[00:00:06] Speaker 02: Good morning and may it please the court. [00:00:08] Speaker 02: Micah Moore for the Attorney General. [00:00:10] Speaker 02: With the court's permission, I'd like to reserve three minutes for rebuttal. [00:00:13] Speaker 02: Please watch the clock. [00:00:16] Speaker 02: The challenge laws require California residents to pass a background check before they can acquire ammunition, just like they must to acquire firearms. [00:00:24] Speaker 02: Those background checks allow the state to confirm that those who receive ammunition can lawfully possess it. [00:00:29] Speaker 02: Plaintiffs in this case don't challenge the premise that governments can disqualify certain individuals from possessing ammunition. [00:00:35] Speaker 02: Their core theory is instead that the background check requirement violates the Second Amendment on its face. [00:00:41] Speaker 02: That theory fails. [00:00:42] Speaker 01: Council, I want to interrupt you here. [00:00:44] Speaker 01: I just want some clarification. [00:00:45] Speaker 01: Is it clear that this is a facial challenge? [00:00:48] Speaker 02: Yes. [00:00:48] Speaker 02: I think plaintiffs can speak for themselves, but they've confirmed in their answering brief that this is a facial challenge to the background check requirements. [00:00:55] Speaker 01: I saw in the prayer for relief that they said that it was a facial challenge and, alternatively, an as-applied challenge. [00:01:04] Speaker 01: But I didn't see anything in any of the pleadings that suggested that there was anything particular to these plaintiffs. [00:01:11] Speaker 02: I think that's correct, Judge Bybee. [00:01:12] Speaker 02: There's nothing in the complaint that suggests that this challenge is limited to the facts, and of course— Did the district court acknowledge that this was a facial challenge? [00:01:19] Speaker 02: Yes. [00:01:19] Speaker 02: Well, the district court enjoined the statutes in their entirety, and I don't think there's anything in the district court's order that suggests that the injunction only runs as to particular plaintiffs or facts. [00:01:29] Speaker 01: But why are we considering all of the statistics if this is an on-its-face challenge? [00:01:34] Speaker 02: I think because if it's a facial challenge, the plaintiff's burden would be to show that the statute is unconstitutional in—there's no set of circumstances under which the ammunition— But in that case, why do we even bother with looking at, for example, the wait times or the denial rates or the rejection rates? [00:01:51] Speaker 02: I think because the Supreme Court has suggested in Bruin that if you have a background check requirement that's being applied in an abusive manner, and I think if there were features of the scheme that run from the statutes that are causing it to be applied in that way, then that would be a- But wouldn't that be an as applied? [00:02:07] Speaker 01: If California said you have to pass the test and the test was taking 60 days, [00:02:21] Speaker 01: then we might say it's abusive. [00:02:23] Speaker 01: And if the regulation said 60 days, that might not be on its face. [00:02:26] Speaker 01: That might be an as applied challenge, wouldn't it? [00:02:29] Speaker 01: Or if there turned out to be unusual wait times in application, that feels like that would be an as applied challenge. [00:02:36] Speaker 02: I certainly agree that there's aspects of plaintiff's challenge that sound as if they would be more properly brought as applied challenge. [00:02:43] Speaker 02: But I understand, and they can correct me if I'm wrong, their argument to be is that there's an inherent risk [00:02:48] Speaker 02: anytime anyone submits to a background check that they're going to experience one of these issues or run into long wait times and the fees themselves are prescribed by regulation. [00:02:58] Speaker 01: In an on its face challenge, are we looking to see whether any person in California might be subject to an abusive time or an excessive wait time? [00:03:10] Speaker 01: No. [00:03:11] Speaker 01: Or are we looking for something else? [00:03:12] Speaker 02: I think in a facial challenge, they would have to show that there's no set of circumstances in which the statute can be applied in a constitutional way. [00:03:19] Speaker 02: I do think that the record suggests that their facial challenge fails because what the record shows is that in the overwhelming majority of instances, people are able to get the background check completed in less than a minute. [00:03:30] Speaker 02: And so I don't think that's the kind of, I think this discussion is revealing that their facial challenge might fail on the merits, but that wouldn't speak to any future as applied claim that someone might bring if they do run into [00:03:41] Speaker 02: different situation. [00:03:42] Speaker 01: Thank you. [00:03:46] Speaker 02: And so, you know, I think this is a challenge that Bruin has provided some recent and compelling guidance on. [00:03:52] Speaker 02: Bruin suggested that shell issue licensing requirements don't violate the First Amendment, the Second Amendment. [00:03:57] Speaker 02: Unless if they are applied in an abusive manner, the Supreme Court just gave two examples of one example could be if the background check requirements require exorbitant fees. [00:04:06] Speaker 02: The other could be if they require lengthy wait times that are so long with the amount to a denial of Second Amendment rights. [00:04:13] Speaker 04: What difference does it make that in order to have an operational gun, basically, because you need ammunition to be operational, you have to do it every time you want ammunition as opposed to maybe a year you have to renew it or the like? [00:04:31] Speaker 02: I think that's certainly something that the court can take into account in evaluating whether the background check requirements are abusive, but I don't think that that fact alone can change the result here where the record reflects that even if you are submitting to the background check multiple times to purchase ammunition, [00:04:48] Speaker 02: And each instance you do so, it's most likely going to take less than a minute to complete. [00:04:53] Speaker 02: And so I don't, I just don't think that that fact alone can change what the record shows. [00:04:59] Speaker 04: Something else that I also think is meaningful is that- Are you, when you say less than a minute, are you referring, because apparently there's various different types of background checks. [00:05:09] Speaker 04: And some of them says it takes five to six days, et cetera. [00:05:15] Speaker 04: Which one are you actually referring to? [00:05:17] Speaker 02: So I'm referring to all background checks, but the majority of background checks that people request are standard checks, which are subject to an expedited process. [00:05:26] Speaker 04: So there you have to be in the federal automated