[00:00:45] Speaker 04:
Richard Chambers Courthouse here in Pasadena.

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We're delighted to be here.

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This is the time set for the case of United States versus Stephen Duarte.

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If counsel is ready to proceed, you may come forward and begin.

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since the founding.

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Modern felonies now include traditional, deadly, serious things like murder, but also much pettier things like selling pigs without a license.

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The government nonetheless claims that historical principles permitted to permanently disarm anyone who's committed any modern felony, but its purported principles boil down to an ahistoric claim that it can disarm whoever it wants for as long as it wants.

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to the constitutional claims here.

[00:02:38] Speaker 07:
Yes.

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So we're not the only circuit that says that.

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The Third Circuit says that, and the Tenth Circuit say it as well.

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And I... The Tenth Circuit says good cause without applying plain error.

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The Tenth Circuit says good cause without applying plain error.

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Bowline, which we cite in our response to the PFR, it's 917F3R1227.

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So we said that the correct standard to the cause, that's what this court held already in Guerrero.

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That's what it did in Aguilera-Rios.

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And there's solid and textual and practical reasons for that.

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So what the Third Circuit said recently is that Rule 52B is a general catch-all rule for unpreserved errors, while Rule 12C3 is a narrower, more specific rule that singles out certain classes of defenses that are supposed to be raised by pretrial motion.

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I mean, I think that's a good question.

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constitutional challenge.

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Under what vehicle, I guess?

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I mean, you certainly could file a motion for a new trial and say that, or even a motion, I presume, for a judgment.

[00:05:10] Speaker 10:
It can't be that you cannot raise the constitutionality of a statute at trial.

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You could have asked for instructions that conform to the Constitution.

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district court.

[00:05:46] Speaker 07:
But I suppose we have the the because we could have brought it that way and didn't bring it that way because we had good cause not to bring it that way.

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Because you had two defaults, both not raising it and not raising it before trial.

[00:06:03] Speaker 07:
No, because it because it falls I mean because it falls under 12b3 and 12b3 operates under a good cause standard.

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general rules generally trump more general rules.

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And that's what the Third Circuit held in Sock in the case that we had in our 28-J letter recently.

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And I think there are good reasons to just apply good cause here, because the main point of both good cause and plain error is to force litigants to bring challenges at the proper time, to have them make their best efforts in trial court.

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And the good cause standard really

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case that says, um, the Rule 11 Hormones Error has equal dignity with Rule 52, and therefore both are applicable.

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Um, and so, um, other surrogates have also applied both Rule 12 and Rule 52.

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What's your response to that?

[00:07:15] Speaker 07:
It, uh, what I was winding up to say, which is, again, that

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them because they kind of both occupy the same space.

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They're both doing the function of getting litigants to litigate their issues at the correct time when they have them, and Good Cause does that really effectively.

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It's a harsher standard in a lot of ways than plain error, not in every case.

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That's not what the panel said.

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The panel said that plain error was a harsher standard.

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where the person could have brought the claim because the claim existed and just didn't bring it.

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So you don't have good cause and so it's gone.

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The Guerrero was actually litigated from the other side with the defendant

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error standard would do in terms of changing or controlling litigant behavior in the trial court.

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And so to have both is just setting, you know, this court up for more briefing from both sides.

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So how does that overcome the United States' defaun and the government's argument?

[00:09:08] Speaker 07:
Because they're, because I, my understanding is the base of the government's argument is that you could, you could apply both, so it's consistent.

[00:09:24] Speaker 07:
saying that I think that to apply them both it doesn't it might make sense in that rule 11 context it doesn't make sense here because they're the rule 12 rule and rule 52 are occupying the same space I'm sorry I can

[00:10:05] Speaker 07:
field, they're serving the same function.

[00:10:10] Speaker 09:
So to apply them both is kind of unnecessary and... You know, the fact that they're occupying the same field seems to be undermined by the examples you gave of how they could apply differently.

[00:10:21] Speaker 09:
Seems like in that sense, Rule 12 is really focused on what you do before the district court.

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You know, plain error is really what the Court of Appeals applies as a review in those circumstances.

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is about whether the court catches it after you fail to ask for it.

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But they're both about whether you fail to ask for it.

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And I'm saying that the good cause already takes care of getting you to ask for it when you're supposed to ask for it.

[00:10:57] Speaker 09:
If an error does apply in this case, is there an avenue for you to win?

[00:11:07] Speaker 07:
So certainly we argued in the briefs.

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I acknowledge our strong arguments are a good cause.

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First of all, the plain air is playing at the moment a decision, so we'll see what happens between.

[00:11:19] Speaker 02:
That's not actually accurate under Griffin versus Kentucky.

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Under Griffin versus Kentucky, the Supreme Court was considering whether or not the newly determined Batson defense, affirmative defense, could be raised when it hadn't been decided

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held there was that on direct review of a criminal case, we must consider the law as it exists at the time of review.

