[00:00:00] Speaker 04:
Next case is BNL Productions versus Newsome.

[00:00:03] Speaker 04:
You can just stay where you are.

[00:00:05] Speaker 03:
See you again soon.

[00:00:08] Speaker 03:
Please just stay where you are and counsel you can come up when you're ready and proceed.

[00:00:13] Speaker 03:
Thank you.

[00:00:25] Speaker 05:
And we haven't forgotten everything you said.

[00:00:27] Speaker 03:
Yeah, exactly.

[00:00:29] Speaker 03:
But please reintroduce yourself.

[00:00:31] Speaker 03:
Let me know whether you want to reserve any time for rebuttal.

[00:00:33] Speaker 03:
But we do have your arguments from the first case.

[00:00:38] Speaker 01:
Thank you for clarifying that.

[00:00:41] Speaker 01:
May it please the court, again, Anna Barver for B&L Productions et al.

[00:00:47] Speaker 01:
I would like to try and reserve two minutes, if I may.

[00:00:51] Speaker 01:
In 2019, two years before the events that gave rise to the challenge in the Orange County case we just discussed, California banned the sale of all firearms and ammunition.

[00:01:01] Speaker 01:
It later added firearm precursor parts at the Del Mar fairgrounds only in San Diego.

[00:01:07] Speaker 01:
While the law there did not expressly ban gun show events, banning these events and the speech that takes place there was the law's purpose and effect.

[00:01:17] Speaker 01:
The question presented here is similarly to the Orange County case, whether California's eradication of this longstanding avenue for lawful commerce and arms can withstand constitutional scrutiny.

[00:01:33] Speaker 01:
The answer is no under both the first and second amendments.

[00:01:37] Speaker 01:
But this case is even simpler than that.

[00:01:40] Speaker 01:
This case is before this court on a dismissal of BNL's claims on a Rule 12 motion to dismiss and only after the court assumed facts that weren't in evidence, including the

[00:01:51] Speaker 01:
the argument that offers were not part of AB 893, disregarding the well-planned facts of BNL's first complaint, first amended complaint, that they in fact had been restricted and barred from getting gun show events on the calendar, and finally, in the case of the Second Amendment, failing to conduct any historical analysis that Bruin would require.

[00:02:13] Speaker 01:
This court should reverse.

[00:02:16] Speaker 01:
I want to first, I think, talk a little bit about why speech is in fact addressed and covered by AB 893.

[00:02:26] Speaker 01:
The record in the trial court in Orange County, you would see, this was a substantial question.

[00:02:35] Speaker 01:
It took up a lot of time during the party's oral presentation for the court.

[00:02:41] Speaker 01:
It was very, its first and most obvious example of speech being restricted, of course, is that Fairgrounds staff did, in fact, refuse to contract with B&L to host or calendar gun shows at both Del Mar Fairgrounds and the OC Fair and Event Center since the laws took effect.

[00:03:00] Speaker 00:
The state talks about- And are you talking about gun shows without the sale of guns?

[00:03:06] Speaker 00:
So you're talking about the interpretation of the district

[00:03:09] Speaker 00:
of these laws in a way that would bar the scheduling of all gun shows, even if there was a limit on the sale and purchase of guns.

[00:03:26] Speaker 01:
in Orange County, but there is a declaration from Tracy Olcott who works for BNL Productions.

[00:03:34] Speaker 01:
She is the conduit between OC Fair events and the Del Mar Fairgrounds and Crossroads.

[00:03:40] Speaker 00:
So are you seeking relief?

[00:03:41] Speaker 00:
I asked your opposing counsel in the first argument this question, but I didn't have an opportunity to ask you.

[00:03:48] Speaker 00:
Assuming that

[00:03:51] Speaker 00:
We reject your facial challenge is is your view that you would be satisfied with an order in joining the law as interpreted by the district to bar gun shows where there are no sale of guns because the way I read your complaint is that it really there's no financial

[00:04:11] Speaker 00:
incentive to have these gun shows if people don't come and businesses don't want to be there, vendors don't come if they can't sell guns.

[00:04:19] Speaker 00:
I don't see anything in your complaint in which you seek relief specifically as to an as-applied challenge.

[00:04:26] Speaker 01:
No.

[00:04:28] Speaker 01:
None of the appellants would be satisfied with an as-applied construction that would allow guns.

[00:04:34] Speaker 01:
They're going to call them gun shows that don't allow gun sales.

[00:04:36] Speaker 01:
That's not a thing.

[00:04:39] Speaker 00:
Gun shows allow gun sales.

[00:04:41] Speaker 00:
So the allegations you're making and the relief that you're seeking is really for the whole shebang, not for the gun shows without the sale of guns.

[00:04:49] Speaker 01:
Yeah, gun shows without the sale of guns are not a thing.

[00:04:52] Speaker 01:
That is an event, an entirely different event.

[00:04:54] Speaker 01:
That is not the business model of my client.

[00:04:57] Speaker 01:
That is maybe an educational event about guns.

[00:05:02] Speaker 01:
It's not a gun show.

[00:05:03] Speaker 01:
Gun shows involve commerce in arms.

[00:05:05] Speaker 05:
But we went through this when I was trying to pin down the state's position.

[00:05:11] Speaker 05:
And it appears not to be contested that

[00:05:16] Speaker 05:
there is going to be a waiting period, so there wouldn't actually be delivery of firearms at the fairground.