firearm system. [00:05:30] Speaker 04: Yes. [00:05:31] Speaker 04: And how long does that take, or what is that process? [00:05:35] Speaker 02: So most firearms are in the automated firearm system because the state has required registration for handguns since the 1990s and for long guns for the last decade. [00:05:43] Speaker 02: There may be issues that can arise if your AFS registration is not up to date. [00:05:48] Speaker 02: And so that's something that could happen if you change addresses. [00:05:51] Speaker 02: But for those individuals, the department provides a self-service website where firearm owners can initiate the process of updating their records. [00:05:58] Speaker 01: What if you don't own a firearm? [00:05:59] Speaker 01: What if there's no record of you owning a firearm? [00:06:02] Speaker 01: So either you've acquired it in some other way or you have access to someone else's firearm who is in the system, but you're not already in the system, then what happens? [00:06:09] Speaker 02: So if you own a firearm that's not an AFS, you can submit a firearm ownership report to the department? [00:06:16] Speaker 01: What if you just go in and you just say, look, I want to buy ammunition and you're not already in the system because you have not indicated to California that you've purchased a firearm? [00:06:24] Speaker 02: Okay, so if you don't have a record, then you have the option of requesting and passing a basic check, which doesn't require enrollment in the automated firearm system. [00:06:32] Speaker 01: So if you don't, if you haven't already indicated to California that you own a firearm, you have to go through the basic check? [00:06:38] Speaker 02: Well, you may not have had to, you don't have to indicate to California to end up in AFS. [00:06:42] Speaker 02: It also pulls from firearms vendors records, and so it's more [00:06:46] Speaker 02: Have you purchased a firearm in the last years in California that you should be in the system? [00:06:50] Speaker 01: But if California can't verify that you own a firearm, can you still buy ammunition? [00:06:55] Speaker 02: You can still buy ammunition, yes. [00:06:56] Speaker 02: You just have to request and pass the basic check. [00:06:59] Speaker 01: OK. [00:07:00] Speaker 03: So has any court held that footnote 9 of Bruin applies to the purchases of ammunition? [00:07:07] Speaker 02: I don't think we have a case applying footnote nine in the context of ammunition. [00:07:12] Speaker 02: There are certainly decisions that have thought about footnote nine in the context of firearms backgrounds checks. [00:07:18] Speaker 03: And so I think the recording- I mean, there's a serious distinction between a firearm and ammunition in that a firearm is somewhat durable. [00:07:27] Speaker 03: We would assume you'd own it for quite some time. [00:07:29] Speaker 03: Ammunition is expendable. [00:07:31] Speaker 03: You'd be purchasing ammunition repeatedly. [00:07:34] Speaker 03: So, Footnote 9 is talking about a licensing process as opposed to permitting. [00:07:40] Speaker 03: So, it seems that you're asking us to, without authority, stretch what Footnote 9 means to say that we have to find that this was an abusive scheme before it was unconstitutional. [00:07:53] Speaker 02: I definitely take the point that Bruin was decided in the context of firearms, but I do think the guidance that it offered is also relevant to ammunition. [00:08:02] Speaker 02: What the court suggested is that the focus should be on whether or not the requirements are abusive and that they're, whether or not they're requiring undue wait times or exorbitant fees. [00:08:10] Speaker 02: And I think that's analysis that can be applied to ammunition as well. [00:08:13] Speaker 02: And the fact, I definitely take the point that ammunition is different than firearms, but I do think these background checks are different than firearms background checks in a way that [00:08:22] Speaker 02: supports our position as to whether or not they're abusive. [00:08:24] Speaker 02: They require shorter wait times. [00:08:29] Speaker 02: They cost less than a firearms background check. [00:08:31] Speaker 02: There's no waiting period that applies to ammunition transactions in the same way as firearms transactions and so in most instances you can leave the store with ammunition rather than having to wait 10 days is under the firearms regime. [00:08:43] Speaker 03: So I understood your brief to argue that [00:08:45] Speaker 03: The purpose of this is to prevent prohibited possessors from having operable firearms. [00:08:52] Speaker 03: But isn't that accomplished by the background checks and the schemes to control the purchase of the firearm? [00:08:59] Speaker 03: A prohibited possessor is going to come in just by ammunition. [00:09:06] Speaker 03: It seems like it's a bit of a stretch that this is going to somehow increase your effectiveness in policing prohibited possessors. [00:09:15] Speaker 02: I think the reality is that the firearms background check doesn't serve a purpose where someone's able to obtain a firearm through other means. [00:09:22] Speaker 02: And so the Jones declaration, for example, that we cited speaks to this. [00:09:26] Speaker 02: That declaration described law enforcement investigations that started off from a denied ammunition purchase. [00:09:32] Speaker 02: And in several instances, the law enforcement was able to recover firearms that had been obtained illegally. [00:09:38] Speaker 02: And so I think that's the additional enforcement [00:09:40] Speaker 02: that the ammunition background checks are providing, even if there's a separate firearms background check requirement. [00:09:50] Speaker 01: I'd like you to turn to what test we are going to be applying. [00:09:54] Speaker 01: Are you familiar with our decision this year in B&L? [00:09:56] Speaker 01: Yes. [00:09:57] Speaker 01: Okay. [00:09:58] Speaker 01: So how does this fit into B&L's analysis as to whether a restriction on commercial sale of ammunition is within the plain text of the Second Amendment? [00:10:07] Speaker 01: So do we even get to the historical analysis? [00:10:10] Speaker 02: I think this is a case where the court could not get to the historical analysis. [00:10:14] Speaker 02: BNL suggests that the relevant test is whether or not the regulation meaningfully constrains the right to keep and bear arms. [00:10:21] Speaker 02: Even separate from BNL, that test was established in Teixeira. [00:10:24] Speaker 02: And so I think applying that analysis here, plaintiffs just haven't shown on a facial basis that these background check requirements are preventing individuals from being able to keep and bear operable firearms for self-defense. [00:10:37] Speaker 02: How is it operable if you can't get ammunition? [00:10:41] Speaker 02: Well, I think our argument is that you can get ammunition. [00:10:44] Speaker 02: It's just that you have