[00:00:00] Speaker 03:
I know you're planning reserve any time for rebuttal.

[00:00:04] Speaker 00:
Three minutes your honor.

[00:00:06] Speaker 00:
Good morning and may it please the court Robert Meyerhoff on behalf of the Attorney General.

[00:00:11] Speaker 00:
The sensitive places provisions of Senate Bill 2 are all constitutional because for each there are relevantly similar historical analogs that fit within the nation's historical tradition of firearms regulation.

[00:00:24] Speaker 00:
Bruin requires nothing less and nothing more.

[00:00:28] Speaker 00:
In enjoining every provision of Senate Bill 2 that the plaintiffs challenged, the District Court ignored the expansive historical record built by the Attorney General.

[00:00:37] Speaker 00:
And in attempting to defend the District Court's sweeping injunction, plaintiffs have advanced a series of arguments that conflict with Heller, Bruin, and this Court's decisions applying those cases.

[00:00:48] Speaker 00:
Two errors stand out.

[00:00:50] Speaker 00:
First, plaintiffs' theory that sensitive places can only be those locations, with government-provided armed security

[00:00:57] Speaker 00:
and strict entry and exit requirements cannot be squared with the fact that many locations that the Supreme Court has already recognized as sensitive, such as polling places, lack those features historically and still do not have them today.

[00:01:11] Speaker 00:
And Plaintiff's argument would flip Bruin on its head by defining the scope of the Second Amendment based on the policy choices of governments today, rather than the nation's history and tradition.

[00:01:22] Speaker 00:
Second, plaintiffs take the extreme position that schools and government buildings are not sensitive places.

[00:01:29] Speaker 00:
Based on that premise, they contend that the attorney general cannot analogize the places at issue here to those longstanding sensitive place restrictions.

[00:01:38] Speaker 00:
But that position is incompatible with clear Supreme Court precedent and the position of the vast majority of other courts.

[00:01:45] Speaker 00:
Plaintiffs make other broad analytical errors, which I can address in a provision by provision explanation

[00:01:51] Speaker 00:
of why each of the challenge restrictions is constitutional.

[00:01:56] Speaker 00:
For example, for SB2's restrictions on local and state parks, the Attorney General has identified numerous relevantly similar 19th and early 20th century historical laws, which restricted the carrying of firearms in specified local parks, such as Central Park, Golden Gate Park, and Buena Vista Park, as well as laws which restricted firearms across state parks.

[00:02:19] Speaker 00:
And the Attorney General has put forward

[00:02:21] Speaker 00:
expert testimony from leading historians, which establishes that those historical laws fit within the nation's tradition of firearms regulation.

[00:02:30] Speaker 05:
Council, is there some overarching standard that governs what makes a place sensitive in your view, and if so, what is it and where does it come from?

[00:02:42] Speaker 00:
So, Your Honor, we've looked to

[00:02:45] Speaker 00:
the five exemplars of sensitive places that Heller and Bruin identify.

[00:02:51] Speaker 00:
Those are government buildings, schools, legislative assemblies, courthouses, and polling places.

[00:02:56] Speaker 00:
And from those we've drawn that there are three attributes that support a finding that a place is sensitive.

[00:03:03] Speaker 00:
The people who congregate there, the physical nature of the space,

[00:03:07] Speaker 00:
or the activities that take place there.

[00:03:09] Speaker 00:
But I want to be clear, we haven't shorthanded the analysis, the BRUIN analysis, for any of the Challenge Sensitive Places provisions.

[00:03:16] Speaker 00:
For each sensitive place, we've identified, in many cases, numerous relevantly similar historical laws and explained how they fit within the nation's historical tradition.

[00:03:27] Speaker 00:
For new places or modern places, and Bruin talks about that, such as airports, for example, those indicia we've identified are helpful in analogizing, particularly under the more nuanced approach.

[00:03:42] Speaker 05:
The other question I have for you is you've mentioned that other courts have obviously dealt with this issue.

[00:03:49] Speaker 05:
And one of the recent ones is the Second Circuit, which issued, as I know you're aware, an exhaustive explanation of what is and is not a sensitive place.

[00:04:03] Speaker 05:
We're here predicting.

[00:04:05] Speaker 05:
We're not giving a final answer, because this is a preliminary injunction.

[00:04:11] Speaker 05:
Is there any reason why in that context we shouldn't predict that the second circuit is right that we wouldn't create a circuit split and just follow their lead?

[00:04:25] Speaker 00:
Your honor, we believe that the Second Circuit got it right both in its analysis generally as well as as to most of the specific places that were challenged under New York's law.

[00:04:37] Speaker 00:
Where we do diverge from the Second Circuit or where we do think the Second Circuit got it wrong is on the private property provision.

[00:04:44] Speaker 00:
And we think they got it wrong for two reasons.

[00:04:47] Speaker 00:
First, our reading of the Second Circuit opinion.

[00:04:50] Speaker 00:
is that they interpreted Bruin's term of public carry or carrying in public to mean the modern, any establishment, commercial establishment that's open to the public.

[00:05:02] Speaker 00:
And we don't think that's what the plain text stage one analysis, if you do that analysis as to the private property provision, what it should yield.

[00:05:10] Speaker 00:
We also think at stage two, the Second Circuit got it wrong on the private property provision.

[00:05:16] Speaker 00:
They highlighted the fact that

[00:05:18] Speaker 00:
The private property provision doesn't specifically mention commercial establishments and talks about premises generally or plantations.

[00:05:26] Speaker 00:
But we have record evidence in the form of a declaration from leading historian, Leah Glazer, who talks about the idea that in the 18th century, America was a primarily agrarian society.

