[00:00:33] Speaker 04: You may proceed. [00:00:35] Speaker 04: Good morning. [00:00:36] Speaker 04: It may please the court. [00:00:37] Speaker 04: Jerry Yen for the California Attorney General. [00:00:40] Speaker 04: I'd like to reserve three minutes for rebuttal. [00:00:44] Speaker 04: This case presents a facial Second Amendment challenge to a commercial regulation on the sale of firearms, which requires an individual to wait 30 days after they have purchased the firearm before they can purchase another one. [00:00:59] Speaker 04: The regulation seeks to disrupt the illegal firearms trade and make it more difficult for straw purchasers and prohibited persons from acquiring firearms. [00:01:08] Speaker 02: When the state decided to pursue this policy, was there any information or evidence in which they determined that a delay of 30 days would actually disrupt this practice of straw purchasers? [00:01:25] Speaker 04: Other states had passed similar [00:01:29] Speaker 04: regulations, and there were also some studies that showed that a 1 in 30 kind of regulation would disrupt the illegal firearms trade. [00:01:45] Speaker 02: I was wondering whether the source of the 30 days, is this an arbitrary number? [00:01:51] Speaker 02: Would you have the same effect if it were every 10 days, if it were 15 days, if it were 45 days? [00:01:56] Speaker 02: How did the state settle on 30, just following other statutes? [00:02:00] Speaker 04: Well, I think that that was a consideration for the legislature. [00:02:03] Speaker 04: But I think what we're looking at here is whether or not 30 days is within the scope of the Second Amendment and whether or not that is something that is presumptively protected. [00:02:18] Speaker 04: And in this case, the law doesn't limit the number of firearms that an individual can own. [00:02:25] Speaker 04: It just really controls the pace at which the firearms can be accumulated. [00:02:29] Speaker 02: Do you, and I agree with you, the way you put the question is correct. [00:02:34] Speaker 02: I was just curious about how the state had settled on that time period, but do you believe that the Bruin analysis applies? [00:02:45] Speaker 02: In other words, that this regulation falls within the plain text of the Second Amendment, and then we look to a historical analog? [00:02:54] Speaker 04: That's correct. [00:02:54] Speaker 04: The text and history standard that the Supreme Court has set out would apply here. [00:02:59] Speaker 04: And it is plaintiff's burden to show that it is at the first step that it is presumptively protected by the Second Amendment. [00:03:08] Speaker 04: And in this case, they haven't done so because this is an acquisition of firearms. [00:03:17] Speaker 04: And if we just purely based on the textual [00:03:22] Speaker 04: On the text of the Second Amendment, it doesn't mention anything about purchasing. [00:03:26] Speaker 04: It's keeping and bearing, and the Supreme Court has stated that keeping and bearing refers to possessing and carrying. [00:03:34] Speaker 02: But we've addressed that issue in two cases that I can think of, Tejeda and B&L Productions, and described acquisition as an ancillary right. [00:03:45] Speaker 02: So how does that affect the analysis? [00:03:47] Speaker 04: So that's correct, Your Honor. [00:03:49] Speaker 04: It is an ancillary right, and as an ancillary right, as B&L Productions [00:03:54] Speaker 04: states, there is some protection for ancillary rights, but it's a plaintiff's burden to provide evidence that any regulation that touches on ancillary rights would have a meaningful constraint or impair an individual from being able to exercise their core Second Amendment rights of possessing a firearm for self-defense. [00:04:19] Speaker 04: And in this case, we have plaintiffs that already have firearms, and they can't purchase a firearm and just have to wait 30 days before purchasing another one. [00:04:30] Speaker 04: So they are exercising their core Second Amendment rights. [00:04:32] Speaker 04: There's no dispute about that. [00:04:34] Speaker 00: Do I understand the state's argument to be that the Second Amendment guarantees the right to bear an arm, that it could be just one arm, and then your right is satisfied? [00:04:43] Speaker 04: Well, admittedly, Your Honor, the term arms is plural. [00:04:49] Speaker 04: But what we have in this case are plaintiffs who already currently own arms. [00:04:53] Speaker 04: And so they can purchase another one. [00:04:55] Speaker 04: So they are exercising that Second Amendment right of possessing multiple arms. [00:05:01] Speaker 00: And so this- I guess I wanna make sure I understand your answer. [00:05:04] Speaker 00: Is your answer that no, the state of California's position is not that the Second Amendment is satisfied so long as you can possess one firearm? [00:05:14] Speaker 04: So the Second Amendment right is encompassed in [00:05:20] Speaker 04: the fact that the arms is plural. [00:05:24] Speaker 04: So other courts have said that that means that you can possess more than one firearm, but that doesn't mean that you can acquire more than one firearm at a time. [00:05:35] Speaker 04: And so that's what we have in this case, is whether or not you can purchase multiple firearms within a 30-day period. [00:05:41] Speaker 04: You just have to wait 30 days. [00:05:43] Speaker 00: I mean, I get the temporal argument, and I understand why you make it. [00:05:47] Speaker 00: What I'm trying to figure out is if you had somebody who wanted to buy a firearm, wanted to buy two firearms for whatever, you know, maybe they have two homes and they want a weapon in both home for self-defense reasons, which would be core Second Amendment territory. [00:06:03] Speaker 00: And they don't have any already. [00:06:06] Speaker 00: There is a period of time that the state has said you don't get to do that. [00:06:10] Speaker 00: And how do you balance that with, if it's true that the Second Amendment covers the right to bear more than one firearm, how does that temporal limitation square with the Second Amendment? [00:06:25] Speaker 04: Well, this case is a facial Second Amendment challenge, so we know from Rahimi that the Supreme Court says that when you're faced with the Second Amendment challenge, we look at situations where it is constitutional and not at hypothetical situations. [00:06:39] Speaker 00: Well, that's fine, but I want you to address my question. [00:06:43] Speaker 04: with respect to that particular individual that doesn't have any firearms