The Volokh Conspiracy
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Rahimi and NetChoice: Why Is The Facial Challenge Bar Lowered For The First Amendment and Not The Second Amendment?
The right to keep and bear arms remains a second-class right.
This past term, the Court found that litigants failed to mount a proper facial challenge in two cases involving the Bill of Rights. In Rahimi, the Court refused to dismiss a criminal indictment because, under Salerno, the defendant could not show that there was "no set of circumstances" in which Section 922(g)(8) was constitutional. And in NetChoice, the Court found that the tech organization failed to bring a proper facial challenge. But the standard was different, and easier to satisfy.
Justice Kagan's NetChoice majority opinion explained this lower bar:
This Court has therefore made facial challenges hard to win.
That is true even when a facial suit is based on the First Amendment, although then a different standard applies. In other cases, a plaintiff cannot succeed on a facial challenge unless he "establish[es] that no set of circumstances exists under which the [law] would be valid," or he shows that the law lacks a "plainly legitimate sweep." United States v. Salerno, 481 U. S. 739, 745 (1987); Washington State Grange, 552 U. S., at 449. In First Amendment cases, however, this Court has lowered that very high bar. To "provide[] breathing room for free expression," we have substituted a less demanding though still rigorous standard. United States v. Hansen, 599 U. S. 762, 769 (2023). The question is whether "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Americans for Prosperity Foundation v. Bonta, 594 U. S. 595, 615 (2021); see Hansen, 599 U. S., at 770 (likewise asking whether the law "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep"). So in this singular context, even a law with"a plainly legitimate sweep" may be struck down in its entirety. But that is so only if the law's unconstitutional applications substantially outweigh its constitutional ones.
Why does the Court lower the bar for the First Amendment, but not the Second Amendment? Why does free speech require "breathing room" but self-defense does not? Did anyone in the Rahimi majority even notice this disparate treatment? The cases were decided a week apart, so both issues were in their minds.
In case after case, a different set of rules applies to the First and Second Amendments. With free speech, the Court's progressives makes up doctrine willy-nilly without any concern for originalism. But for the Second Amendment, the Court's progressives insist on a rigorous application of history, with a framework that exudes deference to the government at every step.
Nearly two decades after Heller, the Second Amendment remains a second-class right.