[00:05:38] Speaker 00:
There were much fewer of these commercial establishments open to the public.

[00:05:43] Speaker 00:
Many people worked from their home.

[00:05:46] Speaker 00:
We think the Second Circuit read too much in the absence of that language from those 18th and 19th century provisions because America looked very different back then.

[00:06:01] Speaker 00:
In terms of other analytical points that we think it's important for the court to address.

[00:06:05] Speaker 03:
I just want to go back to, I think Judge Graber's question was a little bit more nuanced than that though, but at the stage of a preliminary injunction proceeding, we would be creating a circuit split to essentially predict the likelihood of success on that issue.

[00:06:21] Speaker 03:
And as far as I know, no circuit has agreed on the private property default.

[00:06:30] Speaker 03:
that it falls within the, I think there would be an opportunity still in this case to develop the record further on that issue.

[00:06:36] Speaker 03:
But on the preliminary injunction, is there, what basis is there for creating a circuit split?

[00:06:45] Speaker 00:
Thank you.

[00:06:45] Speaker 00:
Your Honor, of course, is correct that this is on a preliminary injunction.

[00:06:48] Speaker 00:
It's an interlocutory appeal.

[00:06:50] Speaker 00:
But we built an expansive historical record in the district court.

[00:06:54] Speaker 00:
We retained 13 experts, leading historians, not just in firearms,

[00:06:59] Speaker 00:
but in the specific sensitive places at issue, whether it's public transit, parks, casinos, or other types of places.

[00:07:06] Speaker 00:
So while this is a preliminary injunction, if you look at the record we've built, we have a compendium of over 200 laws.

[00:07:14] Speaker 00:
We think that that record would support a determination both on the private property provision as well as the other provisions that plaintiffs are unlikely to succeed on the merits of their claims.

[00:07:28] Speaker 04:
Okay, let me flip this a minute.

[00:07:31] Speaker 04:
What isn't sensitive?

[00:07:34] Speaker 04:
I take it that the street isn't sensitive?

[00:07:42] Speaker 00:
That's correct, Your Honor.

[00:07:43] Speaker 00:
So public streets are not sensitive.

[00:07:45] Speaker 00:
Public sidewalks are not sensitive.

[00:07:47] Speaker 00:
Federal lands where carry is not restricted are not sensitive.

[00:07:53] Speaker 00:
Any private establishment that's not otherwise specified by SB2 where the property owner permits carry is not a sensitive place.

[00:08:02] Speaker 00:
And there are also exceptions in SB2.

[00:08:04] Speaker 00:
For example, an individual can secure their firearm in their trunk or in a locked container in their car

[00:08:10] Speaker 00:
and drive into the parking lot of a sensitive place.

[00:08:13] Speaker 00:
It's also significant that under California law, you do not need a license to carry a firearm in your home, your place of business, and on private property that you own.

[00:08:24] Speaker 00:
And if we look back to the historical analogs, this is ultimately a historical test, we look at numerous 19th century laws which restricted carriage in places like school rooms or other places,

[00:08:37] Speaker 00:
and they contained no exceptions for this sort of place of business.

[00:08:42] Speaker 00:
So I think ultimately it's a historical test and we're looking at comparable burden, comparable justification.

[00:08:49] Speaker 04:
Well, I was just thinking, we've had in the past couple of years several incidents where there have been shootings in areas where there had been a public gathering at a parade, a Fourth of July parade a couple of years ago, and then at the recent NFL celebration in Kansas City.

[00:09:13] Speaker 04:
So those were all not sensitive places, right?

[00:09:17] Speaker 00:
Well, so there is a provision which restricts the carriage of firearms at permitted special events and public gatherings.

[00:09:25] Speaker 00:
And so I'm not sure about, I assume that the Kansas City Parade, that that was a permitted gathering.

[00:09:31] Speaker 00:
I think the important piece about Bruin's discussion of public carry is it needs to be read in consonance with Heller.

[00:09:37] Speaker 00:
And so Heller presented the question, can you ban the quintessential self-defense weapon from the house, the handgun?

[00:09:45] Speaker 00:
And Heller said, no.

[00:09:46] Speaker 00:
It left open the question of whether that firearm could be confined to the home.

[00:09:51] Speaker 00:
And Bruin answers that question.

[00:09:52] Speaker 00:
If you look at the first paragraph of Bruin, it says that handguns cannot be confined to the home.

[00:09:58] Speaker 00:
But plaintiffs, and we believe other courts, have overread what it means by public.

[00:10:02] Speaker 00:
I mean, we're sitting in a quintessentially public place, a courthouse, which other constitutional guarantees

[00:10:08] Speaker 00:
permit public access to, and yet the Supreme Court had no trouble finding that restrictions on courthouses were constitutionally settled.

[00:10:16] Speaker 00:
I think also if you look at the Bruin opinion itself, it quotes Morvey Madigan, a Seventh Circuit case, and it talks about the idea that you're more likely to be confronted on the sidewalk than on the 35th floor of your apartment building.

[00:10:30] Speaker 00:
And if we look at Justice Alito's concurrence, he talks about the idea that there might be a self-defense need on dark and dangerous streets.

[00:10:37] Speaker 00:
So the Supreme Court has provided guidance on what is a quintessential place, the streets and the sidewalks.

[00:10:47] Speaker 00:
In terms of other analytical points to address, in contrast to what plaintiffs have argued, it's clear from Bruin that the government need not identify numerous historical analogous restrictions in order to justify

[00:11:01] Speaker 00:
a modern regulation on sensitive places.

[00:11:03] Speaker 00:
We know this because Bruin talks about the need to identify a historical analog, not a dead ringer or historical twin, all using the singular.