currently? [00:06:51] Speaker 04: Right. [00:06:52] Speaker 04: Okay. [00:06:52] Speaker 04: So if an individual does not currently have any firearms, there are other avenues to obtain firearms. [00:07:01] Speaker 04: For example, if there are regulations that allow for individuals to borrow firearms from [00:07:12] Speaker 04: other individuals. [00:07:13] Speaker 04: I mean, there's definitely certain regulations related to that, but there are other options to do that. [00:07:20] Speaker 04: And then if you have one and you need one for self-defense, there are also exceptions to the law that's being challenged, including if, for example, a firearm's lost or if you want to exchange a firearm. [00:07:37] Speaker 00: That doesn't really address the situation that I presented to you, though. [00:07:41] Speaker 00: I mean, and the other reason that I'm thinking about this is California has chosen a 30-day window of time to sort of space people out in acquiring firearms. [00:07:49] Speaker 00: But what if California had set a year? [00:07:52] Speaker 04: So Bruin does tell, that does give us some guideposts on waiting periods. [00:07:59] Speaker 04: And Bruin says that if it's a lengthy waiting period and it talks about exorbitant fees or if a challenged regulation, [00:08:07] Speaker 04: is put towards abusive ends, that would definitely get closer to something that is presumptively protected. [00:08:19] Speaker 04: So if we're talking about something that's a year, that would get obviously closer to the lengthy wait times that Bruin suggests would be presumptively protected, would implicate the Second Amendment. [00:08:36] Speaker 04: But that's not what we have here. [00:08:37] Speaker 04: We have a 30-day period, so it's really a really short waiting period from after you have a firearm to purchasing the next firearm. [00:08:46] Speaker 01: But getting back to the question that Judge Forrest asked, I'll change the hypothetical slightly. [00:08:50] Speaker 01: If I own a small liquor store and a gang is saying, you know, if you don't pay us protection, we're going to get you here or we're going to get you at your house. [00:08:58] Speaker 01: We're going to get you. [00:09:00] Speaker 01: So I say, but boy, I better have a gun in my store. [00:09:03] Speaker 01: I need to have a gun in my house. [00:09:05] Speaker 01: And I don't have any firearms. [00:09:06] Speaker 01: Under the state of California's rule, I could buy a gun to protect my store or my house, but I couldn't buy one for each, correct? [00:09:14] Speaker 01: And I'd have to wait 30 days. [00:09:17] Speaker 04: That's right, Your Honor. [00:09:18] Speaker 04: You would have to wait 30 days from when you purchased your first firearm to getting shot. [00:09:23] Speaker 01: So with that understanding, if the core right, the Second Amendment, is trying to protect is self-defense, then it seems to me that the law here is impeding that core right. [00:09:35] Speaker 01: I mean, there are other ways you can attack [00:09:38] Speaker 01: straw purchasing and bundling guns. [00:09:40] Speaker 01: I mean, I understand the state's interest in that, but in the hypothetical that Judge Forrest raised, I mean, that seems to be core Bruin conduct, the ability to defend yourself with a firearm either in your home or your place of work. [00:09:51] Speaker 01: How do we get around that in this case, unless you can point us to a historical analog? [00:09:57] Speaker 04: So if the court assumes that it is presumptively protected and that the plaintiffs haven't rebutted the presumption of lawfulness as a commercial regulation, then the state has provided a historical, robust historical record that supports the tradition of commercial regulations that [00:10:22] Speaker 04: that regulate the sale of firearms in order to prevent unauthorized and dangerous individuals from obtaining them. [00:10:32] Speaker 00: Except for the California law that we're talking about today isn't limited to unauthorized or dangerous individuals. [00:10:37] Speaker 00: It's every citizen of California or every person who tries to buy a gun in California. [00:10:41] Speaker 00: So you have some historical analogs for sure about identifying certain groups of people and assessing their dangerousness or their lawfulness or their [00:10:52] Speaker 00: whether they're good citizens and so on. [00:10:55] Speaker 00: But I'm looking through the record and I'm not seeing a whole lot of support for the idea that you can sort of space out somebody's exercise of their right or that you can, or historical analog say you can only buy one gun at a time. [00:11:08] Speaker 04: Well, I guess maybe the better way to think about it or the way that I think about it is it's really just a waiting period. [00:11:16] Speaker 04: So you wait, you're waiting 30 days, you already have a gun that you can use for [00:11:23] Speaker 04: to exercise the core right of self-defense, and then you wait another 30 days. [00:11:29] Speaker 02: But not under the hypotheticals that Judge Owens and Judge Forrest presented, because they're talking about a first-time purchaser. [00:11:36] Speaker 02: And as I understood your answer, that regulation would prevent a first-time purchaser from buying more than one gun at their first purchase. [00:11:43] Speaker 02: So they don't have a gun at all, but they can't have two to begin with. [00:11:46] Speaker 02: They have to get one, wait a month, and they could get another one. [00:11:48] Speaker 04: That's right, Your Honor. [00:11:50] Speaker 04: Again, we're really faced with a facial challenge where it's the plaintiff's burden to show that in no set of circumstances would it be constitutional. [00:11:57] Speaker 04: And we're talking about plaintiffs who already have firearms. [00:12:00] Speaker 04: And so since they already have firearms, they are exercising that course. [00:12:05] Speaker 02: But even under the analysis that you posited that this isn't within the plain text of the Second Amendment, it's not keeping bare arms, it's the ancillary right of acquisition. [00:12:15] Speaker 02: Then B&L and Tejera talk about whether that regulation meaningfully constrains the ancillary right to acquire a firearm. [00:12:25] Speaker 02: So these hypotheticals that have been presented seem to suggest that if you can't buy two firearms for self-defense, that's a meaningful constraint on your Second Amendment right. [00:12:38] Speaker 02: Even if we don't go to the historical analysis, how is this not a meaningful constraint? [00:12:45] Speaker 