[00:00:02] Speaker 03:
May I proceed?

[00:00:03] Speaker 01:
Yes, please.

[00:00:05] Speaker 03:
Obviously, the Supreme Court is not messing around when it comes to a Second Amendment analysis.

[00:00:11] Speaker 03:
We've seen after Bruin, we've seen confirmed by Rahimi that there needs to be historical analysts to make a determination of whether or not it goes with our firearm tradition prohibition.

[00:00:24] Speaker 03:
That was not done in this case at all.

[00:00:27] Speaker 03:
This court

[00:00:28] Speaker 03:
at the very least, should remand this case back to the district court because the district court relied solely upon Vang Zai and Dugan in saying that it was presumptively lawful for them to be able to prohibit Mr. Stenerson from possessing a firearm.

[00:00:44] Speaker 03:
This court, of course, in the Duarte three panel decision that is going to be decided here in December, went through that analysis and essentially stated that that's outdated.

[00:00:55] Speaker 03:
That is not what the government wants to do.

[00:00:57] Speaker 03:
The government wants to stick with the way things were.

[00:01:00] Speaker 03:
This has changed.

[00:01:01] Speaker 03:
Bruin has made it very clear that this is a sea change in second minute analysis.

[00:01:08] Speaker 01:
Because this is de novo review, could we do the analysis ourselves?

[00:01:12] Speaker 03:
I think this court certainly can.

[00:01:14] Speaker 03:
Okay.

[00:01:15] Speaker 03:
And I would ask the court to entertain that, but at the very least it should be remanded for the proper analysis to be taken forth by the district court or by your honors.

[00:01:24] Speaker 01:
If we undertook that analysis, counsel, in your view, how should that analysis proceed?

[00:01:30] Speaker 03:
Well, I think you have to go with what is stated in Rahimi, and you have to go on whether or not the government carries their burden on whether or not their historical analog is relatively similar.

[00:01:42] Speaker 01:
And in this particular case, there was no analysis, so we can assume— If we do that, is there a historical analog that we could look to to compare the statute to?

[00:01:54] Speaker 03:
I would say that the government is going to argue intox laws, and the intox laws, they would say, are relevantly similar.

[00:02:01] Speaker 03:
And it doesn't have to be a historical twin, but once again... But the court did say it does not have to be a historical twin, correct?

[00:02:07] Speaker 03:
Correct.

[00:02:08] Speaker 03:
Correct.

[00:02:09] Speaker 03:
But the court also did state that in examining it, there must be an analysis of the why and the how.

[00:02:16] Speaker 03:
And even if

[00:02:18] Speaker 03:
The how or the why extends beyond what was at the founding for the Second Amendment.

[00:02:25] Speaker 03:
It doesn't pass constitutional muster.

[00:02:27] Speaker 00:
I have a pretty quick question on the 922G3 issue.

[00:02:32] Speaker 00:
And that is, I read the briefing as you making a facial challenge.

[00:02:35] Speaker 00:
And then in your supplemental briefing, you reference an as applied challenge.

[00:02:39] Speaker 03:
Well, I think that's difficult to assert because we applied at the district court level, we argued as an applied to challenge.

[00:02:46] Speaker 00:
Where in the record can you point to?

[00:02:47] Speaker 00:
So I also didn't find that to be clearly established in the district court.

[00:02:52] Speaker 03:
And the district court didn't go through any analysis whatsoever.

[00:02:54] Speaker 00:
But you're arguing.

[00:02:55] Speaker 00:
But I'm trying to get at, what kind of claim are we looking at here?

[00:02:58] Speaker 00:
Are we looking at a facial claim?

[00:02:59] Speaker 00:
Are we looking at an as-applied claim because the analysis is different?

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

[00:03:03] Speaker 03:
And I would argue as though we're looking at both here today.

[00:03:06] Speaker 00:
So my follow-up question then is, where in the record shows me

[00:03:09] Speaker 00:
that we have a properly preserved as applied challenge.