to pass the background check requirement in order to do so. [00:10:48] Speaker 03: But the point is that it's an infringement on that right. [00:10:51] Speaker 03: So you can't operate a firearm without ammunition. [00:10:54] Speaker 03: And I think Jackson is our case that says that it's part and parcel of the Second Amendment right to keep and bear arms. [00:11:03] Speaker 03: It's meaningless unless you can have ammunition to go with it. [00:11:06] Speaker 03: And BNL and Tejeda were addressing the acquisition of firearms. [00:11:10] Speaker 03: I think BNL was really more, it was purchasing firearms at trade shows or something along those lines, and you could acquire a firearm like 600 feet away. [00:11:20] Speaker 03: So it really was no meaningful infringement on your right to acquire a firearm. [00:11:24] Speaker 03: Which seems very different from a scheme that requires you to get permission to purchase ammunition every 18 hours. [00:11:31] Speaker 03: I mean, these expire so quickly. [00:11:34] Speaker 03: That strikes me as very burdensome. [00:11:38] Speaker 02: Well, I guess a couple of different points. [00:11:40] Speaker 02: I think first starting with Jackson [00:11:42] Speaker 02: This court has recognized that ammunition is entitled to Second Amendment protection, and we aren't contesting that at all. [00:11:48] Speaker 02: But what the court has said is that ammunition is protected under an ancillary protection, and that protection is not itself absolute. [00:11:55] Speaker 02: It's only to the extent that it's necessary to realize the right to possess a firearm for self-defense. [00:11:59] Speaker 03: So do you think this nuance of describing a right as ancillary survives brewing? [00:12:07] Speaker 02: I think it does. [00:12:07] Speaker 02: I think this court is bound by B&L, and in B&L, the court held that Teixeira's text and history analysis is consistent with Bruin. [00:12:15] Speaker 02: And so I do think this court's prior precedent on ancillary rights and when they implicate the textual right of the Second Amendment does apply here. [00:12:22] Speaker 04: It's pretty hard to say that ammunition doesn't because a gun without ammunition is not usable. [00:12:30] Speaker 04: So it's not ancillary. [00:12:32] Speaker 04: It's intrinsic to having a firearm. [00:12:36] Speaker 02: I think that's not quite what this court has said. [00:12:39] Speaker 02: But I also don't think it's a principle that we deny that you need to possess ammunition in order to have an operable firearm. [00:12:46] Speaker 02: Our position is just that plaintiffs haven't shown that the background check requirement is meaningfully constraining their right to possess firearms for self-defense. [00:12:59] Speaker 02: So if there are no further questions, I'll reserve the balance of my time for rebuttal. [00:13:18] Speaker 00: Good morning, Your Honors. [00:13:19] Speaker 00: May it please the court, Matthew Rowan, on behalf of the plaintiffs. [00:13:22] Speaker 00: The district court described California's ammunition background check and anti-importation regime as an extensive and ungainly, first of its kind, sweeping statewide restriction on a fundamental right that is unprecedented in American history. [00:13:39] Speaker 00: That description is not only correct, it undersells things. [00:13:42] Speaker 00: Not once in the first 240 years of this country's history [00:13:48] Speaker 00: Did any state see fit to require law-abiding individuals to submit to a state investigation each and every time they seek merely to acquire the ammunition without which their firearms are inoperable? [00:14:02] Speaker 00: That's not because ammunition sales or background checks are some new-fangled innovation. [00:14:08] Speaker 00: Ammunition sales predate the founding, and there is a tradition in this country of limited, minimally burdensome firearm background checks that dates at least back 100 years. [00:14:22] Speaker 00: long after that for any state to even think of implementing such a regime, and California was the first to actually do so five years ago. [00:14:31] Speaker 00: Given that historical reality, the idea that California, that any ammunition background check regime [00:14:38] Speaker 00: could pass muster under Bruin and Rahimi, strains credulity. [00:14:42] Speaker 00: But this court doesn't even need to decide that question to affirm the district court's decision, because California's one-of-a-kind regime is in a league of its own. [00:14:52] Speaker 00: And so I want to start just by going through the Second Amendment analysis and explaining why. [00:14:58] Speaker 01: Before you do that, would you address the question of on its face versus applied? [00:15:02] Speaker 00: Sure. [00:15:02] Speaker 01: Is this an on its face challenge? [00:15:03] Speaker 00: So this is a facial challenge, and I would [00:15:07] Speaker 00: I think the right way to think about facial challenges are nicely described in this court's unbonk opinion in Lopez Valenzuela, where you were in the majority in that case from 2014. [00:15:16] Speaker 00: And what Lopez Valenzuela says is you look at the relevant constitutional decision rule. [00:15:24] Speaker 00: That's the phrase that was used there. [00:15:25] Speaker 00: There, somewhat confusingly, the relevant constitutional decision rule was Salerno's due process standard, separate from Salerno's facial challenge dictum. [00:15:34] Speaker 00: And what the court said there was, yeah, even though one of the actual plaintiffs in that case could have been constitutionally detained, that was Arizona's Prop 100 laws that [00:15:45] Speaker 00: basically deprived any person who wasn't here lawfully present from the ability to get bail. [00:15:50] Speaker 00: Even though one of the actual plaintiffs could be constitutionally held without bail under a different statute, that didn't render the statute not facially unconstitutional, because what you do is you don't look at sort of individual circumstances. [00:16:06] Speaker 00: You look at the relevant constitutional decision rules. [00:16:08] Speaker 01: So what is your burden in this case? [00:16:10] Speaker 00: Sure, so we think that we have a threshold burden under Bruin. [00:16:15] Speaker 00: And we think that the threshold burden is very easy for us to satisfy here, given that this is a complete gatekeeping on the ability to acquire ammunition. [00:16:24] Speaker 01: So your position, you're going to take the strong position, which is that there can be no background checks for ammunition. [00:16:30] Speaker 01: Is that your position? [00:16:31] Speaker 00: We do take that position. [00:16:33] Speaker 00: And we think, one, clearly it implicates the Second Amendment to have a regime. [00:16:38] Speaker 01: Before you get to that, because I want to address B and L here in terms of framework. [00:16:46] Speaker 01: So the question of sort of the wait times here is largely