04: Well, it's not a meaningful extreme because so in in B and L productions and in. [00:12:52] Speaker 04: in Tishara, they provided some examples where something would be a meaningful constraint, where, for example, there's a ban in a particular region. [00:13:05] Speaker 04: That would be a meaningful constraint. [00:13:09] Speaker 02: So I agree with you. [00:13:10] Speaker 02: I think I know where you're going, that those cases were easier, right, because it was sort of a zoning thing where you [00:13:15] Speaker 02: you could get a gun 600 yards away. [00:13:17] Speaker 02: It was a different circumstance. [00:13:19] Speaker 02: Here we're talking about a temporal restriction, which is a little harder to pin down. [00:13:23] Speaker 02: And if you look at like McRory from the Fifth Circuit where they said 10 days is okay, that's the waiting period. [00:13:30] Speaker 02: So if we assume that that's correct, 10 days doesn't meaningful constrain your right to acquire a firearm. [00:13:36] Speaker 02: But a year does, 10 years does. [00:13:39] Speaker 02: Where do we go between, how do we make a limit between 10 days and a year? [00:13:46] Speaker 04: That's a good question. [00:13:48] Speaker 04: But I think in this case, the court doesn't need to draw a particular line saying, OK, well, [00:13:54] Speaker 04: well, a year is too long or a year is good enough. [00:14:00] Speaker 04: What we're faced here is really 30 days. [00:14:02] Speaker 04: And if we look at 30 days, that is really a short period of time. [00:14:05] Speaker 04: And other jurisdictions have passed similar laws. [00:14:09] Speaker 04: And in fact, New York City, for example, has a law that you can only purchase one firearm, one every 90 days. [00:14:15] Speaker 04: So 30 days is really a short period of time. [00:14:18] Speaker 04: If we look at, for example, in this particular case, this case has been pending since 2020, the plaintiffs would have been able to purchase dozens of firearms with that. [00:14:27] Speaker 00: Well, counsel, I mean, I'm trying to understand sort of a fundamental premise here. [00:14:32] Speaker 00: The Supreme Court has said that for Second Amendment cases, we can look by analogy to other [00:14:37] Speaker 00: rights that citizens have, including First Amendment rights, et cetera. [00:14:41] Speaker 00: It would be absurd to think that a government could say, you can only buy one book a month, because we want to make sure that you really understand the books that you read. [00:14:48] Speaker 00: Or you can only attend one protest a month, because there are some societal drawbacks to having protests, and so we want to space those out. [00:14:56] Speaker 00: People would say that's absurd. [00:14:58] Speaker 00: So if we conclude that you have a right to bear arms, [00:15:01] Speaker 00: And we conclude that that's not the right to bear an arm, but it could be plural. [00:15:06] Speaker 00: What is the basis in the law anywhere for the idea that you could say to someone, yes, you have this right, but we're going to control how frequently or how often you get to exercise it? [00:15:17] Speaker 04: Well, the historical analogs that we've presented do show that a robust record of commercial regulations that do [00:15:29] Speaker 04: have the ability to prevent dangerous individuals. [00:15:33] Speaker 04: Now, just for example, we'll take the intoxication laws. [00:15:38] Speaker 04: That is a temporal temporary [00:15:42] Speaker 04: banned basically on someone being able to obtain a firearm. [00:15:46] Speaker 04: They can't purchase a firearm while they're intoxicated. [00:15:49] Speaker 04: Once they are no longer intoxicated, they can purchase a firearm. [00:15:52] Speaker 02: But that's going to be presumptively less than 10 days. [00:15:56] Speaker 02: I mean, it's going to fall within what we would call a waiting period unless they're just, you know, a habitual drunkard. [00:16:01] Speaker 02: But, you know, they're not going to be drunk for 30 days. [00:16:04] Speaker 02: Right. [00:16:05] Speaker 02: So, I mean, it seems that's fleeting and would presumably be a much shorter period of time. [00:16:12] Speaker 04: I think the analysis here is whether or not it's relevantly similar and whether or not we're addressing issues that weren't of a concern back then during the founding. [00:16:27] Speaker 04: In this particular case, it doesn't need to be identical. [00:16:31] Speaker 04: It doesn't need to be, okay, well, they're going to see someone that's drunk for 30 days, and so then that's the limit. [00:16:38] Speaker 04: The idea is that it supports a principle of commercial regulations preventing people from obtaining firearms that are dangerous or unauthorized. [00:16:52] Speaker 04: And that's what we have here, is trying to prevent the ultimate transfer of firearms to those that are not authorized to possess or carry them. [00:17:05] Speaker 01: Do you want a reserve? [00:17:07] Speaker 04: Yes, I see that I am coming up on three minutes. [00:17:11] Speaker 01: We'll give you five for rebuttal. [00:17:13] Speaker 01: Okay, thank you. [00:17:13] Speaker 01: All right, thank you. [00:17:33] Speaker 03: Good morning police the court Raymond D Giuseppe on behalf of appellees plaintiff. [00:17:40] Speaker 03: I had had a number of points to raise just an introduction it's more of a summary of what we've already argued so I don't know that I need to put a lot of time into that as your honor pointed out no need to use time if not necessary I thought [00:17:53] Speaker 03: instead of repeating what you already know our position is that the plain language covers it there's not a presumptive lawfulness of this law and if there is it's easily rebuttable and there are no historical analogues analogies that would apply that's all in place I think jumping to the point that Justice Forrest raised that it would be absurd in the First Amendment context to imply some kind of rule like this which says that you can only buy X number or I'm sorry no more than one [00:18:23] Speaker 03: printer press, no more than one pack of paper, no more than one cartridge, can't access Facebook more than once a month. [00:18:32] Speaker 03: We're not going to allow those things to occur any more than once a month on the notion that somehow it's necessary in order to control what you might do, what might happen, dangers that might occur if that is allowed more frequently. [00:18:48] Speaker 03: Clearly the innovation of technology and the advancement of technology in terms of the