[00:05:27] Speaker 05:
What is your understanding as to what the state won't permit that makes the statute objectionable?

[00:05:39] Speaker 05:
If we understand that the state

[00:05:42] Speaker 05:
has taken the position that the offer for sale can be made and the parties can talk about it and either way the gun doesn't get delivered until after the waiting period at some other location.

[00:05:56] Speaker 05:
I'm having trouble figuring out just what the difference is here.

[00:06:01] Speaker 01:
This assumes, again, that the state is telling you the truth about what it believes the law does.

[00:06:06] Speaker 05:
Well, see, if we're taking this as a facial challenge and we say, this is what the state says it is, this is what it is, what's wrong with that from your perspective?

[00:06:16] Speaker 01:
Can I read you the record?

[00:06:18] Speaker 05:
Well, see, I'm not so much concerned, because this is a facial challenge.

[00:06:22] Speaker 05:
And parties, I see lots of cases where parties' positions evolve over time.

[00:06:28] Speaker 05:
We're concerned about what is it we're supposed to do with the challenge, and the facial challenge is now articulated in such a way.

[00:06:37] Speaker 05:
I'm having trouble figuring out not what position the state might have taken.

[00:06:41] Speaker 05:
I know the state's going to say it didn't take that position.

[00:06:43] Speaker 05:
I don't really care very much.

[00:06:46] Speaker 05:
I'm concerned about a facial challenge now, and if the state has conceded that it will permit the offers for sale, where is the problem?

[00:07:01] Speaker 01:
The state hasn't conceded that.

[00:07:02] Speaker 01:
It has rejected that position.

[00:07:05] Speaker 05:
Well, I was sitting here in the last argument, and you were, too.

[00:07:09] Speaker 05:
We heard what the state deputy attorney general said.

[00:07:12] Speaker 05:
What in the line that he sought to draw

[00:07:17] Speaker 05:
is problematic from your perspective.

[00:07:21] Speaker 01:
If all the speech is allowed, if they're allowed to advertise, they're allowed to offer, they're allowed to accept the offer, negotiate terms, I mean, then I guess I guess the one piece I may have to go back and pin down.

[00:07:33] Speaker 05:
I was focused on the offer side and the negotiate side.

[00:07:38] Speaker 05:
It was explained, but I didn't pick it up quite so much, that the background check is triggered with the entry of the agreement.

[00:07:46] Speaker 05:
So maybe I need to work on that with the state.

[00:07:49] Speaker 05:
And he has now a warning that we're going to get there.

[00:07:54] Speaker 05:
Let's take that either way.

[00:07:57] Speaker 05:
If the state's position is you can offer, you can talk about, you can have your display, you can't deliver.

[00:08:05] Speaker 05:
That's not contested.

[00:08:07] Speaker 05:
And you can't

[00:08:10] Speaker 05:
Sign the, I guess it's sign the credit card slip that triggers the background check.

[00:08:17] Speaker 05:
That may be a bone of contention.

[00:08:19] Speaker 05:
I get that.

[00:08:20] Speaker 05:
If, is that the only bone of contention we're at at this point?

[00:08:25] Speaker 05:
If in fact the state will allow the display, the offer, the discussion.

[00:08:31] Speaker 01:
If that is what the state is allowing, that's what it's always allowed.

[00:08:35] Speaker 01:
And so gun shows can take place.

[00:08:36] Speaker 01:
I don't know then why the OC Fair and Events Center and the Delmar Fairgrounds refused to contract with my client to have gun shows, even when they agreed that they wouldn't do any kinds of sales transactions.

[00:08:49] Speaker 01:
That would probably be something you have to determine in the trial court with evidence.

[00:08:54] Speaker 01:
That didn't, you know, that couldn't happen in the Delmar case because it was on motion to dismiss.

[00:08:58] Speaker 05:
Why does it matter anymore?

[00:09:00] Speaker 05:
If in fact this is a facial challenge and we ascertain either there's a no difference between the parties or a thin difference that we may have to adjudicate, I'm trying to figure out what's there for the facial challenge today.

[00:09:18] Speaker 01:
Again, if the state's position now is that all of that speech can happen and all of those transactions can happen, then this is back to where we were before the laws were passed.

[00:09:28] Speaker 01:
And I guess Delmar would be having gun shows again, and we'd be happy with that.

[00:09:32] Speaker 05:
Your papers have taken the position that without the actual sales,

[00:09:37] Speaker 05:
these things are economically not feasible.

[00:09:39] Speaker 05:
I don't know that that's a position you're going to continue maintaining today, but I've read that someplace in the materials.

[00:09:47] Speaker 05:
And so I'm not trying to say that the parties haven't gone back and forth and altered positions and recognized events.

[00:09:55] Speaker 05:
I'm trying to figure out, what do we have that the difference is today?

[00:09:59] Speaker 05:
So to tell me that, well, that we offered that, and they didn't do that, and so

[00:10:03] Speaker 05:
That's past history where both sides can say, that's not what we heard.

[00:10:06] Speaker 05:
That's not what they were willing to do.

[00:10:08] Speaker 05:
I'm trying to figure out for a facial challenge today, is there any difference other than this potential difference with regard to signing the credit card slip?

[00:10:19] Speaker 01:
I think I've answered that.

[00:10:20] Speaker 01:
No.

[00:10:21] Speaker 01:
If the state is is being honest in the in the court interprets this law to mean sales doesn't somehow doesn't include what the definition the dictionary definition of sales means, which is the speech, including offer and acceptance, which the trial court lunch county found that it did.

