[00:00:01] Speaker 00: That's correct, Your Honor. [00:00:02] Speaker 00: Thank you. [00:00:04] Speaker 00: Good morning, Edward Robinson and Rachel Robinson on behalf of Travis Schlatterbeck, and I've agreed with counsel for Mr. Vla that I'd be addressing the sales to the felon argument, and so I've asked for five minutes. [00:00:21] Speaker 00: I hope I don't use much of that. [00:00:23] Speaker 00: I would just ask the Court to consider the backdrop of this case. [00:00:27] Speaker 00: The matter in [00:00:30] Speaker 00: deals with the prohibited person argument, which is fundamental to the argument for Mr. Schlatterbeck, was submitted on December 4th of 2023 under the submission – prior submission rule 34-4. [00:00:48] Speaker 00: It's the same argument. [00:00:51] Speaker 00: And while that panel would take priority, I think that [00:01:08] Speaker 02: as in Duarte will control that question in this case? [00:01:12] Speaker 02: Yes, I do. [00:01:13] Speaker 02: Does the Rahimi case also impact this issue? [00:01:16] Speaker 00: The Rahimi case may impact that issue. [00:01:19] Speaker 00: I know that the range case that we cited out of the Third Circuit has a certiorari petition pending in front of the Supreme Court, but the Solicitor General asked that that cert petition be stayed pending the outcome of the Rahimi case, which was argued and submitted. [00:01:36] Speaker 00: I do see some overlap there. [00:01:37] Speaker 00: I don't think that the [00:01:45] Speaker 00: with respect to Mr. Schlatterbeck, I think that the Duarte panel's decision will control for this circuit and that there will be some direction coming our way from the Supreme Court Honorary. [00:01:54] Speaker 02: All right, Judge Gould, do you want to – do you have any questions on that issue? [00:01:59] Speaker 02: It sounds like he's going to rest on that. [00:02:07] Speaker 00: Yeah, I have no questions on that issue. [00:02:11] Speaker 00: All right, thanks. [00:02:25] Speaker 01: Good morning, and may it please the court. [00:02:26] Speaker 01: My name is Katherine Kimball-Windsor, and I represent Appellant James Vla. [00:02:31] Speaker 01: Just one second. [00:02:32] Speaker 02: I think because her co-counsel didn't use all the time, we can add whatever he didn't use to her time. [00:02:38] Speaker 01: Go ahead. [00:02:39] Speaker 01: OK. [00:02:39] Speaker 01: And I would like to reserve one or two minutes, maybe two minutes now, for rebuttal. [00:02:43] Speaker 01: Mr. Vla pled guilty pursuant to a conditional plea agreement. [00:02:50] Speaker 01: one on behalf of both appellants. [00:02:54] Speaker 01: And so this is just the 922A1A, which is manufacturing and dealing firearms without a license. [00:03:02] Speaker 01: And I just wanted to sort of orient us. [00:03:05] Speaker 01: In the district court, the focus was very much on count three. [00:03:09] Speaker 01: And the Bruin case came down sort of mid-movie. [00:03:15] Speaker 01: didn't address Bruin and the second set did and the district court really just you know understandably this case was it was a new test and I think it maybe took many of us by surprise and the district court didn't apply the Bruin two-part test [00:03:38] Speaker 01: footnote and Heller, and just also said that, you know, that we're not historians here. [00:03:46] Speaker 01: And so, you know, I just would like to point out that this issue hasn't really been addressed in the district court. [00:03:53] Speaker 01: It's really coming before this court in terms of the Bruin two-part test for the first time. [00:04:05] Speaker 01: yeah I think it would make some sense to perhaps remand it to the court to say to ask the court to apply that two-part test because really it with respect to to [00:04:21] Speaker 01: manufacturing and dealing, it just wasn't, it really wasn't addressed at all. [00:04:27] Speaker 01: You know, even the limited analysis was asked to count three. [00:04:32] Speaker 01: So I think that would be, that's one course of action the court [00:04:42] Speaker 01: and applying that Bruin two-part test. [00:04:44] Speaker 01: I think the other possibility would be to just apply the two-part test. [00:04:50] Speaker 01: And our position is that we win under that two-part test, but I do think that it hasn't been dealt with in the district court at all. [00:05:18] Speaker 01: I mean, I do think this is a rapidly shifting landscape. [00:05:21] Speaker 01: And I admit that there may be something out there that I'm not aware of that's pending before a district court sometime. [00:05:28] Speaker 01: But I don't think that this issue is going to be before the Supreme Court, for example. [00:05:33] Speaker 01: So I think it may be something that this court will want to resolve. [00:05:38] Speaker 01: But if you're, yeah, I'm just going to jump right in. [00:05:41] Speaker 01: Yes. [00:05:42] Speaker 02: So assuming that we apply the [00:05:52] Speaker 02: the conduct at issue covered by the text of the Second Amendment. [00:05:56] Speaker 02: Right. [00:05:56] Speaker 01: How do we define the conduct at issue? [00:05:58] Speaker 01: So here, A1A covers manufacturing and dealing firearms without a license. [00:06:06] Speaker 01: So I think for step one, we're really just looking at manufacturing and dealing firearms and whether the text covers that. [00:06:14] Speaker 01: That sort of the Bruin approach is in that step one that you just look at the [00:06:21] Speaker 01: the conduct that's being addressed, not the level of restriction. [00:06:25] Speaker 01: So I don't think we look at the without a license, we're just looking at whether manufacturing and dealing firearms is covered by the text. [00:06:32] Speaker 01: And obviously, those words don't appear in the text. [00:06:35] Speaker 01: So the question is, is what the court means by that part of the test. [00:06:43] Speaker 01: And this court in Teixeira held or found that the core right [00:06:48] Speaker 01: to keep, and bear arms doesn't mean much without the ability to acquire them. [00:06:52] Speaker 01: And that, many courts have held that. [00:06:56] Speaker 01: There's the, in the Seventh Circuit, the Ezel v. City of Chicago. [00:07:00] Speaker 01: There's the Fourth Circuit, Marilyn Shulkeri case, which we cited in the reply brief. [00:07:06] Speaker 01: It's since the time that the reply brief was submitted has been taken, I think the Fourth Circuit is taking that up on Bonk. [00:07:14] Speaker 01: But I do think that case, the panel opinion, which was, I think, [00:07:20] Speaker 01: is persuasive. [00:07:27] Speaker 01: The idea is that even a burden or an infringement on the right falls within the protection of the plain language, which is what Bruin held in that case, concluding that the conduct at issue, which [00:07:46] Speaker 01: was covered by the Second Amendment, even though it wasn't explicitly barred. [00:07:50] Speaker 01: Permitting schemes or licensing schemes can be abusive, the court has held. [00:07:57] Speaker 01: So I think that under that, that this conduct certainly is covered by the plain language of the text. [00:08:09] Speaker 02: So is that why you would define it as manufacturing? [00:08:28] Speaker 01: Well, in this case, so initially, the indictment charges manufacturing and dealing. [00:08:35] Speaker 01: When the case was headed to trial, the government was just going to proceed on the manufacturing, I believe. [00:08:44] Speaker 01: And then at the plea agreement, the factual basis covers both manufacturing and dealing. [00:08:52] Speaker 01: And in this case, it was [00:09:05] Speaker 02: That's true. [00:09:06] Speaker 02: They build a gun for a non-commercial purpose. [00:09:09] Speaker 01: Right. [00:09:10] Speaker 01: In this case, it is commercial. [00:09:14] Speaker 01: Right. [00:09:14] Speaker 01: Yeah. [00:09:14] Speaker 01: So that's our argument on the first step. [00:09:19] Speaker 01: And then on the second step, that's when we look at whether there is a well-established and representative historical analog. [00:09:29] Speaker 01: I guess I am losing time here, but the government really hasn't come up with met its burden in any way on that step. [00:09:38] Speaker 01: They just they were looking at sort of the whether there was a an independent right to engage in firearms. [00:09:47] Speaker 01: And under, you know, under the early law, and that's not really the question. [00:09:51] Speaker 01: The question is whether this was prohibited in any way around the time that the amendment was adopted. [00:10:00] Speaker 01: And so that burden has not been met. [00:10:25] Speaker 03: Good morning, Your Honors, may it please the court, Saria Bahadur on behalf of the United States. [00:10:30] Speaker 03: So I would just like to start with focusing, I'll focus also on 922A1A, which I'll just call the licensing statute because we do agree [00:10:57] Speaker 03: or conduct the Bruin analysis as to the licensing statute. [00:11:01] Speaker 03: So at ER 28, the district court did say that the same analysis applies to the remaining counts, which was a reference to the 922A1A count. [00:11:12] Speaker 03: And then at ER 21, the district [00:11:23] Speaker 03: Constitution presumptively protects their conduct. [00:11:26] Speaker 03: That's not what we have here. [00:11:28] Speaker 03: And that's, and we agree with that. [00:11:30] Speaker 03: And we think that the court can take a look at the district court's decision, even just on the plain text, and say that the district court was correct in concluding that the Second Amendment, by virtue of its text, does not [00:12:17] Speaker 03: Correct, and we agree with that. [00:12:18] Speaker 03: We agree that the Second Amendment protects the ancillary rights to effectuate the possessory right. [00:12:24] Speaker 02: So why doesn't that reasoning also, I mean in that case it was the ability to sell, and here we're talking about the ability to manufacture, why isn't the same reasoning applicable? [00:12:32] Speaker 03: Well first we are talking about the ability to manufacture commercially. [00:12:37] Speaker 03: Under this licensing statute, anybody is free, as you just pointed out with my friend, anyone is free to buy a kit online and [00:12:57] Speaker 03: from under the statute. [00:12:59] Speaker 03: And so the reason why Teixeira survives is because it's not this, the reasoning why, excuse me, this statute survives and why this court can apply Teixeira to it is because this statute is not infringing on the possessory right. [00:13:16] Speaker 03: It's merely requesting that someone who wants to manufacture commercially and make a profit from it, like the defendants did here, they simply just need to get a license. [00:13:55] Speaker 02: and is that regulation consistent with the history of this, right? [00:13:59] Speaker 02: And so the argument you're making, I