decimation of information and distribution of information in the informational realm is extraordinary from the time of the founding. [00:19:02] Speaker 03: And the government isn't accorded greater leniency, power, regulatory strength, and going after individuals to curtail their rights simply because they can now potentially cause more harm [00:19:16] Speaker 03: and these various four that are available to promote or decimate free speech that is harmful in some way, incendiary or libelous. [00:19:27] Speaker 00: Can I ask you about the Ninth Circuit's discussion about ancillary rights? [00:19:31] Speaker 00: The Supreme Court hasn't done that, hasn't talked about ancillary rights. [00:19:35] Speaker 00: We have in a couple of cases. [00:19:37] Speaker 00: And I think some people question whether our discussion and development of that issue survives the Supreme Court's reasoning in its string of recent cases. [00:19:45] Speaker 00: What's your position on that? [00:19:47] Speaker 03: I think that's a great insight and going straight to B&L productions, for example, I think that there are some major problems with the way that that is designed and in part because, I mean, to the extent that Tashira did engage in a discussion about meaningful impact or meaningful effect, meaningfully constrain a right, that would have been displaced by Bruin [00:20:13] Speaker 02: But that's a problem for us as a three-judge panel, because Tejero's 2017, and then you have Bruin in 2022, but then Beano Productions is June 2024. [00:20:26] Speaker 02: So we can't overrule a prior three-judge panel decision, and that's what's troubling me, is that the language of that decision says, [00:20:35] Speaker 02: This is an ancillary right and recognize that without the right to acquire firearms, the right to keep and bear firearms would be meaningless. [00:20:43] Speaker 02: So there is some protection but we haven't fully delineated it and then they go back to meaningfully constrained. [00:20:49] Speaker 02: But there's no jump to the next step of doing the historical analysis. [00:20:53] Speaker 02: Now I don't think that necessarily dictates the outcome because there's still certainly an argument as we were exploring with your friend on the other side that [00:21:04] Speaker 02: a limit of one gun every 30 days is nonetheless a meaningful constraint. [00:21:08] Speaker 02: But my question was the same as what Judge Forrest was asking. [00:21:12] Speaker 02: Do we even get there? [00:21:13] Speaker 02: Do we follow Tejera and B&L as our binding precedent? [00:21:18] Speaker 02: And we have to look at this as whether it's a meaningful constraint. [00:21:21] Speaker 03: i think it even if we look at it that way uh... one thing to think keep in mind about bnl is that at the outset the plaintiffs conceded the fundamental issue that it did not present a meaningful constraint arguably then the analysis and discussion about whether and to what extent there was a meaningful constraint is not even necessary and potentially dicta you can look at it that way but that would be fairly aggressive [00:21:46] Speaker 03: might be but how about an easier way to get there yeah well that's one way of conceiving it but you know the other side of it is that meaningfully constrained here you have concession not only by the plaintiffs that there was no meaningful constraint in that context but even if we get into the business that we shouldn't be about placing this relative burden analysis into the textual side then [00:22:15] Speaker 03: There, what you have is a situation where, kind of like in Tishira, where even though there may have been a prohibition on the particular context of purchase, people could step right outside and complete their purchase anywhere around in that same area. [00:22:29] Speaker 03: There wasn't any, as conceded in V&L by the plaintiffs themselves, any meaningful delay in the ability to actually acquire an arm. [00:22:38] Speaker 03: because they can make a decision about what they wanted to buy and just leave the gun show and go buy it elsewhere. [00:22:44] Speaker 03: And not to say that we think that that's proper, obviously, but because the law was challenged. [00:22:50] Speaker 03: But I think it's distinguishable in that respect here and wouldn't be controlling. [00:22:56] Speaker 02: Would you agree that a 10-day delay would be acceptable and would not be a meaningful constraint on the Second Amendment, right? [00:23:07] Speaker 03: I think we have to be careful about the delay business and tying it to what we have here, because the 10-day delay and the waiting periods that are out there, including Californians, are promoted by a different purpose. [00:23:18] Speaker 03: It's a cooling-off period. [00:23:20] Speaker 03: That was the reason behind the legislature's action there. [00:23:23] Speaker 02: Which is similar to not selling a firearm to somebody who's intoxicated, right? [00:23:27] Speaker 02: But nonetheless, so we have McRory's fairly recent Fifth Circuit decision saying, look, these waiting periods while you're going through background checks, that's okay. [00:23:37] Speaker 02: That's a constraint on your right to immediately acquire a firearm, but the 10 days is going to be acceptable. [00:23:46] Speaker 02: My question to you is the same as to your friend. [00:23:48] Speaker 02: 10 days might be acceptable. [00:23:50] Speaker 02: A year would not. [00:23:52] Speaker 02: A decade certainly would not. [00:23:54] Speaker 02: Where do you draw the line? [00:23:55] Speaker 02: And how do you decide 30 days is a meaningful constraint? [00:23:59] Speaker 03: Right. [00:24:00] Speaker 03: Well, again, I think that we need to think about the waiting period differently from the law we have here because the law we have here is being put forth with a different purpose behind it and tying it to law-abiding citizens when there's no indication of any problem or danger that they pose. [00:24:17] Speaker 03: But with the 10-day delay or any delay beyond that, [00:24:22] Speaker 03: One thing that you were asking about initially was how do we draw the line and what about five days, what about 40 days, what about 10 days? [00:24:32] Speaker 03: And there were studies and I think we went through it in depth in the briefing and to show that actually the 30 day OGM law is not effective to the extent that this matters. [00:24:42] Speaker 03: There was plenty of evidence to show that a five or seven day or other delay period was just as effective to the extent that we should even consider