Last term, the court found that litigants failed to raise appropriate facial challenges in two cases involving the Bill of Rights. exist Laxmithe court refused to dismiss the criminal prosecution because under Salerno, the defendants failed to show that “there are no circumstances” that demonstrate that Section 922(g)(8) is constitutional. and in Network selection, the court found that the tech organization failed to mount a proper facial challenge. But the standards are different, Easier to satisfy.
Justice Kagan Network selection The majority opinion explains this lower standard:
The Court therefore makes the facial challenge difficult to win.
This would be the case even if the face suit was based on the First Amendment, although then Different standards apply. In other cases, a plaintiff cannot succeed in a facial challenge unless he “proves[es] There are no circumstances [law] will be effective,” or he suggested that the law lacked “manifest legal comprehensiveness.” USA v. Salerno481 U.S. 739, 745 (1987); Washington State Farm552 United States, 449. In First Amendment cases, however, this Court has lowered this very high standard. supply[] Breathing space for free expression” we use Lower requirements, but still strict standards. USA v. Hansen, 599 U.S. 762, 769 (2023). The problem is “a large number of [the law’s] Judging from the clearly legal scope of the statute, these applications are unconstitutional. America’s Prosperity Foundation v. Bonta594 U.S. 595, 615 (2021); see Hansen, 599 US at 770 (also asking whether the law “prohibits a substantial amount of protected speech relative to its manifest lawful scope”). So in this single situation, even laws with “clear legality” may be overturned entirely. But this will only be the case if the law’s unconstitutional applications substantially outweigh its constitutional applications.
Why do courts lower the First Amendment threshold but not the Second Amendment? Why does free speech require “breathing space” but self-defense does not? Is anyone here? Laxmi Most people even notice this different treatment? The two cases were decided a week apart, so both questions were on their minds.
In case after case, different rules apply under the First and Second Amendments. With free speech, the court’s progressives can make up doctrine as they please without caring about originalism. But when it comes to the Second Amendment, the court’s progressive wing insists on a strict application of history and a framework that respects the government every step of the way.
nearly twenty years later Hellerthe Second Amendment is still a second-class right.
