[00:00:02] Speaker 04:
Thank you, Judge Sung, and may it please the court.

[00:00:04] Speaker 04:
Neal Katyal.

[00:00:04] Speaker 00:
We're waiting for your clock to be reset.

[00:00:06] Speaker 00:
There you go.

[00:00:06] Speaker 00:
But go ahead and let me know.

[00:00:07] Speaker 00:
Are you planning a reserve time for rebuttal?

[00:00:09] Speaker 04:
Yeah, I plan to reserve five minutes for rebuttal.

[00:00:11] Speaker 00:
And then your opposing counsel are not quite ready yet.

[00:00:15] Speaker 00:
So you can just hang up.

[00:00:28] Speaker 04:
Thank you, Judge Sung, and may it please the court.

[00:00:31] Speaker 04:
The district court here imposed an extraordinary injunction in joining the state's legislation on carrying guns in bars, restaurants, beaches, parks, and banks, as well as from enforcing its private property default rule.

[00:00:44] Speaker 04:
The public interest in balance of equities strongly favors the state, and the injunction should be vacated.

[00:00:50] Speaker 04:
The district court here essentially demanded historical twins despite Bruin's statement to the contrary.

[00:00:56] Speaker 04:
And even when Hawaii provided those twins, the court dismissed them due to arbitrary time period, geographical, and population threshold requirements.

[00:01:05] Speaker 04:
The simplest way to see this is to pick on something Judge Graber just asked a moment ago.

[00:01:10] Speaker 04:
and look to a key example the Supreme Court used as a historical analog, a settled sensitive place, legislative assemblies.

[00:01:17] Speaker 04:
They were a whopping two historical laws in total from just one of the 13 colonies.

[00:01:23] Speaker 04:
That was enough, the court found, because there were no sources at the time saying those restrictions

[00:01:28] Speaker 04:
were unconstitutional.

[00:01:30] Speaker 04:
So too here with each of our analogs, and we have a lot more than two of them, a similar problem infected the district court's analysis of the private property default rule, which does not ban firearms on private property, it simply elicits the preferences of the property owner.

[00:01:46] Speaker 04:
Finally, it's worth a pause to just think about the extraordinary arguments voiced by the plaintiffs.

[00:01:52] Speaker 04:
In the last case, they just told you that schools are not sensitive places.

[00:01:56] Speaker 04:
That, to put it mildly, is absurd.

[00:01:59] Speaker 04:
That was one of the examples the Supreme Court offered.

[00:02:02] Speaker 04:
This is a radical theory, as Justice Scalia might say.

[00:02:05] Speaker 04:
This wolf comes as a wolf.

[00:02:08] Speaker 04:
We think the district court got things wrong because it adopted basically what this court in Perez Garcia called a divide and conquer approach.

[00:02:17] Speaker 04:
The amicus brief by Mr. Charles really explains how the district court was just nitpicking example after example and missing the forest for the trees.

[00:02:26] Speaker 04:
imposing all sorts of restrictions on what counts as a good enough example.

[00:02:33] Speaker 04:
And we don't think that has fidelity to the historical record as the schools example or the legislative assembly one shows.

[00:02:41] Speaker 01:
I'd like to ask you about the private property issue, which I find sort of different from the other types of restrictions in both of the statutes that we're considering.

[00:02:56] Speaker 01:
And it does appear that at least one of the statutes from the 1700s was enacted for the purpose of preventing poaching.

[00:03:09] Speaker 01:
Does it matter what the purpose of the statute was, and if so, how does that

[00:03:18] Speaker 01:
historical example assist you.

[00:03:23] Speaker 04:
Yeah, so Judge Graber, we have a lot to say about this, both with respect to the preliminary injunction standard you asked in the last case, but also with respect to this specific law and these specific examples.

[00:03:34] Speaker 04:
We do think purpose is relevant, but as the testimony shows from Professor Hartog,

[00:03:39] Speaker 04:
They're often statutes with multiple different purposes.

[00:03:42] Speaker 04:
And here we have dead ringer statutes that are not limited to poaching or hunting.

[00:03:48] Speaker 04:
Let me read to you the 1763 New York statute, Judge Graber.

[00:03:51] Speaker 04:
And by the way, we think the Second Circuit got everything in Antoninck right.

[00:03:55] Speaker 04:
except for the private property default rule.

[00:03:59] Speaker 04:
And we think there are important factual distinctions for why you won't have to prompt a circuit split.

[00:04:04] Speaker 04:
And I'll explain all of that in a moment.

[00:04:06] Speaker 04:
But just to answer your question about the purpose, the 1763 law makes it unlawful to, quote, carry, shoot, or discharge any musket or other firearm whatsoever without license and writing first had and obtained from that purpose from such owner or proprietor.