[00:03:13] Speaker 03:
That was done in the briefing that was done for the motion to dismiss on the case it was also brought up in the opening brief on this case where we talked about is the applied to challenge and I know what the government's perception is the government's perception is well he pled guilty to that.

[00:03:32] Speaker 03:
So thereby he admitted that he was an addict.

[00:03:35] Speaker 03:
Well, there was no analysis done whatsoever by the district court, once again relying upon do and involves I. And if you take a look at the record on this case in the briefing that was put in the opening brief, we certainly talked about the is applied to challenge based upon the facts that were in relation to the arrest of Mr Stenerson in March of 2022.

[00:03:56] Speaker 00:
So I would argue is the motion to dismiss below is where you want me to look.

[00:04:00] Speaker 03:
And also in our opening brief.

[00:04:04] Speaker 01:
That doesn't help you know in terms of preserving it in the district court.

[00:04:08] Speaker 01:
So in terms of preserving in the district court, you're telling us we should look to the motion to dismiss and that's the only place we can look to.

[00:04:15] Speaker 01:
for the preservation of that issue.

[00:04:17] Speaker 03:
Correct.

[00:04:18] Speaker 03:
And what the district court did is didn't go through any analysis whatsoever on that particular issue.

[00:04:23] Speaker 03:
He pled guilty pursuant to a conditional plea agreement on that case.

[00:04:28] Speaker 03:
There was nowhere in the plea agreement that he was waiving his applied to challenge.

[00:04:33] Speaker 03:
And I think that the applied to challenge.

[00:04:35] Speaker 00:
I mean, waiver and forfeiture are different.

[00:04:36] Speaker 00:
So waiver might not exist in the sense of like,

[00:04:39] Speaker 00:
Sort of an affirmative statement.

[00:04:41] Speaker 03:
I know that this claim exists, but I'm not pursuing it forfeiture is you just didn't You know string Keep raising it at all points of the process I would argue that we did argue it in the motion to dismiss that was denied It was brought forth and preserved by our argument in the opening brief on this case so I do believe the is applied to challenge has been preserved for this court and

[00:05:04] Speaker 01:
So, Counsel, if we disagree with you and determine that the as-applied challenge was not preserved, then what's your position on the issue of facial challenge?

[00:05:17] Speaker 03:
Well, our issue on the facial challenge in regards to G3, specifically.

[00:05:22] Speaker 01:
If we take a look at what the government is probably going to argue— Well, Counsel, I would appreciate it if you'd not tell us what the government is going to argue, but tell us what you are arguing.

[00:05:30] Speaker 03:
I'm going to argue as though that the facial challenge on this particular case is out of bounds.

[00:05:36] Speaker 03:
If you take a look, it's not relatively similar to intox laws.

[00:05:40] Speaker 01:
And the reason why... But that's an as applied argument.

[00:05:43] Speaker 03:
Also the why and the how that goes back into talking about what Rahimi is.

[00:05:48] Speaker 03:
And it's specifically related to a G3 analysis, the historical analog being the intox laws.

[00:05:53] Speaker 03:
You got drunk, okay?

[00:05:55] Speaker 03:
You got drunk, we took away your firearm.

[00:05:57] Speaker 03:
Guess what happens?

[00:05:58] Speaker 03:
You get your gun back the next day when you sober up and have breakfast.

[00:06:02] Speaker 03:
That's not what happens with this.

[00:06:04] Speaker 03:
It is not relatively similar because we go back to it's contemporaneously, it's extended period of time, it's regular use.

[00:06:12] Speaker 03:
What does that even mean?

[00:06:13] Speaker 03:
It means you have to be doing at that particular time, over a period of time, and then also whether or not you're doing it regularly.

[00:06:21] Speaker 03:
So I didn't smoke crack today, so I can have a firearm, right?

[00:06:26] Speaker 03:
And I believe that that goes into a facial challenge because it's the historical analog that the government wants to preserve.