[00:10:38] Speaker 01:
then I guess B&L would be having gun shows again, and they'd be happy with that.

[00:10:42] Speaker 01:
But there is a reason that gun shows were banned.

[00:10:47] Speaker 01:
The sponsor of the bill repeatedly has said that this is a ban on gun shows, all events.

[00:10:53] Speaker 01:
The sponsor of the Orange County bill sent a letter directly to the District Association board members saying, I will sue you personally if you agree to contracts for gun shows, because we banned them.

[00:11:06] Speaker 01:
So I have a hard time believing that the states now concession at all.

[00:11:13] Speaker 05:
Let's focus on what may be the area of contention.

[00:11:18] Speaker 05:
And we'll certainly hear from the state, and you'll have a chance to speak after that.

[00:11:22] Speaker 05:
We do understand that the state has said, I thought pretty clearly, that the first part, that is the offer part, that's going to be OK.

[00:11:35] Speaker 05:
Suppose they object, and we've been working to try to identify, is it the acceptance and the signing of the credit card slip or the payment of the cash?

[00:11:47] Speaker 05:
I guess some people still use cash.

[00:11:49] Speaker 05:
Although I was at a hotel the other day where you couldn't use cash.

[00:11:53] Speaker 05:
Go figure.

[00:11:54] Speaker 05:
But I'm old enough, so I still carry cash.

[00:11:57] Speaker 05:
What can I say?

[00:11:59] Speaker 05:
Let's focus on that.

[00:12:01] Speaker 05:
Let's assume we do have actual disagreement, a contention about that.

[00:12:07] Speaker 05:
What is the basis for your contention that that's a facial violation of the First Amendment, Second Amendment, equal protection?

[00:12:16] Speaker 05:
I forget.

[00:12:16] Speaker 05:
I think that was basically it.

[00:12:18] Speaker 05:
What's your case?

[00:12:21] Speaker 01:
I can't assume that the state is going to now come back and say that acceptance is no longer

[00:12:26] Speaker 01:
covered by the law but again in the Orange County Court when asked by the court so you're saying there are multiple elements to a transaction offer an acceptance or a couple of them and those two for example are prohibited at the gun show by these statutes

[00:12:42] Speaker 01:
counsel for the state.

[00:12:44] Speaker 01:
That's right.

[00:12:45] Speaker 01:
So the position was that both offer an acceptance were borrowed by the statutes.

[00:12:50] Speaker 05:
If now the position is- Actually, I hear that as saying both, not necessarily either separately.

[00:12:56] Speaker 05:
So let's focus on the acceptance.

[00:12:59] Speaker 05:
That appears to be the potential disagreement.

[00:13:02] Speaker 05:
Why is it acceptance at the gun show is protected by the First or Second Amendment?

[00:13:09] Speaker 01:
Because acceptance of an offer is commercial speech.

[00:13:12] Speaker 01:
It is speech that does no more than propose and engage in a commercial transaction.

[00:13:21] Speaker 01:
So you have to do the central Hudson test.

[00:13:23] Speaker 05:
I've seen commercial speech discussed a lot in terms of offers.

[00:13:27] Speaker 05:
I don't know that I've seen commercial speech discussed in terms of acceptance.

[00:13:32] Speaker 05:
That's not

[00:13:33] Speaker 05:
That's not making a commercial offer to the world that buyer detergent or whatever else.

[00:13:39] Speaker 05:
Let's do a contract.

[00:13:41] Speaker 05:
Is there authority that says making a contract is commercial speech?

[00:13:48] Speaker 01:
I mean, contracting is speech.

[00:13:50] Speaker 01:
I mean, it is speech that has to deal with commercial activities.

[00:13:55] Speaker 01:
I don't know how, in the real world, the way people interact, conversations go back and forth.

[00:14:00] Speaker 01:
So whether it's the offer or it's the acceptance, all of that is a commercial speech discussion.

[00:14:06] Speaker 01:
I don't know how you can peel the layers back between the two.

[00:14:09] Speaker 01:
They're kind of necessarily intertwined with regard to this.

[00:14:12] Speaker 05:
One is speech and one is a transaction.

[00:14:15] Speaker 05:
Those are different things.

[00:14:17] Speaker 05:
Now they can overlap.

[00:14:19] Speaker 05:
But I don't have any trouble saying, OK, making an offer, that's traditionally what commercial speech is talking about.

[00:14:26] Speaker 05:
Accepting an offer, I don't know.

[00:14:28] Speaker 05:
I haven't heard commercial speech discussed in those terms.

[00:14:31] Speaker 05:
Can you point me to something where it is discussed in those terms?

[00:14:34] Speaker 01:
At this point, I can't, because the conversation has always been that both offer an acceptance.

[00:14:40] Speaker 01:
We're part of this law.

[00:14:42] Speaker 01:
And so focusing on whether or not you're peeling the two apart and saying one is commercial speech and the other isn't, I am not prepared at this moment to answer that question, Your Honor.

[00:14:54] Speaker 01:
Assuming that it is, we need to move to the Central Hudson test.

[00:14:58] Speaker 01:
And under Central Hudson, commercial speech is entitled to full First Amendment protection as long as it is not misleading and it concerns lawful activity.

