[00:00:06] Speaker 02:
Good afternoon, may it please the court, John Echevarria for the California Attorney General and the Director of the Bureau of Firearms.

[00:00:13] Speaker 02:
I'd like to reserve three minutes of my time for rebuttal.

[00:00:17] Speaker 01:
All right.

[00:00:17] Speaker 01:
I'll try to help you out, but please keep your eye on the clock as well.

[00:00:20] Speaker 02:
I appreciate that, Your Honor.

[00:00:21] Speaker 02:
Thank you.

[00:00:23] Speaker 02:
The Supreme Court has repeatedly told us that certain types of weapons are not entitled to Second Amendment protection and may be banned, including the M16 rifle and the like.

[00:00:34] Speaker 02:
In this case, plaintiffs are challenging eight defined categories of assault weapons that are banned because of the dangers they pose to the public, particularly in mass shootings.

[00:00:44] Speaker 02:
Those weapons configurations are defined by certain tactical features and accessories that make those weapons offensive military weapons and not weapons of ordinary self-defense.

[00:00:57] Speaker 02:
These restrictions are constitutional under Bruin.

[00:01:00] Speaker 02:
At the threshold stage, plaintiffs have failed to show that each of the categories of assault weapon is presumptively protected by the Second Amendment.

[00:01:08] Speaker 04:
Before you get further into the merits of your argument, can I ask your friend on the other side the same question?

[00:01:16] Speaker 04:
What is your view of the relationship between this case and the Duncan case pending before an en banc panel of this court?

[00:01:25] Speaker 02:
So we think the cases are highly related.

[00:01:27] Speaker 02:
They involve very similar evidentiary considerations, the same Bruin standard.

[00:01:33] Speaker 02:
The plaintiffs even viewed the cases as related when they filed their notice of related cases at the commencement of this case in the district court to relate this case to Duncan.

[00:01:43] Speaker 04:
So do you think, I mean, do you want us to, what do you want us to do based on that observation?

[00:01:49] Speaker 04:
I mean, should we hold this case pending Duncan or should we go ahead and, I mean, what's your view?

[00:01:56] Speaker 02:
So we wouldn't object if this panel wished to hold this case pending resolution of the Duncan en banc proceeding, given the similarities between this case and Duncan.

[00:02:06] Speaker 02:
But we've also shown, based on the record developed in this case, that California's restrictions on assault weapons are constitutional under the Supreme Court's Bruin standard and also under Heller.

[00:02:18] Speaker 00:
But there are supervening questions in this case, Anne and Duncan, which seem to be extremely similar, i.e., what does common use mean, what does dangerous and unusual mean, in what order do you decide these things, what are relevant historical analogs, which

[00:02:41] Speaker 00:
even those overlap substantially because the, and some of the statute is even the same with regard to magazines with more than 10 rounds, right?

[00:02:56] Speaker 00:
That's correct, Your Honor.

[00:02:57] Speaker 00:
So these are not just abstractly connected, they are evidentially connected.

[00:03:04] Speaker 02:
I think that's right, Your Honor.

[00:03:05] Speaker 02:
Some of the definitions in an assault weapon

[00:03:07] Speaker 02:
related specifically to magazine capacity for certain rifles and certain pistols.

[00:03:12] Speaker 02:
And even more generally, as Your Honor observed, the state is relying on many of the same historical analogs and the same nationwide

[00:03:21] Speaker 02:
tradition of weapons regulation in this case and in Duncan.

[00:03:24] Speaker 02:
There are substantial material overlaps.

[00:03:28] Speaker 00:
Meanwhile, we have a stay in this case and a stay in Duncan.

[00:03:32] Speaker 00:
Is that right?

[00:03:33] Speaker 02:
That's correct, Your Honor.

[00:03:33] Speaker 02:
There's a stay pending appeal in Duncan and an administrative stay in this case at this time.

[00:03:41] Speaker 02:
So if I can address the threshold inquiry under Bruin.

[00:03:44] Speaker 01:
At the threshold stage, the plaintiffs have not met- Actually, counsel, if I could jump in and interrupt you for a moment before you get to that threshold merits question.

[00:03:53] Speaker 01:
In the state's view, is the record fully developed in this case?

[00:03:56] Speaker 01:
I appreciate and recognize the fact that the Seventh Circuit case of Bevis was in a different procedural posture because that was a preliminary

[00:04:04] Speaker 01:
injunction staged, but at one point in the opinion the circuit said that there could be some development of the record that would aid in the court's view as to whether an AR-15 is closer to an M-16 or whether it's closer on the other line.

[00:04:24] Speaker 01:
You've had multiple opportunities to brief and present evidence to the district court in the state's view.

[00:04:29] Speaker 01:
Have you put everything that you've got on the table there?

[00:04:33] Speaker 02:
With respect to the threshold inquiry about whether these regulated weapons are self-defense weapons, we do think that we've established a robust evidentiary record showing that these weapons are not weapons of self-defense and that they are like the M16 and similar weapons that the Supreme Court has indicated may be banned because of their offensive nature and characteristics.

[00:04:56] Speaker 02:
So while I appreciate that the Beavis decision in the Seventh Circuit was on a preliminary injunction posture,

[00:05:02] Speaker 02:
the court was also examining a similar body of evidence as the one that we have developed in this case.

[00:05:08] Speaker 01:
Right, and that's why I asked that question because the Bevis Court did say that, for example, better data on firing rates may change the analysis, and the district court doesn't have to, but it's free to kind of look at that again because of the reloading that's necessary in order to really make both of these weapons work.

[00:05:26] Speaker 01:
So I wondered if there was, in the state's view, a similar potential gap

[00:05:31] Speaker 01:
in the evidence that the state could fill or whether you've with the multiple opportunities you've had have put it all out there and that we're only going to address the merits question here.

[00:05:41] Speaker 02:
So the Beavis Court did identify some potential areas for further factual development but it's notable in this case that the plaintiffs have not developed any facts to fill those holes.

[00:05:52] Speaker 02:
The plaintiffs have not shown that the regulated weapons including pistols and shotguns for which they offer barely any evidence at all

[00:06:00] Speaker 02:
They have not shown that the assault weapons being regulated are not like the M16 or similar weapons and are not offensive military weapons.