that. [00:24:52] Speaker 03: But when it comes to there being a meaningful impact here, in the V&L case, we're talking about the ability to actually consummate a sale and also in the 10-day wait period. [00:25:10] Speaker 03: In the 10-day wait period, you have [00:25:12] Speaker 03: I've been allowed to consummate a sale to make a sale or make a purchase, that is. [00:25:16] Speaker 03: And in this situation, there's a prohibition on the act of the purchase itself. [00:25:20] Speaker 03: You can't even initiate the sale because of this law which says that you're not qualified to buy more than one in a given month. [00:25:30] Speaker 03: That presents a different scenario than just the delay. [00:25:34] Speaker 03: And it's important, too, and it's been raised a couple of times to remember that [00:25:40] Speaker 03: What this law is doing is targeting law-abiding individuals. [00:25:43] Speaker 03: So if we were to get, for example, to the historical side of things, which we definitely should, then all of the laws that have been put forth are actually, they were designed at that time, at the time of the founding and even thereafter, to protect law-abiding citizens from the dangerous people out there. [00:26:02] Speaker 03: wouldn't be much different than the laws today that say that felons and mentally ill people can't have firearms. [00:26:07] Speaker 03: That's what we see all the time. [00:26:08] Speaker 02: It doesn't actually target the problem of straw purchasers, which would not be a law-abiding person. [00:26:16] Speaker 02: If you're buying numerous firearms to sell them to a prohibited possessor, you are then breaking the law. [00:26:21] Speaker 02: But it has the ancillary effect of impacting law-abiding citizens. [00:26:25] Speaker 02: So they're not the target, but they are certainly affected. [00:26:28] Speaker 03: That's right, but all the analogs that have been put forth are targeting those who are bad actors. [00:26:33] Speaker 02: There's troubling analogs based on race. [00:26:38] Speaker 02: They had restraints to try to keep people from trading or selling firearms to Native Americans. [00:26:46] Speaker 02: those those designed to target bad guys as you put it i mean they it seems similar that it's having the ancillary effect that people would be law abiding would not be able to go out with i think the virginia statute you couldn't go outside of three miles outside of an english encampment with a firearm right which was the intent was to restrain prohibit the right of those who were [00:27:09] Speaker 03: of concern to not acquire really any firearms, much less one or however many a given month. [00:27:15] Speaker 03: It was to prevent them, you know, the Native Americans and those who were perceived as being a danger, from acquiring firearms at all. [00:27:22] Speaker 03: It wasn't to do anything to law-abiding people. [00:27:25] Speaker 03: There was absolutely no evidence at any time that law-abiding citizens were ever restrained in their ability to acquire. [00:27:32] Speaker 00: Well, there's another wrinkle to that historical information, too. [00:27:35] Speaker 00: I mean, the laws that were restricting Native Americans and foreigners, et cetera, were not part of the sort of political populace. [00:27:42] Speaker 00: And here, we're talking about a law that [00:27:45] Speaker 00: that is squarely governing the political populace of we the people. [00:27:48] Speaker 00: So there's a lot of problems with some of this history. [00:27:54] Speaker 03: That's absolutely true, Your Honor, and I think that on the textual question to the extent there's a concern about that with B&L, I think that there is a meaningful constraint here insofar as the impact on the right as articulated within the amendment itself that [00:28:16] Speaker 03: Keeping in mind that Heller specifically said that keeping in bearer to keep means to essentially have. [00:28:22] Speaker 03: They looked at dictionary definitions from that time that keep means to have and to have is part and parcel of acquiring. [00:28:31] Speaker 02: I'm sorry to interrupt you. [00:28:32] Speaker 02: Since you've raised Heller, Heller had the comment that [00:28:38] Speaker 02: Did not intend to obviate or disallow commercial regulation was one of the categories How do we define commercial regulation is this a commercial regulation it's limiting sales, you know, that's a commercial transaction and [00:28:57] Speaker 03: I mean, that's an important question, and it helps us, I think, understand better how BNL works in this context, because a lot of the reason why BNL found that there was no textual coverage of this particular activity, which, again, we say is different than the one that issued, but setting that aside is to say that it was a commercial regulation, right? [00:29:17] Speaker 03: And what we have here, I think, is [00:29:21] Speaker 03: It's not a regulation or a condition on a sale. [00:29:27] Speaker 03: It is a prohibition of a sale. [00:29:29] Speaker 03: The sale cannot occur. [00:29:30] Speaker 03: It is not placing a condition on the act of a sale. [00:29:34] Speaker 03: It's prohibiting the sale. [00:29:35] Speaker 03: It's not a condition by itself. [00:29:38] Speaker 03: Going back to Peña and Judge Bybee. [00:29:45] Speaker 03: Yeah, her opinion in that case where she discusses what this means, I think she's right when she says that that really goes to things like licenses and taxes and things of that nature, not what we have in front of us, which is literally just a restriction on the frequency or the ability to buy at all within the context of firearms purchases. [00:30:07] Speaker 02: Well, I agree with you that a commercial regulation could not be construed such that it's a complete prohibition. [00:30:13] Speaker 02: You couldn't just commercially regulate the sale of all firearms in California. [00:30:17] Speaker 02: You can't buy a firearm in California ever, right? [00:30:20] Speaker 02: So that's one extreme. [00:30:21] Speaker 02: But this is not that extreme. [00:30:23] Speaker 02: This is maybe the other end. [00:30:24] Speaker 03: The difficult part of it, though, is that if we subscribe to it and adopt that kind of rationale and say that we can do it because it's just a restriction on the when, not the if, but the when. [00:30:35] Speaker 03: Well, the when, as your honor said, could be a year later or 10 years later. [00:30:38] Speaker 03: There's nothing to pin it down to say that if 30 days is OK, why isn't six months or a year? [00:30:46] Speaker 