irrelevant. [00:16:51] Speaker 01: Your position is that any [00:16:54] Speaker 01: any delay, even even de minimis delay of let's say 60 seconds, even if we had 100% of background checks being completed in less than 60 seconds, that would still violate the Second Amendment. [00:17:06] Speaker 00: So that is our position with respect to ammunition background checks. [00:17:09] Speaker 00: And I'm happy to sort of talk about that. [00:17:11] Speaker 00: But the reason why, even if you don't agree with us on that, the reason why the facts matter is the relevant constitutional decision rule here is Bruin and Rahimi's how and why test. [00:17:22] Speaker 00: And how? [00:17:23] Speaker 00: You have to look at not only what the statute says, but how it actually operates. [00:17:27] Speaker 00: And part of how this statute or many statutes operate is dependent on the fact that rather than set up a database that actually works, which is how Prop 63 initially was going to do the sort of initial version that the voters of California approved. [00:17:42] Speaker 00: required California to set up a centralized searchable database where your number would be your same as your driver's license number, and vendors would have access to it. [00:17:51] Speaker 00: And just like the Brady Act, Congress didn't just say, Nick starts overnight. [00:17:56] Speaker 00: They gave the FBI five years and a bunch of money to set up a system that works. [00:18:00] Speaker 00: Whereas here, that's what the voters voted for, but the California legislature pre-amended Prop 63, and they got rid of what would have been Section 30370C, [00:18:12] Speaker 00: And instead, they said, no, we're going to piggyback on the AFS system. [00:18:16] Speaker 00: But the problem with the AFS system is that it relies on dealer inputs, and it was never intended until this regime was put in place to be used as a gatekeeper to the exercise of anything else. [00:18:30] Speaker 00: So we have evidence in the record where the dropdown menu, when you buy a firearm and the dealer puts it into AFS, you have things that say Huntington Beach, B-E-A-C-H. [00:18:41] Speaker 01: Okay, I have to say, I'm confused by all of this. [00:18:44] Speaker 01: I mean, everything that you're saying, I understand, makes a lot of sense. [00:18:47] Speaker 01: But it feels like it would make a lot more sense if you had an as-applied challenge. [00:18:50] Speaker 01: So I understand on the facial challenge, I think I got the right answer to the question, which is that even if California successfully integrated this from the beginning, if they had studied it for five years, [00:19:01] Speaker 01: worked all of this out and had 100% at 60 seconds or less that would still violate the Second Amendment. [00:19:08] Speaker 01: Isn't that your strong position? [00:19:09] Speaker 00: That is our initial position. [00:19:11] Speaker 00: Okay. [00:19:11] Speaker 00: And if you don't agree with us on that, still under the facial challenge rubric, the how facts actually matter because the relevant constitutional decision rule under Brune and Rahimi looks at the how and the why. [00:19:23] Speaker 00: You have to compare historical analogues [00:19:25] Speaker 00: in terms of the burden that they impose on the exercise of the fundamental second right to the burdens that the regime imposes and the way we know. [00:19:34] Speaker 00: I mean, this is an unusual case, not only in that we have a record, but we have two different time periods of records because the case was back before the district court in 2019 and again in 2023. [00:19:46] Speaker 00: And what we've seen is that thousands of Californians have been unable to acquire ammunition as a direct result of this regime. [00:19:54] Speaker 00: So I wanted to talk about B&L for a second. [00:19:57] Speaker 00: So we don't think that the B&L framework is there. [00:20:00] Speaker 01: Do you have any plaintiffs who have standing to challenge those delays? [00:20:07] Speaker 01: I didn't see anything in your complaint that suggested there was any individual person who had suffered a delay. [00:20:12] Speaker 00: So we have a robust record here. [00:20:14] Speaker 00: I would commend. [00:20:15] Speaker 01: Is there anything in your complaint that suggests that you've got a plaintiff? [00:20:19] Speaker 00: So the complaint was filed when, before the regime had gone into effect. [00:20:24] Speaker 01: Which indicates that it's an on its face challenge. [00:20:27] Speaker 00: Right. [00:20:27] Speaker 00: But now it's gone into effect. [00:20:28] Speaker 00: And we have declarations in the record that the district court relied on. [00:20:31] Speaker 00: So plaintiff Johnson at ER 58, after he moved, he was unable to use the standard check. [00:20:38] Speaker 00: It took 110 days for California Department of Justice just to respond to him. [00:20:43] Speaker 00: We know that Kim Rody, the lead plaintiff, has had to spend thousands of dollars storing ammunition. [00:20:49] Speaker 00: She's an Olympian and she can't get it to her house. [00:20:52] Speaker 00: This court's precedent, including cases like Montana Shooting Sports Association, makes clear that expending time and money to comply with a burden on [00:21:01] Speaker 00: The second amendment is sufficient for standing. [00:21:03] Speaker 00: We also have an associational plaintiff, CRPA, and we have two declarations from the treasurer and the president respectively. [00:21:10] Speaker 01: Once we go to, let's take Mr. Johnson, because the 110 days is a disturbing figure. [00:21:15] Speaker 01: Once we go to that, doesn't that make this an as-applied challenge? [00:21:18] Speaker 00: It doesn't, Your Honor, and I really think that facial and as-applied challenges, [00:21:23] Speaker 00: It's confusing, but I do think I would take a look back at the majority opinion in Lopez Valenzuela that explains that the facts often actually matter in as applied challenges. [00:21:33] Speaker 04: So wait, I'm sort of confused about the steps and ruins. [00:21:37] Speaker 04: Oh, so it's your burden to show that this is an arm that's [00:21:46] Speaker 04: sees the second amendment protects right and it's the government's burden to show that there's a historical analog is that aren't i correct there so where does the individual challenges come in so you're correct and that's definitely this the analysis that brewing sets forth and we think that it's a very clean analysis here and that of course the law [00:22:12] Speaker 00: that says you have to pass through a gate that the government controls in order to acquire ammunition, of course that law implicates the Second Amendment. [00:22:21] Speaker 00: So we think that, you know, being on productions and to share cases like that where it's you can't purchase firearms at two fairgrounds, but you can purchase it everywhere else, the difference between that law and a law like this is this applies