[00:06:33] Speaker 00:
How would you distinguish?

[00:06:34] Speaker 00:
I mean, the Connolly case took this up.

[00:06:36] Speaker 00:
The Fifth Circuit took this issue up in Connolly.

[00:06:39] Speaker 00:
And if I remember remembering correctly, the defendant survived the as applied argument, but not the facial argument because the court reasoned

[00:06:50] Speaker 00:
As the Supreme Court has instructed, the facial challenge is the hardest one to make.

[00:06:53] Speaker 00:
You've got to be able to show that there's no lawful application.

[00:06:56] Speaker 00:
And the Fifth Circuit reasoned that you could have circumstances where somebody is presently intoxicated.

[00:07:01] Speaker 00:
this law is applied to that person and that would be proper, even under the historical analogs that you've referenced a couple of times.

[00:07:07] Speaker 00:
Why is Connolly wrong?

[00:07:09] Speaker 03:
Well, Connolly also based upon the fact that the individual was presently intoxicated.

[00:07:15] Speaker 03:
And once again, we are arguing today that there's applied to challenge is reserved for today.

[00:07:20] Speaker 00:
So set aside the as applied.

[00:07:21] Speaker 00:
We're now talking facial for a minute.

[00:07:23] Speaker 00:
If there is a lawful application of this statute,

[00:07:27] Speaker 00:
even if it's not all the applications of the statute possible, why is Connolly wrong?

[00:07:33] Speaker 03:
Well, Connolly, I do not believe would be wrong if there was an analysis stating that it was historically similar to her firearms tradition.

[00:07:41] Speaker 03:
So I'm not arguing that Connolly is wrong.

[00:07:44] Speaker 03:
But what I am saying is, though, that the how portion, as stated is in Rahimi, is not satisfied when taking a look at the historical analog of intox laws.

[00:07:55] Speaker 03:
So I see that I'm a little bit over my time.

[00:07:58] Speaker 03:
Well, no, you have two minutes left.

[00:08:00] Speaker 00:
Okay.

[00:08:01] Speaker 00:
I guess before you sit down, I really want to talk about the other statute at issue in this case, which is 922N.

[00:08:06] Speaker 00:
Correct.

[00:08:07] Speaker 00:
Again, I assume your position, at least today, is that you're bringing both a facial and an as-applied challenge to that provision.

[00:08:14] Speaker 00:
Correct.

[00:08:16] Speaker 00:
So on that one, Perez Garcia clearly speaks to the issue that's going on with that statute.

[00:08:26] Speaker 00:
My question for you is really, what do we do with Perez Garcia in light of Rahimi?

[00:08:30] Speaker 00:
Perez was decided before Rahimi.

[00:08:32] Speaker 00:
Does it survive?

[00:08:33] Speaker 03:
No, I don't think that it does because Rahimia was dealing with a narrow issue on whether or not there was a judicial determination of dangerousness.

[00:08:43] Speaker 03:
Now, in Perez Garcia, it's a different set of facts that we have here because the individuals were charged in district court.

[00:08:50] Speaker 03:
They were released, and then one of the prohibitions in their pretrial releases, they could not possess a firearm.

[00:08:56] Speaker 03:
However, there was a judicial determination on that case at the modification for the release conditions by a United States magistrate saying that the individual was dangerous.

[00:09:07] Speaker 03:
That's not what we have in this particular situation.

[00:09:11] Speaker 03:
In this particular situation, Mr. Stenerson was charged in state court, the criminal possession of dangerous drugs, and also charged with burglary.

[00:09:20] Speaker 03:
And I can tell you the way that it works in state court at a catacall calendar setting,

[00:09:25] Speaker 03:
is that a judge, a state district court judge, is given an affidavit and information, reads it, grants leave.

[00:09:33] Speaker 03:
Leave for the case to go forward.

[00:09:35] Speaker 03:
Essentially what the state is doing, that's the grand jury proceeding.