03: Because the idea behind all of it is that we're just targeting the when, and therefore it's a condition in the commercial. [00:30:52] Speaker 03: So we can't look at it that way. [00:30:54] Speaker 03: That puts us into a very dangerous spot. [00:30:57] Speaker 03: And it also takes us back, I think, to the general concern here that the government's theory here is all based upon the idea that you can allow this to occur because we're trying to prevent guns from getting to the hands of wrong people. [00:31:13] Speaker 03: That would apply to virtually everything. [00:31:16] Speaker 03: And that's being used here in a two-dimensional way, both in the textual argument to say that there's really no textual problem. [00:31:22] Speaker 03: There's no implication to the Second Amendment. [00:31:24] Speaker 03: unless there's an actual total prohibition on the right to purchase. [00:31:30] Speaker 03: And on the historical side it's, well, we can find history as long as we're looking at the very general idea of a regulation that was intended to keep firearms out of the hands of people that we know are dangerous. [00:31:41] Speaker 00: Can I ask, I want to switch gears just slightly and get your position on this language in Bruin about the nuanced approach. [00:31:49] Speaker 00: And I think the sentence is, cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. [00:31:58] Speaker 00: And then Rahimi references that as well. [00:32:00] Speaker 00: How do you read that? [00:32:01] Speaker 00: Do you think that the Supreme Court is saying that in that context the analysis is different or do you think the Supreme Court is saying that in that context the analysis is harder? [00:32:12] Speaker 03: I think that it's saying that sometimes the analysis may be harder. [00:32:16] Speaker 03: I think that's what it's saying. [00:32:18] Speaker 03: And they left a lot open with that. [00:32:19] Speaker 03: I know it doesn't answer that. [00:32:20] Speaker 00: I mean, there are circuits that have said, we think that the analysis is different. [00:32:23] Speaker 00: Right. [00:32:25] Speaker 03: Well, if we say it's different, and we don't know what the different is because it hasn't been defined, if we just understand it to be something like what the government here is trying to get from us, [00:32:37] Speaker 03: Just a more lenient more flexibility, more wiggle room, so to speak, whatever that means. [00:32:43] Speaker 03: And that's essentially what's happening here with the theory that we can reach to pull from and extrapolate. [00:32:51] Speaker 03: laws in the past that just simply went after the general concept of trying to prevent guns from getting to the hands of the wrong people, okay? [00:32:59] Speaker 03: Let's go with that and say that's the nuanced, lenient version of whatever nuance means, okay? [00:33:07] Speaker 03: If that's true, at the end of the day, Rahimi and Perez Garcia both reiterate that fundamentally you have to still show relevant similarity. [00:33:19] Speaker 03: in the two basic ways, the how and the why. [00:33:23] Speaker 03: You've got to have both of those, right? [00:33:26] Speaker 03: They all break down to that most elemental level. [00:33:29] Speaker 03: So you at least have to have relevant similarity. [00:33:32] Speaker 03: Maybe we're not going to say it has to be distinctly similar, as we might be able to say, which I think we could say in this context, because [00:33:41] Speaker 03: We can see that in the history that the prior generations already dealt with this problem in a materially different way. [00:33:47] Speaker 03: And Bruin says that in that situation, we look for a distinctly similar analog. [00:33:54] Speaker 03: Fine, let's just set that aside. [00:33:55] Speaker 03: We don't even need that. [00:33:56] Speaker 03: Let's just look for something that is at the most elemental level, similar in the way that it is [00:34:05] Speaker 03: attacking the same thing based upon the same how and the same why and we don't have that anywhere in the record so I think my answer to your question your honor is I don't really know what nuanced means because we haven't been told with clarity but what I'm saying is it doesn't really matter because even if we give them the greatest amount of leeway possible and look for the [00:34:26] Speaker 03: most general form of history in terms of the tradition and Say that they don't have to show anything other than basic relevant similar similarity in the how and the why It's not there and you have to have both the how and the why even if you could say That the why is the same for the analogs that have been put forward and they're really not [00:34:47] Speaker 03: What about the how? [00:34:48] Speaker 03: The how is different. [00:34:49] Speaker 03: In every situation, it's different because it doesn't go after law-abiding citizens. [00:34:54] Speaker 03: It doesn't put any restraints on law-abiding people and their ability to acquire the number, the frequency of arms, period. [00:35:02] Speaker 03: It's not our position to judge this, what the founding had [00:35:08] Speaker 03: decided in terms of not putting a limit on things. [00:35:11] Speaker 03: I think the questions too about, well, hypotheticals. [00:35:15] Speaker 03: This is a facial challenge, and we've got to make sure that there aren't any hypothetical scenarios that could be constitutional, because if so, then it's necessarily not unconstitutional. [00:35:27] Speaker 03: Well, even if we, again, give the government the greatest benefits out here, and look at our people, for example, any one of our plaintiffs, yeah, they have multiple firearms, sure. [00:35:37] Speaker 03: But the problem is, and the reason why it's a facial issue, it's an all or nothing thing, is that any one of them at any given time could have a scenario like your honor raised earlier about you receive a threat. [00:35:50] Speaker 03: Maybe you work inside of a store and you receive a threat from a gang, and you have guns at home and you have guns for certain purposes, but you don't have one in your store. [00:35:59] Speaker 03: or you don't have one at home and you had a recent threat, situations change. [00:36:04] Speaker 02: People need to have... But you could move a gun from location to location. [00:36:07] Speaker 02: Well, I'm saying that you could... I think it's in Tejeda, there's a line that the... Or maybe it's a different case, but that it's not... The Constitution doesn't protect inconvenience, right? [00:36:21] Speaker 02: So the difference between whether