[00:06:11] Speaker 02:
So the evidentiary record as it exists, the record developed by the parties jointly in this case, is not materially different from the Bevis record.

[00:06:23] Speaker 02:
And we think the record does show that at the threshold stage and the historical stage of the Bruin standard, the assault weapon restrictions are constitutional.

[00:06:33] Speaker 04:
So the threshold stage in Bruin is, the court said, when the Second Amendment's plain text covers an individual's conduct, excuse me, the Constitution presumptively covers that conduct, right?

[00:06:46] Speaker 04:
And you're saying that you can win at the threshold stage, which I take it means that in your view, the Second Amendment's plain text does not apply to these kinds of weapons.

[00:06:58] Speaker 04:
Is that right?

[00:06:59] Speaker 02:
So the threshold, that's close, Your Honor.

[00:07:01] Speaker 02:
So at the threshold stage, the Court does look at the plain text of the Second Amendment, whether the restriction burdens the right of the people to keep and bear bearable arms.

[00:07:12] Speaker 02:
But part of that threshold analysis does look at history, namely the original public meaning of the terms in the Second Amendment.

[00:07:20] Speaker 02:
So the words in the Second Amendment alone are indeterminate.

[00:07:23] Speaker 02:
The court needs to look at the historical context of those words.

[00:07:27] Speaker 02:
And common use for self-defense is a limiting principle at that threshold stage.

[00:07:32] Speaker 04:
And why is that?

[00:07:34] Speaker 04:
Is that because it's part of the definition of what an arm is, or because it's part of

[00:07:39] Speaker 04:
Maybe we're in the, I mean, I take the point that the plain text is not just, you know, is plain text informed by historical understanding of the text, but what textual indicia would you point to to extract the self-defense component of that?

[00:07:58] Speaker 02:
Yeah, so the Supreme Court has not

[00:08:00] Speaker 02:
identified exactly which term it relates to.

[00:08:03] Speaker 02:
I think it relates as the Beavis Court indicated it relates to whether an arm is a bearable arm within the scope of the Second Amendment.

[00:08:12] Speaker 02:
And on page 32 of Bruin, the Supreme Court observed that no party disputed that the handgun, the weapon at issue in Bruin,

[00:08:20] Speaker 02:
was in common use today for self-defense.

[00:08:23] Speaker 02:
So the Supreme Court made clear that the Common Use for Self-Defense Inquiry belongs at the threshold stage, and it likely does relate to whether a weapon is a bearable arm based on the original public meaning.

[00:08:35] Speaker 04:
So your position is that these kinds of weapons would be outside the original public meaning of what a bearable arm

[00:08:42] Speaker 02:
Is that's correct your honor because these are military weapons.

[00:08:46] Speaker 04:
These are not weapons of ordinary self-defense But when I mean when we look at Heller, right so it starts with you know, they've got you know, dr Johnson and some of the other 18th century dictionaries that just define arms as weapons, right which which these clearly are and in Heller it was common ground that

[00:09:05] Speaker 04:
Everybody agreed that it at least applied to weapons you would use in militia service.

[00:09:10] Speaker 04:
And then the question was, does it also apply to other kinds of weapons?

[00:09:15] Speaker 04:
As I read, Haller, there wasn't really any question that weapons that would be used by people in the military would count as arms.

[00:09:25] Speaker 04:
Was there?

[00:09:26] Speaker 02:
So at the founding in 1791, when the Second Amendment was ratified,

[00:09:31] Speaker 02:
The Supreme Court observed in Heller that the same weapons that were commonly kept at home for ordinary purposes like self-defense, those were the same types of weapons that militiamen brought to muster.

[00:09:42] Speaker 02:
But over time, because of technological advancement,

[00:09:46] Speaker 02:
certain weapons have fallen outside of the scope of the Second Amendment, even if they might be useful in militia service.

[00:09:52] Speaker 02:
As the Seventh Circuit stated in Bevis, in Heller, the Supreme Court severed the relationship between the Prefatory Clause, which is focused on militia service, and the Operative Clause, which is focused on weapons for ordinary self-defense.

[00:10:08] Speaker 02:
And here, the weapons that are being regulated are not self-defense weapons.

[00:10:12] Speaker 02:
And I think it's important also to observe, Your Honor, that the definitions that are being challenged in this case do target specific accessories.

[00:10:21] Speaker 02:
These are combat-oriented accessories that exacerbate the lethality of the underlying weapons, like an AR platform rifle, for example, which enable a shooter to fire sustained, rapid, semi-automatic fire.

[00:10:34] Speaker 02:
and other features that enable a shooter to conceal their location.

[00:10:38] Speaker 04:
And the plaintiffs have... Is it the state's view?

[00:10:40] Speaker 04:
I mean, in the state's view, could you prohibit all semi-automatic firearms?

[00:10:45] Speaker 04:
I mean, I realize that that would be considerably broader than the statute you have, but would that be permissible?

[00:10:49] Speaker 02:
It would be substantially broader than the law we're developing or defending in this case and the record that we've developed in this case.

[00:10:56] Speaker 02:
It would depend on the record assembled, but the statute we're defending here... Well, what in the record would it depend on?

[00:11:04] Speaker 02:
It would depend on the types of firearms that would be subsumed within that particular type of regulation.

[00:11:12] Speaker 02:
Standing here today, I cannot say that the state of California would be able to ban all semi-automatic weapons.

[00:11:19] Speaker 00:
What is the definition of a semi-automatic weapon?

[00:11:22] Speaker 02:
So a semi-automatic weapon is a weapon that can fire one round for each pull of the trigger.

[00:11:29] Speaker 00:
But that's, as I understand it, from the Duncan case, an ordinary pistol with a magazine does that, for as much as the magazine lasts.

[00:11:45] Speaker 02:
It does, Your Honor.

[00:11:46] Speaker 02:
But California is not regulating these weapons solely because of their semi-automatic action.

[00:11:51] Speaker 00:
It's the fact that... But that's what makes it semi-automatic.

[00:11:53] Speaker 00:
That's what I'm trying to... As long as you can shoot more than one round or some larger number of rounds by pulling the trigger each time.

[00:12:03] Speaker 02:
So with a semi-automatic firearm, if I'm understanding the question, Your Honor, let me know if I'm not.