[00:09:38] Speaker 03:
And the grand jury and also the state district court doesn't make a determination on whether or not an individual is dangerous.

[00:09:45] Speaker 00:
So that argument makes a lot of sense to me.

[00:09:48] Speaker 00:
And there are certainly strong aspects of Rahimi that suggest a finding of dangerousness is sort of a key point of the majority's reasoning in that case.

[00:09:56] Speaker 00:
But then they throw out this sentence.

[00:09:58] Speaker 00:
We do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by the legislature to present a special danger.

[00:10:08] Speaker 00:
So they leave open the possibility.

[00:10:11] Speaker 00:
of not a judicial finding, but a legislative finding based on a category.

[00:10:16] Speaker 00:
Why doesn't this statute fall within that opening that the Supreme Court left?

[00:10:21] Speaker 03:
Well, it's interesting because the Rahimi court all went through the Bruin analysis, every single one of the judges.

[00:10:28] Speaker 03:
And I'm not disputing with your honor that that line is there.

[00:10:31] Speaker 03:
It certainly is there.

[00:10:33] Speaker 03:
But nobody there in Rahimi, which was dealing with the G8 issue, said, hey, legislators decided as though that if an individual is deemed to be a threat to his intimate partner,

[00:10:45] Speaker 03:
That's not what they did there.

[00:10:47] Speaker 03:
They went through the whole analog analysis every single one of the justices did.

[00:10:52] Speaker 03:
So that's what I would ask this court to do in relation to and also.

[00:10:57] Speaker 01:
Thank you, counsel.

[00:10:57] Speaker 01:
You've exceeded your time, but we'll give you a couple of minutes for rebuttal.

[00:11:01] Speaker 01:
When you return, would you please point us to the language in your brief in support of the motion to dismiss that preserves the as applied challenge?

[00:11:09] Speaker 01:
Correct.

[00:11:10] Speaker 01:
Thank you.

[00:11:11] Speaker 01:
We'll hear from the government.

[00:11:20] Speaker 01:
Good morning, Council.

[00:11:21] Speaker 04:
Good morning, Your Honors.

[00:11:22] Speaker 04:
May it please the Court, Tim DeTarca of the District of Montana on behalf of the United States.

[00:11:27] Speaker 04:
I'll begin with, I do believe this is clearly a facial challenge.

[00:11:33] Speaker 04:
I would recommend the Court's attention to the opening brief at pages 12 and 13, where the appellants clearly identified the Second Amendment challenge as a facial challenge.

[00:11:46] Speaker 04:
And then, of course, throughout the

[00:11:49] Speaker 04:
discussion of that argument.

[00:11:52] Speaker 04:
There is nothing in the Second Amendment argument that can be deemed or shown to be an as applied challenge there.

[00:12:05] Speaker 04:
And I think there is

[00:12:10] Speaker 04:
Looking at the court below, the briefing there, again, with respect to the second amendment challenge, there is nothing that raised an as applied challenge with respect to that.

[00:12:25] Speaker 00:
And just- Is there anything in the district court's order that would give us some sort of clue that the district court understood that there was an as applied challenge being made?

[00:12:39] Speaker 04:
There is not, Your Honor.

[00:12:42] Speaker 04:
I mean, the council is correct.

[00:12:46] Speaker 04:
The district court's order was decided at a very high level, looking at Fongse and Dugan as precedent.

[00:12:59] Speaker 04:
There's nothing there that indicated the court went beyond that and looked at it as applied.

[00:13:08] Speaker 04:
And as this court recognized, and even the Fifth Circuit in Connolly recognized, although we disagree with Connolly's application of the law as applied, acknowledged that there is a constitution, or there is looking at

[00:13:33] Speaker 04:
the language and the light most favorable to the constitutionality of the statute, there definitely is historic analogs.

[00:13:43] Speaker 04:
Again, we think there's unquestionably those analogs are broader than that, but at least there is some constitutional applications.