[00:15:08] Speaker 01:
That sort of speech must have a, regulations on that sort of speech, of course, must have a substantial government interest that is materially and directly served by the interest and is not more, excuse me, and is not more

[00:15:23] Speaker 01:
broad than necessary to serve that interest.

[00:15:25] Speaker 05:
I think that the premise of this argument is that the acceptance part is part of the commercial speech.

[00:15:31] Speaker 05:
So we still have the first issue that we've walked around.

[00:15:35] Speaker 05:
I just want to make sure I understand that there's not a separate argument here.

[00:15:38] Speaker 01:
No, there isn't a separate argument.

[00:15:39] Speaker 01:
This is speech as the trial court in Orange County found when it interpreted the law based on the record before it, the concessions that the state made.

[00:15:47] Speaker 01:
I mean, these are things that was where evidence was taken, questions were asked, and the state was put to its burden.

[00:15:55] Speaker 01:
In this Del Mar case on a motion to dismiss, the court took the state say so in an opposition brief without anything more than saying,

[00:16:03] Speaker 01:
This is just speech, you know, the exchange of guns for money, offers not included.

[00:16:08] Speaker 01:
When at a motion to dismiss, that's the opposite of the standard that it was supposed to withhold.

[00:16:14] Speaker 05:
A motion to dismiss, that's where you challenge the law.

[00:16:19] Speaker 05:
The facts are left open, but I don't hear facts, factual contentions or factual allegations in your complaint that were not

[00:16:30] Speaker 05:
taken by the court indeed on the issue we talked about before with regard to the impact or the connection between acquisition and keep and bear

[00:16:42] Speaker 05:
Specifically, you were given leave to amend your complaint and elected not to do it.

[00:16:47] Speaker 05:
So where is it that the district court in San Diego assumed facts or made factual conclusions as distinguished from legal conclusions?

[00:16:58] Speaker 01:
In a few places.

[00:16:59] Speaker 01:
First, accepting as fact that sales are not speech and sales are not included under ABB.

[00:17:05] Speaker 01:
Wait, stop.

[00:17:05] Speaker 05:
Stop right there.

[00:17:06] Speaker 05:
That sounds like a legal doctrine.

[00:17:09] Speaker 05:
Is commercial speech going to encompass sales offer and acceptance or what?

[00:17:14] Speaker 05:
I mean, that's not fact.

[00:17:15] Speaker 01:
The court made a factual finding based on what the state said that offers are not included under the law.

[00:17:21] Speaker 01:
That is a factual finding.

[00:17:23] Speaker 05:
It also made a factual finding that... The conclusion that commercial speech does or does not cover sale is a factual rather than a legal proposition.

[00:17:37] Speaker 01:
when the state makes a factual allegation that it is, it's an interpretation.

[00:17:42] Speaker 05:
How's that a factual allegation?

[00:17:44] Speaker 05:
It's a legal doctrine.

[00:17:45] Speaker 05:
Commercial sales do or do not extend, or commercial speech does or does not extend to offer an acceptance.

[00:17:52] Speaker 05:
That's a legal proposition.

[00:17:53] Speaker 05:
Where's the factual allegation there?

[00:17:56] Speaker 01:
There is another factual allegation.

[00:17:57] Speaker 01:
The factual allegations throughout the complaint were that all gun shows, with or without these speech, had been shut down, that BNL could not contract.

[00:18:06] Speaker 01:
So both pure and commercial speech were being restricted.

[00:18:10] Speaker 01:
found as a fact that plaintiffs had not said that, had not out-alleged that, had not proven that.

[00:18:16] Speaker 01:
But it is in the First Amendment complaint.

[00:18:17] Speaker 01:
It's also in the declaration of Tracy Olcott in the Orange County case.

[00:18:21] Speaker 01:
That is a factual finding that the court was not free to make on a motion to dismiss.

[00:18:29] Speaker 04:
You wanted to save two minutes for rebuttal.

[00:18:30] Speaker 04:
Do you want to do that?

[00:18:31] Speaker 01:
Then I would like to do that.

[00:18:32] Speaker 04:
OK.

[00:18:33] Speaker 04:
All right.

[00:18:33] Speaker 04:
Great.

[00:18:33] Speaker 04:
Thank you.

[00:18:41] Speaker 02:
Good morning again, your honors.

[00:18:42] Speaker 02:
For formality purposes, may it please the court, Charlie Sorosi for the state appellees in this case.

[00:18:48] Speaker 02:
A couple points.

[00:18:49] Speaker 02:
So I think for the Southern District case and for the Central District case, the rulings are subject to de novo review because it's applying constitutional principles to facts.

[00:18:59] Speaker 02:
So I think both cases are under de novo review as opposed to, at least in the preliminary injunction, Central District case, clearly erroneous.

[00:19:07] Speaker 02:
There was a lot of discussion back and forth about whether to trust the state's position, but I think I just want to refocus everyone's attention on the plain language of the statute, which again only bars sales.

[00:19:18] Speaker 02:
The legislature knows how to use sales versus offers for sale, and that is also clear from the Nordic 1997 case, which again barred sales, offer for sales, and any act initiating a transaction to be completed at a later date.

[00:19:33] Speaker 02:
None of these laws

[00:19:34] Speaker 02:
bar offers for sale in their plain language.

[00:19:36] Speaker 02:
So whether you take my word for it or not, the plain language is what controls here.

[00:19:40] Speaker 02:
And so the whole argument about what the state said or didn't say before is irrelevant because the plain language bars sales.

[00:19:49] Speaker 05:
Make sure I understand that.