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In fact, the majority opinion was very adamant about that, saying how can we create a right and then hold that the defendant lost the right because the law happened to change after the final conviction.

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Second Amendment Challenge under either standard of review.

[00:12:41] Speaker 07:
So there's that, first of all.

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And there's also this court's purely legal issue test.

[00:12:48] Speaker 02:
But there's- The government's arguing that we should, if we go under plain error, we should then go on to reconsider our pure question of law and intervening change of the law jurisprudence.

[00:13:02] Speaker 02:
But we really don't need to get there if we come to the same result under either the plain error standard

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So why would the government be trying to go out and reach these other issues when we don't need to reach them if we will for them?

[00:13:34] Speaker 07:
I suppose they dislike that rule.

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I'd like to see this as a vehicle.

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he may plainly require a historical tradition of...

[00:14:28] Speaker 07:
So I'll answer that.

[00:14:30] Speaker 07:
Actually, I need to take us back to a couple things to get to that.

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I mean, the first thing is this notion of serious crimes that the government's relying on is a definitional bait and switch, in the sense that the government's saying, at the founding, serious crimes were punishable by death.

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Therefore, you should punish serious crimes today with anything short of death.

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And felonies are all serious crimes.

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It's not using the founding-era definition of a serious crime.

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It's using its own year-in-a-day definition.

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If it's using a founding-era definition of serious crime, it would be something more like what the panel did, where you want to call this a serious crime, show us that this is actually something that the founders regarded as death-worthy or analogous.

[00:15:19] Speaker 10:
In the First Amendment context, if we apply the exception force,

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In the First Amendment context, speech isn't protected if it solicits an unlawful transaction, unlawful conduct, or it's integral to unlawful conduct.

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Do we judge the scope of unlawful conduct based on what was unlawful in 1791, or does it expand?

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people for, therefore we can do this, there has to be something that links that serious crime to what we're calling serious crimes today.

[00:16:10] Speaker 07:
I don't, you know, there are five grades of felonies in the federal code, right?

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A through E, and only the lowest.

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E is, you know, more than a year in prison.

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A looks a lot like a founding era serious felony.

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A is, you know, death or life imprisonment.

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Why wouldn't that be a serious crime?

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Why does the government get to define it all the way down to the lowest kind of felony

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bait and switch, there's another problem, which is that the government claims complete authority, unrestrained by history, to designate any behavior it wants as a felony.

[00:16:47] Speaker 07:
So it's saying that it can make jaywalking a felony if it so chooses.

[00:16:52] Speaker 06:
How do you get around the actual language in Heller talking about the long-standing prohibitions against felons?

[00:17:02] Speaker 07:
Sure.

[00:17:06] Speaker 07:
So that language, I don't think you can read it the way the government wants to read it.

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And the government wants to read it as, you know, Heller already ruled on this, 922G1 is constitutional.

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Bruno Rahimi made clear that there's one test and one test only for the constitutionality of firearms regulations and that's whether it passes through this text and history analysis and you show analogous, you know, historical regulations or

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other by a principle that make them analogous.

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But, you know, Heller didn't purport to do that with felon in possession laws.

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So I think the, in light of Bruin and Rahimi, the best reading of it is that

[00:18:00] Speaker 02:
the fact that six justices in Groom reiterated that language, including Justice Alito, who said, our holding decides nothing about who may lawfully possess a firearm or requirements that must be met to buy again.

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And we repeated the language in Heller upon which Bonze relied.

[00:18:21] Speaker 07:
Again, it's, I mean, there are

[00:18:38] Speaker 02:
that are a category of persons from the right, the Second Amendment.

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or categorical firearm regulation, the government still has to meet this text and history test.

[00:19:06] Speaker 07:
It needs to show analogous histories.

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If it wants to take a category, then it needs to show that the founders would have taken weapons away from a category, either that category or a category analogous to that category.

[00:19:49] Speaker 07:
So it doesn't, you know, again, in light of Bruin and Rahimi, Bruin's saying there's one test.

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Heller definitely didn't do that test.

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So if you're reading the two together, then it can't mean that they've already held.

[00:20:01] Speaker 05:
But don't you think the Supreme Court would have addressed that point if it was intention, it's the intention to somehow cabin the language in Heller?

[00:20:11] Speaker 05:
I think it was, I mean,

[00:20:18] Speaker 07:
The language in Heller, I guess it's not, I don't know that the Supreme Court's going to say, well, and our test that we've just said is the only way for regulation to be legal also applies to the language in Heller.

[00:20:31] Speaker 07:
To me, the language, you know, this is the only way.

[00:20:36] Speaker 07:
That is clear enough to make clear that as we read the language in Heller, which is there and which has been repeated, we can't read it to mean just all felon in possession laws, no matter which felons, no matter which laws are constitutional.