[00:04:22] Speaker 04:
Now, the law also says on its face it's intended to address, quote, the great danger to the lives of His Majesty's subjects imposed by guns on other property, including grievous injury to the proprietors.

[00:04:37] Speaker 04:
So this is a law about exactly the same thing that the private property default rule

[00:04:42] Speaker 04:
is about.

[00:04:43] Speaker 04:
It's about protecting property owners and vindicating their property rights.

[00:04:48] Speaker 04:
1771 New Jersey, Judge Graper, makes it a violation to, quote, carry any gun on any lands, not his own, and for which the owner pays taxes, or in his lawful possession, unless he hath license or permission in writing from the owner.

[00:05:03] Speaker 04:
That is markedly not limited to hunting or poaching.

[00:05:06] Speaker 04:
It's any lands.

[00:05:07] Speaker 04:
There's testimony from Professor Hartog, which explains that this law would apply, for example, to the blacksmith shops or things like that.

[00:05:15] Speaker 04:
Now, the meta point you were asking before, but preliminary injunctions and not prompting circuit splits,

[00:05:22] Speaker 04:
We don't think it'll prompt a circuit split, but we urge you very much, even if you thought it did, to not go down that road.

[00:05:28] Speaker 04:
This court in Hecox v. Little said that, quote, a preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movement by a clear showing

[00:05:40] Speaker 04:
carries the burden of persuasion.

[00:05:42] Speaker 04:
And that's particularly so here when we're talking about an injunction against a public safety law enacted after lots of debate to try and take account of Bruin and to take it seriously.

[00:05:55] Speaker 04:
Judge Graber, you yourself in the Duncan versus Bonta case back in just last year on Bonk, you said, quote, the one that got reversed, right?

[00:06:04] Speaker 04:
But but not I think on this point you said the public has a compelling interest in promoting public safety And while the dissent in that case on bonk judge by judge Bomete said oh This is not a good prediction of what the law is and the like You said you know despite the fact that there were district There was a district court that disagreed with what you said in there you said the job is to

[00:06:28] Speaker 04:
You know, balance the equities, make sure and do in a proper likelihood of success calculation.

[00:06:34] Speaker 04:
And I think that's particularly so when you're dealing about something like this, which is about public safety.

[00:06:39] Speaker 04:
I don't think this court has ever said, oh, you have more latitude to avoid a circuit split in the preliminary injunction context.

[00:06:47] Speaker 04:
I think that would be brand new law.

[00:06:49] Speaker 04:
Now, let me explain to you why I don't think this matters, because I don't think the Second Circuit is going to, if you ruled our way, that you would prompt a circuit split.

[00:06:58] Speaker 04:
There are three reasons.

[00:07:00] Speaker 04:
The first is, at page 385 of Antonek, the Second Circuit relied on a concession by the state in that case that the historical laws were about hunting.

[00:07:10] Speaker 04:
We are, as I just told you,

[00:07:12] Speaker 04:
markedly pushing back on that.

[00:07:14] Speaker 04:
We have dead ringers that say that's not what's at issue.

[00:07:17] Speaker 04:
So we just don't think it was briefed up right or conceded, that was a conceded issue before the Second Circuit.

[00:07:23] Speaker 04:
It is not conceded here.

[00:07:25] Speaker 04:
Second, we have all sorts of testimony that explains that, like Professor Hartog, and says this is not limited to, that these statutes were not limited to hunting or approaching and the like.

[00:07:36] Speaker 04:
And then third, I think most importantly, Hawaii has a very, very different tradition about carrying than does New York.

[00:07:44] Speaker 04:
In New York, there were 200,000 concealed carry permits that were issued in that regime.

[00:07:50] Speaker 04:
Hawaii, since 1852, has almost entirely prevented public carrying of all firearms.

[00:07:56] Speaker 01:
So why does that matter under Bruin?

[00:07:59] Speaker 04:
Because I think as our brief and the property law professor's brief explains, what this default rule is trying to do is elicit the preferences of property owners.

[00:08:11] Speaker 00:
For somewhere like New York, property owners- Why won't you just require property owners then to post their preference?

[00:08:18] Speaker 04:
You could do it that way, and I think Hawaii's taken a more limited approach to say you can do it by posting, you can do it by verbal permission, but as I said to you, New Jersey and New York actually did require essentially writing.

[00:08:34] Speaker 04:
We don't think that you have to go that far.