mean, I'm trying to figure out which box it goes in, and I'm really struggling with why doesn't it go in box two? [00:14:07] Speaker 02: Why don't we say, yes, the Second Amendment has something to say about manufacturing, at least in the abstract, and then we'll get to what is the regulation, what are the rules being applied to that activity at step two? [00:14:24] Speaker 03: to the text of the Second Amendment that Heller did. [00:14:26] Speaker 03: And Bruin said that to keep is to have and to bear is to carry. [00:14:32] Speaker 03: And Teixeira relied on that same meaning when it was defining the text. [00:14:36] Speaker 03: And Teixeira, when it was defining the text as authoritatively interpreted by Heller, said that to Keith and [00:14:55] Speaker 03: make, and you can see that in the Ezell case, where they essentially – Chicago had passed an ordinance where they were banning firearm ranges. [00:15:06] Speaker 03: And so they passed this ordinance that inhibited citizens from being able to maintain their proficiency, and that's an ancillary right that needs to be protected. [00:15:15] Speaker 03: But in doing that, they essentially [00:15:22] Speaker 03: And so if that is the extreme, here what we have is a licensing regime that does not infringe on the to keep and to have aspects of the Second Amendment. [00:15:52] Speaker 03: with Heller. [00:15:53] Speaker 03: It was reiterating Heller that Teixeira survives after Bruin and that Bruin is not clearly irreconcilable with it. [00:16:01] Speaker 03: And I'll just add that in Bruin, it does endorse [00:16:24] Speaker 03: could be universes where licensing regimes can be abusive. [00:16:28] Speaker 03: But where we have a shell-issued regime where you pay a fee, you draft your license, you draft your application, you have a place of business, and you get your license. [00:16:39] Speaker 02: We're in the record. [00:16:39] Speaker 02: I mean, that's one of the things that is confusing about this case. [00:16:42] Speaker 02: It doesn't seem like there's much on the record about what this licensing scheme is and what it entails. [00:16:47] Speaker 02: Can you point me to that? [00:16:48] Speaker 03: That's fair. [00:16:48] Speaker 03: That's not in the record in terms of below. [00:16:50] Speaker 03: That was not briefed. [00:16:51] Speaker 03: We did not cite the statute. [00:16:58] Speaker 03: can take notice of that statute. [00:16:59] Speaker 03: There were no claims below that this licensing scheme was abusive, that this licensing scheme was prohibitive, and we do believe we have the burden when it comes to defining the scope of the Second Amendment and putting forth historical analogues. [00:17:14] Speaker 03: But an as-applied challenge typically that still remains [00:17:39] Speaker 03: And here, if they had simply applied for the license, which is not prohibitive and does not infringe on that possessory right in any way, then there shouldn't be a second amendment issue here. [00:17:51] Speaker 02: So I want to follow up on a question that I asked your friend across the aisle about, at step one, how do we define the conduct in asking, does the second amendment apply to this conduct? [00:17:59] Speaker 02: And the defendant's argument here is we define the conduct just as manufacturing, or maybe commercial manufacturing. [00:18:17] Speaker 03: conduct that they pled guilty to and that's the conduct that the statute prohibits. [00:18:22] Speaker 03: It doesn't prohibit manufacturing. [00:18:24] Speaker 03: I think we would have a much harder argument if we were up here saying that this is a statute that prohibits manufacturing. [00:18:53] Speaker 03: of conduct, but the conduct still remains what the licensing scheme is focused on, which is ensuring that it's sort of, I think, intertwined a little bit. [00:19:02] Speaker 03: And I can see where it's hard to separate, but at the end of the day, the law prohibits only unlicensed [00:19:22] Speaker 03: to look at what the modern regulation is doing and what is the conduct. [00:20:01] Speaker 03: just like to add, we, you know, just to respond about the historical analogs, we do put forward a number of historical analogs and in Teixeira, this court did analyze the historical record [00:21:04] Speaker 01: I would just point the court back to Bruin, because in that case, the question was public carrying outside the home. [00:21:24] Speaker 01: But when the court was doing that first step, it just looked at the actual behavior. [00:21:29] Speaker 01: It didn't look at the level of restriction that was applied. [00:21:34] Speaker 01: So I really do think just following this Bruin test, the first part just looks at the conduct. [00:21:42] Speaker 01: And I would just say also that Tishara [00:21:52] Speaker 01: and analysis, and I think it's what the government is arguing now, it's just that this license- Would you disagree with the sort of fundamental reasoning at issue in Teixeira about ancillary rights? [00:22:04] Speaker 02: That seems like you wouldn't disagree that that reasoning holds. [00:22:07] Speaker 01: No, that- I like that part of Teixeira. [00:22:10] Speaker 01: For my argument, yes. [00:22:13] Speaker 01: Unless it does occur to have anything more. [00:22:16] Speaker 02: Thank you. [00:22:17] Speaker 02: Alright, thank you counsel for your helpful arguments in this very interesting case. [00:22:24] Speaker 02: Check where I will be somewhere else.