[00:20:51] Speaker 07:
And I guess I would say, you know, if you want to read more into it, the court only expressed presumptive approval for long-standing prohibitions on the possession of firearms by

[00:21:08] Speaker 07:
And notably, the most long-standing federal firearms ban is the one from the 1930s, which barred violent felons.

[00:21:17] Speaker 07:
So it's actually, you know, you could read it that way to be consistent with exactly what we're asking for here.

[00:21:22] Speaker 02:
Did it go out of its way to say nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 states shall issue licensing regimes which rely on these national background checks

[00:21:57] Speaker 07:
unconstitutional, but it doesn't tell us about the content of the background checks.

[00:22:02] Speaker 07:
It doesn't say anything to anyone.

[00:22:04] Speaker 07:
But it doesn't say anything that anyone throws into a background check or anything we decide to do because it's a background check is constitutional.

[00:22:15] Speaker 07:
You'd still have to look at is this actually, you know, is this actually something that the founders would have fit with the tradition that the founders recognized?

[00:22:26] Speaker 05:
How would you have us differentiate between

[00:22:41] Speaker 07:
and we need to do something like what the panel did and tie it to the history.

[00:22:46] Speaker 07:
And I think you could tie it to the history as the panel did by saying, okay, let's look at, you know, because not all felonies at the founding were capital, and not everybody was actually killed at the founding.

[00:23:00] Speaker 07:
If you're going to say, this is a felony, therefore it's like what happened at the founding, you need to show that it's actually

[00:23:10] Speaker 07:
You know, I guess you could also, one way of doing that would be to look at what we treat as particularly serious in the same way, like, you know, a Class A felony, right?

[00:23:18] Speaker 07:
If that's, if we're going on a, you know, the government can disarm serious people because, uh, uh, serious criminals because, um, serious criminals were executed at the felony.

[00:23:27] Speaker 07:
Under your view, under your view, could Al Capone have a gun after his tax evasion conviction?

[00:23:36] Speaker 07:
There should be a quick yes or no, right?

[00:23:39] Speaker 07:
Because he's a, I know, I'm trying to think, so he's only convicted of tax evasion.

[00:23:43] Speaker 07:
That's the, that's the, that's the theory of it.

[00:23:48] Speaker 07:
I mean, the answer would be yes, but.

[00:23:50] Speaker 07:
There should be like a bam.

[00:23:51] Speaker 07:
Yeah, right, okay, bam, quick.

[00:23:52] Speaker 07:
Presumably, you know, they'd try to get him for something more.

[00:24:06] Speaker 07:
depend on the volume and like whether those, I mean, those, but if we're using what we treat as serious today, right, that could be a whole lot of things.

[00:24:16] Speaker 07:
I mean, child pornography, some people think is very serious, some people don't think it is.

[00:24:20] Speaker 07:
But for the neo-Nazi guy, could he have a gun?

[00:24:23] Speaker 07:
Under violence, non-violence test or under the panel test?

[00:24:50] Speaker 07:
some connection between those and things that the founders treated as serious.

[00:24:54] Speaker 07:
I don't know.

[00:24:55] Speaker 07:
And people trafficking, then the answer would be that he could have a gun.

[00:24:59] Speaker 07:
Well, that's what other people are.

[00:25:01] Speaker 07:
I don't know how the founders treated kidnapping or something.

[00:25:04] Speaker 07:
But in terms of violence on violence, I think it would be, yeah, if it's

[00:25:26] Speaker 02:
in the PSR, because I don't think anybody would walk away from Duarte's entire criminal history and say that he's a nonviolent person.

[00:25:36] Speaker 07:
So how do you define this?

[00:25:39] Speaker 07:
There's a lot of pieces there.

[00:25:40] Speaker 07:
So in terms of what we're asking for, either what the panel did or the violence, nonviolence line that we have in our briefing, either of those is much more historically tethered and much more faithful to Bruin or Rahimi than anything that the government's asking for.

[00:25:56] Speaker 07:
In terms of how we'd determine it, it would be, the question would be whether the person being disarmed had been convicted of, since that's the language from 9-22-G-1, of a crime involving the kind of violence the founders recognized warranting disarmament.

[00:26:09] Speaker 07:
You could look to Rahimi, the physically attacking others or being a credible threat to attack them, or rebellion seems to come up a lot.

[00:26:16] Speaker 07:
And this fits Rahimi, which says the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others.

[00:26:43] Speaker 07:
And then.

[00:26:45] Speaker 02:
Well, what about disarming the Catholics and Native Americans?

[00:27:17] Speaker 07:
but the theory with Catholics.

[00:27:19] Speaker 07:
The people are reusing.

[00:27:20] Speaker 07:
Sorry?