always and forever to everyone. [00:22:36] Speaker 00: And it is an absolute gate that you have to go through that the state controls. [00:22:42] Speaker 00: Of course, that implicates the Second Amendment. [00:22:44] Speaker 00: And I think the only way to make sense of Brune footnote nine is to understand that background check regimes and licensing regimes, which this of course isn't, [00:22:54] Speaker 00: implicate the Second Amendment. [00:22:55] Speaker 00: Otherwise, how could something ever violate the Second Amendment? [00:22:58] Speaker 00: The only logical way under Bruin and Rahimi's two-step framework for something to violate the Second Amendment is if you passed the threshold inquiry. [00:23:06] Speaker 00: So we think that the sort of B&L production substantial burden sort of standard is not the correct way to approach a law like this. [00:23:14] Speaker 00: But even if you disagreed or if you thought the better course of valor was to assume without deciding that you were in sort of the B&L production's framework, [00:23:22] Speaker 00: Of course, this statute imposes a substantial impairment on people's ability to acquire [00:23:26] Speaker 04: The government argues that bullets are ancillary. [00:23:34] Speaker 04: That seems to go to the first step, whether this implicates the people to keep and bear arms. [00:23:42] Speaker 00: So what's your position on that? [00:23:44] Speaker 00: This court has said that they are ancillary. [00:23:47] Speaker 00: I think that the way that I would understand that with respect to ammunition is that they're ancillary in terms of being inherent. [00:23:53] Speaker 00: I mean, ammunition is itself an arm. [00:23:55] Speaker 00: So I don't think that the ancillary piece goes to ammunition. [00:23:59] Speaker 00: What this court has said is it goes to the acquisition. [00:24:02] Speaker 00: But of course, one cannot possess what one can't get. [00:24:06] Speaker 00: So I think it's a mistake to think of acquisition as ancillary just because the Second Amendment doesn't say explicitly purchase or acquire alongside keep and bear. [00:24:16] Speaker 00: I recognize that [00:24:18] Speaker 00: Manny and B&L Productions take a somewhat broader view. [00:24:22] Speaker 00: And so if the court wants to sort of say, look, we're going to assume without deciding that we've got to follow this substantial impairment test to get through the threshold, we think that's not the right way to sort of do this a priori under Brune and Rahimi. [00:24:36] Speaker 00: But we think clearly it's passed here because, again, we have a record. [00:24:40] Speaker 01: So do background checks for firearms, does that come within the Second Amendment? [00:24:44] Speaker 01: Of course. [00:24:44] Speaker 01: That comes within the plain text? [00:24:46] Speaker 01: Of course. [00:24:46] Speaker 01: I mean, I think otherwise... Okay, I understand that B and L doesn't cover that, but we do have three other circuits that this year have said that background checks do not come within the plain text of the second circuit. [00:25:00] Speaker 01: So you're urging us to go into conflict with, by my count, the fourth, fifth, and tenth circuits. [00:25:07] Speaker 00: So what those courts have held is twofold. [00:25:11] Speaker 00: What they've held is [00:25:13] Speaker 00: One, if you frame the question as the conduct plus the restriction. [00:25:19] Speaker 00: So if you frame the question as, do you have a right to acquire a firearm without passing through a background check? [00:25:25] Speaker 00: Well, that's not covered by the plain text. [00:25:27] Speaker 00: But they've also then said, but of course, we can't say that background check and licensing regimes [00:25:34] Speaker 00: do not implicate the Second Amendment because that would overrule Bruin, which of course was a licensing regime case. [00:25:40] Speaker 00: And again, I think Bruin footnote nine would make no sense if you thought that background checks didn't implicate the Second Amendment. [00:25:48] Speaker 00: And I mean, again, perhaps the safest way to do this is to just say, fine, you know, we'll assume that B and L productions is the correct standard for here, pass through the threshold because of course a law that prevents thousands of law abiding citizens [00:26:03] Speaker 00: from acquiring ammunition without which a firearm is inoperable. [00:26:07] Speaker 00: Of course, that imposes a substantial impairment on law abiding citizens' ability to acquire arms. [00:26:14] Speaker 00: Even if it's a 60 second check. [00:26:18] Speaker 00: I think even if it were a 60-second check with respect to ammunition, because as Judge Beatty pointed out, ammunition is expendable. [00:26:26] Speaker 00: In the record, when California first passed Senate Bill 1235, which pre-amended Prop 63, they did an economic assessment, and one of the assumptions was that people will buy 40 rounds at a time. [00:26:36] Speaker 00: 40 rounds doesn't last very long if you're training, which is something that you want people to be able to do. [00:26:41] Speaker 00: So people are going to go buy ammunition all the time. [00:26:44] Speaker 00: Does California limit how much you can buy at one time? [00:26:47] Speaker 00: So California doesn't, but we know from the record that people aren't just sort of spending money willy-nilly. [00:26:53] Speaker 01: Although Miss Rhodey might buy it in bulk. [00:26:56] Speaker 00: So Ms. [00:26:56] Speaker 00: Roady might, although Ms. [00:26:58] Speaker 00: Roady may not have to pay for it herself because USA Shooting does provide her some of it. [00:27:03] Speaker 00: So yes, I mean, there are certainly special cases, but what we know from the record is that people aren't willing to spend the, you know, five times as much as a standard box of 22 round ammunition just to pay for the $19 basic check, which soon will be more expensive. [00:27:18] Speaker 00: as my friend on the other side pointed out in a footnote in their reply brief. [00:27:21] Speaker 00: So we do want to sort of shift to the historical tradition part of the analysis. [00:27:24] Speaker 00: Can I ask you a question before you go? [00:27:26] Speaker 03: Of course. [00:27:29] Speaker 03: The real battle in these cases is how we define the proposed conduct. [00:27:34] Speaker 03: If you define it as Bruin did, as the right to keep and bear arms, it falls clearly within the plain text as opposed to saying the right to have a license to concealed carry or to carry in public, whatever. [00:27:48] Speaker 03: So B&L described the conduct as contracting for the sale of firearms and ammunition on state property, which is not in the text of the Second Amendment, but it could have been [00:27:58] Speaker 00: defined differently and are there any principles it seems like the case laws a little bit all over the board so any principles that we can apply to decide how to define the conducted issue so I