[00:13:52] Speaker 02:
If I understand opposing counsel's argument correctly, they would acknowledge that there are historical analogs regarding dispossession while someone's intoxicated.

[00:14:02] Speaker 02:
But they're arguing that there is an analogy in terms of the why of the current law, but not so much in the how in terms of criminalizing possession.

[00:14:17] Speaker 02:
Can you respond to that?

[00:14:19] Speaker 04:
Sure.

[00:14:20] Speaker 04:
As this court found in Alonaz, that drug

[00:14:30] Speaker 04:
Drug abuse is a, contemporary drug abuse is a new context and requires a broader analysis.

[00:14:39] Speaker 04:
So just as owning a semi-automatic handgun with a 15 round clip is analogous to owning a musket or a saber, the dangers of methamphetamine

[00:14:53] Speaker 04:
which is an issue here, are analogous but not the same as colonial, intoxication with colonial Applejack.

[00:15:05] Speaker 04:
The danger that Congress found was not limited to the intoxication, period of intoxication, and Mr. Stinnerson's case is a good example of that.

[00:15:14] Speaker 04:
Mr. Stinnerson acknowledged that his other criminal activity, his breaches of the peace were,

[00:15:23] Speaker 04:
in relation to his drug abuse.

[00:15:29] Speaker 04:
And so looking at it as an analog rather than an identity, that is analogous.

[00:15:38] Speaker 04:
It is the period in which the individual is dangerous.

[00:15:40] Speaker 02:
And as the court noted- I think you're answering a slightly different question than the one they asked, and it's fine.

[00:15:46] Speaker 02:
that I just want to clarify because I think you're addressing the criminalization of possession during periods of where the defendant is not actually intoxicated.

[00:15:57] Speaker 02:
My question is a little bit different in terms of, you know,

[00:16:01] Speaker 02:
that say that defendant is intoxicated, I think the argument is in the historical analog, they would have taken away the firearms, they wouldn't have essentially declared him to be a criminal, felon, and sent him to prison for possessing the firearms while intoxicated, so that essentially the criminalization and punishment goes far beyond the historical analog.

[00:16:30] Speaker 02:
I think that's the argument.

[00:16:31] Speaker 04:
I see, Your Honor.

[00:16:33] Speaker 04:
And what I would say to that is that is similar to the argument that was made by the dissent in Rahimi that sort of said there has to be a match between the, you know,

[00:16:47] Speaker 04:
you couldn't sort of mix and match between the various historic analogs, the surety laws versus the risks related to the surety laws versus the punishment in the going armed laws.

[00:16:59] Speaker 04:
And that was rejected 8-1.

[00:17:01] Speaker 04:
And I think that's the same issue here.

[00:17:04] Speaker 04:
And I would recommend the Court's attention to Justice Barrett's concurrence where she said, we're just looking at the general principles here.

[00:17:16] Speaker 04:
We don't want to bind 21st century legislators to 18th century policy decisions.

[00:17:22] Speaker 04:
Again, the danger posed by the methamphetamine abuse here is analogous but different than the issues of drunkenness in colonial times, and therefore the punishment is analogous but different.

[00:17:45] Speaker 04:
I do want to address 922N.

[00:17:51] Speaker 04:
Again, this is a facial challenge, so the court needs to look at the conduct that is, you know, most likely to be constitutional.

[00:18:06] Speaker 04:
And I think that falls easily within Perez Garcia.

[00:18:12] Speaker 04:
So do you not see any tension between Perez Garcia and Rahimi I I don't your honor certainly not I certainly don't Think this court could find that it is clearly irreconcilable when Rahimi expressly leaves open the question of the legislature's disarming groups because of their

[00:18:37] Speaker 04:
because they pose a special danger of misuse of firearms.

[00:18:41] Speaker 04:
That's exactly the question this court answered in Perez Garcia.