[00:19:52] Speaker 05:
And we do have a

[00:19:54] Speaker 05:
something to focus on.

[00:19:56] Speaker 05:
I never really thought this complaint or this case had gone away completely.

[00:20:00] Speaker 05:
But there is a difference, as I understand it, between the position of B&L and the position of the state with regard to the acceptance part of the sale.

[00:20:12] Speaker 05:
You're telling us that the state's position is that offers to sale are not precluded by the statute.

[00:20:19] Speaker 05:
and that at least now that it's all been put on the table and we've written up in some form in our disposition, the state will take the position that shows can proceed that include the offer to sale portion.

[00:20:35] Speaker 05:
The objection appears to be on the acceptance.

[00:20:39] Speaker 05:
What I was referring to was signing a credit card slip or paying the cash for the merchandise.

[00:20:45] Speaker 05:
That's something which the state takes the position is not permitted under the statute.

[00:20:53] Speaker 02:
Is that correct?

[00:20:55] Speaker 02:
What we see at gun shows is that payments for firearms and ammunition, which I think we need to look at together,

[00:21:00] Speaker 02:
even though we are sorry we need to make sure the definition is consistent across both right because firearms have a waiting period and ammunition does not.

[00:21:08] Speaker 02:
And so I think the question that is ultimately getting is getting at is what is the work that these statutes are doing and for ammunition it is because it's barring sales it is also barring people from walking away from a gun show and say property with ammunition.

[00:21:23] Speaker 02:
for the purposes of firearms, it's barring the payment for that specific firearm.

[00:21:28] Speaker 02:
And to the extent the question is about oral acceptance or written acceptance, I think that is something that is more reserved for an as applied challenge.

[00:21:39] Speaker 02:
to the extent that acceptance makes something an enforceable contract.

[00:21:43] Speaker 02:
I think that is something that these laws would prohibit.

[00:21:46] Speaker 02:
But I think what plaintiff's primary argument is and what the central district court held is that anytime you see a restriction on sales, you see a restriction on offers and negotiations.

[00:21:57] Speaker 02:
And that can't be true because that would subject numerous other types of sale restrictions immediately to central Hudson immediate scrutiny.

[00:22:04] Speaker 05:
So it looks like, and I'm running through this to make sure I understand it properly, we have potentially two areas of dispute.

[00:22:12] Speaker 05:
One, which I hadn't really focused on and you brought to my attention, is the ammunition, because there's not a waiting period for that.

[00:22:20] Speaker 05:
And so I suspect the position of B&L is going to be that the restriction on consummating the sale when there's not a waiting period that's going to require waiting anyway,

[00:22:34] Speaker 05:
is problematic.

[00:22:35] Speaker 05:
So we have potentially a dispute with regard to the inability to conclude a purchase of ammunition.

[00:22:42] Speaker 05:
And we have the disagreement as to whether the acceptance part, the signing the credit card slip, which, as I understand, the state's position is that is precluded by the statute, whether that is acceptable under their constitutional challenges.

[00:23:02] Speaker 05:
Let me start with, do you understand those two items to be potential disputes between the parties?

[00:23:10] Speaker 05:
And what we followed up with, is there something else that we should be mindful of?

[00:23:14] Speaker 02:
I think that's right, Your Honor.

[00:23:17] Speaker 02:
But I think that the dispute about what is an acceptance that is permissible and what is not is something reserved for an as-applied challenge.

[00:23:27] Speaker 02:
Because what the central district court here held and what plaintiffs

[00:23:31] Speaker 02:
our primary, what their primary argument is, is that it is offers for sale.

[00:23:34] Speaker 02:
That is the commercial speech.

[00:23:36] Speaker 02:
And that is what is triggering sexual Hudson.

[00:23:39] Speaker 02:
And it is their position that these laws bar offers, but the plain language says otherwise, and we've taken the position otherwise as well.

[00:23:46] Speaker 02:
And I think Nordic 2003 is also instructive when it says that it's really interference with speech that makes something a speech restriction, a restriction on non-speech conduct, hear sales,

[00:23:58] Speaker 02:
which further down the line then hinders profits, that can't make something a speech restriction.

[00:24:03] Speaker 02:
You're restricting non-speech conduct that then hinders other non-speech conduct.

[00:24:09] Speaker 02:
And the whole argument about the gun show business model, I think there aren't sufficient allegations to even make that plausible, whether it's the allegations in the Southern District case or even the declaration of Tracy Olcott that my friend mentioned.

[00:24:24] Speaker 02:
Their argument is that if,

[00:24:27] Speaker 02:
vendors cannot complete sales, then they can't cover their costs, and then they won't show up to gun shows.

[00:24:35] Speaker 02:
But from a business perspective, that doesn't really make a lot of sense, because why would a vendor would chomp at the bit to get the opportunity to display their products to the hundreds or thousands of people that come to a gun show?

[00:24:48] Speaker 02:
And again, these are

[00:24:50] Speaker 02:
While it is prohibiting sales on state property or the fairgrounds, what that actually cashes out to is that these are prohibiting sales at temporary marketplaces that happen a couple weekends a year.

[00:25:00] Speaker 02:
These are not brick and mortar locations on the fairgrounds.

[00:25:04] Speaker 02:
Rather, what's in the record in the central district case is that there are over 1,800 dealers and ammunition vendors statewide.

[00:25:12] Speaker 02:
There are over 160 dealers and vendors in Orange County alone.

