The Volokh Conspiracy

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The Facial Challenge Analysis In Rahimi Seems Inconsistent with Lopez

Why did Lopez, who was paid $40 to bring a gun to a school, succeed on a facial challenge, but the Court wouldn't even consider Rahimi's circumstances?


Alfonso Lopez and Zakey Rahimi share much in common. They both lived in Texas. They both possessed a firearm in violation of federal law. They both moved to dismiss their indictment on the ground that the federal law was unconstitutional. The Fifth Circuit agreed to dismiss both indictments. Both of their cases were appealed to the Supreme Court. And Justice Thomas agreed with both of their claims. That's where the similarities stop.

In United States v. Lopez, Chief Justice Rehnquist "struck down" the Gun-Free School Zones Act, without considering whether it may be constitutional as applied to Mr. Lopez. But for Mr. Rahimi, the Supreme Court treated his motion to dismiss as a facial challenge, and only considered whether Section 922(g)(8) could be validly applied to him. How to explain this disparate treatment?

Let's start with the facts of Lopez. All know that the Court declared the federal statute unconstitutional because the mere possession of a gun in a school was not "economic activity," and thus lacked a sufficient nexus with interstate commerce. But what most people do not know is that someone paid Lopez $40 to give the gun to someone at the school. By any definition, that payment is an economic transaction that would clearly satisfy the Lopez test. (Indeed, Gonzales v. Raich was a good vehicle because money did not change hands.) Here is how the Solicitor General described the facts in the Lopez merits brief:

2. On March 10, 1992, respondent, then a twelfth-grade student at Edison High School in San Antonio, Texas, arrived at school in possession of a concealed .38 caliber handgun, together with five bullets. In response to an anonymous tip, school officials confronted respondent, who admitted that he was carrying the weapon. He explained that an individual he identified as "Gilbert" had given him the gun to deliver to another individual after school for use in what respondent described as a "gang war." Respondent stated that he was to receive $40 for delivering the weapon. See Pet. App. 2a. [U.S. v. Lopez, 1994 WL 242541, at *6–7 (U.S.Pet.Brief,1994).]

Congress could have criminalized Lopez's actions, even under the new Lopez test. But the Court still accepted Lopez's motion to dismiss the indictment as a facial challenge, and declared the statute unconstitutional in all regards. Perhaps the Court found that because the statute lacked a jurisdictional hook, it didn't matter whether Lopez's individual conduct fell within the scope of the interstate commerce power. Judge Ho hinted at this possibility in Footnote 10 of his Kersee concurrence (which I wrote about here). I am uncertain because neither the SG's brief, nor Chief Justice Rehnquist's opinion, mentioned Salerno. The issue was simply not addressed.

Fast forward to Rahimi. The Solicitor General's opening brief did not even mention Salerno or any arguments concerning facial challenges. Rahimi's merits brief only mentions the facial challenge in passing. The SG's reply brief devotes a single paragraph to the facial challenge:

Moreover, Rahimi brought, and the Fifth Circuit sustained, a facial challenge to Section 922(g)(8). See Pet. App. 2a. On such a challenge, "the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Objections to applying Section 922(g)(8) to other factual scenarios, see Resp. Br. 46-47, cannot justify invalidating the statute on its face or as applied to Rahimi. Facial invalidation would be particularly inappropriate given that Section 922(g)(8) is subject to a severability clause, which states that the invalidation of one of the statute's applications does not affect "the application of such provision to other persons not similarly situated or to other circumstances." 18 U.S.C. 928.

During the oral argument, Justice Gorsuch asked SG Prelogar several questions about the facial challenge. And he posed the same question to Matthew Wright, counsel for Rahimi. This issue was on Gorsuch's mind. Wright directly compared his case to Lopez.

Neil Gorsuch: And the same thing when it comes to temporary dispossession. I understand your concern about permanent dispossession, but, again, that isn't what's necessarily before us in a facial challenge, where we have to ask is it unconstitutional in all of its applications, right?

J. Matthew Wright: Your Honor, that—that test for faciality, I—I think, is primarily remedial. It typically comes up in the civil context where someone is suing to enjoin the enforcement of a statute and—and so the Salerno test it's called, you know, comes into play as to, typically, that assumes there is a valid application or a space of valid application of the statute, and then the complaint is either there's too much outside or my case is outside or something like that. Ours is a facial challenge in the way that Lopez was a facial challenge, where the facts of Lopez were clearly within Congress's power under the Commerce Clause.

This Court found the facts of that case were Person A was going to pay Lopez $40 to give that gun to Person C after school. That's within the commerce power, but the statute itself was not within Congress's power to enact.

And so that statute failed as it then existed, the pre-amendment version of the Gun-Free School Zones Act, on its face.

That argument obviously did not persuade Justice Gorsuch, whose solo concurrence relied almost entirely on Salerno.

Later during the argument, Chief Justice Roberts returned to the theme:

John G. Roberts, Jr.: Well, but it—it's a facial challenge.

J. Matthew Wright: Right.

John G. Roberts, Jr.: And I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous that the firearm can be taken from him.

J. Matthew Wright: Yes.

John G. Roberts, Jr.:
And why isn't that the end of the case?

J. Matthew Wright: Because —

John G. Roberts, Jr.
All you need to do is show that there are circumstances in which the statute can be constitutionally applied.

And that was the end of Rahimi's case.

The Lopez Court entertained a wide-range of hypotheticals why the Gun-Free School Zone Act, and indeed non-existent legislation, would be unconstitutional–even as Lopez himself was paid to deliver the gun! But in Rahimi, the Court narrowly construed the motion to dismiss the indictment as a "facial challenge," and refused to even consider any other applications in which the statute might be unconstitutional–even the very circumstances that the criminal defendant faced. Rahimi had the burden to show that the statute was unconstitutional in every circumstance, but Lopez did not have that burden. I often find myself writing that different litigants seem to have different burdens at the Supreme Court.

I am not an expert in this area, and I've been unable to find any clear guidance. Those who specialize in federal criminal defense may have some insights here. Please drop me a line. But at the very least, I see a tension between how the Court treated Lopez's challenge and how the Court treated Rahimi's challenge.