[00:27:21] Speaker 07:
Which definition?

[00:27:22] Speaker 07:
The one from, the one, the one.

[00:27:24] Speaker 07:
Women were not part of the people?

[00:27:26] Speaker 07:
No, the one from Brewer and Rahimi, all Americans.

[00:27:28] Speaker 07:
Well, I'm talking about at the time of the founding.

[00:27:30] Speaker 07:
Yeah, I, I haven't.

[00:27:32] Speaker 07:
The founding members of the citizens.

[00:27:34] Speaker 07:
It's not, it's,

[00:27:48] Speaker 07:
and Bruin, which is all Americans, all members

[00:28:26] Speaker 11:
I'd like to start with plain error and briefly address Mr. Duarte's contention that there's no reason to apply both the good cause standard and plain error because they essentially answer

[00:29:02] Speaker 11:
one of those arguments before trial, a defendant may attempt to show there was good cause for it.

[00:29:07] Speaker 11:
For example, he didn't receive discovery in time to raise that challenge before trial.

[00:29:11] Speaker 11:
He didn't have the facts that would have allowed him to bring that challenge at that time.

[00:29:16] Speaker 11:
Rule 52, both A and B, answers a different question, which is if you fail to raise a claim at any point during trial and only raise it at some subsequent time, what standard applies

[00:29:34] Speaker 11:
There's no inconsistency with applying both of those standards.

[00:29:38] Speaker 11:
So that a defendant, I agree that with, I think I agree with Mr. Duarte, it's going to be an unusual situation where a defendant is going to satisfy the good cause standard and then move on to plain error.

[00:29:50] Speaker 11:
But that's actually a very consistent way to read the rules.

[00:29:53] Speaker 11:
That if you can show good cause for some reason, you weren't able to raise the claim before trial.

[00:29:59] Speaker 11:
If you fail to raise it at any point during trial,

[00:30:08] Speaker 11:
plain error, which has different requirements than good cause.

[00:30:11] Speaker 11:
So good cause is essentially any cause that would have prevented you from raising it at the time.

[00:30:16] Speaker 11:
Rule 52B requires an error that's plain.

[00:30:19] Speaker 11:
It requires prejudice.

[00:30:39] Speaker 11:
So, Your Honor, I regret to say I didn't look at the bowling case that Mr. Duarte referred to.

[00:30:47] Speaker 11:
We do cite in our supplemental brief the Herrera case, and I agree with you.

[00:30:51] Speaker 11:
My understanding is that in Herrera, the court said that even

[00:31:15] Speaker 11:
a different question, and that question is when you fail to raise a Rule 12 B3 claim and a trial, then do you get any review at all or do you get plain error review?

[00:31:31] Speaker 11:
And so this court has said you get no review at all if you fail to raise it and you can't show good cause.

[00:31:37] Speaker 11:
Other courts have said, well, we sort of set aside the good cause standard and apply plain error no matter what, but that's a different question.

[00:31:46] Speaker 11:
So, Your Honor, I mean, we think both can theoretically apply.

[00:31:48] Speaker 11:
I think in this case, we would perhaps dispute whether or not good cause can be shown and whether he can even satisfy the good cause standard in Rule 12, C-3.

[00:31:56] Speaker 10:
He could have raised it at trial but by a post-trial motion.

[00:31:59] Speaker 11:
Exactly.

[00:32:00] Speaker 11:
Yes, Your Honor.

[00:32:00] Speaker 10:
So, in that sense, it would just be plain error.

[00:32:03] Speaker 10:
I mean, because he could have raised it at a later point that's not saddled with the special Rule 12, Rule 12,

[00:32:10] Speaker 11:
So Your Honor, a constitutional claim like this is a little bit of an unusual circumstance.

[00:32:15] Speaker 11:
So this court, for example, in the Webster case said that it is something that must be raised, a Second Amendment, that was specifically a Second Amendment ruined challenge, said that it's something that must be raised pre-trial and therefore falls under Rule 52, excuse me, Rule 12B3.

[00:32:31] Speaker 11:
But I agree with you that you certainly can raise a constitutional challenge at a later point.

[00:32:35] Speaker 11:
And had he done so, we wouldn't be making an argument that

[00:32:44] Speaker 08:
prior to sentencing.

[00:32:49] Speaker 08:
Sure.

[00:32:57] Speaker 11:
Sure.

[00:32:58] Speaker 11:
The reason that I'm not that I'm not sure that we agree with that is that the in the context of procedural default the Supreme Court in Boosley said that you can't show good cause just futility is not good cause

[00:33:13] Speaker 11:
It was unacceptable to a particular court at a particular time Well, your honor, I don't think this court is I don't think the circuit has said it explicitly before the panel decision Not that I'm aware of the Seventh Circuit has said it though.