[00:25:16] Speaker 02:
And within the same zip code as the Orange County fairgrounds, there are six dealers.

[00:25:20] Speaker 02:
That also mentions the number of dealers and vendors in San Diego County, which is 90.

[00:25:26] Speaker 02:
And we do know that gun shows do occur on private properties in addition to the fairgrounds before these laws.

[00:25:36] Speaker 02:
And plaintiffs didn't directly mention this, but to the extent they argue that the sale of an item is inextricably intertwined with speech,

[00:25:47] Speaker 02:
This court and the Supreme Court have made clear that the sale of an item can be easily separated from speech and hunt in this.

[00:25:54] Speaker 02:
This court tells us that marketing a product and linking it to a current public debate debate doesn't automatically make that commercial speech non commercial speech.

[00:26:07] Speaker 02:
And so I again I don't think we get to central Hudson at all because we're there's no restriction on speech but for the reasons in our briefing we do if we were to get to central Hudson I think we we satisfy our burden there and I think retail digital network is a

[00:26:22] Speaker 02:
Um, this courts and bonk opinion in retail digital network is helpful there to show that, um, for the directly advancing prong, when, uh, in an existing regulatory scheme, when you have regulated actors that are sidestepping the regulatory scheme, um, if the government takes the next step of flatly prohibiting that activity, that still directly advances the government interest.

[00:26:47] Speaker 02:
And for the purposes of the,

[00:26:49] Speaker 02:
fit prong, the least restrictive fit is not what is required.

[00:26:54] Speaker 02:
And even if careful policing of a gun show is another option, retail digital network and its affirmance of ACMEDIA said even if careful policing is an option, that doesn't mean something is therefore over extensive.

[00:27:12] Speaker 02:
Like to get to.

[00:27:15] Speaker 02:
The Second Amendment.

[00:27:16] Speaker 02:
Be sure I don't run out of time on that, unless the court has other questions about the First Amendment.

[00:27:21] Speaker 02:
The only other thing I'll say about the First Amendment is that in the central district case, the last time I think the district or sorry, BNL contacted the district was in about a gun show was in December 2021 and that's at 2ER201.

[00:27:37] Speaker 02:
So I'll move on to the Second Amendment.

[00:27:40] Speaker 02:
To get back to my points about Teixeira, Teixeira tells us that the Second Amendment doesn't guarantee a particular retail experience.

[00:27:51] Speaker 02:
is exactly what the central district court found when it said that the plain text of the Second Amendment guarantees a right to attend not just a gun show, but plaintiffs' specific gun shows.

[00:28:03] Speaker 02:
And that is certainly not what the plain text of the Second Amendment provides.

[00:28:08] Speaker 02:
And while the proposed conduct or course of conduct needs to be specifically defined, and we think here it is to purchase guns and ammunition at

[00:28:19] Speaker 02:
on state property or at fairgrounds, that acquisition right, whatever the scope of it is, does not include the right to buy firearms and ammunition at a particular location during a temporary marketplace like a gun show.

[00:28:36] Speaker 02:
And I think Teixeira rejected the similar argument and said that plaintiffs failed to even meet their plausibility pleading standard when making an argument that

[00:28:50] Speaker 02:
that because they didn't have a gun show in a particular, or they didn't have, sorry, a brick and mortar location in the exact location they wanted, that that meant their Second Amendment right was impeded at all.

[00:29:00] Speaker 02:
And so I think the reasoning in Teixeira is equally applicable here.

[00:29:04] Speaker 02:
Plaintiffs still have not pointed to any allegations showing that any of the individuals that want to buy guns or ammunition have in any way been impeded from buying the firearms and ammunition that they want by these laws.

[00:29:19] Speaker 05:
P&L argues that Bruin sets that aside by saying that you can't evaluate the degree of inhibition or inability to acquire.

[00:29:34] Speaker 05:
It's agreed that acquisition is a built-in part of keep and bear arms.

[00:29:42] Speaker 05:
So the question becomes, are we allowed to consider the level of

[00:29:48] Speaker 05:
inhibition on the ability to acquire.

[00:29:53] Speaker 05:
And by citing Teixeira, it sounds to me like you're taking the position that Bruin does not undo what Teixeira says, which would say, gee, you can buy it.

[00:30:05] Speaker 05:
I mean, Teixeira said, there's another source 600 feet away, so you're not really inhibited.

[00:30:12] Speaker 05:
Are we allowed to consider that factor in the wake of Bruin?

[00:30:18] Speaker 02:
The short answer is yes, I don't think brewing there's, I don't think there's tension between to share and brewing because to share it didn't do interest balancing and we're not really evaluating the burden at the here in this first step plaintiffs aren't saying.

[00:30:34] Speaker 02:
They're saying they're not asserting any allegations that their Second Amendment right is at all impeded.

[00:30:40] Speaker 02:
So I think this is a pretty straightforward case.

[00:30:42] Speaker 02:
They're not saying there's a certain severity of the burden that there are some guns they can get, some guns they can't because of these laws.

[00:30:49] Speaker 02:
They're not making any of those allegations.

[00:30:52] Speaker 00:
I think that what her argument is on the other side is that

[00:30:55] Speaker 00:
that's not required, that once the Second Amendment, when a law is enacted that sort of deals with gun regulation and implicates a Second Amendment, there's no requirement to make an allegation that the Second Amendment right is infringed upon.