[00:11:14] Speaker 00:
We also know this because in its specific discussion of sensitive places, Bruin says they're aware of few restrictions at legislative assemblies and polling places

[00:11:23] Speaker 00:
And it cites to a law review article which identifies only Maryland restrictions from 1647 and 1650 as justifying the restriction on legislative assemblies and only a single 1776 Delaware constitutional provision as justifying the restrictions on polling places.

[00:11:43] Speaker 00:
So if we read Bruin itself, we know that we don't need to identify a multitude of restrictions.

[00:11:49] Speaker 00:
It's also a significant lesson from Bruin

[00:11:51] Speaker 00:
that the absence of dispute as to the constitutionality of a historical law

[00:11:58] Speaker 00:
indicates that that law should be entitled to wait.

[00:12:01] Speaker 00:
And what we see here, we've addressed in our briefs, numerous 19th century and very early 20th century court cases which upheld restrictions on sensitive places, including the sum of the types of restrictions that are at issue here.

[00:12:14] Speaker 00:
And we have not found a case, plaintiffs have not identified a single historical case which reversed or held unconstitutional sensitive places restrictions.

[00:12:25] Speaker 00:
It's also important to note that this court can consider

[00:12:28] Speaker 00:
territorial laws and local restrictions, both as the relevantly similar historical analogs, as well as evidence of the historical tradition within which those analogs fit.

[00:12:39] Speaker 00:
Another mistake plaintiffs have made is they forget that Bruin has two parts.

[00:12:43] Speaker 00:
There's the announcement of the new Bruin standard and the criticism of the old two-step test.

[00:12:51] Speaker 00:
There's also the application of that Bruin framework to the specific law in question in New York.

[00:12:58] Speaker 00:
And the Supreme Court identified that law in New York as being exceptional in one sense because it conditioned a right on the discretion of government authorities.

[00:13:09] Speaker 00:
When there was countervailing, when there was overwhelming evidence of a countervailing tradition, territorial laws and local restrictions should be given little weight.

[00:13:18] Speaker 00:
But here, by contrast, we've identified numerous territorial laws and local restrictions, for example, with regard to permitted events.

[00:13:25] Speaker 00:
We've identified restrictions from 1889 in Arizona, 1893 in Oklahoma.

[00:13:30] Speaker 00:
1887 in Stockton, Kansas.

[00:13:33] Speaker 00:
Those laws closely patterned state laws, including an 1869 Tennessee law and 1870 Texas law.

[00:13:40] Speaker 00:
And more to the point, those state laws were challenged in court, as I mentioned previously, and were upheld.

[00:13:48] Speaker 00:
So those territorial laws and local laws should be entitled to wait here.

[00:13:53] Speaker 04:
How do you apply that standard to a casino?

[00:13:57] Speaker 00:
So Bruin talks about the idea of the more nuanced approach.

[00:14:01] Speaker 00:
And we read that to mean that when there's dramatic technological change or unprecedented societal concerns, Bruin speaks in the disjunctive, courts can take a more nuanced approach.

[00:14:13] Speaker 00:
And we read that to mean they can analogize at a higher level of generality.

[00:14:17] Speaker 00:
And so it's important to note here that we haven't invoked the more nuanced approach for all of the provisions.

[00:14:22] Speaker 00:
We haven't invoked it, for example, for places of worship.

[00:14:25] Speaker 00:
We haven't invoked it for

[00:14:27] Speaker 00:
places where liquor is served for consumption on site.

[00:14:30] Speaker 00:
And where we've invoked it, we haven't just said the more nuanced approach applies, ipsa dixit, we've said here are leading historians from the particular time period who, example, explain why parks emerged in the 19th century and are different in kind from earlier public spaces that existed.

[00:14:55] Speaker 00:
Additionally, I think it's important to frame the standard of how historical generations would have looked at restrictions.

[00:15:04] Speaker 00:
We can look at this court's decision in Alaniz where it talks about a historical restriction in question and it says it affirmed the constitutionality of that restriction because it said

[00:15:20] Speaker 00:
This is the type of restriction that the founders would have tolerated.

[00:15:25] Speaker 00:
And I think that's significant because it goes to the point that the Second Circuit and Antoniak made, which is the idea that reasoning from historical silence can be risky.

[00:15:35] Speaker 00:
because legislatures don't necessarily legislate to their constitutional extremes.

[00:15:40] Speaker 00:
Indeed, we would hope they do not.

[00:15:42] Speaker 03:
I know you want to reserve time for rebuttal, but I did want to try and ask my question about the Second Circuit's decision a little more clearly.

[00:15:49] Speaker 03:
I think you're saying the one issue you really disagree with and how they resolved was the private property default analysis.

[00:15:56] Speaker 03:
Can you clarify what you think is the greatest error in your opinion in the Second Circuit's analysis of that issue?

[00:16:05] Speaker 00:
Yes, Your Honor.

[00:16:06] Speaker 00:
I think, ultimately, the biggest error is at stage two.

[00:16:10] Speaker 00:
And as I mentioned, we believe they over-read what is in the statute and what isn't.

[00:16:16] Speaker 00:
And they say, well, there's no discussion of commercial establishments in a 1721 Pennsylvania law.

[00:16:24] Speaker 00:
Well, America looked profoundly different then.

[00:16:27] Speaker 00:
And there sort of weren't the historical establishment.

[00:16:30] Speaker 00:
There weren't the abundance of commercial establishments that exist today.

[00:16:34] Speaker 00:
If we think about Antoniuk's discussion of just sort of reading from the historical silence can be risky, that's a prime example of where that applies.