[00:33:32] Speaker 11:
It said that a change in law where that you were foreclosed

[00:33:48] Speaker 08:
in law that our circuit has, what I think is a little bit of an idiosyncratic rule that says there's exception for plain air if there's been a change in law.

[00:33:58] Speaker 08:
And so A, why should we not apply that exception in this case?

[00:34:07] Speaker 08:
And B, I was obviously on the panel, so I'm not sure that that's saying

[00:34:26] Speaker 08:
the same change in law doesn't also satisfy our circuit's exception.

[00:34:31] Speaker 08:
And so you kind of end up in the same place.

[00:34:33] Speaker 11:
Right.

[00:34:34] Speaker 11:
So why is it not?

[00:34:35] Speaker 11:
So, Your Honor, I think I would agree with you that if this Court's change in law exception is correct, then probably you could satisfy both.

[00:34:45] Speaker 11:
It would still return the change in law exception.

[00:34:46] Speaker 11:
We do.

[00:34:47] Speaker 11:
And, Your Honor, I mean, this Court hasn't applied it consistently, so we- We heard a question earlier about, you know, from one of my colleagues saying, you know,

[00:34:55] Speaker 08:
If they think the error is super plain, but plain the opposite of the way that Mr. Duarte is saying, plain that they went, then they don't, in some ways they can just assume that it's, they could assume an over review under the exception and still reach a result.

[00:35:11] Speaker 08:
And so you wouldn't get that, you wouldn't get it overturned.

[00:35:13] Speaker 11:
Sure.

[00:35:14] Speaker 11:
And Your Honor, we don't need this case to fix all of the standard of review problems that we've raised in our brief.

[00:35:20] Speaker 11:
I think the Gomez case, we've petitioned.

[00:35:26] Speaker 02:
those issues, really, do we enter our existing case law?

[00:35:30] Speaker 02:
We could just follow Griffin v. Kentucky, apply Bruin, determined to the extent to which it actually, well, we know it changes the mode of analysis.

[00:35:43] Speaker 02:
I agree with the majority opinion on that.

[00:35:45] Speaker 02:
But whether it changes it in such a way that favors Duarte

[00:35:56] Speaker 02:
could come out if we decide in your favor, the standard doesn't really even matter.

[00:36:04] Speaker 11:
I agree with that, Your Honor.

[00:36:05] Speaker 11:
I would just say that the preferred analysis from the government's perspective is not to just sort of applying de novo review because we think that's the wrong standard, but to essentially look at error and say, finding no error, we don't need to consider whether it was plain so we really don't have to resolve whether or not plain error applies.

[00:36:28] Speaker 02:
We don't really need to reach those issues now and maybe for purposes of our own administration since those weren't the issues that were briefed all the way along.

[00:36:39] Speaker 02:
I mean, this just came up in your supplemental

[00:36:58] Speaker 00:
and to find that there was error and to not reach the issue about whether... To find no error, Your Honor.

[00:37:04] Speaker 00:
To find no error, sorry, and to not reach the issue of plainness.

[00:37:07] Speaker 00:
So is that correct?

[00:37:09] Speaker 11:
Well, yes, I mean, because our view is that there's no error, we don't think you need to reach plainness.

[00:37:13] Speaker 00:
Okay, so tell me, if we apply the plain error standard, how is this case not like the First Circuit's case in Langston?

[00:37:21] Speaker 11:
Your Honor, I'm sorry, I'm not.

[00:37:22] Speaker 00:
So the First Circuit had a recent case

[00:37:40] Speaker 00:
So this is a case in which the First Circuit is analyzing whether or not there is applying plain error review, whether or not 922G1 is constitutional.

[00:37:56] Speaker 11:
OK, so I think I am familiar with it.

[00:37:58] Speaker 11:
I forgot the name.

[00:37:59] Speaker 11:
I apologize.

[00:38:09] Speaker 11:
So, Your Honor, I think the way that multiple circuits have decided I-22G1 under plane error, I mean, at this point, we're up to, I think, six or seven circuits.

[00:38:21] Speaker 11:
They've all done it in a very brief manner, and they've said that there is no possible way that any error could

[00:38:32] Speaker 11:
it could be any error could be complained because as of now there's actually no circuit that has no no circuit precedent.

[00:39:09] Speaker 08:
we would have to get into the merits, it seems like.

[00:39:12] Speaker 08:
That's correct.

[00:39:13] Speaker 08:
But on the other hand, what you're saying is we could say, we could address and say, it's only plain error, and then we don't have to get into the merits.

[00:39:20] Speaker 08:
We just have to say, well, even if there was an error here, the name of the Supreme Court at some point fixes all this.

[00:39:28] Speaker 08:
It's not plain at this point.

[00:39:29] Speaker 08:
That's correct.

[00:39:30] Speaker 08:
And that's how many other circuits have done it at this point.