[00:12:08] Speaker 02:
But with each pull of the trigger, a single round is fired.

[00:12:11] Speaker 02:
And a select fire or fully automatic... You don't have to reload the gun.

[00:12:14] Speaker 00:
That's the point.

[00:12:16] Speaker 02:
You would still have to reload the firearm eventually, but not for each one.

[00:12:20] Speaker 02:
That's correct.

[00:12:20] Speaker 02:
It depends on the number of rounds in the magazine.

[00:12:22] Speaker 00:
But there's a lot of material in the record about other characteristics of the A-15s.

[00:12:30] Speaker 00:
That's what we're talking about, right?

[00:12:32] Speaker 02:
The AR-15 and generic AR platform rifles.

[00:12:34] Speaker 00:
Which seem to say that they shoot faster and more aggressively.

[00:12:44] Speaker 00:
and the kinds of munitions that they shoot are more dangerous and so on.

[00:12:51] Speaker 00:
I mean, is that part of the definition or part of the reason for regulating them?

[00:12:54] Speaker 02:
Yes, it is.

[00:12:55] Speaker 02:
The capabilities that California is regulating, the particular types of accessories and features, don't only enable semi-automatic fire.

[00:13:03] Speaker 02:
It's sustained rapid semi-automatic fire.

[00:13:06] Speaker 02:
And if the court looks at the AR platform rifle, for example, the type of ammunition it fires, 223 Remington or 556 NATO rounds, which are designed to tumble and cavitate on impact with a human being, the muzzle velocity.

[00:13:20] Speaker 01:
Let me ask you this, counsel.

[00:13:21] Speaker 01:
Let's assume that you're right, that in the step one of the Brunei analysis, we do look at the common use for self-defense purposes to inform ourselves of whether this is within the scope of arms that's covered.

[00:13:35] Speaker 01:
What in this record do we look at?

[00:13:37] Speaker 01:
Surely it can't be just the number of assault weapons owned by Americans at the time, right?

[00:13:43] Speaker 01:
Because then that gives rise to that circularity problem.

[00:13:47] Speaker 01:
If California Hatton rushed to ban assault weapons, instead of 24.4 million, there might be 50 million out there.

[00:13:55] Speaker 01:
So how do we analyze a record in this case, not just this particular record, but in general to figure out where

[00:14:05] Speaker 01:
Within that line drawing problem.

[00:14:07] Speaker 02:
We put assault weapons so on page 622 of the Heller opinion the court focused on the character of the weapon or the type of weapon being regulated and later in the opinion the court Discussed the characteristics of the handgun that made the handgun the quintessential self-defense weapon but the court also contrasted that with m16 rifles and the like which the court found to be a

[00:14:30] Speaker 02:
the court determined it would be a startling interpretation of the Second Amendment if the operative clause were extended to protect those types of weapons.

[00:14:38] Speaker 02:
So the evidence here shows that AR platform rifles, AK platform rifles, and other regulated assault weapon configurations have the same military pedigree

[00:14:48] Speaker 02:
the same combat functionality to enable people.

[00:14:51] Speaker 01:
So does it matter that there's 24 plus million assault weapons out there?

[00:14:56] Speaker 01:
Does that factor into the analysis in any way?

[00:14:58] Speaker 02:
It can be considered.

[00:14:59] Speaker 02:
I think the number of weapons can be considered.

[00:15:02] Speaker 02:
But I think it's important to note that the Supreme Court never referenced numbers.

[00:15:07] Speaker 02:
In Heller or McDonald, the Supreme Court did not count up the number of handguns.

[00:15:11] Speaker 02:
And based on the number of handguns that are manufactured, let alone handguns that are

[00:15:17] Speaker 02:
owned by individuals.

[00:15:19] Speaker 02:
That did not drive the analysis.

[00:15:21] Speaker 00:
It was the character of the weapon.

[00:15:23] Speaker 00:
But in talking about machine guns, and they really didn't analyze anything.

[00:15:32] Speaker 00:
They just said, OK, you can ban machine guns.

[00:15:37] Speaker 00:
But the USEN do get into this circularity.

[00:15:39] Speaker 00:
I mean, the assault weapons were federally banned for a while.

[00:15:43] Speaker 02:
Yes.

[00:15:44] Speaker 00:
Were these the same definitions, essentially?

[00:15:47] Speaker 02:
Very similar.

[00:15:48] Speaker 02:
The federal definition required two qualifying features.

[00:15:52] Speaker 00:
And I gather that since that ban was lifted, the number of machine guns has gone up exponentially.

[00:15:58] Speaker 00:
Is that right?

[00:15:59] Speaker 02:
for semi-automatic weapons.

[00:16:03] Speaker 02:
The plaintiffs estimate, based on industry estimates, that it's about 24 million or so.

[00:16:07] Speaker 00:
No, but I mean, since the federal ban was lifted.

[00:16:12] Speaker 02:
Yes, more.

[00:16:13] Speaker 00:
The numbers, more or many, many, many more?

[00:16:17] Speaker 02:
Yes.

[00:16:18] Speaker 00:
Yes.

[00:16:18] Speaker 02:
Yes, but the numbers are not dispositive here.

[00:16:21] Speaker 02:
Otherwise, it does lead to the circular.

[00:16:22] Speaker 00:
Well, I know that, but it's sort of illustrative of this problem that Judge Nguyen alluded to, which is,

[00:16:28] Speaker 00:
If you look at the – your opponents are arguing that the numbers are just positive, pretty much, as I understand it.

[00:16:36] Speaker 00:
Yes.

[00:16:36] Speaker 00:
We'll see what they say, but that's my understanding.

[00:16:38] Speaker 00:
Yes.

[00:16:39] Speaker 00:
And they are arguing that the common use

[00:16:43] Speaker 00:
rubric under Heller and Brun means in common use, so if now, not previously.

[00:16:50] Speaker 00:
And so one looks at the current situation and simply says, well, there are just so many of them that they're in common use, and that's the end of the story.

[00:16:59] Speaker 00:
But that has varied, actually, over time, depending on whether it was regulated or not, illustrating the circularity.

[00:17:07] Speaker 00:
So what would you look to?

[00:17:08] Speaker 00:
I mean, how do you decide?