it's inconvenient or whether it's unconstitutional. [00:36:24] Speaker 03: But we have to accept, and we do accept, that this is a facial challenge. [00:36:29] Speaker 03: And what I'm saying is that there is not a circumstance in which this is constitutional, because even a such person who has already multiple firearms at his disposal might be in a position where [00:36:44] Speaker 03: in order to exercise the right to self-defense, he or she would need to acquire another firearm, and it's prohibited from doing so because of prior purchase activity. [00:36:54] Speaker 03: You know, maybe the person went and bought recently a rifle, a semi-automatic centerfire rifle for hunting, but doesn't have a self-defense gun at home or at work or whatnot, and wouldn't be able to do so. [00:37:09] Speaker 03: So, nobody's hiding from the facial side of it. [00:37:13] Speaker 03: I think Rahimi, that was a big thing because we had this individual set of circumstances with an individual person and it was very clear. [00:37:21] Speaker 03: I mean, Rahimi was a very clear case and easy, you know. [00:37:25] Speaker 03: Here, we're not going to shy away from that. [00:37:27] Speaker 03: There's nothing to hide from. [00:37:28] Speaker 03: I mean, the law is constitutional or it's not constitutional. [00:37:32] Speaker 03: And if it's not constitutional, it's for the same reasons as it is to everyone. [00:37:36] Speaker 03: And it's because it's covered by the text. [00:37:38] Speaker 03: And there are no historical analogs that would even come close to supporting it. [00:37:44] Speaker 01: I'm going to take you a little over time. [00:37:46] Speaker 01: But since I'm in the middle chair, I get to do that. [00:37:49] Speaker 01: So there's one part of the statute. [00:37:51] Speaker 01: This may seem like a softball question. [00:37:53] Speaker 01: But there's one part of the statute in review that really kind of jumped out to me. [00:37:57] Speaker 01: And it wasn't in the briefing. [00:37:58] Speaker 01: And it hasn't been discussed today. [00:37:59] Speaker 01: So maybe I'm missing something. [00:38:01] Speaker 01: But under 27535B6, there's this exception for movie studios. [00:38:10] Speaker 01: And I'm just trying to understand, when we analyze this case, if it was before Bruin, when we were applying intermediate scrutiny or whatever we were doing, to me that would seem very relevant that this statute was bad. [00:38:25] Speaker 01: because you're telling ordinary people no, but if you're a movie executive or a production manager for a movie company, you can buy as many guns as you want. [00:38:37] Speaker 01: So under the old regime, this would be very troubling to me. [00:38:41] Speaker 01: Under the new regime with Bruin and Brahimi, do we apply any level of scrutiny when we see kind of random exceptions like this, or does it not matter because we just do the historical analog? [00:38:55] Speaker 03: I think it does undermine the state's position so far as we get to the point where we're looking at what the justification is, right? [00:39:01] Speaker 03: I mean, it undermines the notion that this is really needed for what they claim it is. [00:39:05] Speaker 03: It's not needed. [00:39:06] Speaker 03: As pointed out in our briefing, there is a litany of laws that cover this already. [00:39:10] Speaker 03: And so I think it does help us in undermining what it's really all about. [00:39:15] Speaker 03: And secondly, note as well, if I could quickly throw in the point about exceptions, there was a lot of emphasis previously by the state about the private party purchase exception. [00:39:25] Speaker 03: Well, that's now being erased along the line. [00:39:28] Speaker 03: It won't be available anymore, so they can't rely upon that. [00:39:30] Speaker 03: I don't think it's appropriate to be looking at the other avenues and whatnot for all the reasons already stated, because it's not about what the government's still allowing. [00:39:38] Speaker 03: It's what about what it's taken away. [00:39:40] Speaker 03: But the private party exception is gone, and they used to rely very heavily on that as the, oh, it's no big deal. [00:39:46] Speaker 03: not only can they just buy what they want every 30 days, but they could also go get it from, you know, Joe Blow or Joe Lunchbox or whatnot. [00:39:54] Speaker 03: It doesn't even exist anymore. [00:40:00] Speaker 03: Or I should say as of January 1st. [00:40:02] Speaker 03: Right, 2020, yeah, the new legislation. [00:40:05] Speaker 01: All right, thank you very much, Council. [00:40:06] Speaker 01: Thank you. [00:40:06] Speaker 01: Since we went overtime, let's give him seven. [00:40:09] Speaker 01: So it'll be even, Stephen. [00:40:27] Speaker 04: Just going back to your honor's question about the exceptions, I would just point out it's not in the excerpts of record, but there is an explanation in the pre-Bruin filings that one of our experts looked at. [00:40:41] Speaker 04: Actually, it would be in one of our, one of our experts discussed that movie exception, and there was, there's just nothing in the record that shows that [00:40:51] Speaker 04: that firearms that were purchased as props were fed into any kind of illegal firearms trafficking or anything like that. [00:40:58] Speaker 04: So that's part of the reason for that exception. [00:41:02] Speaker 04: Anyways, I'd like to go back to just the conditions and qualifications on firearms, on the commercial regulations. [00:41:12] Speaker 04: So this is a condition. [00:41:15] Speaker 04: You purchase a firearm so that then that starts the, [00:41:19] Speaker 04: the clock, the time period, and so that's the condition. [00:41:23] Speaker 04: And then you have to wait that 30 days. [00:41:24] Speaker 04: So once you wait that 30 days, that condition is satisfied and you can purchase another firearm. [00:41:29] Speaker 04: So it is a condition. [00:41:31] Speaker 04: And as Judge Bybee says, it's a win. [00:41:37] Speaker 04: I don't think there's any dispute that this is a commercial regulation. [00:41:39] Speaker 04: The plaintiffs have admitted as much in their briefings. [00:41:43] Speaker 04: characterizing this as a commercial sale and purchase, a law regulating commercial sale and purchase, and it is a condition. [00:41:53] Speaker 04: In terms of the First Amendment aspect of it, I would point out that the Second Amendment analysis from Bruin, it's a very different analysis now compared to the First Amendment. [00:42:09] Speaker 04: And so we're looking at different