[00:08:36] Speaker 01:
I have some difficulty, I must say, just obviously speaking for myself with the idea that the result of a Bruin analysis will be different from state to state on an identical statute because

[00:08:53] Speaker 01:
You know that's like saying well some states have robust First Amendment expression like Oregon I guess would be a good example and other states people are much more shy and they don't come forward But the First Amendment applies the same way so I really have I don't understand why we could come to a different result because of the essentially local preferences and

[00:09:19] Speaker 04:
So Judge Graber, I'd say two things.

[00:09:21] Speaker 04:
Number one, our primary position to you is neither statute violates the Second Amendment, that they flunk Bruin Step 1 because there is no right to carry on private property.

[00:09:33] Speaker 04:
And that means that changing the presumption about consent isn't violating the Second Amendment because that right literally doesn't exist.

[00:09:41] Speaker 04:
So this Act 52 is not a ban because when owners consent, after all,

[00:09:47] Speaker 04:
people can carry firearms.

[00:09:48] Speaker 04:
Our second point to you in terms of this distinction is that like take the district courts analysis or take the second circuit what they were essentially doing was saying there's implied consent when the property owner is silent to carry a firearm and that might work for New York

[00:10:05] Speaker 04:
in which owners had to think about this stuff.

[00:10:09] Speaker 04:
In Hawaii, it doesn't.

[00:10:10] Speaker 04:
And so it's hard to infer that implied consent, which is what the Second Circuit thought and what the district court here thought, given the different tradition.

[00:10:19] Speaker 04:
And I don't think that's different than other parts of the Constitution.

[00:10:22] Speaker 04:
Take, for example, the community standards in the obscenity cases, Miller versus California.

[00:10:27] Speaker 04:
You are looking to community standards to try and understand what is obscene here.

[00:10:33] Speaker 03:
That hasn't been our most successful standard.

[00:10:36] Speaker 04:
But it is, of course, absolutely the standard.

[00:10:41] Speaker 00:
On the consent issue, if I'm remembering correctly, there are some differences between the California and the Hawaii statutes in terms of

[00:10:48] Speaker 00:
I thought if I'm remembering correctly, California requires a particular sign and there's no other way to determine consent.

[00:10:58] Speaker 00:
And would there be a meaningful distinction for purposes of our analysis and how, because you could essentially get consent at the moment.

[00:11:11] Speaker 00:
And, you know.

[00:11:12] Speaker 04:
Right.

[00:11:13] Speaker 04:
Our statute is, I think, a bit more protective because it allows different ways of getting consent.

[00:11:19] Speaker 04:
Theirs is a little more specific.

[00:11:20] Speaker 04:
We think both are constitutional.

[00:11:22] Speaker 04:
But we do think ours is better.

[00:11:24] Speaker 04:
Ours also has a mens rea provision in it.

[00:11:26] Speaker 04:
So it requires some heightened mens rea in order to violate the statute.

[00:11:32] Speaker 04:
And so those are some safeguards against it.

[00:11:36] Speaker 04:
But our fundamental point to you is we do think that

[00:11:39] Speaker 04:
The private property default rule is just a way to try and elicit preferences.

[00:11:43] Speaker 04:
To be sure, other courts have disagreed with it.

[00:11:46] Speaker 04:
We don't think it's been briefed up to other courts with the record and explanation that you have here.

[00:11:52] Speaker 04:
Here you do have dead ringers in 1763, 1771, 1865 Louisiana, and the other statutes in our brief.

[00:12:01] Speaker 03:
Can I ask you a question on the preliminary injunction point?

[00:12:05] Speaker 03:
What else is there to be litigated in this case?

[00:12:09] Speaker 04:
We think there isn't anything.

[00:12:11] Speaker 04:
We think that, you know, at the end of the day, these are not second amendment violations.

[00:12:15] Speaker 04:
The Second Circuit, as I say, we think got all of these things right except for the private property default rule.

[00:12:22] Speaker 04:
I think a couple of other points to make.

[00:12:27] Speaker 04:
I think my friend has made a big deal in his brief about parking lots and the like.

[00:12:32] Speaker 04:
Our brief explains why shared parking lots aren't encompassed within the statute.

[00:12:37] Speaker 04:
And also, there's an affirmative defense with respect to parking lots so that it doesn't include if you leave the gun in the car in a secured place.

[00:12:46] Speaker 04:
And so this isn't some robust ban or something like that.

[00:12:49] Speaker 04:
Now, Judge Graber, you had asked in the earlier argument to my friends from California, you said, what wouldn't be included as a sensitive place?

[00:12:57] Speaker 04:
For us, we have the following answer.

[00:13:00] Speaker 04:
We think that sensitive places are defined by the people in those places or the activities that take place therein.

[00:13:07] Speaker 04:
Are there especially vulnerable populations, like children, or things like that?