[00:17:09] Speaker 00:
You're adding a

[00:17:14] Speaker 00:
qualifier, which is it's not in common use, it's in common use for self-defense, and that the fact that many people have them at home is not the answer to the question.

[00:17:24] Speaker 00:
So what is the answer to the question?

[00:17:26] Speaker 00:
I mean, how do you look at what is—what evidentiary criteria do we use to decide what's in common use for self-defense?

[00:17:37] Speaker 00:
I mean, these people apparently have them.

[00:17:39] Speaker 00:
What are they doing with them?

[00:17:40] Speaker 02:
So that's for the plaintiffs to present evidence on.

[00:17:43] Speaker 02:
The plaintiffs have not shown that these types of weapon configurations are the type of weapon that would be for ordinary self-defense.

[00:17:50] Speaker 00:
Well, suppose you've got 24 million people to sign a declaration saying, I have it because I think it's good for self-defense.

[00:17:55] Speaker 00:
Would that be the answer to the question?

[00:17:56] Speaker 02:
No.

[00:17:56] Speaker 02:
The court would still need to look at the character of the weapon.

[00:17:58] Speaker 02:
But even assuming that these weapons are presumptively protected, at the historical stage, we have developed a robust record of historical analogs and a tradition of firearm regulation that imposed a comparable burden on the right to armed defense that were comfortably justified, especially under a more nuanced approach.

[00:18:18] Speaker 02:
which the Supreme Court in Bruin made clear is required when the state is defending a law that addresses a dramatic technological change from the technologies in place in 1791 or 1868.

[00:18:29] Speaker 00:
But now you're moving away from it.

[00:18:30] Speaker 00:
It's not arms.

[00:18:31] Speaker 02:
I am, yes, I am, Your Honor.

[00:18:33] Speaker 02:
This is assuming that each of the categories of assault weapons is presumptively protected.

[00:18:39] Speaker 02:
And the restrictions we are defending in this case are relevantly similar to the historical tradition that we've identified.

[00:18:46] Speaker 01:
I see that I am running into my rebuttal time, but unless the court... Yes, our questions did eat up most of your time, but I'll put your three minutes, three and a half minutes, I'll put that back on the clock.

[00:18:55] Speaker 02:
I appreciate that, Your Honor.

[00:18:56] Speaker 02:
Thank you so much.

[00:19:08] Speaker 03:
Good afternoon, Your Honors.

[00:19:09] Speaker 03:
May it please the Court, Pete Patterson, for the appellees.

[00:19:12] Speaker 03:
Under Heller and Bruin, this is a straightforward case.

[00:19:16] Speaker 03:
Those cases establish that law-abiding Americans have an absolute right to own firearms that are in common use for lawful purposes.

[00:19:24] Speaker 00:
And the arm— But isn't that just irretrievably circular?

[00:19:30] Speaker 00:
I mean, if we—if there were an assault weapon ban still in—

[00:19:35] Speaker 00:
A federal assault weapon ban, presumably the numbers of these weapons that were kept by individuals would be way less.

[00:19:47] Speaker 03:
Two answers to that, Your Honor.

[00:19:49] Speaker 03:
The first answer is that the allegation of circularity was given in the dissenting opinion in Heller, and nevertheless the Supreme Court said that the test is in common use.

[00:20:01] Speaker 03:
Second, it is not circular because with a representative government in this country, presumably,

[00:20:09] Speaker 03:
an item that a substantial portion of the population believes is effective for lawful purposes, a ban of that item is not going to be able to be maintained for long periods of time across broad swaths of the country.

[00:20:24] Speaker 03:
And that's what we see here.

[00:20:25] Speaker 03:
These firearms have not traditionally been illegal in this country, as the Supreme Court itself held in the Staples case.

[00:20:33] Speaker 00:
Well, they haven't traditionally existed.

[00:20:34] Speaker 00:
As I understand it, they basically were created during World War II.

[00:20:37] Speaker 00:
Isn't that true?

[00:20:39] Speaker 03:
uh... these specific firearms uh... in the nineteen fifties and nineteen sixties is when they're developed but this particular firearms are semi-automatic firearms like other semi-automatic firearms in the supreme court in the staples case said that these have traditionally been regarded as lawful possessions unlike machine guns take cigarettes okay cigarettes were ubiquitous in this country for many many years uh... and they were then discovered to be

[00:21:07] Speaker 00:
dangerous and they were banned and now they're hard to find.

[00:21:12] Speaker 00:
So it takes a while to people understand the danger of something sometimes and then they're banned and it becomes a fait accompli that they weren't banned earlier is really what you're arguing.

[00:21:26] Speaker 03:
Well, it does not always take a long time.

[00:21:28] Speaker 03:
Take machine guns.

[00:21:30] Speaker 03:
Those came on the market at a similar time as semi-automatic firearms.

[00:21:34] Speaker 03:
They did not sell to the general public because they have uniquely dangerous pretensities, as this court said.

[00:21:41] Speaker 03:
in Tedar, and notably the reason that machine guns are dangerous is because they can't be controlled.

[00:21:47] Speaker 03:
And what's ironic is that California is banning features here that enhance the control of a firearm.

[00:21:52] Speaker 03:
So it's actually backwards.

[00:21:54] Speaker 03:
The firearms that are left after California's ban are more dangerous because they're harder to shoot accurately.

[00:22:00] Speaker 03:
But machine guns were very quickly regulated comprehensively in the state, first at the state level and then at the federal level.

[00:22:06] Speaker 03:
And if you look at machine guns came on the market in the 1920s,

[00:22:10] Speaker 03:
They were not actually banned at the federal level until the 1980s.

[00:22:14] Speaker 03:
Over that 60-year period, according to federal registration statistics, there were approximately 176,000 machine guns that were purchased.

[00:22:24] Speaker 03:
That is basically every single month.

[00:22:27] Speaker 03:
Now, in this country, how many AR-15s and similar rifles are purchased?

[00:22:32] Speaker 03:
So the distinction between those firearms and these firearms is their commonality for a lawful purpose.

[00:22:38] Speaker 01:
And, Heller, very— Let's take your argument, because you're relying very, very heavily on just the numbers.

[00:22:44] Speaker 01:
So, as I understand it, of the 24-plus million assault weapons that are out there,

[00:22:50] Speaker 01:
owned by under 8 million people, right, out of the population of 330 something million people.