[00:18:47] Speaker 00:
Except for, I mean, there is a difference between the statute at issue in Perez Garcia and the statute at issue here in that

[00:18:54] Speaker 00:
However perfunctory it might have been, the provision at issue in Perez Garcia did involve sort of a judicial moment, a judicial opportunity for a finding of dangerousness, because you're tailoring release conditions for a person based on the nature of their case, et cetera.

[00:19:10] Speaker 00:
And that is not here.

[00:19:11] Speaker 00:
There is no moment for that.

[00:19:12] Speaker 00:
It's just a categorical ban.

[00:19:14] Speaker 04:
Sure, but I would recommend the court's attention to Perez Garcia relies on two independent grounds, right?

[00:19:23] Speaker 04:
The court looked at both the history regarding bail and then separately the history with respect to dangerousness.

[00:19:34] Speaker 04:
And this statute, 922N, falls

[00:19:40] Speaker 04:
falls clearly within Perez Garcia with respect to its logic about the history of bail.

[00:19:46] Speaker 04:
The logic of Perez Garcia is in colonial times or at the founding that bail was not a right, has never been a right.

[00:20:00] Speaker 00:
But it was always an individualized decision.

[00:20:08] Speaker 04:
Well, at least it was generally not available in terms of capital cases.

[00:20:15] Speaker 04:
And I don't know the answer to the question.

[00:20:20] Speaker 04:
I can't respond to whether or not it was ever in statute that there would be no bail for capital cases.

[00:20:32] Speaker 04:
But even beyond that, even if you assume something less than,

[00:20:38] Speaker 04:
than complete disorder, I mean, than jail.

[00:20:41] Speaker 04:
At the very least, we know that surety laws were analogous in terms of putting protections on folks who were, you know, under indictment.

[00:20:59] Speaker 02:
What's your opinion on whether this case is affected by Dorte on the 922N?

[00:21:08] Speaker 04:
Again, I think Perez Garcia controls here.

[00:21:13] Speaker 04:
I mean, the court obviously could hold this case for Duarte, but I don't know that that analysis is going to change the fact here.

[00:21:26] Speaker 04:
Again, as a facial challenge, again, that means if there's any constitutional application.

[00:21:31] Speaker 04:
So apply it to a capital murder case.

[00:21:37] Speaker 04:
you would have no question here at a facial level.

[00:21:42] Speaker 00:
Duarte is potentially going to speak to who is included in the people.

[00:21:47] Speaker 00:
Is the government's position here that that requirement is met, so that's a reason why we don't need to wait for Duarte?

[00:21:58] Speaker 04:
I do think under Perez Garcia,

[00:22:05] Speaker 04:
The folks under indictment are included in the people.

[00:22:13] Speaker 04:
That could change under Rahimi, possibly.

[00:22:19] Speaker 04:
So again, the court is absolutely free to hold it and see what happens in Duarte.

[00:22:25] Speaker 04:
But I think the court can answer it under present law under step two.

[00:22:29] Speaker 04:
And so the question as to whether or not

[00:22:34] Speaker 04:
a part of the people isn't necessary for the court to.

[00:22:38] Speaker 00:
Well, the way I understood the analysis, you don't get to step two unless you've answered step one.

[00:22:43] Speaker 00:
If you say that the Second Amendment doesn't apply, then we don't have to get to step two at all.

[00:22:47] Speaker 04:
No, I agree, Your Honor.

[00:22:51] Speaker 04:
But the court could assume that step one applies and reject this challenge on step two.

[00:23:00] Speaker 01:
Thank you, counsel.

[00:23:00] Speaker 04:
Thank you, Your Honor.

[00:23:02] Speaker 01:
Let's have two minutes for rebuttal.

[00:23:07] Speaker 03:
Thank you, Your Honor.

[00:23:08] Speaker 03:
I'm pointing to the excerpts of record, page 74, where we're talking about the statute being vague and also as applied to Stenerson.

[00:23:18] Speaker 03:
There is a congress.

