Constitutional challenge to the statute prohibiting using a weapon during & in relation to any crime of violence or drug trafficking (18 USC § 924(c)(1)(A)); New York State Rifle & Pistol Ass’n v Bruen; District of Columbia v Heller; United States v Greeno; United States v Rahimi; Article III standing to appeal the dismissal of an FIP charge; Claim the statute is facially unconstitutional under the Second Amendment; United States v Williams

Noting that it had not yet addressed the “merits of a post-Bruen Second Amendment challenge to § 924(c)(1)(A)’s constitutionality in a published decision[,]” the court held that defendant-Risner could not show that the statute “is unconstitutional in every application—a requirement to mount a successful facial challenge to the statute.” It also held that he lacked Article III standing to challenge the FIP statute, § 922(g)(1), as facially unconstitutional where that charge against him had been dismissed. Risner, who was indicted on drug and firearm charges, moved to have the firearm charges dismissed arguing that under Bruen, both the possessing a firearm in furtherance of a drug trafficking statute and the FIP statute were facially unconstitutional. The FIP charge was dismissed as part of a plea agreement. Risner pled guilty to conspiracy to distribute meth and possessing a firearm in furtherance of a drug trafficking offense. Though the FIP charge was dismissed, he still challenged the constitutionality of the statute on appeal. Thus, the court considered whether he had Article III standing to raise this challenge. It saw “no collateral consequences resulting from the government’s dismissal of Risner’s § 922(g)(1) charge that may afflict him should he be unable to advance his constitutional challenge to that statute.” It would not have any “bearing on his guilty plea” and it was not likely he would be recharged. Thus, because he had no “‘personal stake’ in § 922(g)(1)’s constitutionality,” he lacked standing to challenge it. Further, the court had already held that the statute is constitutional on its face in Williams. As for the statute prohibiting using a weapon during and in relation to any crime of violence or drug trafficking crime, the court considered whether § 924(c)(1)(A)’s restriction was “consistent with ‘the Nation’s historical tradition of firearm regulation.’” Using the methodology the Supreme Court employed in both Bruen and Rahimi, it held that it had “no reason to depart from Greeno’s holding that the historical understanding of the right to keep and bear arms does not extend to the use of a firearm for an unlawful purpose.” The court concluded that because “§ 924(c)(1)(A) expressly prohibits the use of a firearm during the commission of a drug trafficking crime—an objectively unlawful purpose—and Risner admits to possessing a firearm in connection with drug trafficking, § 924(c)(1)(A) lawfully applies to” him. It further found that the statute’s “prohibition against possessing a firearm in furtherance of a drug trafficking crime fits comfortably within the history and tradition of gun regulation in this country.” Affirmed.