Robert Timothy Harley v. Merrick B. Garland, Attorney General, et al.

After this Court’s landmark Second Amendment decision in District of Columbia v. Heller, 554 U.S. 270 (2008), there were a series of cases in the Courts of Appeals challenging the application of restrictions on possession of firearms. By and large, these cases were direct appeals of criminal convictions. Essentially the challengers took the position that the prohibition or disarmament statute under which they were prosecuted was not constitutional in light of this Court’s decision in Heller. These challenges were generally categorized by the Courts of Appeals as “as-applied” challenges, even though they were, in actuality, facial challenges to the constitutionality of the statute which prohibited the individuals from possessing firearms. There were other “as-applied” challenges also raised which, as in this case, did not contest the constitutionality of the statute at issue; rather, they contended that the statute, although constitutional, was not constitutional as applied to the challenger individually because of their personal circumstances. The Courts of Appeals are split on individual asapplied challenges which contend that, under the Second Amendment, an otherwise constitutional disarmament statue is not constitutional when applied specifically to a given individual because of their unique circumstances. Some, such as the D.C., the Seventh, and the Third Circuits accept that there may be such challenges, and others, such as the Ninth, Eleventh, and Fourth Circuits do not. This case presents the issue of whether individual, personal as-applied challenges to the application of statutory prohibition on possession of firearms for the protection of hearth and home are allowed under the Second Amendment like they are under the First Amendment. The question presented is: 1) Can there be a personal, individual asapplied challenge under the Second Amendment to a prohibition on the possession of a firearm for the protection of hearth and home which contends that the statutory ban at issue, in this case 18 U.S.C. §922(g)(9), is constitutional, but that it is not constitutional when applied specifically to the individual person raising the challenge, because of their unique and individual circumstances?