[00:23:20] Speaker 01:
That's vagueness.

[00:23:22] Speaker 01:
That's facial.

[00:23:23] Speaker 01:
You say as applied, but you do know as applied analysis.

[00:23:29] Speaker 03:
We say that no controlled substance was recovered from Mr. Stenerson's person when the police seized the firearm.

[00:23:35] Speaker 03:
No evidence was obtained.

[00:23:36] Speaker 03:
Mr. Stenerson was on a controlled substance on the night of March 30th of 2022.

[00:23:41] Speaker 03:
That's going directly into the facts.

[00:23:44] Speaker 03:
that happened with Mr. Stenerson at that time.

[00:23:46] Speaker 03:
So I would argue that the as applied to challenge was brought up in the district court.

[00:23:52] Speaker 03:
And, of course, what the district court did on this case.

[00:23:54] Speaker 01:
The standard is whether or not it was sufficiently raised for the district court to rule on it.

[00:24:00] Speaker 01:
And so on page 12, you specifically talked about he can maintain a facial challenge, but you didn't talk about that he can maintain an as applied challenge.

[00:24:14] Speaker 03:
I would just respectfully state that it was brought up in the dismissal motion at the district court level.

[00:24:20] Speaker 03:
And of course, we're also known what the district court did here.

[00:24:22] Speaker 02:
So if I understand you correctly, you're saying just by arguing the facts, you implicitly raised an as-applied challenge.

[00:24:29] Speaker 02:
But are you conceding that you did not explicitly say that you were raising an as-applied challenge in your motion to dismiss?

[00:24:37] Speaker 03:
I would say that we did raise as applied to challenge in our brief motion to dismiss.

[00:24:43] Speaker 02:
Where are the words in the Second Amendment challenge?

[00:24:48] Speaker 02:
I'm not talking about the vagueness argument, which is a different claim, but in your Second Amendment claim, do you explicitly say that you are making both a facial and as applied challenges?

[00:25:02] Speaker 03:
We state that facial and as applied to standards.

[00:25:05] Speaker 03:
Is it crystal clear?

[00:25:07] Speaker 03:
It is not.

[00:25:07] Speaker 02:
Facial as applied is what you wrote, is what you're saying?

[00:25:11] Speaker 03:
Facial and as applied.

[00:25:12] Speaker 02:
Where exactly?

[00:25:14] Speaker 03:
We're stating right here on, I go back to excerpts of record, page 74.

[00:25:19] Speaker 03:
And I think also in relation to this, what is important on this question is that there was no analysis done whatsoever by the district court because it was relying upon Dugan, which is irreconcilable with Bruin and is certainly irreconcilable with Rahimi.

[00:25:35] Speaker 01:
Council, let's go to your opening brief.

[00:25:37] Speaker 01:
Where in your opening brief did you discuss the hand supply challenge?

[00:25:41] Speaker 03:
I believe, if I may go back to council table for just a moment.

[00:25:45] Speaker 03:
Of course.

[00:25:46] Speaker 03:
Thank you.

[00:25:47] Speaker 01:
I'm looking at page 12 where you summarize your argument.

[00:25:56] Speaker 01:
You can bring your brief to the lectern.

[00:25:59] Speaker 02:
Thank you.

[00:26:03] Speaker 03:
I do not believe it's specifically stated in the summary.

[00:26:06] Speaker 03:
I would agree with that.

[00:26:07] Speaker 03:
There's also a section where we talk about the specific facts.

[00:26:12] Speaker 03:
As replied to Mr. Stenerson, that's on page 37 of our opening brief.

[00:26:16] Speaker 03:
Once again, we talk about that there was no controlled substances found from him on that day, that there was no Ossifer

[00:26:25] Speaker 03:
officer observed, they didn't observe him to be underneath any intoxicants.

[00:26:31] Speaker 03:
That was all raised.

[00:26:32] Speaker 03:
It was also raised in our brief on the motion to dismiss.