[00:16:43] Speaker 03:
Sir, are you arguing that because of essentially the lack of the number of private establishments that are open to the public that categorically this fits into the more nuanced approach and that the Second Circuit didn't do that?

[00:17:00] Speaker 00:
Can you put a finer point on it?

[00:17:03] Speaker 00:
No, Your Honor, I think another issue with the Second Circuit's opinion is I think their discussion of private property provisions comes too close to Bruin's admonition that we should not look for dead ringers.

[00:17:15] Speaker 00:
And I think this court in Perez Garcia is exactly right, where it says such an approach where we slice and dice the analogs and try to identify some minute difference, that really misses the forest for the trees.

[00:17:27] Speaker 00:
That divide and conquer approach, as this court has said,

[00:17:30] Speaker 00:
is not appropriate.

[00:17:31] Speaker 00:
Rather, we examine the historical evidence as a whole, determining whether it establishes a tradition of permissible regulation.

[00:17:38] Speaker 00:
And it's notable that Perez Garcia describes that tradition as sensitive places generally.

[00:17:44] Speaker 03:
So you're looking at it more as there's just a lack of, there's some, the lack of regulation shouldn't be interpreted as they do.

[00:17:54] Speaker 00:
I don't want to go too far, Your Honor, because we've identified seven restrictions from the 18th and 19th century

[00:18:00] Speaker 00:
that restricted the carriage of firearms in exactly the same way.

[00:18:03] Speaker 00:
So if we think back to Bruin thought a single Maryland colonial restriction or two Maryland colonial restrictions from a century and a half before the founding were sufficient in the absence of dispute to affirm that restriction, we certainly think seven restrictions from a variety of states in the 18th and 19th century is sufficient.

[00:18:24] Speaker 00:
Thank you, Your Honor.

[00:18:25] Speaker 03:
Thank you.

[00:18:26] Speaker 03:
Anything else?

[00:18:44] Speaker 02:
Good morning, and may it please the court, Alexander Frank for the May appellees.

[00:18:49] Speaker 02:
Contrary to the state's argument that the district court's order in joining SB2 did not follow the Supreme Court's Bruin decision, the reality is that the district court's order is one of the most Bruin-compliant decisions issued in any district court anywhere since Bruin.

[00:19:04] Speaker 02:
Bruin's requirements are not complicated.

[00:19:06] Speaker 02:
Bruin simply reaffirmed Heller, which established at the scope of Second Amendment rights today,

[00:19:11] Speaker 02:
is determined by the scope the Second Amendment was understood to have at the time that it was ratified.

[00:19:16] Speaker 02:
It's a text, history, and tradition approach.

[00:19:19] Speaker 02:
It is not an interest-balancing approach, which asks if the Second Amendment right today is really worth insisting upon.

[00:19:27] Speaker 02:
And what that means is that if Second Amendment activity is implicated, and there is no question that it is implicated here, then the challenge law survives only if the state defendant can successfully marshal evidence of a well-subscribed historical regulatory tradition.

[00:19:42] Speaker 02:
that approach the same problem in the same way with a comparable burden on the right to self-defense.

[00:19:47] Speaker 02:
and not one of the challenge subdivisions here survives this historical scrutiny.

[00:19:53] Speaker 05:
The state.

[00:19:53] Speaker 05:
What is your response to the argument that in Bruin itself, it used the singular in talking about a historical analog, not historical analogs, and that it didn't require a twin, but rather something analogous.

[00:20:15] Speaker 05:
I don't think

[00:20:17] Speaker 05:
that your initial comments really took that into account.

[00:20:25] Speaker 02:
If I've understood the court's question, I believe is the court suggesting that the state's burden as far as when they have to go to history and marshal the evidence that they can supply one analog?

[00:20:42] Speaker 05:
That is my question.

[00:20:43] Speaker 05:
Why is that not sufficient if there is an analog?

[00:20:48] Speaker 02:
Because Bruin was expressly clear that state defendants must marshal evidence that a particular type of regulation from history was well-subscribed.

[00:20:55] Speaker 02:
They cannot simply point to one regulation.

[00:20:57] Speaker 05:
But they also used a singular term, looking for an analog and not a twin.

[00:21:05] Speaker 02:
The court announced two approaches to history.

[00:21:08] Speaker 02:
They want to see well-subscribed historical analogs when, during the ratification era, the same problem existed.

[00:21:15] Speaker 02:
That's when the court used the dead ringer language.

[00:21:17] Speaker 02:
They want to see evidence that they approach the same problems the same way.

[00:21:22] Speaker 02:
So when the problem existed then, we don't trigger analogical scrutiny.

[00:21:26] Speaker 02:
Analogical scrutiny applies when society is facing a novel societal concern or a dramatic technological change, which makes it more or less impossible to go back to the ratification era and find something similar.

[00:21:38] Speaker 02:
It's that circumstance that state defendants may

[00:21:42] Speaker 02:
analogize.

[00:21:43] Speaker 02:
They may speak more broadly and they may say this is a similar problem, not quite the same one, and therefore this modern regulation is of a piece with that and therefore survives scrutiny.

[00:21:52] Speaker 05:
And I'm going to ask you the same question I asked opposing counsel, because we're not giving a definitive answer in the context of a preliminary injunction appeal.

[00:22:04] Speaker 05:
We're looking only for likelihood.

[00:22:08] Speaker 05:
And in that context, why should we part company with the Second Circuit?

[00:22:14] Speaker 05:
In other words,

[00:22:16] Speaker 05:
Why wouldn't we predict that our court would not choose to come to a different conclusion and create a circuit split?

[00:22:27] Speaker 02:
I would strongly caution this court against using the second circuit case to inform this court here.

[00:22:32] Speaker 02:
That court made some serious, serious errors in assessing that law.