[00:31:11] Speaker 02:
I think that, I agree, that is their position, but I don't think that can be, I don't think that's consistent with Bruin.

[00:31:17] Speaker 02:
I don't, because that would mean that any regulation on firearms whatsoever, you automatically get to the historical inquiry and that,

[00:31:25] Speaker 02:
The plain text inquiry or the plain text analysis needs to do some work as a threshold.

[00:31:31] Speaker 02:
Otherwise, things as commonly understood and accepted today such as background checks you automatically get to the historical inquiry and that

[00:31:40] Speaker 02:
that just can't be right under Bruin, because that would be inconsistent with what Heller, McDonald, and Bruin all said, that the Second Amendment is not a right to keep and bear any arm whatsoever in whatever place you want.

[00:31:52] Speaker 02:
So the plain text inquiry does need to do some work, and Bruin also didn't immunize plaintiffs asserting Second Amendment claims for meeting their Tuam Leakball plausibility standard.

[00:32:04] Speaker 02:
But even if we get to the historical inquiry,

[00:32:09] Speaker 02:
I'm getting close to my time.

[00:32:11] Speaker 02:
I want to be sure I touch on the historical inquiry if this court were to reach it.

[00:32:14] Speaker 02:
I think we've more than met our burden there.

[00:32:17] Speaker 02:
And plaintiffs make a couple arguments as to why, but I think their argument about the historical inquiry is inconsistent with what Bruin asks us to do.

[00:32:26] Speaker 02:
Bruin asks us to see whether the modern law is comparable in the how and the why to a historical tradition.

[00:32:35] Speaker 02:
And we use the analogs to establish a historical tradition to the extent that there is not already an established historical tradition like sensitive places that's established, and that is one of the ones we rely on here and we pointed to analogs from.

[00:32:52] Speaker 02:
the colonial era, through the founding era, through the post reconstruction era, from various jurisdictions, states, territories, and cities.

[00:33:00] Speaker 02:
And we've pointed to analogs that restrict the sale of gunpowder in certain locations.

[00:33:07] Speaker 02:
We pointed to analogs that restrict the carriage of firearms in specific locations.

[00:33:11] Speaker 02:
And we pointed analogs that are about fairs in particular.

[00:33:16] Speaker 02:
and pointed to analogs that are about places of public exposition or where large people or large groups gather.

[00:33:24] Speaker 02:
And I think plaintiffs' cabining of the historical analysis to only the founding era is really a caricature of Bruin.

[00:33:31] Speaker 02:
And Bruin made clear in the majority opinion and in Justice Barrett's concurring opinion that that is not what it was deciding.

[00:33:38] Speaker 02:
It was not deciding between 1791 and 1868.

[00:33:41] Speaker 02:
I think what matters is consistency across those areas, and to the extent Bruin wrote off analogs in the post reconstruction era, it was because they were inconsistent with the historical tradition established at the founding.

[00:33:57] Speaker 02:
And to the extent, we don't think there's legislative silence here, but to the extent plaintiffs think there is, that cannot be dispositive in the historical inquiry because there are many reasons why the legislature may not have acted.

[00:34:13] Speaker 02:
And I think the central district court really erred in applying its

[00:34:19] Speaker 02:
the historical inquiry because it did demand a historical twin, which Bruin tells us is not what is required.

[00:34:26] Speaker 02:
For the public property or government proprietor tradition, it erroneously injected the First Amendment analysis into the historical inquiry.

[00:34:34] Speaker 02:
And then for the sensitive places and regulation of firearms commerce traditions that we identified, the court

[00:34:42] Speaker 02:
The court demanded historical twin and said that we did not identify an analog that restricted firearms at a place like the fairgrounds.

[00:34:51] Speaker 02:
So putting aside that we don't need to identify historical twin, we identified the 1825 New Hampshire law that restricted the sales of gunpowder at

[00:35:01] Speaker 02:
certain locations where large groups gather, such as highways, streets, parades, commons, wharfs, and plaintiffs even acknowledge that that is a, quote, genuine analog.

[00:35:16] Speaker 02:
And so I think there are multiple errors in the historical analysis that the central district court committed, and I think there are multiple errors in the historical analysis that plaintiffs asked this court to engage in if the court were to reach the historical analysis.

[00:35:31] Speaker 02:
Again, our top line position is that this court does not need to reach the historical inquiry that whether it's under Twombly Iqbal pleading standard, whether it's a plain text step, Plaintiff's Second Amendment claim does not get to the historical inquiry in both Central District and the Southern District case.

[00:35:50] Speaker 02:
Unless the court has any questions, I'll... You have one.

[00:35:57] Speaker 05:
I've carved out.

[00:35:58] Speaker 05:
ammunition, because I hadn't contemplated the impact of not having a waiting period.

[00:36:03] Speaker 05:
I'm not sure the analysis is any different.

[00:36:05] Speaker 05:
I take it your understanding of the California statute, just as it would preclude the acceptance with regard to a firearm purchase, it would preclude the acceptance with regard to an ammunition purchase.

[00:36:21] Speaker 05:
The only difference is that the firearm isn't going to be delivered until after the waiting period anyway.

[00:36:26] Speaker 05:
There's not a waiting period for ammunition.

[00:36:30] Speaker 05:
Is my understanding of the state's position correct?

[00:36:34] Speaker 02:
It's correct that these laws would prohibit the payment for the ammo, which then somebody can then walk away with the ammo.