[00:13:12] Speaker 04:
Is there expressive constitutional activity that's undertaken?

[00:13:15] Speaker 04:
For example, parks and beaches.

[00:13:17] Speaker 04:
Our brief explains 12 different instances where there's speech on the beach in Hawaii, on the Honolulu beach, and things like that.

[00:13:25] Speaker 04:
So that's part of it.

[00:13:26] Speaker 04:
Second, there is a rock-solid limit built into Bruin itself.

[00:13:30] Speaker 04:
It said you can't, for example, declare the entire island of Manhattan a sensitive place.

[00:13:36] Speaker 04:
It's got to be far more limited.

[00:13:38] Speaker 04:
Here, Hawaii's Act 52 is far more surgical.

[00:13:42] Speaker 04:
It's far more limited than that.

[00:13:45] Speaker 04:
We believe that if you had to be pushed to try and fully flesh out what the standard is, and we don't think the Supreme Court's quite given us all this guidance, but just we think the best way of thinking about it is that the government cannot, for example, declare all roads and sidewalks sensitive places

[00:14:02] Speaker 04:
It can't declare all commercial establishments, sensitive places, places like Best Buy or Gap, or things like that.

[00:14:09] Speaker 04:
Rather, you need some sort of plus factor in order for something to be constitutional.

[00:14:14] Speaker 04:
A vulnerable population, like a toy store.

[00:14:17] Speaker 04:
Crowding, like concerts in the example from the last argument.

[00:14:21] Speaker 04:
The exercise of other constitutional rights, like theaters or something like that.

[00:14:25] Speaker 04:
Something that is central to the economic life of a particular place like banks and our banks provision or places where guns are especially dangerous like bars serving alcohol and things like that.

[00:14:37] Speaker 04:
We think that's a limited way.

[00:14:39] Speaker 04:
That's what the Supreme Court had in mind in Bruin.

[00:14:42] Speaker 04:
It's faithful to all the historical examples and analogs that we offer with respect to any one of these.

[00:14:53] Speaker 04:
The other thing I just want to say, and it's a point of difference a little bit with California, is that our brief does explain that with respect to public lands, that's parks and beaches, the government has broad latitude because it acts as a proprietor.

[00:15:07] Speaker 04:
The Enquist case says in that circumstance, there is extra latitude.

[00:15:11] Speaker 04:
The government has to balance its abilities against rights, but it does have an additional power there.

[00:15:17] Speaker 04:
This court's decision in Nordyke also recognized that as well.

[00:15:21] Speaker 04:
So with respect to parks and beaches, we think that's something that there's a unique power that does apply to those specific areas.

[00:15:31] Speaker 04:
I'm just not sure if this clock reflects the... That includes your rebuttal time.

[00:15:35] Speaker 04:
Okay, so if there are no further questions, I'd like to reserve.

[00:15:39] Speaker 04:
Thank you.

[00:15:57] Speaker 02:
Morning your honor and if they please record my name is Alan Beck for the plaintiff of Hallease with me at council tables my co-counsel Kevin O'Grady and my clients Jason Wolford and the associational director Todd you could talk he is there I Have three points like to make

[00:16:19] Speaker 02:
First, Bruin holds there's a general right to carry that's subject to certain exceptions.

[00:16:26] Speaker 02:
Here the record demonstrates that 96.4% of the county of Maui is, of the publicly accessible land on the county of Maui, is restricted from carry.

[00:16:43] Speaker 02:
We know from Brood that the island of Manhattan is not a sensitive place.

[00:16:51] Speaker 02:
It cannot be a sensitive place.

[00:16:53] Speaker 02:
It can't be that the

[00:16:55] Speaker 02:
county amount, which is far larger, can be deemed a census of life.

[00:17:01] Speaker 01:
Doesn't it depend though on how the definition is?

[00:17:04] Speaker 01:
Suppose, I mean this is not, this is a made up example, but suppose there were an island that was 100% occupied by a school.

[00:17:17] Speaker 01:
And the definition in the statute is no carry on a school property.

[00:17:26] Speaker 01:
So it may equate to an island, but that isn't why the law applies.

[00:17:35] Speaker 01:
So if that is true, what difference does it make?

[00:17:39] Speaker 01:
What is the percentage of one of the islands that is covered by these specific provisions?

[00:17:48] Speaker 02:
Well it's important because this is where my clients live and they have to live.

[00:17:53] Speaker 01:
I understand it's important to them.

[00:17:55] Speaker 01:
I'm asking you a theoretical question.

[00:17:58] Speaker 01:
In other words, if

[00:18:00] Speaker 01:
I'm using school, and for the purpose of my question, I'd like you to assume that it's permissible to prohibit the carry, or at least concealed carry on school grounds.