[00:22:57] Speaker 01:
So setting aside the circularity problem, I think if you dig down to the numbers, there

[00:23:04] Speaker 01:
It creates a problem for you as well, setting aside the circularity.

[00:23:08] Speaker 01:
So what numbers are we talking about?

[00:23:09] Speaker 01:
Are we relying on national numbers?

[00:23:11] Speaker 01:
This is a California statute.

[00:23:13] Speaker 01:
Do we then look at only the number of assault weapons in California and focus more on the local jurisdictions, which is something that the Supreme Court acknowledged are a lot of problems?

[00:23:25] Speaker 01:
that are looked at at a local level, right?

[00:23:27] Speaker 01:
So if you only identify the numbers of assault weapons in California, that's a substantially smaller number.

[00:23:34] Speaker 01:
And then do we then carve out assault weapons owned by law enforcement, which are then exempt?

[00:23:41] Speaker 01:
I don't even know if it's in the record how many that would be.

[00:23:45] Speaker 01:
So can you address those problems with your 24.4 million assault weapons that's out there?

[00:23:51] Speaker 03:
Yes, and we're not relying solely on numbers.

[00:23:54] Speaker 03:
So our position is that it's the state's burden to show that these are dangerous and unusual firearms, and as this court said in Teeter, that means it's the state burden to show both that they have uniquely dangerous propensities and that they are not typically possessed by law-abiding citizens for lawful purposes.

[00:24:09] Speaker 03:
And so if there are millions of an item

[00:24:12] Speaker 03:
That means that the state is simply not going to be able to show.

[00:24:16] Speaker 03:
It's a sufficient but not necessary condition.

[00:24:19] Speaker 03:
The state is not going to be able to show that these are not typically possessed by law-abiding citizens or that they're highly unusual in society at large.

[00:24:27] Speaker 01:
Let me set aside the burden issue for now because I don't want you to finish your argument without tackling some of the issues with the numbers that I'm concerned about.

[00:24:37] Speaker 01:
On this record, which is why I started off asking counsel, and I'll ask you the same

[00:24:41] Speaker 01:
question whether the record has been fully developed here.

[00:24:44] Speaker 01:
We're trying to figure out whether an AR-15 is functionally equivalent to an M16 and should, we're not without guidance, right?

[00:24:52] Speaker 01:
We know that even a bearable nuclear weapon is not going to be protected by the Second Amendment.

[00:24:58] Speaker 01:
We've got guidance on the M16.

[00:25:00] Speaker 01:
Now we're trying to figure out where assault weapons really fall within that spectrum.

[00:25:06] Speaker 01:
And so you're saying, well, 24.4 million, that seems like an awfully big number, but we only looked at California because it's been regulated for several decades.

[00:25:15] Speaker 01:
Now you're talking about a few hundred thousand assault weapons.

[00:25:19] Speaker 01:
Then if you carve out law enforcement, then it's a lot smaller than that.

[00:25:22] Speaker 01:
And that's, I think, where your argument on how commonly used for self-defense it is, especially if we go to the local level, starts to fall apart.

[00:25:31] Speaker 01:
So what would your response be to that?

[00:25:32] Speaker 03:
Yes, first of all, in terms of the scope, this is a national inquiry.

[00:25:36] Speaker 03:
Heller talked about the most commonly used firearms for self-defense.

[00:25:40] Speaker 03:
Nationwide, it didn't look in DC where they had been banned since 1972 to see if they were in common use in DC.

[00:25:48] Speaker 03:
So it's a nationwide question.

[00:25:49] Speaker 03:
Do the people of this nation commonly possess this firearm for lawful purposes?

[00:25:53] Speaker 03:
It's not just self-defense.

[00:25:55] Speaker 03:
It's for any lawful purposes.

[00:25:57] Speaker 03:
And what other justices have done?

[00:26:02] Speaker 03:
Justice Brett Kavanaugh, when he was on the DC Circuit, looked at the record with respect to AR-15s.

[00:26:07] Speaker 03:
At that time, there were 1.6 million.

[00:26:09] Speaker 03:
And he said that was in common use, as did the majority of the DC circuit at that time.

[00:26:14] Speaker 03:
Justice Thomas in his Friedman dissent from denial of cert said that 5 million was in common use.

[00:26:21] Speaker 03:
So we are well beyond these figures that is anywhere close to the line.

[00:26:24] Speaker 03:
of not being in common use.

[00:26:26] Speaker 03:
And in terms of this record, as to what this record shows, Plaintiffs' Exhibit 4-4 is a survey of owners of some of these types of weapons, and what it shows is that 11% of them are law enforcement, and out of those, half of them are retired.

[00:26:43] Speaker 03:
It doesn't, and so even that 5%, it doesn't show that they use them for law enforcement purposes, it just says that they have

[00:26:48] Speaker 03:
law enforcement experience.

[00:26:51] Speaker 03:
We have survey data that the district court cited from the Washington Post showing that 16 million Americans own these firearms.

[00:26:57] Speaker 03:
The Bill English survey data that is cited by the district court shows that 24 million Americans own these firearms, and both of those surveys ask people why they own these firearms.

[00:27:07] Speaker 03:
In the Bill English data, over 60 percent said they own them for self-defense.

[00:27:11] Speaker 03:
In the Washington Post, 65% said they primarily owned them for self-defense, and 26% in addition said they secondarily owned them for self-defense.

[00:27:19] Speaker 03:
So that's over 90% for self-defense.

[00:27:22] Speaker 03:
So this record is very strong in showing that these are firearms that people use for lawful purposes broadly across this country, and they are indeed the most popular rifles in the history of this nation.

[00:27:36] Speaker 03:
And so the notion that the most popular rifles in the history of this nation

[00:27:40] Speaker 03:
could be deemed dangerous and unusual is just implausible.

[00:27:45] Speaker 03:
And the arguments that are being made here are basically the reverse of the arguments that were being made in Heller.

[00:27:50] Speaker 03:
In fact, at pages 54 to 55 of DC's brief in Heller, they cited an article from guns.com that said some people prefer long guns for self-defense to handguns.

[00:28:01] Speaker 03:
And Justice Breyer cited this part of the brief in his dissent.