[00:39:31] Speaker 08:
The Fifth Circuit, it has done it in dozens of cases.

[00:39:39] Speaker 08:
We do have to decide the exceptions issue, or we do have to get into the merits.

[00:39:44] Speaker 08:
I agree with that.

[00:39:45] Speaker 08:
Is there a way we don't have to decide either of those things?

[00:39:47] Speaker 08:
I'm afraid not.

[00:39:48] Speaker 09:
I can't give you that easy of an out.

[00:39:50] Speaker 09:
I apologize.

[00:39:51] Speaker 11:
We could also decide both, right?

[00:39:52] Speaker 11:
There wouldn't be anything wrong with the same plain-error apply.

[00:39:59] Speaker 11:
matter of practicality, the fact that the en banc court is considering the constitutionality of section 922G1 right now.

[00:40:07] Speaker 11:
It might make sense to look at the error part of plain error instead of punting for another day.

[00:40:13] Speaker 11:
But again, you know, just as I explained, that would be one way

[00:40:41] Speaker 11:
have the, well, that's not the only question, so I take that back.

[00:40:44] Speaker 11:
There is a separate question there, but I think that's maybe the merits question there is pretty

[00:41:02] Speaker 11:
So although I would point out that in Gomez, it was a different exception that was at issue there.

[00:41:09] Speaker 11:
That was the pure question of law exception here.

[00:41:12] Speaker 11:
That wasn't the panel's reasoning.

[00:41:13] Speaker 11:
We just sort of raised that as one thing.

[00:41:15] Speaker 11:
We marched through why all the exceptions don't apply.

[00:41:18] Speaker 11:
It was properly before us.

[00:41:20] Speaker 11:
I agree.

[00:41:20] Speaker 11:
Yes, it is.

[00:41:34] Speaker 07:
In our case law, we only can overturn our own case law if it's clearly irreconcilable.

[00:41:39] Speaker 07:
Is there a difference between clearly irreconcilable and clearly wrong for plain error?

[00:41:46] Speaker 11:
I think there is, Your Honor.

[00:41:47] Speaker 11:
I would note that I don't think that the en banc court is bound by the clearly irreconcilable standard.

[00:41:53] Speaker 11:
So I think that's kind of off the table.

[00:41:56] Speaker 11:
But the difference between

[00:42:00] Speaker 11:
I haven't given this a lot of thought.

[00:42:01] Speaker 11:
I think the difference, the difference is that depending on the articulation, some ways that this court has articulated the clearly irreconcilable standard focuses on the mode of analysis rather than the sort of bottom line result.

[00:42:13] Speaker 11:
And I think, I think the clear or obvious prong of plain error is really about the bottom line result, if that makes sense.

[00:42:31] Speaker 08:
would it be inappropriate for us to decide both in the sense of, say, if we were to say, okay, we're overruling our assumptions, only plain error.

[00:42:40] Speaker 08:
Plain error is plain error.

[00:42:41] Speaker 08:
There's no exceptions in sort of joining the other circuits.

[00:42:44] Speaker 08:
And so then we're going to jump, but when you're doing plain error analysis, are you limited to only being able to

[00:42:56] Speaker 11:
So some courts will just look at error, say there's no error.

[00:42:59] Speaker 11:
You can do one or the other.

[00:43:00] Speaker 11:
Exactly.

[00:43:01] Speaker 11:
It's exactly the same.

[00:43:02] Speaker 11:
So often courts go straight to the plainness because it's easier than the merits in most cases.

[00:43:07] Speaker 11:
But the court can certainly look at the error question.

[00:43:11] Speaker 06:
But on the merits, what you're arguing, though, is that they lose at step one.

[00:43:15] Speaker 06:
And they lose at step one because they're not people within the meaning of the Second Amendment.

[00:43:19] Speaker 06:
Is that correct?

[00:43:26] Speaker 11:
in most circuits.

[00:43:27] Speaker 11:
On the plane error, has any other circuit reset?

[00:43:30] Speaker 11:
Okay, so that one, you might be wrong on the plane error.

[00:43:32] Speaker 11:
Your Honor, no other circuit has agreed with us on that point, but I think, and so I think the easiest way for this Court to resolve the constitutional question is, I mean, again, not giving up our arguments about the people, but is probably to rely on the historical analysis that we've set forth.

[00:43:49] Speaker 11:
And so turning to that, we think that there are two principles, and Rahimi requires that we look at what principles can be derived from history.

[00:43:57] Speaker 04:
I'm sorry, I just have to pause before you go.

[00:44:29] Speaker 11:
have evolved a little bit as time has gone on after Bruin.

[00:44:33] Speaker 11:
So in our initial briefing in front of the panel, we pointed to some of those categories, the religious and racial minorities as some examples of people who were historically disarmed to support the principle that at the time of the founding, categories of people that were perceived to be dangerous could be disarmed.

