is Rahimi, when it says a facial challenge is the most difficult challenge to mount successfully because it requires a defendant to establish [00:03:40] Speaker 03: that no set of circumstances exist under which the act would be valid? [00:03:45] Speaker 03: Is that dictum or? [00:03:46] Speaker 01: No, I accept that. [00:03:49] Speaker 01: The question is how does that work? [00:03:53] Speaker 01: You have to look at how the statute itself works. [00:03:58] Speaker 01: So this isn't a departure from that guidance at all. [00:04:04] Speaker 01: What the government here is doing is they say, well, it could apply to somebody [00:04:10] Speaker 01: who is intoxicated at the time. [00:04:12] Speaker 01: But the statute itself, by its terms, does not require that whatsoever. [00:04:18] Speaker 03: Every application that it... So it has to be an application where that's actually an element? [00:04:24] Speaker 03: That the statute requires. [00:04:26] Speaker 03: So the statute couldn't be broader than intoxicated persons, that it would have to specifically require a finding of intoxication? [00:04:39] Speaker 01: If the historical, so going into the Bruin analysis, if the historical principle... Well, I'm just trying to understand what you think a facial challenge requires. [00:04:48] Speaker 01: I think a facial challenge requires looking at what the terms of the statute itself do require for conviction and determining whether or not that itself goes, is violative of the principles in Bruin. [00:05:03] Speaker 03: So that sounds like you're turning it on its head, which is... [00:05:07] Speaker 03: that what you're saying is if there's any circumstances in which you wouldn't fall under it or it wouldn't be constitutional, you throw out the whole thing. [00:05:20] Speaker 01: Well, again, you have to go back and look at what exactly does each statute actually require. [00:05:30] Speaker 01: This is far afield from 922 G8, where they look at, [00:05:34] Speaker 01: Well, what are we doing here? [00:05:35] Speaker 01: What is a court doing when they are convicting somebody of 922 G8? [00:05:39] Speaker 01: Well, you're looking and seeing, was there a finding previously that this person represented a credible threat to the physical safety of an intimate partner? [00:05:48] Speaker 01: That's what you're looking at. [00:05:50] Speaker 01: Those are the terms. [00:05:51] Speaker 01: And that, they found, was facially constitutional. [00:05:56] Speaker 01: They did not have to go out and say, well, [00:06:00] Speaker 01: What was the problem with what the Fifth Circuit was doing is that they were going out and saying, well, but I mean, somebody could be found to be a credible threat, but that could have been an unfair process. [00:06:12] Speaker 01: Or we know that people bring these protective order proceedings out of vengeance in a divorce proceeding. [00:06:18] Speaker 01: And that is where that criticism came from in that case, because they were going and hypothesizing outside of what the statute required. [00:06:29] Speaker 01: Whereas here, we have a much different statute. [00:06:33] Speaker 01: All you have to be is an unlawful user of a controlled substance, any controlled substance on all five of the controlled substance schedules will work. [00:06:45] Speaker 01: And the statute tells us no more. [00:06:48] Speaker 01: So to be convicted under this, it does not require somebody, the government, to prove that they're intoxicated. [00:06:55] Speaker 01: It does not require them to prove anything [00:06:58] Speaker 01: beyond the fact that they meet the definition of an unlawful user, which is a judicially created definition, and that they are an unlawful user of a controlled substance that is on the schedules. [00:07:14] Speaker 01: And that's why I think it is different. [00:07:20] Speaker 02: Well, Council, maybe I can stop you there. [00:07:22] Speaker 02: Are you arguing that for a facial challenge, you just look at the face of the statute, you don't think of any applications? [00:07:31] Speaker 01: I am looking at what you look at the statute would require the government to prove in this case. [00:07:42] Speaker 01: It does not require it to prove intoxication at all. [00:07:46] Speaker 01: So in Rahimi, the court didn't hypothesize some subset of activity that was encompassed by 922-G8 to find it constitutional, facially. [00:07:58] Speaker 01: It wasn't difficult to find that statute facially constitutional. [00:08:05] Speaker 01: Congress itself designed that subset in the statute