mean I think that sort of when you're looking at smuggling in the restriction into deciding what the proposed conduct is you've jumped the tracks a little bit so I mean I think you [00:28:20] Speaker 00: sort of a priori, I'd say the way that B and L or Manny sort of framed things is just wrong. [00:28:25] Speaker 00: I understand that this three-judge panel is bound by those decisions. [00:28:29] Speaker 00: So what I would say is two ways of distinguishing them and one of just saying that even if those apply, we pass the standard here. [00:28:35] Speaker 00: So the two ways of distinguishing them is in cases like B and L and Teixeira, again, they're narrowly geographically limited. [00:28:42] Speaker 00: And you can go elsewhere and you are free to acquire arms 600 feet away. [00:28:48] Speaker 00: Whereas this is always and forever, everyone is at constant risk and everyone has to go through this. [00:28:55] Speaker 00: Judge, maybe one point on the facial challenge is one of the problems with doing an as applied challenge here is the sort of difficulties with actually getting the state to run the background check, which they declined to do upwards of 10% of the time, is that you don't know why they're not running it. [00:29:12] Speaker 00: So it would be very difficult for you to actually bring an individual as applied challenge, because of course they would move your challenge. [00:29:19] Speaker 01: So, I mean, I think when you have a... Then it's capable of repetition, yet evading review. [00:29:24] Speaker 01: But, I mean, it seems to me if you came here with Mr. Johnson and said, Mr. Johnson's licensed gun owner has no impediments to ownership, to acquisition of firearms or ammunition, and in the process moved, and it took California 110 days to get the problem solved. [00:29:40] Speaker 01: That seems to me to be a pretty substantial burden. [00:29:42] Speaker 00: Well, we certainly have done that. [00:29:44] Speaker 00: I mean, he is a plaintiff in this case. [00:29:45] Speaker 01: Right, but that's a Nazipy challenge. [00:29:48] Speaker 01: And that's just why I'm so confused. [00:29:50] Speaker 01: I was confused by the briefs. [00:29:51] Speaker 01: I was confused by the district court's opinion, because I didn't see the district court ever acknowledge that this was a facial challenge or ever cite any standards for what that meant. [00:29:59] Speaker 00: So again, I would just go back and look at the Lopez Valenzuela opinion, which I think explains sort of how this works. [00:30:04] Speaker 00: And I do think, I mean, just quickly on the B&L point, I mean, I think [00:30:09] Speaker 00: I think the way to think about this as different from those cases is that the state is controlling your access to something that is necessary to exercise the Second Amendment right at all, and it controls it always. [00:30:22] Speaker 00: You can't go out of state and bring it in because of the anti-importation regime. [00:30:27] Speaker 00: You have to go through this process, and for a large and arbitrary percentage of the people, they won't even do it. [00:30:34] Speaker 00: So if that doesn't implicate the second amendment, then it's hard for me to understand what would again. [00:30:38] Speaker 00: I think Bruin footnote nine only makes sense if licensing regimes. [00:30:43] Speaker 00: clearly are covered by the plain text. [00:30:46] Speaker 00: But I mean, you know, I recognize that being all productions seems to state a very broad principle. [00:30:52] Speaker 00: And so, you know, if the court wants to just say, we're going to assume that substantial impairment is the right standard, then of course, substantial impairment matters. [00:30:58] Speaker 00: I mean, I also think there's no way to do judge by a substantial impairment analysis on an individual basis, because otherwise you'd have a bunch of people challenging the statute all the time. [00:31:10] Speaker 00: which is why you sort of have to do this on a broad basis. [00:31:13] Speaker 00: And again, the how and the why are the standards at the historical tradition stage. [00:31:18] Speaker 00: And if we look at the state's proposed analogs, I mean, they're not remotely in the ballpark. [00:31:23] Speaker 01: Well, you could easily come up with a statute that would fail the substantial, the meaningful restraint, our language to share in B and L, on a state that California said, you're gonna have to wait 60 days. [00:31:36] Speaker 01: And it was right in the statute, okay? [00:31:37] Speaker 01: It doesn't matter how 60 days, it's a waiting period. [00:31:41] Speaker 01: That's on its face. [00:31:42] Speaker 01: You win that one easily. [00:31:44] Speaker 00: I think part of the problem with what California did is they didn't do step zero. [00:31:48] Speaker 00: They didn't create the database. [00:31:51] Speaker 00: that is necessary for this to work for everyone. [00:31:55] Speaker 01: And so if they if they did it by driver's license, that would satisfy the Second Amendment. [00:31:58] Speaker 01: So we don't think I thought your position was that any restraint would. [00:32:01] Speaker 00: So that that certainly are strong form position. [00:32:05] Speaker 00: But as Judge Benitez himself pointed out, [00:32:08] Speaker 00: If they'd gone with Prop 63, we'd have a much tougher case. [00:32:12] Speaker 00: We would have to win, assuming that it actually worked, but we'd have to win sort of the strong form argument because the way that worked is I was going to be a four-year license where you paid $50 once and you just used your driver's license number and it would be instant. [00:32:25] Speaker 00: But instead of spending the time and money necessary to put in the database that, again, is the gatekeeper to one's ability to acquire arms, period, they said, no, we're going to piggyback on this other thing that has never been used for this. [00:32:38] Speaker 00: And we know now that it doesn't work. [00:32:41] Speaker 00: And so just quickly on historical tradition, so I mean, the state's analogs. [00:32:46] Speaker 00: They try to rely on loyalty odes, which you entirely control and they're won and done. [00:32:51] Speaker 00: The idea that that's sort of similarly burdensome to a regime where you have to pass through the state's gate and you can't force them to do it, and you have to do it each and every time you want to acquire ammunition, [00:33:04] Speaker 01: Council, your time is going to expire, and I'm going to ask the chief to give me permission to, the presiding judge to ask permission to a different line. [00:33:11] Speaker 01: All of this is avoided if there's a problem under the domestic, I'm sorry, under the dormant commerce clause. [00:33:18] Speaker 01: So would you just take a minute and explain to me your best argument under the dormant commerce clause? [00:33:23] Speaker 00: Sure. [00:33:24] Speaker 00: So the state concedes that vendors need a physical