[00:44:50] Speaker 11:
We have not consistently relied on those abhorrent laws, certainly not in front of the Supreme Court.

[00:44:59] Speaker 11:
they might still support the principle, but we're not necessarily hanging our hat simply on those laws.

[00:45:04] Speaker 11:
In the briefing in front of Supreme Court in Rahimi, the government took the position that those laws can sort of be explained a different way because those were not considered part of the people at the time.

[00:45:15] Speaker 11:
So I think our reasoning has changed a little bit, but we still think that all of the history supports two principles.

[00:45:24] Speaker 11:
The first principle is that those who have been convicted of serious

[00:45:30] Speaker 11:
under a 200-year-old definition, approximately, that is punishable by year and a day, that those convicted of serious crimes can be disarmed.

[00:45:39] Speaker 11:
The second principle is that legislatures may make categorical judgments that certain people are too dangerous, certain categories of persons are too dangerous to be armed.

[00:45:50] Speaker 11:
We believe that history supports both of those principles and that both of those principles, taken together, perhaps separately, but certainly taken together, support the concept

[00:46:18] Speaker 06:
to be within that scope.

[00:46:20] Speaker 11:
So, Your Honor, I do think that Rahimi says that the category, the principles need to be carefully drawn, right?

[00:46:25] Speaker 11:
Not drawn to do high level.

[00:46:26] Speaker 11:
That point was explicitly made by Justice Barrett in her concurrence.

[00:46:31] Speaker 11:
And we think that these principles are, as we've, as circumscribed, are narrowly drawn.

[00:46:37] Speaker 06:
But I think what's- What's serious?

[00:46:40] Speaker 06:
What was a serious crime or serious felonies?

[00:46:42] Speaker 06:
I think what is that?

[00:46:44] Speaker 11:
So, Your Honor, we've defined it under the traditional definition of felony, which dates back approximately two centuries, which is punishable by more than one year in prison.

[00:46:54] Speaker 11:
Now, we recognize that that's not the common law definition of felony.

[00:46:57] Speaker 11:
The common law definition of felony was one that subjected you to the death penalty or a state forfeiture, but we still think that it's a long-standing definition, and there was a sort of interesting transition around the time of the founding in how crimes were punished, going from

[00:47:17] Speaker 11:
In 1791, there were, I think, only three states that had prisons.

[00:47:20] Speaker 11:
But very soon after the founding, the states moved toward punishment in prison.

[00:47:26] Speaker 11:
And when that became the general mode of punishment, the definition of felony underwent a change and was then understood to be punishable by more than a year in prison.

[00:47:36] Speaker 11:
So we think that long-standing definition of felony is the appropriate way to draw the line for serious crimes.

[00:47:53] Speaker 01:
What's your response to that?

[00:47:56] Speaker 11:
I guess my first response would be that I think the Massachusetts law that is cited for for selling pigs without a license That's it.

[00:48:03] Speaker 11:
That's for a second offense and it's dealing in livestock So I think this may be an exaggeration to say that twice you can have your gun taken away, but one Pig selling offense is not enough

[00:48:19] Speaker 11:
silly felonies that we might say.

[00:48:21] Speaker 11:
If you actually scrutinize the laws, they don't apply in the ways that you might think.

[00:48:25] Speaker 11:
But I think more, sort of more to the point, it's not for this court to determine what kind of felonies it thinks ought to be punished by.

[00:48:36] Speaker 08:
So it's not like your first principle, I'm just gonna, where you're going with this is your first principle is not disconnected from your second because at the end of the day,

[00:48:51] Speaker 08:
So going to the second one, why couldn't the legislature say, you know, young men, age 20, 25, those are dangerous people for anybody that's had kids that are maybe 18 to 25.

[00:49:07] Speaker 08:
They do dumb things.

[00:49:08] Speaker 08:
This is why, for a while, they, you know, it costs more to get car insurance for that category.

[00:49:13] Speaker 08:
So why couldn't they just, why couldn't they say those are dangerous?

[00:49:20] Speaker 11:
18 to 25 males sure your honor so we don't think that this court should should give complete deference to legislatures we do think that it's appropriate for courts to to consider whether or not the category that the legislature has identified actually lines up with dangerousness and we think that that's a it is still also a historical inquiry how rigorous do you want us to

[00:49:47] Speaker 08:
scrutiny and stuff like this, because you're saying, don't rational basis this.

[00:49:52] Speaker 08:
That's what I'm hearing.

[00:49:54] Speaker 08:
So can I go strict scrutiny, or am I not allowed?

[00:49:56] Speaker 11:
No, Your Honor, we certainly can't go back to the tiers of scrutiny.

[00:49:59] Speaker 11:
I think that's inconsistent with Brown.