[00:18:12] Speaker 01:
So if a giant school that takes up a whole island exists, but the law doesn't say you can't carry on XYZ Island, but rather it says you can't carry on school property

[00:18:26] Speaker 01:
I don't understand why that wouldn't be okay, even though it happens to be, you know, coterminous with the geographic location.

[00:18:37] Speaker 02:
If an entire island were a polling place, then I see your point, Your Honor.

[00:18:48] Speaker 01:
Okay, so why does it matter to us what the percentage is of one of the Hawaiian islands?

[00:18:54] Speaker 02:
Well, because essentially what's occurring here is that for the population of Maui, and Maui is a general residential, I mean, not residential, but people live there.

[00:19:07] Speaker 02:
The vast majority of it has become a no-carry area for them.

[00:19:14] Speaker 02:
And their right to self-fence has been essentially curbed.

[00:19:21] Speaker 02:
down to the streets and the sidewalks.

[00:19:24] Speaker 02:
And it does matter how much it adds, because this isn't a hypothetical.

[00:19:28] Speaker 02:
I mean, this is.

[00:19:29] Speaker 01:
But the law doesn't cover streets and sidewalks, per se.

[00:19:33] Speaker 02:
No, I mean, essentially everywhere but streets.

[00:19:37] Speaker 02:
Oh, I see what you're saying.

[00:19:38] Speaker 02:
My apologies.

[00:19:39] Speaker 02:
I tried not to see it more.

[00:19:41] Speaker 02:
So the ultimate point I'm trying to make here is that this restriction makes carry the exception.

[00:19:51] Speaker 02:
not the rule.

[00:19:52] Speaker 02:
And we know that's turning burn on its head.

[00:19:57] Speaker 01:
Well, Hawaii consists of more than one island, so why would we look only at Maui rather than at the entire state?

[00:20:08] Speaker 02:
Because this is both a facial and as applied challenge, Your Honor.

[00:20:14] Speaker 02:
Therefore,

[00:20:15] Speaker 02:
the situation in Maui is vital to determining my clients as applied challenge.

[00:20:28] Speaker 02:
The record shows there is no longstanding history in traditioning, limiting the general right to carry in the locations challenged here, which are all locations that existed at 1791.

[00:20:42] Speaker 02:
All Bruin teachers,

[00:20:44] Speaker 02:
is that a sensitive place is a discrete government location where vital judicial or legislative business is occurring when the location is open to the public.

[00:20:57] Speaker 02:
That's what we know from the three locations we're listed in BRU.

[00:21:03] Speaker 02:
Now, both my friend on the other side and the last case have all been asked

[00:21:11] Speaker 02:
How can this case be squared with Antoniak?

[00:21:14] Speaker 02:
Now, I think it goes without any surprise that, of course, we want this court to adopt, as the default rule, on that, the Second Circuit's position there.

[00:21:27] Speaker 02:
Now, it may be, now, we think to, on many points, Antoniak, the Second Circuit's decision in Antoniak was wrongfully decided.

[00:21:36] Speaker 02:
However,

[00:21:38] Speaker 02:
All the challenges at issue in this case can be reconciled with the Second Circuit's opinion.

[00:21:46] Speaker 02:
The reason for this is, for example, in Antioch, the Second Circuit strongly said that this court, the Second Circuit was not ruling on the issue of whether it was permissible to ban carry in rural parks.

[00:22:05] Speaker 02:
Here, the entirety,

[00:22:07] Speaker 02:
of the County of Maui is a rural area.

[00:22:14] Speaker 02:
And many of the locations where my clients have expressly alleged intent to go to are expressly rural.

[00:22:22] Speaker 02:
For example, Polipoli Park is a location where my client, Adam Kapritsky, has said that he wishes to go to.

[00:22:31] Speaker 02:
Hunting with a firearm is allowed at Polipoli Park.

[00:22:36] Speaker 02:
And he goes on a regular basis.

[00:22:38] Speaker 02:
There's the fact that caring for self-defense is prohibited.

[00:22:43] Speaker 02:
And while you can carry a firearm for hunting is in no shape, way, or form steeped in any type of historical tradition.

[00:22:53] Speaker 02:
It's also nonsensical.

[00:22:57] Speaker 02:
My other clients, Jason Wolford, who's in attendance, who frequently goes to Rice Park.

[00:23:04] Speaker 02:
Rice Park is outside of town.

[00:23:07] Speaker 02:
It has a regular, you know, it's several acres large.

[00:23:14] Speaker 02:
I think it's, the park itself is, you know, four acres large and it's out in a rural part of what's a rural island in the Pacific.