things. [00:42:11] Speaker 00: I'm not sure that's entirely true. [00:42:12] Speaker 00: In the First Amendment, we also look to history and we try to get a sense of what people's [00:42:16] Speaker 00: speech rights were and what was historically understood about that. [00:42:21] Speaker 00: So it's not a perfect match, I give you that, but there are some strains of analysis that are similar. [00:42:27] Speaker 04: That's correct. [00:42:28] Speaker 04: I wasn't trying to imply that it's a completely different analysis. [00:42:32] Speaker 04: There are certain aspects that are similar, but it is still a little bit different. [00:42:38] Speaker 04: And especially when we're looking at the [00:42:43] Speaker 04: Trying to move away from the means ends and the interest balancing as to and so that goes to towards more of well, you know, how do we say that 30 days is enough to [00:42:58] Speaker 04: have an effect or 60 days better or 10 days, that's all going back to interest balancing that we're trying to keep away from. [00:43:06] Speaker 04: And so I think the issue here is whether or not a 30-day waiting period impedes their ability to exercise their core right of possessing a firearm for self-defense. [00:43:20] Speaker 04: And it's their burden to show that it is, and they haven't done that here. [00:43:25] Speaker 04: In terms of just the waiting period aspect of it as well, the waiting period is not just a cooling off period. [00:43:35] Speaker 04: It's also a period where the states can run background checks to make sure that individuals are authorized to purchase and possess firearms. [00:43:45] Speaker 04: And so that is also an aspect here. [00:43:48] Speaker 00: Is there evidence in the record that that's how this works? [00:43:50] Speaker 00: I come in and I buy my first gun, no problem, and I walk out with it. [00:43:55] Speaker 00: I mean, there are other regulations at play, so whatever those require happened. [00:44:01] Speaker 00: But then at that same moment, I can sort of start the transaction for the next gun I want to buy that I won't get to take home for 30 days. [00:44:08] Speaker 00: And in that interim period, the state's investigating me. [00:44:11] Speaker 00: That was not my understanding of how this worked. [00:44:13] Speaker 04: The actual specific logistics is slightly different. [00:44:20] Speaker 00: There's no background check going on in this 30-day period. [00:44:23] Speaker 00: It's just that you can't even do a transaction. [00:44:26] Speaker 00: with this during this window of time. [00:44:29] Speaker 00: So I don't understand your argument that this window of time is helping the state sort of figure out if we're going to have good people having guns or not. [00:44:36] Speaker 04: No, so I'm not saying that. [00:44:37] Speaker 04: So a couple of points, Your Honor. [00:44:40] Speaker 04: One is, so there is the background check waiting period, which is 10 days from when they purchase it. [00:44:45] Speaker 04: and that's part of the 30, that would be within that 30-day period. [00:44:50] Speaker 04: But setting that, the mechanics aside for a moment, I'm not saying that the 30 days in this case is the exact same thing, I'm just saying that it's pretty, it's similar, it's a similar rationale in terms of ensuring that individuals that are authorized and that are, [00:45:12] Speaker 00: dangerous, the ones that are dangerous are not obtaining these firearms and... Well, the dissimilarity is for the waiting periods, you could be, you could have had a transaction for the purchase of three firearms and you're gonna have the waiting period and all the requirements that you have to meet for background checks, et cetera. [00:45:30] Speaker 00: And here, you're only be able to do the one transaction. [00:45:34] Speaker 00: So it's a, I mean, it's a temporal limitation, but of a different character. [00:45:39] Speaker 00: And if you have a right, [00:45:41] Speaker 00: to possess more than one firearm. [00:45:43] Speaker 04: I come back to how does that square? [00:45:51] Speaker 04: in the situation again in the majority of situations and like in this case the people that are purchasing firearms already are exercising their right because they already have at least one arm and so then they're purchasing another one and then it's just really just waiting that 30 days the short period of time and that is really targeted to you know the people that are [00:46:17] Speaker 04: could buy in bulk and then turn around and sell them on the black market. [00:46:22] Speaker 04: The studies have shown that that's what happens a lot of times when [00:46:29] Speaker 04: people buy in bulk, a lot of those guns end up getting into the hands of people who shouldn't have them, that they end up used in crimes. [00:46:39] Speaker 04: So that's where it's hard. [00:46:40] Speaker 04: And I understand, Your Honor, that you're saying that also that it's, it applies to all individuals. [00:46:46] Speaker 00: And so all, anyone who- Also, I mean, is buying two buying in bulk? [00:46:53] Speaker 00: Arms traffickers buy two at a time? [00:46:55] Speaker 00: It seems like no. [00:46:56] Speaker 04: I don't know the answer to that question, but I don't think that that's the analysis that we have to look at here. [00:47:03] Speaker 04: It's more of whether or not being able to limit someone to purchasing one gun in 30 days is [00:47:14] Speaker 04: And we don't even need to go there, actually. [00:47:16] Speaker 04: We don't even know if it's effective, because then we don't want to go back to interest balancing and the means and scrutiny. [00:47:23] Speaker 04: It just really is whether or not the state, the governments can regulate measures that are designed to prevent unauthorized individuals from obtaining those firearms. [00:47:35] Speaker 04: And the state is [00:47:37] Speaker 04: uh, can adopt a variety of measures that, uh, that help protect the public within the scope of the second amendment. [00:47:45] Speaker 04: And I think that this case does that here. [00:47:48] Speaker 01: All right. [00:47:48] Speaker 01: Thank you very much, counsel. [00:47:50] Speaker 01: Uh, thank you to both of you for your very strong advocacy and briefing this case. [00:47:54] Speaker 01: Very interesting case. [00:47:56] Speaker 01: This matter is submitted and this panel is done. [00:47:58] Speaker 01: These two will be back tomorrow, right? [00:48:00] Speaker 01: I won't be. [00:48:01] Speaker 01: All right. [00:48:17] Speaker 02: This court for this session stands adjourned.