[00:28:04] Speaker 03:
And if you look at that guns.com article, what it says is that handguns are not good self-defense weapons, but instead rifles are better.

[00:28:12] Speaker 03:
And there's a picture of a semi-automatic rifle with a pistol grip, and that the plaintiffs in D.C.

[00:28:17] Speaker 03:
were saying this was the alternative that people have to defend them, not the plaintiffs, the District of Columbia was saying that this is the alternative that people can have to defend themselves.

[00:28:26] Speaker 03:
There was evidence there in the Violence Policy Center put before the Supreme Court to say that these are the preferred, handguns are the preferred weapons,

[00:28:33] Speaker 03:
for mass shooters.

[00:28:35] Speaker 03:
And they're by far the most preferred firearm for criminals to use in this nation.

[00:28:40] Speaker 03:
But the Supreme Court rejected all of that.

[00:28:42] Speaker 03:
And this case is essentially taking the very same arguments that were made against handguns in Heller and repackaging them to be made against assault weapons.

[00:28:51] Speaker 03:
And those arguments did not prevail there, and they can't prevail here.

[00:28:55] Speaker 03:
And what's interesting is the opposing counsel

[00:28:57] Speaker 03:
mentions mass shootings, which is, of course, are deplorable, awful events.

[00:29:01] Speaker 03:
But their expert, Clarivaz, had an increasingly gerrymandered definition to try to get to certain shootings where AR-15s are used in those.

[00:29:11] Speaker 03:
And he identified 16 shootings from 2012 to 2022, and he said 75% of those involved an assault weapon.

[00:29:20] Speaker 03:
And again, those are tragic incidents, deplorable incidents.

[00:29:24] Speaker 03:
But if you add up the number of deaths in those incidents, it's 300 and something.

[00:29:28] Speaker 03:
Every single year in this country, 6,000 to 7,000 people are murdered with handguns.

[00:29:33] Speaker 03:
So that's every month.

[00:29:35] Speaker 03:
More people are murdered with handguns than were in the entire decade of those shootings cited by the opposing side's experts.

[00:29:41] Speaker 03:
That's not to say that this is not a problem, but it's just to say if that did not suffice in Heller, similar type of evidence can't possibly suffice here.

[00:29:51] Speaker 04:
I was just going to ask you to address Duncan.

[00:29:56] Speaker 04:
You told the district court that the cases involve substantially the same facts and questions of law.

[00:30:04] Speaker 04:
Why should we resolve any of this when the en banc panel is going to hear Duncan in two months?

[00:30:14] Speaker 03:
We told the district court that at a time when this case only addressed the magazine component, it's now been expanded, so it's less related to Duncan than it was then.

[00:30:22] Speaker 03:
But even given the, and there are distinct questions with respect to magazines and firearms, but we acknowledge they are related cases.

[00:30:29] Speaker 03:
But this is a fundamental right.

[00:30:32] Speaker 03:
As this court said in Baird v. Bonta, delay is typically not countenance in fundamental rights.

[00:30:37] Speaker 03:
And in addition, usually percolation is a good thing on an issue when a court that is a superior court, as the in-bank court is to a panel, is considering an issue.

[00:30:45] Speaker 03:
It's normally considered a good thing to have other jurists' views on an issue.

[00:30:51] Speaker 03:
So we think it would be beneficial to the in-bank court to have this panel's views on the issues that are before the court.

[00:30:58] Speaker 04:
I suppose that depends what the views would be.

[00:31:02] Speaker 04:
But your first point about the delay, I mean, that sort of goes to whether there should be a stay or whether the stay should be maintained in place.

[00:31:11] Speaker 04:
And on that question, we'd have to look at your likelihood of success on the merits.

[00:31:18] Speaker 04:
And we have a published order from the Duncan en banc panel saying that the state is likely to prevail on the merits in that case.

[00:31:26] Speaker 04:
So if we take that as a given, as we have to, if the state is likely to prevail in Duncan, how can you be likely to prevail here?

[00:31:39] Speaker 04:
How can you win here if the state wins Duncan?

[00:31:42] Speaker 03:
Well, my understanding is that's the preliminary determination of likelihood.

[00:31:47] Speaker 00:
As to the stay.

[00:31:48] Speaker 00:
As to the stay question.

[00:31:49] Speaker 03:
Yes.

[00:31:50] Speaker 00:
So I understand Judge Miller is saying how could you prevail as to the stay, not as to the merits.

[00:31:57] Speaker 03:
Well, I believe if we were to prevail, and my point of delay was not with respect to the state, but just with respect to getting to a determination in the case, which if this case is put on hold for the in-bank courts to make its decision, it's going to engender some delay.

[00:32:12] Speaker 03:
But even with respect to the state, if this court determines that not just is there a likelihood that we succeed in this case, but actually that we do succeed in this case and that we prevail,

[00:32:23] Speaker 03:
then I believe with that determination of a panel of this court, it would not be inconsistent to dissolve this day, in this case, particularly since it is distinct issues.

[00:32:36] Speaker 04:
But but how yeah, how distinct are they really I mean like you know, I looked at the briefs in Duncan and it's all the many of the same questions about You know the common use for self-defense.

[00:32:50] Speaker 04:
Does that go at prong one or at prong two?

[00:32:53] Speaker 04:
If it's at prong to like how?

[00:32:56] Speaker 04:
How much specificity do we look at in assessing the historical examples that they offer basically the same historical examples?

[00:33:04] Speaker 04:
So I guess

[00:33:06] Speaker 04:
Let me repeat the question I asked earlier, because I'm still not sure I understood the answer, which is if the state does in fact win in Duncan, doesn't that make it overwhelmingly likely that they're going to win here?

[00:33:21] Speaker 03:
I think it does make it likely.

[00:33:23] Speaker 03:
The one distinct issue is that there could be a distinction between, well, is a magazine an arm?

[00:33:28] Speaker 03:
And are these items here, which are firearms, are those arms?

[00:33:32] Speaker 03:
So there could be a distinction there.

[00:33:33] Speaker 03:
We would submit that it would both be analyzed the same way, but the state has argued otherwise that the fact that a magazine is not a firearm is a distinction that could have significance.

[00:33:44] Speaker 03:
So that's one way that the cases could come out different.