[00:23:26] Speaker 02:
This challenge is distinguishable, Branton Yuck, on the park issue because of the rural nature of both the beaches and the parks on the county of Maui.

[00:23:37] Speaker 02:
As to the issue of banks, the only historical justification that my friend on the other side has put forth for the bank ban is a restriction on fares and marketplaces.

[00:24:04] Speaker 02:
We have demonstrated in the briefing that these are more like Northampton-style statutes where you couldn't carry in.

[00:24:10] Speaker 02:
They essentially were disturbing the peace laws.

[00:24:13] Speaker 02:
But even taking the state's arguments at face value, they can't be used to justify

[00:24:24] Speaker 02:
the ban on banks pursuant to the Second Circuit's decision in Antioch.

[00:24:30] Speaker 02:
The reason for that is, in Antioch, the Second Circuit expressly found that the cited laws on fairs and marketplace, the exact same ones that are being used here, demonstrate a historical tradition of prohibiting carry in public gatherings.

[00:24:51] Speaker 02:
rather than, and that's just simply not relevantly similar or comparable or whatever word you'd like to use to a ban in a single private business like a bank.

[00:25:03] Speaker 02:
Similarly, our challenge to restaurants that serve alcohol.

[00:25:13] Speaker 02:
In Antioch,

[00:25:14] Speaker 02:
The court found that there is a historical tradition of keeping guns away from areas where there's a lot of people that are drunk.

[00:25:26] Speaker 02:
That's not the case in most locations here.

[00:25:30] Speaker 02:
And the government has not demonstrated that has not produced any record evidence at all that these locations actually have people that are

[00:25:41] Speaker 02:
that are drinking.

[00:25:44] Speaker 02:
For example, we have a California pizza kitchen, or a round table pizza.

[00:25:51] Speaker 02:
You know, California pizza kitchens in the record.

[00:25:55] Speaker 02:
People typically do not go, the average person that goes to California pizza kitchen for a slice of pizza, maybe has a beer, doesn't drink to, doesn't drink to excess.

[00:26:08] Speaker 02:
You know, this isn't a location where people typically go and get particularly drunk.

[00:26:14] Speaker 02:
And, you know, so if we take Antioch, assuming Antioch was persuaded this court, we can see based upon that, that, you know,

[00:26:25] Speaker 02:
All the restaurants at issue here, there's just no evidence that there's people that actually were drunk there.

[00:26:31] Speaker 02:
Therefore, Antioch actually supports the opposite result for the restaurant ban because there's no historical tradition of

[00:26:41] Speaker 02:
The state's not produced a historical tradition of prohibiting people at these types of locations where perhaps alcohol is legal to serve, or beer and wine, but it's not a place where people typically get drug, or at least the state has not produced any evidence of such.

[00:27:06] Speaker 02:
uh... as for the uh... parking lot issue i dot just uh... like to uh...

[00:27:12] Speaker 02:
Discuss a little bit of our as applied challenge by client.

[00:27:16] Speaker 02:
Mr.. Pritzky now.

[00:27:17] Speaker 01:
There is no Council is there a distinction to be drawn between a large generic parking lot say at a mall versus You know three parking places next to a polling place Where it's really an adjunct to something where?

[00:27:36] Speaker 01:
Carrie can be regulated

[00:27:40] Speaker 02:
from the constitutional sense or statutory?

[00:27:44] Speaker 02:
I wasn't sure if you were talking about statutory.

[00:27:47] Speaker 02:
So from the constitutional sense, yeah, there may be.

[00:27:51] Speaker 02:
For example,

[00:27:53] Speaker 02:
Here, our parking lot ban challenges only to a fairly narrow group of parking lots.

[00:28:01] Speaker 01:
Now, it... It sounded to me, and maybe opposing council can clarify this, but I understood from his opening remarks and from the briefing that the sort of large generic parking lot is not covered by this statute.

[00:28:19] Speaker 01:
But I may be wrong about that.

[00:28:21] Speaker 02:
That is a position that they've taken post, in the middle of litigation.

[00:28:30] Speaker 01:
Well, regardless of when they took it, if it's the position of the state that it does not apply except to the

[00:28:39] Speaker 01:
immediately adjacent parking of an otherwise regulatable place, then it sounds like maybe you don't have a difference of view with respect to the constitutionality of that location.

[00:29:00] Speaker 02:
There's one example, Your Honor.

[00:29:03] Speaker 02:
So again, Rice Park has a lifeguard station at it.

[00:29:08] Speaker 02:
And it's actually a lifeguard building.

[00:29:11] Speaker 02:
So the statute says that you have a right that you can't carry at a beach, and you can't carry in the parking lot of a government building.