presence and a license in California to sell ammunition to Californians. [00:33:33] Speaker 00: The only option for an out-of-state vendor to sell to a California resident is to funnel sales through a select few licensed in-state vendors. [00:33:44] Speaker 00: That's textbook facial discrimination, because what California has done is they've hoarded a local market for a favored group of local merchants. [00:33:54] Speaker 00: We also have real evidence of discriminatory effects. [00:33:58] Speaker 01: What California has done is said, you have to have a face-to-face [00:34:02] Speaker 01: transaction here. [00:34:04] Speaker 00: Actually worse than that. [00:34:05] Speaker 00: So I mean, so if you look at a case like Black Star, which I think is their best case, which was the Arizona exception to the three tier system. [00:34:12] Speaker 00: So that had a face to face requirement. [00:34:14] Speaker 00: And what it said was you can sell if you're out of state, you can sell two cases of wine in a face to face transaction to account to an Arizona resident. [00:34:27] Speaker 00: Here, you cannot do that. [00:34:29] Speaker 00: You have to ship it to an in-state vendor for processing. [00:34:34] Speaker 00: And we have evidence in the record that many in-state vendors that are licensed are either refusing to accept the processing or they're basically charging exorbitant fees. [00:34:43] Speaker 01: If you're a Colorado manufacturer of ammunition, obviously you can't ship it in over the internet. [00:34:49] Speaker 01: So you can't ship it directly to the house via Amazon, for example. [00:34:52] Speaker 01: But there's no restrictions on how much you can sell to a licensed vendor in California. [00:34:57] Speaker 01: I mean, Colorado manufactured ammunition is being sold in California. [00:35:01] Speaker 00: I think the relevant distinction is not between... Am I right? [00:35:05] Speaker 01: Let me just make sure I'm right on that point. [00:35:06] Speaker 00: Certainly right. [00:35:07] Speaker 00: The relevant distinction is not between Colorado manufacturers and California dealers. [00:35:14] Speaker 00: It's between California dealers and everyone else. [00:35:18] Speaker 00: And what California has done is it's a, in order to have access to this market, you have to go through the select few licensed dealers. [00:35:26] Speaker 00: The only other regime in history that looks anything like this is the three tier system in the alcohol context. [00:35:32] Speaker 01: How would this work, for example, on the sale of cigarettes or alcohol if you can't sell to miners? [00:35:38] Speaker 01: How would you do that outside of a face-to-face transaction? [00:35:42] Speaker 00: So alcohol, of course, has its own sort of constitutional allowance. [00:35:46] Speaker 00: And the way that works is you have to sell basically from out of state, from the states that have the three tier system, you have to sell to an in-state wholesaler. [00:35:54] Speaker 00: And then they sell the retailers. [00:35:56] Speaker 00: So in many states. [00:35:58] Speaker 01: But how do you deal with a minor problem? [00:36:01] Speaker 01: The three tier system deals with a much broader problem. [00:36:04] Speaker 01: But how do we deal with a minor problem in cigarettes? [00:36:07] Speaker 00: So you can make it criminal to possess cigarettes if you're under 18. [00:36:12] Speaker 00: So that's step one. [00:36:15] Speaker 00: And if you wanna have a face-to-face requirement, you can, you could require licensure. [00:36:21] Speaker 00: I mean, you know, it might. [00:36:22] Speaker 01: Right, but wouldn't that, doesn't that sort of limit it to in-state sales? [00:36:26] Speaker 00: So no, because, I mean, again, this is not just the face-to-face requirement. [00:36:30] Speaker 00: There's also section 303.14, which is the anti-importation regime, where you cannot bring it in with you, period, unless you have it sent to an in-state vendor. [00:36:40] Speaker 00: No state in the country does that for any product other than alcohol, not for cigarettes, not for anything else. [00:36:45] Speaker 00: And the way that they do it is they say it's a crime to sell the kids. [00:36:50] Speaker 00: So if the kid doesn't age, you know, if the kid age verifies, well, that's a crime. [00:36:55] Speaker 00: And so they have criminal laws for both the seller and often the shippers and the children. [00:37:02] Speaker 00: And that's the regime that works for tobacco. [00:37:05] Speaker 00: And there is no other regime in the country's history, not now, not ever, that says you cannot bring a product in unless you funnel it through a favored select cabal of favored in-state vendors, which can then charge whatever price they want. [00:37:20] Speaker 00: I mean, the state points out, and I know I'm far over time, but the state points out very briefly that, oh, it's only a dollar fee for the in-state processing. [00:37:28] Speaker 00: That's only if you are there the moment the product arrives. [00:37:32] Speaker 00: which almost nobody is because it doesn't come with them. [00:37:36] Speaker 00: It has to come through a shipper. [00:37:38] Speaker 00: So unless you are there the second it arrives, they can charge whatever fee they want. [00:37:42] Speaker 00: And we have evidence in the record, the Abels Declaration and the Ammunition Depot Declarations at ER 64 and 67, that they're charging exorbitant fees, which has had the effect of just completely decimating out-of-state vendors' sales to California residents. [00:37:59] Speaker 00: That's textbook discriminatory effects [00:38:02] Speaker 04: Okay. [00:38:03] Speaker 00: Thank you. [00:38:04] Speaker 04: Thank you for your additional comments and you have some time left for rebuttal. [00:38:15] Speaker 02: So I wanted to just start with the dormant commerce clause claim. [00:38:18] Speaker 02: I think what the court's precedent show that requirements have been invalidated as discriminatory on their face when they impose requirements that are so associated with protectionism that they're virtually invalid per se. [00:38:28] Speaker 02: I don't think that that's what these statutes do. [00:38:31] Speaker 02: Anyone, regardless of where they're incorporated or where their workers are located or where they manufacture their ammunition, can apply for a license to open up a vendor location in California. [00:38:39] Speaker 02: If not, they do have the option of having their transactions processed by in-state vendors. [00:38:44] Speaker 02: My friend on the other side suggested that the fee is just... I just wanted to clarify what the requirement is. [00:38:51] Speaker 02: The fee is limited to $5 if the purchaser is immediately present. [00:38:54] Speaker 02: The fee that's charged for processing the requirement if the purchaser isn't present [00:38:58] Speaker 02: has to be agreed on with the purchaser ahead of time. [00:39:00] Speaker 02: Is there