[00:33:47] Speaker 00:
But other than that, Your Honor, I ... I don't recall from the earlier ...

[00:33:50] Speaker 00:
I was on an Emma on the Duncan panel and in the earlier hearing I don't think that distinction was given any weight at all as I recall.

[00:34:02] Speaker 03:
Well I personally don't give that argument much weight either your honor but it is an argument that is being made and that is one possibility for a distinction.

[00:34:11] Speaker 01:
But at a minimum we'd have better guidance on what the analytical frameworks look like.

[00:34:17] Speaker 03:
Well our view is that this is a

[00:34:19] Speaker 03:
laid down very clearly in Heller and in Bruin, first that at the plain text level, Heller explicitly says at the founding dictionary said all firearms are arms.

[00:34:28] Speaker 03:
So these are firearms, the plain text level, that should be.

[00:34:32] Speaker 01:
As I understand it, and correct me if I'm wrong, the AR-15 is in every respect the same as an M16, except for the M16's ability to fire in automatic mode, right?

[00:34:45] Speaker 01:
So the same operating system.

[00:34:47] Speaker 01:
Same ammunition same core design.

[00:34:50] Speaker 01:
Am I correct in that?

[00:34:52] Speaker 03:
Yeah, I mean it based there are different ways these things can be configured.

[00:34:55] Speaker 03:
But yes, it basically yes, but I'll explain all material ways.

[00:34:58] Speaker 03:
They're exactly I've been playing while all material ways except the constitutionally dispositive way and that's because Heller said that and that constitutional dispositive ways the ability to fire an automatic mode and

[00:35:10] Speaker 03:
No, that constitutionally-dispositive way is that Heller said M16s and the like can be banned because they're highly unusual in society at large.

[00:35:20] Speaker 03:
and AR-15s are ubiquitous in society at large.

[00:35:23] Speaker 03:
And there may be reasons for that.

[00:35:25] Speaker 01:
So if the M16 manufacturer chooses to lock the mode so that you can't basically put the gun in automatic firing mode, could that be sold commercially, even if you can aftermarket buy like a key to unlock that?

[00:35:43] Speaker 03:
Yes, the aftermarket key could be made illegal to turn it into a machine gun, but if it's a semi-automatic M16, then no, that could not be banned.

[00:35:53] Speaker 03:
Staples have said semi-automatics, unlike machine guns, traditionally have been regarded as lawful possessions in this country.

[00:36:00] Speaker 00:
Stapleton was not a Section Amendment case.

[00:36:04] Speaker 03:
It wasn't a Second Amendment case, but when we look to history and tradition, and the Supreme Court has said that semi-automatic AR-15s, that was the specific firearm at issue in this case, traditionally has been regarded as lawful possession, unlike machine guns, that speaks directly to the question at issue.

[00:36:19] Speaker 03:
But in terms of the functionality of these firearms, what the military manuals say in this case that are in this record is that the reason why you should rarely fire in automatic mode is because it's hard to control.

[00:36:33] Speaker 03:
And so it's hard to fire accurately.

[00:36:36] Speaker 03:
And that is unlike in semi-automatic mode.

[00:36:39] Speaker 00:
And that's why the military, although the weapon that they use can shoot in automatic mode, they don't use it that way.

[00:36:53] Speaker 03:
Yes, except for uniquely military applications when they need suppressive fire, particularly... Wow, but in general, in their military applications they don't use it that way.

[00:37:02] Speaker 03:
Yes, because the military, just as law-abiding citizens, want to fire accurately.

[00:37:07] Speaker 03:
And what's interesting, as I said, these features... I'm sorry, I didn't understand that last sentence.

[00:37:11] Speaker 03:
Both the military and law-abiding citizens in defense purposes want to fire accurately.

[00:37:17] Speaker 03:
But as to whether this is a military weapon, if you think that matters, and I gather you don't, but if we saw the matter... Well, Heller said the reason they could be banned is not because they have military application, but despite the fact.

[00:37:30] Speaker 03:
that they have military application, because there was a dispute going back to the Miller case, interpretation of the Miller case, which said that sawed-off shotguns can be banned because they are not part of ordinary military equipment or usable for common defense.

[00:37:45] Speaker 03:
And so that's what the Supreme Court reacted and said, well, that's the startling conclusion.

[00:37:50] Speaker 03:
If you read that to say that something has to be in ordinary military use in order to be protected, then M16s would be protected.

[00:37:59] Speaker 03:
But the Supreme Court said you have to read further in Miller and say that Miller also said that people at the founding brought their commonly owned firearms with them.

[00:38:08] Speaker 03:
to militia service, so you have to read those statements together.

[00:38:11] Speaker 03:
And the Supreme Court extracted the common use principles, so the competing principles.

[00:38:15] Speaker 00:
But it was common use for self-defense.

[00:38:17] Speaker 03:
It was common use for lawful purposes.

[00:38:19] Speaker 03:
The competing principles that the Supreme Court was considering were... It doesn't have to be for self-defense.

[00:38:24] Speaker 00:
It does not have to be for self-defense.

[00:38:26] Speaker 00:
No, it has to be for lawful purposes.

[00:38:27] Speaker 00:
Because they like to look at them, they think they're attractive.

[00:38:29] Speaker 03:
It could be for hunting.

[00:38:30] Speaker 03:
It could be for target shooting.

[00:38:31] Speaker 00:
Remember, the reason this is in here... Not protected by the Second Amendment as such?

[00:38:35] Speaker 03:
Absolutely, because the reason the Second Amendment is in there is for militia purposes, and the military wants people training with firearms so that they're expert in firearms.

[00:38:44] Speaker 03:
That's likely the reason we won the revolution is because of our marksmanship.

[00:38:47] Speaker 03:
The notion that training would not be protected is wholly implausible.

[00:38:51] Speaker 03:
But the Supreme Court was choosing between two competing definitions, common use for lawful purposes,

[00:38:59] Speaker 03:
commonly possessed or useful in the military.

[00:39:02] Speaker 03:
And under either of those definitions, we win this case.

[00:39:06] Speaker 03:
Because everybody agrees these can be used for common defense purposes that would be good militia firearms.

[00:39:12] Speaker 03:
And they're also in common use for lawful purposes.