[00:36:42] Speaker 02:
So that is the work that is being done for the purpose of ammunition purchases.

[00:36:46] Speaker 02:
These laws also restrict the sale of firearm precursor parts.

[00:36:50] Speaker 02:
And just to clarify for the court,

[00:36:53] Speaker 02:
firearm precursor parts.

[00:36:56] Speaker 02:
There's a law that generally prohibits the sale of firearm precursor parts across the state.

[00:37:01] Speaker 02:
That law passed pretty much at the same time as SB 915 and after AB 893 and SB 264.

[00:37:09] Speaker 02:
So the firearm precursor parts restriction isn't doing any work.

[00:37:12] Speaker 02:
It's the firearms and the ammunition restrictions.

[00:37:15] Speaker 05:
It's not doing any work with regard to the fairgrounds or state property.

[00:37:19] Speaker 05:
Has it been the subject of challenge yet?

[00:37:22] Speaker 05:
with regard to applying it elsewhere?

[00:37:25] Speaker 02:
It was a subject of a central district challenge that the central district court rejected at the plain step.

[00:37:31] Speaker 02:
Plain tech step, I'm sorry.

[00:37:33] Speaker 02:
Or court hasn't been?

[00:37:35] Speaker 02:
No, because after the rejection of the claim, then the claims are voluntarily dismissed.

[00:37:40] Speaker 02:
And that case is defense distributed v. Bonta, which is cited in one of our briefs.

[00:37:46] Speaker 02:
I'm pretty sure it's our opening brief in the central district and our answering brief in this case.

[00:37:52] Speaker 02:
I did also want to clarify for the Southern District case, there are a series of immunity holdings that the district court made that plaintiffs don't challenge here.

[00:38:01] Speaker 02:
And so the court found that Governor Newsom and Secretary Ross were immune from the claims.

[00:38:07] Speaker 02:
And plaintiffs don't challenge those holdings here.

[00:38:12] Speaker 02:
And so just in my last few seconds, I'll just say that I think these are both pretty straightforward appeals that can be resolved by looking to existing Ninth Circuit precedent.

[00:38:24] Speaker 02:
And the court doesn't really need to break new ground here.

[00:38:26] Speaker 02:
And that is what the Southern District Court did when it rejected the claims and gave the plaintiffs an opportunity to amend their Second Amendment complaint, which they then declined.

[00:38:35] Speaker 02:
And we think that the Central District Court

[00:38:37] Speaker 02:
made multiple legal errors across the First Amendment and Second Amendment analyses which then bled into the equal protection analysis and so we think the preliminary injunction in the central district court case should be vacated.

[00:38:52] Speaker 02:
Thank you.

[00:38:52] Speaker 04:
Thank you.

[00:38:58] Speaker 01:
I'd just like to make four quick points and then wrap up for Your Honors.

[00:39:03] Speaker 01:
With regard to the dispute over sales, the problem with leaving the definition and interpretation of the law up to the state to interpret its own law is that this makes it still subject to a vagueness and ambiguity issue, so it is still a First Amendment issue, which I think has been

[00:39:20] Speaker 01:
On display today over the party's disagreement over what the law means.

[00:39:24] Speaker 01:
I mean, it's also probably why the fairgrounds both in Orange County and Del Mar Refused to contract with my client because they couldn't figure out what sales were and again sales definition is specifically at issue because this is about firearms, right?

[00:39:38] Speaker 01:
firearms in California sales

[00:39:41] Speaker 01:
I'm sorry, the legislature in California has defined sales as a bifurcated event.

[00:39:46] Speaker 01:
Offer acceptance and consideration happen at gun shows.

[00:39:50] Speaker 01:
The finishing of the transaction, the actual exchange of guns happens 10 days later off premises.

[00:39:58] Speaker 01:
So the only thing this law could be banning, if we're going to interpret the law to mean anything at all, is that the speech of offer and acceptance are being restricted.

[00:40:09] Speaker 01:
I want to briefly touch upon Teixeira and its ability to survive Bruin.

[00:40:14] Speaker 01:
The plaintiffs make, I mean, appellees and appellants in Orange County suggest that there is a holding from Teixeira that survives, and that is there is a right to acquire.

[00:40:25] Speaker 01:
Firearms and ammunition necessary to the right to arms.

[00:40:29] Speaker 01:
What doesn't survive is the sort of historical analysis that the court took into Shara with regard to finding that there's no freestanding right to sell firearms unconnected with purchase.

[00:40:41] Speaker 01:
And that's because it was a sua sponte historical analysis that was conducted.

[00:40:46] Speaker 01:
It was not something that the parties created.

[00:40:48] Speaker 01:
And the court improperly shifted the burden to Mr. Teixeira to prove that his conduct was being protected under history and tradition, instead of demanding that the government establish that its restriction fit within this nation's historical tradition of firearm regulation.

[00:41:06] Speaker 01:
Ultimately, the momentum in courts of this circuit is that First Amendment and Second Amendment do protect gun shows, at least to some degree.

[00:41:17] Speaker 01:
The only case that is an outlier is Judge Battaglia's decision in the Del Mar motion to dismiss hearing, and it should be overruled.

[00:41:25] Speaker 04:
Thank you.

[00:41:25] Speaker 04:
Thank you very much.

[00:41:26] Speaker 04:
We thank both counsel for their very helpful arguments this morning, and this case is submitted.

[00:41:30] Speaker 04:
And we are in recess until tomorrow morning.