a storage fee that's not specified? [00:39:04] Speaker 02: Yeah, there's a storage fee, but it has to be agreed upon with the purchaser before the ammunition is sent to the vendor. [00:39:10] Speaker 02: And so the purchaser is the option of declining if it's, but I don't think there's any evidence in the record that suggests that in-state vendors have been imposing exorbitant fees. [00:39:21] Speaker 02: And then I wanted to quickly return to the Second Amendment claim. [00:39:24] Speaker 02: Plaintiffs have confirmed that they brought this case as a facial challenge, and Rahimi reiterated that Salerno is the standard that applies. [00:39:31] Speaker 02: I think what plaintiffs' evidence shows at most is that there have been individual circumstances in which the background check requirements worked less than seamlessly. [00:39:38] Speaker 02: In many instances, I don't think those declarations show that the firearm owner was unable to obtain ammunition. [00:39:44] Speaker 02: And so to take one example, my friend on the other side mentioned the Donson Declaration in ER 5558. [00:39:49] Speaker 02: That's certainly an instance where someone experienced a regrettable delay in updating their AFS records. [00:39:56] Speaker 02: But of course, that person also had the option of requesting and passing a basic check [00:40:00] Speaker 02: while they were waiting for their AFS records to be updated. [00:40:02] Speaker 02: And stepping back a bit, I don't think there are more than 20 declarations in the record that express some sort of complication with the ammunition background check system for a system that performed 600,000 background checks in the first six months of 2023. [00:40:15] Speaker 02: So that's not the sort of evidence that suggests that plaintiffs can prevail on a facial challenge. [00:40:19] Speaker 02: As to the threshold inquiry, I do think BNL is binding because it did purport to establish a standard that applies to ancillary rights. [00:40:26] Speaker 02: Stepping back a bit, as Judge Bybee noted, there have been several circuits that have been confronting this question about what you do when you're evaluating a regulation that's one step removed from the plain text. [00:40:35] Speaker 02: And I think the McCrory and the Maryland Shell issue in the Oakland tactical cases show that other circuits are converging on analysis that may differ in its phrasing, but looks quite similar to the analysis in B&L, where you do have to inquire into whether or not there's a practical effect on the right to keep and bear arms. [00:40:51] Speaker 02: And then as a final point, I just wanted to say quickly on the history, even if this court were to assume that this is a case that gets past Bruin's threshold step, the challenge background check requirements are supported by historical tradition. [00:41:03] Speaker 02: I think plaintiffs relied quite heavily on the fact that California's system is novel, but Rahimi and Bruin stressed that the Second Amendment was not intended to impose a regulatory straitjacket or foreclose states from adopting new methods for addressing problems, so long as those methods were consistent with historical tradition. [00:41:20] Speaker 01: So what's your best historical argument? [00:41:21] Speaker 02: I think we have several. [00:41:22] Speaker 01: I think the loyalty oaths and the founding— Now, when I read the declaration on the loyalty oaths, it was interesting. [00:41:31] Speaker 01: It was interesting history. [00:41:32] Speaker 01: I wasn't aware of all of the history of the various oaths that were issued during Reconstruction. [00:41:38] Speaker 01: What I had a hard time figuring out was the connection between the loyalty oaths and regulation of firearms. [00:41:44] Speaker 01: We found one example in paragraph 30 of somebody in law in South Carolina that apparently was restricting persons who could own firearms if they hadn't taken the strong oath. [00:42:01] Speaker 01: But that seemed like a pretty thin example, and it was the only one that was there. [00:42:05] Speaker 02: The Vorenberg Declaration speaks only to the Reconstruction-era loyalty oaths. [00:42:09] Speaker 02: We've also cited some pre-founding loyalty oaths in our opening brief, and those were included in the Spitzer Declaration as well. [00:42:15] Speaker 01: And did they connect directly to firearms? [00:42:17] Speaker 02: Yes, they were enforcing underlying prohibitions on possessing arms and ammunition, and so someone who declined to take the loyalty oaths would have their arms and ammunition confiscated. [00:42:26] Speaker 04: The other side says those are one-time, one-and-done type events. [00:42:33] Speaker 04: It says, come here to this, because every time you buy ammunition, what's your response to that? [00:42:39] Speaker 02: That's correct. [00:42:40] Speaker 02: It's one time that you have to take the oath. [00:42:41] Speaker 02: I do think the record also suggests that often the magistrate was required to keep a record in place of everyone who had taken the oath and who had not. [00:42:49] Speaker 04: And I think that's a very close historical precursor to a kind of database system where you have the option— And then a whole range of citizen-oriented rights were allowed, and it was that there was no requirement to evict it. [00:43:01] Speaker 04: Isn't that right? [00:43:02] Speaker 02: I think that is correct. [00:43:03] Speaker 02: But what I would stress is that Rahimi made clear that the analysis isn't just to find a dead ringer in the past for something that looks like a modern background check system. [00:43:11] Speaker 02: The question is whether or not there are principles under guiding that history that suggest that a background check or requirement would be constitutional today. [00:43:18] Speaker 04: So is the loyalty of this your best historical analog? [00:43:22] Speaker 02: I don't think we have to show a best, and I think we've cited a number of other examples. [00:43:26] Speaker 02: 19th century carry licensing requirements come to mind where someone would have to come in and demonstrate that they satisfied a set of eligibility requirements before they would be permitted to carry firearms. [00:43:37] Speaker 02: And I think that the most important point is what these different historical examples are showing is that throughout history, governments have imposed screening mechanisms to decide whether or not people are disqualified from possessing firearms or ammunition. [00:43:49] Speaker 02: And I do think that the background check requirements are relevantly similar to that tradition. [00:43:52] Speaker 02: So if there are no further questions, I'll submit. [00:43:57] Speaker 02: We ask that you reverse the district court. [00:43:59] Speaker 04: OK, we thank both sides for their arguments. [00:44:03] Speaker 04: The case of Rode versus Bonta is submitted, and we'll next hear argument in Davis' E Blue Tongue film.