[00:22:37] Speaker 02:
There were at least three very important ones.

[00:22:40] Speaker 02:
The first one is that it gave undue deference to territorial regulations.

[00:22:45] Speaker 02:
Bruin said we shouldn't do that.

[00:22:46] Speaker 02:
In fact, of the 12 or so laws the state of New York presented when it made its effort to marshal evidence in support of the Sullivan law there,

[00:22:53] Speaker 02:
Many of them were territorial restrictions, and the Supreme Court said, we're not going to look at those.

[00:22:56] Speaker 02:
We're not going to look at pre-United Mission regulations, because they don't inform what people thought about the Second Amendment, and they don't inform the American tradition.

[00:23:04] Speaker 02:
They might be probative in some ways, right?

[00:23:06] Speaker 02:
But they don't have much weight.

[00:23:07] Speaker 05:
Well, I don't understand why they don't inform tradition.

[00:23:10] Speaker 05:
I understand why they might not inform the meaning of the amendment.

[00:23:15] Speaker 05:
But aren't they, by definition, part of the American tradition?

[00:23:20] Speaker 02:
No.

[00:23:21] Speaker 02:
Berne says that we want an enduring tradition of state regulation, states meaning states admitted to the union.

[00:23:27] Speaker 02:
Berne doesn't authorize a freewheeling hunt for any probative enactment.

[00:23:33] Speaker 02:
It wants to see state regulations.

[00:23:36] Speaker 02:
And the second error that was very clear in the Second Circuit opinion was that it completely disregarded how Bruin said to apply the analogical standard.

[00:23:45] Speaker 02:
The Supreme Court is clear that the analogical approach applies when we're dealing with novel social concerns or dramatic technological departures that the founding era really couldn't have envisioned.

[00:23:55] Speaker 02:
And it said, no, we'll use the more loose analogical standard wherever we please.

[00:24:00] Speaker 02:
That was flatly wrong.

[00:24:01] Speaker 02:
And then the third issue is that the court entertained the idea that crowded places, the fact that a public place could be sufficiently crowded, would strongly suggest, if not define it as a sensitive place.

[00:24:13] Speaker 02:
And that flies in the face of Bruin.

[00:24:15] Speaker 02:
And even the Chief Justice himself at our argument said that that can't work, because the island of Manhattan is a very crowded place and has lots of police.

[00:24:23] Speaker 02:
So it can't simply be that if a place is crowded,

[00:24:25] Speaker 02:
that it's a sensitive place.

[00:24:28] Speaker 02:
So here, the state has failed to show that any of these locations that SB2 attempts to claw back from this very broad right to be armed outside the home that Bruin established are genuine sensitive places under the correct application of historical scrutiny.

[00:24:45] Speaker 02:
And that ultimately is why the state's entire defense in this case requires distorting Bruin's crystal clear rules for how Second Amendment historical scrutiny is supposed to be applied.

[00:24:54] Speaker 02:
and then refashioning dicta from Heller as dispositive holding here.

[00:25:00] Speaker 02:
The state expressly argues that the government need not identify numerous historical analogs to justify a modern regulation of sensitive places.

[00:25:07] Speaker 02:
But there is no good-faith way to re-burn and reach that conclusion, which is why the state relies on a distortion of Heller to make the argument.

[00:25:15] Speaker 02:
In Heller, the court said that schools and government buildings are presumptively sensitive places where firearms might lawfully be prohibited.

[00:25:24] Speaker 02:
But according to the state, it isn't really clear whether such regulations were sufficiently well-historically subscribed to pass scrutiny.

[00:25:32] Speaker 02:
And so the state concludes that historical scrutiny doesn't truly apply.

[00:25:35] Speaker 02:
Not so.

[00:25:37] Speaker 02:
The state fundamentally misunderstands, or worse, misrepresents Heller when it talks about what Heller said about schools and buildings.

[00:25:45] Speaker 02:
Heller said these places were presumptively sensitive, not conclusively.

[00:25:49] Speaker 05:
And second, Heller was about whether... Oh, is it your position that schools, for example, that that is not a sensitive place?

[00:26:00] Speaker 02:
We're not challenging the school's provision here.

[00:26:04] Speaker 05:
Because?

[00:26:06] Speaker 02:
Because there's plenty of SB2 that is, I think, more appropriate to challenge than schools.

[00:26:12] Speaker 05:
I think we can... Not because the Supreme Court said in Heller that it was presumptively

[00:26:18] Speaker 05:
lawful and constitutional?

[00:26:20] Speaker 02:
The Supreme Court said it was presumptively.

[00:26:22] Speaker 05:
Right, and so what would overcome that presumption?

[00:26:26] Speaker 02:
Well, the text, history, and judicial approach needs to be applied to that question when it arises before a court and the issue is squarely before a court.

[00:26:33] Speaker 02:
It's not a carve out.

[00:26:34] Speaker 02:
The court wasn't answering the question, hell or whether or not schools are sensitive places.

[00:26:38] Speaker 02:
The court was simply answering whether the individual rights theory of second amendment rights versus the collective rights theory under the so-called militia clause was correct.

[00:26:46] Speaker 02:
And we know how it held.

[00:26:47] Speaker 02:
It established there's an individual right to be armed inside the home for self-defense.

[00:26:51] Speaker 02:
And Bruin is the corollary to that.

[00:26:52] Speaker 02:
It just extends it beyond the home.

[00:26:55] Speaker 02:
So given that that question was left for another day,

[00:26:59] Speaker 02:
Heller established what the test would be for that other day.

[00:27:03] Speaker 02:
It would be the text, history, and tradition approach.