itself very explicitly. [00:08:11] Speaker 01: Here, we don't have anything to, [00:08:16] Speaker 01: beyond these very simple terms of the statute that comports with history and tradition. [00:08:24] Speaker 01: That's the argument. [00:08:30] Speaker 01: So once you get past that, if you are looking further into, OK, so does this idea of disarming an unlawful user of a controlled substance [00:08:46] Speaker 01: Does that comport with history and tradition? [00:08:49] Speaker 03: I would say that's... If we are looking at a person who is currently under the influence, who's intoxicated either by drugs or alcohol, it would dovetail pretty cleanly with disarming dangerous people, historically, wouldn't it? [00:09:12] Speaker 03: Yes, I would agree with that. [00:09:14] Speaker 03: So your argument, in order for you to prevail here, we have to agree with you on your view of how a facial challenge works. [00:09:26] Speaker 01: I think so. [00:09:26] Speaker 01: I think that is what it requires, honestly. [00:09:29] Speaker 01: The idea of it is because some people who are unlawful users of controlled substances and possessive firearm [00:09:40] Speaker 01: Some of them might possess one at the time of intoxication. [00:09:44] Speaker 01: That whole idea of taking away a firearm from somebody, and it's not permanently, but the idea of dispossessing them of that use temporarily does match up with the prior drunkard laws, essentially. [00:10:03] Speaker 01: But they were really just laws saying, well, on New Year's Eve, on these May Day, [00:10:10] Speaker 01: you are not allowed to shoot off a gun. [00:10:14] Speaker 01: If you do, that's a criminal act. [00:10:18] Speaker 01: There are some differences here. [00:10:21] Speaker 01: This can get you up to 10 years in prison, up to 15 years in prison. [00:10:28] Speaker 01: And the how of it can be differentiated, actually. [00:10:38] Speaker 01: I will give that we do have that history of disarming intoxicated users. [00:10:44] Speaker 01: And we're talking here as to unlawful users, not addicts. [00:10:50] Speaker 01: I have not engaged in that, which I think is a separate analysis. [00:10:56] Speaker 03: How is your argument different than the argument being made in US versus Hamani, which is before the Supreme Court right now? [00:11:07] Speaker 03: which is an as-applied challenge to a marijuana user. [00:11:13] Speaker 03: I mean, to me, it seems like you're conflating a facial challenge with an as-applied challenge. [00:11:21] Speaker 01: Well, here, we're not as different. [00:11:23] Speaker 01: And that's why we didn't ask to abate for homani upfront, because I wanted to make this argument as to how facial challenges, I think, should be analyzed. [00:11:36] Speaker 01: based on the way it has been analyzed in previous facial cases. [00:11:41] Speaker 02: But I guess you are not bringing in as applied. [00:11:45] Speaker 01: No. [00:11:45] Speaker 01: This is purely a facial challenge. [00:11:48] Speaker 01: And that's what differentiates it from Himani. [00:11:50] Speaker 01: That is as applied. [00:11:51] Speaker 01: Now, if you've listened to the oral argument that took place in Himani, they veered very far away from marijuana and discussed substances up and down the schedule. [00:12:04] Speaker 01: which is why I would not be opposed to abating this case for Hamani to see where they go in that case. [00:12:11] Speaker 01: It might give us a little bit better roadmap for how one analyzes the history and tradition in this particular context. [00:12:22] Speaker 01: And I will reserve the remaining part of my time. [00:12:26] Speaker 01: Thank you. [00:12:30] Speaker 00: May it please the court, Stephen Craig on behalf of the United States. [00:12:33] Speaker 00: Given the argument that was just made that this is largely a question about how a facial challenge is handled, and if a facial challenge operates the way that the government has suggested, then that it essentially ends the inquiry, I plan on focusing on that. [00:12:53] Speaker 00: As Judge McHugh's questions have focused in on, [00:12:59] Speaker 00: Rahimi adopted the Salerno approach with one small caveat. [00:13:04] Speaker 00: Because in the Second Amendment context, the burden shifts to the government once you get past Ruin Step 1, the government has to demonstrate that a statute is constitutional in at least some applications, as opposed to the challenger having to demonstrate that there's no application that is constitutional. [00:13:25] Speaker 00: So the question here