[00:29:24] Speaker 02:
There's some other aspects to it, but that's what's relevant here.

[00:29:27] Speaker 02:
Because there's a lifeguard building at Rice Park,

[00:29:31] Speaker 02:
That has electricity running water the whole nine yards.

[00:29:35] Speaker 02:
It qualifies as a building under Hawaii law So in addition to the issue of it being a beach.

[00:29:42] Speaker 02:
It's also that parking lots also prohibited because it's a government building so that's every single one my clients go there and

[00:29:51] Speaker 02:
You know, it's not a parking lot that's co-shared with something else as your honor was discussing.

[00:30:00] Speaker 02:
So, I mean, that's the issue that's certainly ripe for adjudication, your honor.

[00:30:07] Speaker 00:
Can you turn to the consent issue in the private property owner?

[00:30:12] Speaker 00:
So, I assume if a private property owner actually says,

[00:30:17] Speaker 00:
I don't give my consent for you to carry your weapon on my private property.

[00:30:22] Speaker 00:
There's no dispute that they can enforce their will on their own private property.

[00:30:27] Speaker 00:
Is that right?

[00:30:28] Speaker 00:
Yes.

[00:30:29] Speaker 00:
Yes, Your Honor.

[00:30:29] Speaker 00:
Okay.

[00:30:29] Speaker 00:
So the only issue is that essentially the state is requiring permit holders to determine whether the private property owner consents.

[00:30:43] Speaker 02:
That's a large part of it.

[00:30:46] Speaker 02:
It's also a issue with the private My one of my clients actually owns a business and you know, there's a issue with him having to put up a sign as well and so that that's a separate aspect and

[00:31:05] Speaker 02:
That issue wasn't up on appeal, but I'm just saying that that is an issue of litigation, and there's other aspects as to why this ban burdens the people's constitutional rights, Your Honor.

[00:31:30] Speaker 02:
Are there any further questions?

[00:31:34] Speaker 02:
Before I conclude, let me reiterate that Brune, all we know from the polling places and courthouses language from Brune is that

[00:32:00] Speaker 02:
Places that serve a vital government, sorry, legislative or judicial government purpose can be banned, can be deemed a sensitive place.

[00:32:12] Speaker 02:
Every other place, there actually has to be an affirmative task on the part of the government to actually produce a historical record that's directly on point.

[00:32:24] Speaker 02:
And here, the government simply has failed to do so.

[00:32:27] Speaker 02:
I will cede the rest of my time to the court.

[00:32:31] Speaker 02:
Thank you very much, Your Honors.

[00:32:32] Speaker 00:
Thank you.

[00:32:42] Speaker 04:
Thank you.

[00:32:43] Speaker 04:
I have four points.

[00:32:44] Speaker 04:
First, on this 96.4% statistic, that is a totally made-up statistic by a plaintiff.

[00:32:51] Speaker 04:
With a handmade map, there is zero explanation of the methodology.

[00:32:55] Speaker 04:
As Judge Graber said, the method matters.

[00:32:58] Speaker 04:
We would have certainly briefed this if we had an opportunity to do so.

[00:33:02] Speaker 04:
They attached it to their TRO reply in the district court.

[00:33:07] Speaker 00:
Can you address the rural versus urban park distinction?

[00:33:10] Speaker 04:
Sure, so the district court didn't even use that rationale and of course this is a facial challenge and if there are urban parks that are okay then it would be enough to sustain the operation of the statute.

[00:33:22] Speaker 04:
But with respect to it specifically, we just think it's dead wrong.

[00:33:25] Speaker 04:
Our brief and the Everytown brief have many examples of rural parks that banned firearms from the moment that rural parks became a thing.

[00:33:33] Speaker 04:
Yellowstone in 1897, Mackinac Island in 1882, and the like.

[00:33:38] Speaker 04:
So we don't think that that distinction matters one bit.

[00:33:42] Speaker 04:
Back to the 96.4% thing, I just want to be clear about the methodology.

[00:33:46] Speaker 04:
That map is not a map

[00:33:48] Speaker 04:
about the percentage of the entire island of Maui.

[00:33:51] Speaker 04:
It's about places open to the public.

[00:33:54] Speaker 04:
The map is found at 2ER315, and it shows that this is just less than one-third of all the land.

[00:34:00] Speaker 04:
It's nothing like making all the island of Manhattan a sensitive place or anything like that.

[00:34:06] Speaker 04:
And the counting is so wrong.

[00:34:08] Speaker 04:
It has the wrong denominator.

[00:34:09] Speaker 04:
It treats all private property on the entire island as banning firearms when we know the default rule permits the carrying of firearms so long as the owner's consent.