[00:27:05] Speaker 02:
So it's upon this attempt to refashion Heller's dicta into a dispositive holding that flouts the need to apply the historical scrutiny approach that is the basis of the state's defense here.

[00:27:20] Speaker 02:
The state flat-out says that courts should not limit their analysis to state laws that were on the books in 1791 or 1868 and should consider any probative evidence.

[00:27:29] Speaker 02:
But Bruin could not have been any clearer that that's what it's searching for, as we discussed.

[00:27:33] Speaker 02:
It doesn't want to know about non-union territories, what they were doing, or what a few towns were doing when they enacted ordinances, or what private companies were doing.

[00:27:41] Speaker 04:
And it cares... Well, are we... I'm having a little difficulty understanding what standard we're supposed to apply

[00:27:48] Speaker 04:
As to what is sensitive, we're dealing with the constitutional provision of the Second Amendment, which presumably applies to the entire country.

[00:28:00] Speaker 04:
And yet, we're dealing with regulations, you say, that have to be state regulations.

[00:28:07] Speaker 04:
But the states, historically, were very different.

[00:28:11] Speaker 04:
And so how do we get, by looking at the state regulation, how do we get to a standard that applies nationwide, in your view?

[00:28:26] Speaker 02:
Well, we need to see a well-subscribed tradition among the states that they approach a similar problem in a similar way.

[00:28:33] Speaker 02:
That's how.

[00:28:34] Speaker 02:
So if one or two states or one or two towns enacted an ordinance that addressed a problem, that falls below what Bruin says is required.

[00:28:40] Speaker 02:
We want to see a well-subscribed historical regulatory tradition.

[00:28:44] Speaker 03:
And then, Council, I believe the clock was not split, so I believe your time is up.

[00:28:48] Speaker 02:
It has.

[00:28:49] Speaker 02:
I am up.

[00:28:49] Speaker 02:
Thank you for the court's time.

[00:28:53] Speaker 01:
Morning, Your Honors.

[00:28:54] Speaker 01:
Pete Patterson for the Carolero.

[00:28:56] Speaker 01:
I'll start with why the score should not follow Antoniak.

[00:29:00] Speaker 01:
There's two reasons.

[00:29:01] Speaker 01:
One, we are on a PI.

[00:29:03] Speaker 01:
The purpose of a PI is to maintain the status quo.

[00:29:06] Speaker 01:
And here, the status quo is that law-abiding Californians who are licensed to carry firearms in public could carry in all these places.

[00:29:11] Speaker 01:
And we've shown at least the likelihood of success.

[00:29:14] Speaker 05:
So while this litigation- Well, that is the question that we're facing, is what is the likelihood of success?

[00:29:20] Speaker 05:
And the analysis of that question was what was at stake in the Second Circuit as well, because it also was a preliminary injunction appeal.

[00:29:34] Speaker 05:
Correct.

[00:29:36] Speaker 05:
So what you're really saying is that somehow because the district court said so, that's where we are, but aren't we supposed to assess independently from the district court what we think the likelihood of success is?

[00:29:53] Speaker 01:
Absolutely.

[00:29:53] Speaker 01:
I'm just saying that should be kept in mind.

[00:29:55] Speaker 01:
But then there are specific historical errors that the Second Circuit made that undermine its entire opinion.

[00:30:02] Speaker 01:
First, the Second Circuit said that Kerry could be banned in crowded places based on the language about fairs and markets in the statute of Northampton and analogs.

[00:30:11] Speaker 01:
But Bruin interpreted that to say only when that carrying is done in a terrifying manner.

[00:30:17] Speaker 01:
So that is a clear historical error that knocks out the entirety of the founding era evidence that Antoniuk had.

[00:30:23] Speaker 01:
Second, Antoniuk relied

[00:30:24] Speaker 01:
on four laws passed between 1869 and 1875 in former slaveholding states that broadly banned carry in public assemblies.

[00:30:34] Speaker 01:
But again, Bruin has already rejected the rationale of those laws because it said a place where the public congregates is not sufficient to establish that place as sensitive.

[00:30:44] Speaker 01:
And yet that was the rationale for each of those laws, which explicitly barred carrying in all places of public assembly.

[00:30:51] Speaker 01:
So that knocks out everything that Antonio had for crowded locations.

[00:30:54] Speaker 01:
Next, Antoniak relied on the language about schools in Heller and Bruin.

[00:30:59] Speaker 01:
And again, yes, Heller and Bruin did have that language, but what it didn't have is what the contours of the acceptable regulations in schools were or what the historical justifications for those regulations were.

[00:31:10] Speaker 01:
But if we look at history... Wait a minute, wait a minute.

[00:31:12] Speaker 05:
Do we have to know what the justifications are?

[00:31:17] Speaker 05:
11 states back in 18, whatever, banned firearms in schools.

[00:31:24] Speaker 05:
Do we have to know why they did it or is it sufficient to know that they did it?

[00:31:28] Speaker 01:
We have to know how and why because when we're comparing... Why do we have to know why?

[00:31:32] Speaker 05:
Where do you see that in ruin?

[00:31:34] Speaker 05:
I mean, what you were arguing earlier is there has to be a clear trend, if you will, of historical

[00:31:44] Speaker 05:
And if there is, I don't understand why we have to know what they were thinking.

[00:31:52] Speaker 01:
We have to figure out the principle that justified that regulation and then apply it today.

[00:31:57] Speaker 05:
So to go back to that, if there were evidence that 11 states out of however many there were back then all absolutely banned firearms in schools, you would say that's not sufficient to ban firearms from schools now.

[00:32:16] Speaker 01:
Bruin says we have to know how and why.

[00:32:19] Speaker 01:
OK.