is, what are applications? [00:13:29] Speaker 00: And this court in Harrison answered that question rather easily. [00:13:33] Speaker 00: Specifically, this court said, even among individuals who use marijuana, Section 922G3 applies both to those who are intoxicated while possessing a firearm and those who are not. [00:13:50] Speaker 00: It talked about two different applications, those who are intoxicated, those who are not intoxicated. [00:13:55] Speaker 00: This case involves, as a facial challenge, this court can focus on those who are intoxicated. [00:14:03] Speaker 00: Mr. Kelly's approach to facial challenges is the exact approach the panel opinion in the Fifth Circuit in Rahimia took. [00:14:12] Speaker 00: Yes, they talked about due process, and there were concerns with that. [00:14:16] Speaker 00: But the problem, the error that the Supreme Court identified with their application of the facial challenges [00:14:24] Speaker 00: is that the Fifth Circuit focused on the situations where the statute was most likely to be unconstitutional and saying, if it's unconstitutional in those situations, the statute on its face is unconstitutional. [00:14:37] Speaker 00: That is not what Salerno provided and that's not what Rahimi provided. [00:14:41] Speaker 00: Doe doesn't lead to a different result for a couple of reasons. [00:14:47] Speaker 00: First, Doe questioned whether Salerno remained a viable test. [00:14:53] Speaker 00: But even to the extent Salerno had remained a viable test, Doe pointed out that there is no one test that applies to all facial challenges. [00:15:02] Speaker 00: This court need not say that Rahimi abrogated Doe. [00:15:06] Speaker 00: It could simply say that Rahimi adopted Salerno for purposes of Second Amendment challenges. [00:15:11] Speaker 00: And in doing so, again, the burden is on the government to show there's at least some applications that are constitutional. [00:15:20] Speaker 00: I'm happy to get into any other issues the court may have. [00:15:23] Speaker 00: But again, in light of the argument of my opponent, I'm not sure that there's anything else to talk about. [00:15:31] Speaker 00: If there are no further questions, I'd ask that you affirm the judgment in the sentence below. [00:15:36] Speaker 00: Thank you. [00:15:44] Speaker 01: So I don't think that. [00:15:46] Speaker 01: What the Supreme Court in Rahimi did was adopt Salerno as the test for facial constitutionality of Second Amendment challenges. [00:15:58] Speaker 01: Brewing is the test for constitutionality of Second Amendment challenge. [00:16:03] Speaker 01: History and tradition is. [00:16:05] Speaker 01: And so you can look at, does this statute, by its terms, comport with history and tradition? [00:16:12] Speaker 01: By its terms, it does not. [00:16:15] Speaker 01: what the government is required to prove in every single case in which 922G3 is prosecuted does not comport with history and tradition at all. [00:16:30] Speaker 03: So isn't the argument that you're making that by terms means that every application has to be constitutional under Bruin? [00:16:40] Speaker 01: Well, I think that every application... Isn't that what you just said? [00:16:46] Speaker 01: You don't have to look, like, what you're asking me to do is to say that, well, if the person is intoxicated, then isn't it okay? [00:16:56] Speaker 01: No, because the government doesn't have to even allege that or require that. [00:17:01] Speaker 01: And the 922G3 doesn't call for that whatsoever by its very terms. [00:17:06] Speaker 01: And so, yes, if you look at just the terms of the statute, [00:17:10] Speaker 01: In every application of the statute, it is unconstitutional because it doesn't require the government to prove any of these other things that it says makes it unconstitutional. [00:17:22] Speaker 01: And that unconstitutional, that was the case in Rahimi. [00:17:27] Speaker 01: That was the case in Heller. [00:17:28] Speaker 01: That was the case in Bruin. [00:17:30] Speaker 01: That was the case in Doe. [00:17:33] Speaker 01: You are looking at what is mandated by the statute itself. [00:17:41] Speaker 01: is my argument for why 922G3 should be held to be facially unconstitutional. [00:17:46] Speaker 01: I think it doesn't work as a whole in terms of history and tradition. [00:17:57] Speaker 01: How many times is that? [00:17:58] Speaker 00: Thank you, counsel, for your arguments. [00:18:00] Speaker 00: The case is submitted. [00:18:01] Speaker 00: And, counselor, excuse. [00:18:03] Speaker 00: Thank you.