[00:39:15] Speaker 03:
And I see that my time has expired.

[00:39:22] Speaker 01:
All right.

[00:39:22] Speaker 01:
Thank you very much for your argument, Counsel.

[00:39:33] Speaker 02:
I'd like to address just a few points, if I may.

[00:39:37] Speaker 02:
Regarding the dangerous and unusual tradition that the plaintiffs referred to that was discussed in Teeter, notably Teeter could not overrule this court's previous decision in US versus Alana's that plainly placed the common use for self-defense inquiry at the threshold stage.

[00:39:53] Speaker 02:
And we have shown that these weapons do not have the character of self-defense weapons.

[00:39:58] Speaker 00:
And the reason this matters is because the burden is different depending which one they're on.

[00:40:03] Speaker 02:
I think the burden is important, but we've also presented evidence showing that these are military weapons.

[00:40:08] Speaker 00:
But otherwise it doesn't make any practical difference.

[00:40:11] Speaker 00:
I think that's right.

[00:40:13] Speaker 00:
The only reason it makes a difference is if it shifts the burden.

[00:40:16] Speaker 02:
I think that's generally right.

[00:40:17] Speaker 02:
We are willing to defend these restrictions at either stage of the Bruin analysis.

[00:40:22] Speaker 00:
But I do want to note that— I'm still having difficulty understanding when you say that these are not—what criteria do we use to decide that these are not in common use for self-defense?

[00:40:37] Speaker 00:
So the Supreme Court— I understand your opponent disputes that definition.

[00:40:40] Speaker 00:
He says it has to be for any lawful purpose, but let's assume it does have to be for self-defense.

[00:40:45] Speaker 00:
How do we—is a judicial determination based on the character of the weapon, or what?

[00:40:53] Speaker 02:
I think that's right, Your Honor.

[00:40:54] Speaker 02:
The Supreme Court has instructed the courts and litigants to look at the character of the weapon to determine whether the character of the weapon makes it a self-defense weapon, not for any potential self-defense use, but for use in ordinary, typical self-defense situations.

[00:41:11] Speaker 00:
And I want to note that the dangerous and unusual— Exactly why this doesn't fit that criteria.

[00:41:17] Speaker 02:
Because the capability of these weapons to engage in sustained rapid semi-automatic fire, which is a combat technique according to the record, the plaintiffs have not explained how rapid sustained semi-automatic fire to shoot as many rounds in a shorter period of time to hit as many targets as possible.

[00:41:37] Speaker 02:
Why that would be characteristics that would make these weapons self-defense weapons.

[00:41:43] Speaker 00:
In the Duncan record, there was at least some material about how often in a self-defense situation people actually fire a certain number of times.

[00:41:55] Speaker 02:
And that evidence is here as well.

[00:41:59] Speaker 02:
So the evidence shows that generally individuals rarely fire more than 10 rounds in a given period of time in a self-defense situation.

[00:42:07] Speaker 04:
Isn't that just the sort of...

[00:42:10] Speaker 02:
I don't want to say never, but the record shows that on average it's about two rounds in self-defense.

[00:42:18] Speaker 02:
And the vast majority involves just the mere brandishment.

[00:42:21] Speaker 04:
But that seems like it would be relevant if we were sort of balancing the interest in self-defense against the very substantial public safety interest.

[00:42:28] Speaker 04:
But I read Bruin as telling us not to do that sort of interest balancing.

[00:42:33] Speaker 04:
And it seems like you're taking the interest balancing that Bruin told us not to do and sort of

[00:42:38] Speaker 04:
you know, re-importing it under the rubric of determining whether this is an arm that's in lawfully, in common use for self-defense.

[00:42:48] Speaker 02:
So I do see that my time is up, and if I may address- To the question.

[00:42:51] Speaker 02:
Thank you, Your Honor.

[00:42:53] Speaker 02:
We are not asking this court

[00:42:54] Speaker 02:
to engage in interest balancing.

[00:42:56] Speaker 02:
We're not asking the court to weigh the fit between the assault weapon restrictions and the compelling government interests here, but we are asking the court to look at the character of the weapon in assessing the burden on the right to arm defense, which the Supreme Court explained in Bruin

[00:43:12] Speaker 02:
is one of the variables that the court looks at in comparing the modern regulation to the historic traditions.

[00:43:19] Speaker 02:
And we're also asking the court to look at the present-day justification for the assault weapon restrictions, which the Supreme Court has also identified as a relevant consideration.

[00:43:27] Speaker 00:
Also, while abjuring the kind of interest balancing that was happening before, does talk about the how and why of the

[00:43:43] Speaker 00:
historical examples and how they compare.

[00:43:45] Speaker 00:
So there is something like interest balancing going on in the Brunei analysis, it appears.

[00:43:53] Speaker 00:
In other words, they want to know what is the purpose of the restriction and how it's analogous to historical examples of regulation of similar weapons, or not even similar weapons, of weapons.

[00:44:09] Speaker 02:
That's right, Your Honor.

[00:44:11] Speaker 02:
The present-day burden on the right to armed defense and the justifications for the modern law, those are relevant considerations, but the Supreme Court has directed the inquiry not to comparing those today, but to comparing those variables to historical regulations.

[00:44:26] Speaker 02:
And we have shown that there are relevantly similar historic traditions that we are relying on here that show that the right to armed defense is not destroyed, like in Heller and Bruin, where the restriction was extremely onerous because of the type of restriction in restricting the quintessential self-defense weapon and in addressing a societal problem that existed at the founding and during Reconstruction, here under a more nuanced approach, especially

[00:44:52] Speaker 02:
We have shown that California's restrictions are historically justified, even assuming that the regulated assault weapons, each category, is presumptively protected, which they are not.

[00:45:03] Speaker 02:
Unless the court has any additional questions, we would ask the court to reverse.

[00:45:08] Speaker 02:
But again, we would not object if the court were to hold this case, preserving the status quo, while the Duncan-Onbonk proceeding is completed.

[00:45:16] Speaker 01:
All right, thank you very much, counsel, to both sides for your very helpful arguments today.

[00:45:20] Speaker 01:
The matter is submitted and we'll issue a decision in due course.

[00:45:26] Speaker 00:
All rise.

[00:45:35] Speaker 00:
This court for this session stands adjourned.