[00:32:19] Speaker 05:
So is that is what is the answer to my question?

[00:32:22] Speaker 01:
With respect to schools?

[00:32:24] Speaker 05:
Yes.

[00:32:24] Speaker 05:
Yes, with respect to schools, it is because... So that would be... I asked you whether that would be sufficient to establish a historical pattern that would suffice to allow that ban today.

[00:32:37] Speaker 05:
Is your answer yes or no?

[00:32:39] Speaker 01:
It is no because we have to look at how and why.

[00:32:40] Speaker 01:
And we can see this in Bruin's treatment of handguns because Bruin had some laws that allegedly banned handgun carry at the founding.

[00:32:49] Speaker 01:
And what Bruin said is, well, what the principle is, is that dangerous and unusual weapons can be banned.

[00:32:56] Speaker 01:
And maybe handguns were dangerous and unusual weapons then.

[00:32:58] Speaker 01:
And they're not today.

[00:32:59] Speaker 01:
So in the school context, maybe there was some principal that was present then that's not present now.

[00:33:04] Speaker 01:
That would be evidence, of course, those 11 schools or states, but you would need to see why.

[00:33:09] Speaker 01:
And if we look at the principal with respect to schools, at the founding, all of the restrictions in schools were on students.

[00:33:15] Speaker 01:
And as California's own experts admit, they were based on the schools in loco parentis authority.

[00:33:21] Speaker 01:
And the reason that's important here

[00:33:23] Speaker 01:
is because California is trying to use the school example to say, we can ban firearms in places where vulnerable people are present.

[00:33:29] Speaker 01:
But that was not the rationale at the founding.

[00:33:32] Speaker 01:
The rationale in the school's context was that there's- Well, why isn't that the exact rationale?

[00:33:37] Speaker 05:
Because in loco parentis exists because the children are vulnerable and are in need of the protection of the institution.

[00:33:46] Speaker 05:
Isn't that the very definition of being vulnerable?

[00:33:49] Speaker 01:
Well, when, so in that instance, the schools have that authority, but when there is not in loco print this authority and the other individuals in the location present maintain that authority, then yes, they have the obligation to protect their children and other vulnerable individuals.

[00:34:05] Speaker 01:
And we can see that California's rationales are all explicitly refuted by founding era evidence because they say we can ban carrying places that are crowded where other constitutionally protected activities take place.

[00:34:18] Speaker 01:
and where there are vulnerable people present.

[00:34:19] Speaker 01:
And there was one place that very well fit those criteria in the colonial areas and founding, and that was churches.

[00:34:25] Speaker 01:
And what we see is in those locations, colonial governments mandated carry in those locations.

[00:34:32] Speaker 01:
Never was it banned.

[00:34:34] Speaker 01:
So the solution, if there's a vulnerable location, if there's these other attributes present, is to arm people.

[00:34:39] Speaker 01:
And that makes sense because if you have vulnerable people in a location and then say nobody can be armed, that only makes them more vulnerable.

[00:34:49] Speaker 01:
And there were questions today about the extent of laws that are needed just to provide an analog.

[00:34:57] Speaker 01:
And this court's precedent in Baird v. Bonta says that it has to be something that was broadly in effect at the time of ratification.

[00:35:04] Speaker 01:
It was the language used in Baird v. Bonta.

[00:35:09] Speaker 01:
Bruin, to be short, spoke about an analog.

[00:35:12] Speaker 01:
But the reason it said that is because courts can look at an analog that fit within a broader tradition that was broadly in effect.

[00:35:19] Speaker 01:
So I will provide an example.

[00:35:21] Speaker 01:
And this is an important example, the 1786 Northampton analog in Virginia.

[00:35:27] Speaker 01:
And what the Supreme Court said is that this was essentially a codification of the common law, is what it said in Bruin.

[00:35:32] Speaker 01:
And so the common law is a tradition that's generally in effect.

[00:35:35] Speaker 01:
And so this law, Bruin says, codified the common law.

[00:35:38] Speaker 01:
And so this is an important analog to look at.

[00:35:40] Speaker 01:
And what this analog says is that with respect to places like fairs and markets and other general public places, carry is only restricted when it's done to terrify the public.

[00:35:49] Speaker 01:
It's not generally.

[00:35:51] Speaker 05:
How does your

[00:35:52] Speaker 05:
reliance on the common law fit with your questioning of the private property distinction that this addresses?

[00:36:05] Speaker 01:
There was no distinction at the common law.

[00:36:09] Speaker 01:
There was nothing that would have restricted the caring

[00:36:11] Speaker 01:
on private property, particularly private property, open to the public.

[00:36:14] Speaker 01:
In fact, the common law of Blackstone said people, unlike other areas open to the public, places like inns and those sorts of places, people had a right to enter.

[00:36:23] Speaker 01:
So the common law was people could go into those sorts of places.

[00:36:27] Speaker 01:
But the first half of the 1786 Virginia statute was more of a strict restriction on carry.

[00:36:35] Speaker 01:
And what it said is that people couldn't carry firearms in courts of law

[00:36:39] Speaker 01:
except for the justices themselves and their assistants.

[00:36:44] Speaker 01:
So what that shows is that there are certain places where people couldn't carry firearms, but the understanding was that the government itself would be securing those places.

[00:36:54] Speaker 01:
And that's why we think this comprehensive security test

[00:36:56] Speaker 01:
is the test that unifies the examples that the Supreme Court has given and it also makes sense with respect to the purposes of the Second Amendment.

[00:37:06] Speaker 01:
Heller has said that the core component of the Second Amendment is self-defense and so if the government takes on the burden of defending a place, what it looks like to get into this courtroom today, what it takes to get onto an airplane and actually secures a place

[00:37:22] Speaker 01:
then that need for self-defense is not present because the government is doing it.