[00:34:21] Speaker 04:
It also overstates the impact of Act 52.

[00:34:24] Speaker 04:
For example, it treats forest reserves as included as part of what Act 52 did, but forest reserves have always had, well before the Act, a prohibition on firearms.

[00:34:35] Speaker 04:
It also doesn't take account of the people who can carry firearms after Act 52, for example, if they have hunting licenses and the like.

[00:34:43] Speaker 04:
And as Judge Graber was saying, Maui is just one island.

[00:34:46] Speaker 04:
The proper way of thinking about it is statewide.

[00:34:49] Speaker 04:
So we just don't think that map should concern you one bit.

[00:34:52] Speaker 04:
With respect to the private property default rule, I understand the court has many questions about that.

[00:34:58] Speaker 04:
We think our fundamental position to you is that this rule is lawful both in New York and in Hawaii.

[00:35:04] Speaker 04:
It's an extraordinary thing for this court to enjoin such a public safety statute.

[00:35:10] Speaker 04:
The Chief Justice's opinion in Maryland versus King, I think, is instructive on this point.

[00:35:14] Speaker 04:
Many states have now flipped the default rule when it comes to firearms.

[00:35:18] Speaker 04:
The DC State's brief at page 20 goes through example after example.

[00:35:23] Speaker 04:
and we think with all due respect to the second circuit which got everything else right on this one it got it wrong and that's because of the historical record that they had before them which is very different than the historical record that you do and I don't think that there's any way given those dead ringers like 1763 and 1771

[00:35:42] Speaker 04:
for this court to strike down the private property default rule without doing grave violence to the post-brewing jurisprudence.

[00:35:49] Speaker 04:
You'd essentially at that point be saying you need more dead ringers or something like that, and that's just not what the law is.

[00:35:56] Speaker 04:
With respect to parking lots, Judge Graber, absolutely, we don't think it applies to large shared parking lots or small shared parking lots.

[00:36:05] Speaker 04:
That's always been the position.

[00:36:07] Speaker 04:
It was the position taken before the preliminary injunction was even issued.

[00:36:11] Speaker 04:
The Attorney General said so.

[00:36:13] Speaker 04:
And in Young versus Hawaii, my friend on the other side tried this argument.

[00:36:17] Speaker 04:
about the AG's interpretation not being instructive, but the court found it was highly instructive.

[00:36:24] Speaker 04:
With respect to restaurants, there are many historical examples of the government banning alcohol at balls and fandangos.

[00:36:31] Speaker 04:
The government didn't prove that everyone was drunk at those things.

[00:36:34] Speaker 04:
It had the power to enact a prophylactic law there, and the prophylactic law here follows squarely within that.

[00:36:41] Speaker 04:
With respect to banks, there is no standing, because they've never alleged a bank would permit firearms.

[00:36:47] Speaker 04:
But they are former government instrumentalities in which the government has more latitude.

[00:36:52] Speaker 04:
And of course, they're crucial for the economic functioning of society.

[00:36:58] Speaker 04:
And for that reason, we don't think that it falls squarely within the historical tradition.

[00:37:05] Speaker 04:
And finally,

[00:37:06] Speaker 04:
I think the most important point for each of these provisions, we've given you historical analogs, one or two is enough as the legislative assembly shows, but the most important thing is that there's no tradition on the other side.

[00:37:18] Speaker 04:
Remember in Bruin, when the court looked to good cause licensing restrictions, it was able to find very few examples in history of licensing regimes.

[00:37:30] Speaker 04:
And the regimes that existed were immediately challenged and found violations of the Constitution.

[00:37:36] Speaker 04:
Here you got the reverse.

[00:37:38] Speaker 04:
In each of these instances, we're giving you example after example, historical analog after historical analog, and there is no contrary tradition.

[00:37:46] Speaker 04:
Nobody wrote an op-ed, nobody brought a court case, nothing that said these things were impermissible.

[00:37:53] Speaker 04:
To the contrary, State versus Shelby, for example, Missouri in 1886, the Supreme Court said that you could ban firearms from any public assembly.

[00:38:04] Speaker 04:
And notably, the Supreme Court in Bruin in footnote 30 cited the Shelby case with approval.

[00:38:10] Speaker 04:
We think that's the right way to think about this.

[00:38:12] Speaker 04:
As long as you have some analogs that are faithful to the historical tradition, that's enough.

[00:38:17] Speaker 04:
And certainly not this divide and conquer approach that the district court adopted here.

[00:38:25] Speaker 00:
Thank you, Council, for your helpful arguments.

[00:38:28] Speaker 00:
This matter is submitted.

[00:38:29] Speaker 00:
I believe we are adjourned for today.