[00:26:36] Speaker 01:
Well, we're talking about your opening brief because the opening brief requirement is that you have to raise the issue and you have to discuss and give an analysis of the issue in your opening brief for it to be properly preserved for decision by this court.

[00:26:51] Speaker 01:
So just stating the facts, that's a whole different section of the brief.

[00:26:55] Speaker 01:
The facts are a different section, but the analysis is supposed to contain cases, it's supposed to contain argument that goes to the issue.

[00:27:04] Speaker 01:
And so in this brief, I don't see for you

[00:27:07] Speaker 01:
gave us cases and gave us argument, legal argument, regarding the as-applied challenge.

[00:27:13] Speaker 03:
And I think that that was properly done.

[00:27:15] Speaker 03:
I respectfully disagree.

[00:27:17] Speaker 03:
I believe that it was properly done on page 37.

[00:27:19] Speaker 01:
So again, it's your argument that discussion of the facts suffices to...

[00:27:25] Speaker 01:
give us the appellate court notice that that issue is before us.

[00:27:28] Speaker 03:
Well, it goes definitely to the temporal unit that is talking about the Rahimi analysis.

[00:27:34] Speaker 03:
And once again, if a Second Amendment regulation, even for a permissible reason, goes outside the bounds what was done at founding, and I believe that that's what we're arguing there, that it is unconstitutional.

[00:27:48] Speaker 02:
If we found that the as applied challenge in the Second Amendment context was adequately raised, what is your best articulation as to why these laws are not constitutionally applied to the defendants?

[00:28:04] Speaker 03:
It's not relevantly similar.

[00:28:06] Speaker 03:
There's more.

[00:28:06] Speaker 02:
I want it on the facts, because that's your legal art.

[00:28:10] Speaker 02:
What exactly on the facts are you saying is missing here?

[00:28:16] Speaker 03:
There's no determination that he was presently intoxicated at the time when he was possessing of a firearm, which is required.

[00:28:24] Speaker 02:
Is that not a reasonable inference when he admitted to being a daily user during a period of time of possession?

[00:28:31] Speaker 03:
We didn't have any proof as though that he was underneath the influence at that particular time.

[00:28:36] Speaker 03:
And once again, I point that there was no particular time when he was arrested in March of 2022.

[00:28:41] Speaker 02:
You're saying that's the only moment of possession that counts?

[00:28:44] Speaker 03:
Well, if we're going to go relevantly similar, you have to be drunk in order for you to take away your firearms if you have a couple of drinks.

[00:28:51] Speaker 02:
In the midst of having, let's, I don't remember, sorry, the exact time period, but let's assume the record establishes a defendant possesses a gun for a month, and they also admit that during that month, they are a daily user of methamphetamine.

[00:29:09] Speaker 02:
Why, so why isn't it reasonable infer that

[00:29:13] Speaker 02:
During that month, at some periods of time, they were both intoxicated and possessing the gun.

[00:29:18] Speaker 03:
Well, if somebody is a daily drinker, for example, and you're operating a motor vehicle, they have to prove, though, that you were drunk at the time you were operating the motor vehicle.

[00:29:28] Speaker 03:
In the intox laws, they had to prove as though that you were drunk at the time.

[00:29:31] Speaker 02:
You're saying the intox laws were limited to someone literally using the gun, not just possessing it.

[00:29:37] Speaker 03:
Possessing it, using it any way you want to take a look at it.

[00:29:40] Speaker 03:
The main thing is that you had to be impaired by intoxicating substance.

[00:29:43] Speaker 03:
And I don't believe the record supports that Mr. Stenerson was at that particular time in March of 2022.

[00:29:49] Speaker 03:
All right.

[00:29:51] Speaker 01:
Thank you, counsel.

[00:29:52] Speaker 01:
Thank you, counsel, for your helpful arguments.

[00:29:54] Speaker 01:
The case just argued is submitted for decision by the court and we are adjourned.