[00:37:26] Speaker 01:
But if the government does not do that, then that need is still in place.

[00:37:31] Speaker 01:
And so we look at that founding principle of security as reflected in the 1786 Virginia law, which codifies the common law.

[00:37:40] Speaker 01:
And we apply it today and see is the government comprehensively securing a location.

[00:37:45] Speaker 01:
And if the government is, then the government can ban firearms there.

[00:37:48] Speaker 01:
That's why the government can ban firearms in this courtroom.

[00:37:53] Speaker 04:
So you had a right to carry on to an airplane before TSA set up the checkpoint?

[00:38:04] Speaker 01:
Yes.

[00:38:04] Speaker 01:
And that is a social change.

[00:38:06] Speaker 01:
So Bruin says we look at social changes.

[00:38:09] Speaker 01:
And up until there was that requirement, there was

[00:38:13] Speaker 01:
no tradition, no historical practice of banning firearms on methods of transportation.

[00:38:18] Speaker 01:
As we show at the founding, there was not.

[00:38:21] Speaker 01:
And what is good about this test is it an objective test.

[00:38:24] Speaker 01:
It doesn't require the courts to do interest balancing by looking at a location and saying, okay, is there something about this location that in our assessment, we're balancing and we think it would be

[00:38:35] Speaker 01:
more important to ban firearms from here than to allow them from here.

[00:38:39] Speaker 01:
That's the kind of reasoning that Bruin does not allow.

[00:38:42] Speaker 01:
But what this is, just looking objectively, is the government securing a location?

[00:38:46] Speaker 01:
And if it is, firearms can be banned there.

[00:38:49] Speaker 01:
If it's not, they cannot.

[00:38:51] Speaker 01:
I see my time has expired.

[00:38:53] Speaker 01:
Thank you.

[00:39:04] Speaker 00:
Thank you, your honor.

[00:39:05] Speaker 00:
I think at first it's important to note that this injunction is not in line with Bruin.

[00:39:11] Speaker 00:
It is a sweeping injunction that goes far beyond an injunction issued by any other court post Bruin in the sensitive places context.

[00:39:19] Speaker 00:
It restricts, it prohibits the state from restricting firearms on playgrounds in the parking lots of nursery schools.

[00:39:26] Speaker 00:
And indeed the court in rejoining all of the parking lot restrictions, even at jails and nuclear facilities,

[00:39:33] Speaker 00:
questioned whether the state had any authority to restrict firearms at parking lots or in buffer zones.

[00:39:41] Speaker 00:
But numerous courts pre and post Bruin have cited the same laws that we've cited in our brief in upholding buffer zone provisions that are actually much broader than ours.

[00:39:49] Speaker 00:
For example, the federal restriction on carrying firearms within 1,000 feet of a school.

[00:39:54] Speaker 00:
I think it's important to look back at Bruin as well.

[00:39:58] Speaker 00:
one of the appellee's counsel mentioned the Chief Justice's statement there.

[00:40:01] Speaker 00:
Well, Bruin rejected the idea that New York State could declare an entire jurisdiction, the island of Manhattan, as a sensitive place, including the streets and sidewalks.

[00:40:12] Speaker 00:
We obviously have not done that here.

[00:40:14] Speaker 00:
And indeed, the appellee's counsel brought up the Chief Justice.

[00:40:17] Speaker 00:
Well, the Chief Justice suggested strongly that stadiums were a sensitive place.

[00:40:21] Speaker 00:
It was a no-brainer, according to the transcript there.

[00:40:24] Speaker 00:
I think the in loco parentis argument is one that this court

[00:40:28] Speaker 00:
should reject, it relies on the fact that plaintiffs make the argument to this court that the restrictions on schools historically permitted teachers to carry firearms.

[00:40:40] Speaker 00:
That's simply not the case.

[00:40:42] Speaker 00:
We've identified restrictions throughout history, an 1870 Texas law, an 1874 Missouri law, and an 1891 Vermont law, which didn't contain an exception for teachers and indeed

[00:40:57] Speaker 00:
We've cited a case called Alexander in our briefs, a 19th century case that found that, that had, that affirmed a conviction of a school teacher and said it would be pernicious to allow school teachers to carry firearms in courthouses, excuse me, in schools.

[00:41:14] Speaker 00:
The one other thing I'll add is on the private property provision, we think the Second Circuit also ignored two dead ringers in 1763 New York law, that's a,

[00:41:27] Speaker 00:
Excerpts of record 607 and a 1771 New Jersey law, that's an excerpts of record 612, and those were not limited to open lands.

[00:41:38] Speaker 00:
I think the final point I'd like to make is that we have not shorthanded the analysis as to any of the challenge provisions.

[00:41:45] Speaker 00:
We haven't said playgrounds are like schools, so you don't need to do the Bruin analysis.

[00:41:52] Speaker 00:
For each of the challenge provisions, we've identified the relevantly similar historical analogs

[00:41:57] Speaker 00:
and fit them within the nation's tradition.

[00:41:59] Speaker 00:
Explained why, based on secondary sources, which of course, Heller and Bruin considered, as well as other laws, why these restrictions fit within the nation's historical tradition of firearms regulation.

[00:42:12] Speaker 00:
And I'll repeat what I said in my opening.

[00:42:14] Speaker 00:
Bruin requires nothing less and nothing more.

[00:42:18] Speaker 00:
And we've done that for each of the challenge provisions.

[00:42:20] Speaker 00:
The injunction should be vacated.

[00:42:22] Speaker 03:
Thank you, Council.