[00:50:01] Speaker 11:
Your Honor, no, we do think it's a historically-based inquiry, and we do think that there should be some judicial scrutiny of legislative categorizations.

[00:50:13] Speaker 11:
With respect to serious crimes, though, I don't think that there really is a place for a court to say, you know what, we think it's silly that a state has made this a felony.

[00:50:23] Speaker 11:
In the Eighth Amendment context, the Supreme Court has been very clear that courts don't- Are you treating that to your first argument?

[00:50:28] Speaker 10:
Judge Van Dyke was trying to tease out how far the second one goes.

[00:50:33] Speaker 11:
Sure.

[00:50:33] Speaker 11:
Okay, and I'm happy to engage with both.

[00:50:36] Speaker 11:
So with respect to the second argument,

[00:50:43] Speaker 11:
whether or not it's an appropriate legislative categorization.

[00:50:46] Speaker 08:
So I think looking at how legislatures across time have treated the issue is a more appropriate way, and so we think that... That kind of begs the question I just asked, which is, you say we can look at it, but if you're asking, like, that doesn't tell me how aggressively should I look at it, do I decide when the legislature made a good decision?

[00:51:07] Speaker 08:
I mean, that doesn't... You're telling me more than just look at it, and then that starts to feel like tears of scrutiny.

[00:51:20] Speaker 11:
to identify a specific category as being dangerous.

[00:51:24] Speaker 11:
And again, you can consider, for example, whether it disarms large portions of the population, you can consider.

[00:51:45] Speaker 08:
So I'm just trying to figure out, like, that doesn't, again, that's not, those are words, but they're not helping me.

[00:52:06] Speaker 11:
that felons as a category represent a heightened danger to society if armed.

[00:52:12] Speaker 11:
And combining that with my first principle, which I understand I was retreating to a certain degree, but Randy says we can take principles, we can take history together, read it together, to support the law.

[00:52:24] Speaker 11:
I think combining those two principles

[00:52:44] Speaker 10:
if confronted with that set aside of the gender equal protection issue?

[00:52:49] Speaker 11:
Sure.

[00:52:49] Speaker 11:
Your Honor, so I think the, setting those things aside, I think the analysis would be, is this, do this, first of all, you know, statistically, does this line up?

[00:53:00] Speaker 11:
Secondly, it would be, is this disarming sort of a very large portion of the population?

[00:53:06] Speaker 11:
And third, although maybe it should be a higher priority, it would be, is this consistent with how legislators have treated

[00:53:18] Speaker 11:
laws that disarmed people up to that age.

[00:53:22] Speaker 08:
I do think there are some... Your Honor, I don't think it's relevant.

[00:53:44] Speaker 11:
his preferred rule, which is violent.

[00:53:47] Speaker 02:
Your Honor, has he raised a facial challenge?

[00:53:49] Speaker 11:
That's correct.

[00:53:50] Speaker 11:
That's correct.

[00:53:50] Speaker 11:
So he's only raised an as-applied challenge.

[00:53:53] Speaker 08:
But I thought your motive analysis was sort of how we are sort of doing the history and tradition test.

[00:53:59] Speaker 11:
Well, Your Honor, I understood Judge Collins' question to be setting aside equal protection issues.

[00:54:06] Speaker 11:
But I think probably the more important point is that Mr. Duarte hasn't shown that his preferred rule

[00:54:13] Speaker 11:
felonies would lessen any potential racial or gender disparities.

[00:54:18] Speaker 11:
Again, as applied to Mr. Duarte, he simply cannot show that he is someone who is not dangerous, and we think that also the fact that he's been convicted not just of one but of five felonies, we think one felony is enough, but we think

[00:54:39] Speaker 11:
So, Your Honor, we think that that supports particularly our first principle, the serious crimes principle, that there are a variety of collateral consequences that come along with a conviction for an offense punishable by more than a year in prison.

[00:55:04] Speaker 11:
think that a similar analysis can apply, because at the time of the founding, someone who was convicted of a serious crime could be deprived of a variety of rights up to and including their life.

[00:55:13] Speaker 09:
And so the fact that the 14th Amendment has the explicit language about losing the right to vote, if you've been convicted of a serious crime, I think that's the exact line.

[00:55:23] Speaker 07:
Does that mean our inquiry should be, in this case, 1868?

[00:55:26] Speaker 07:
Because that's actually something in the Constitution about serious crimes and losing rights, which I don't

[00:55:33] Speaker 09:
Constitution before it was amended in 1868.

[00:56:06] Speaker 11:
to, in our view, the present day, but that indicates that the understanding, the government's understanding that you can deprive someone of rights based on conviction for serious crime is completely consistent with history, whether we, you know, whatever year we pick.

[00:56:21] Speaker 01:
I'm a little confused about how we're supposed to analyze felon, the felony.

[00:56:26] Speaker 01:
You seemed to indicate that we look under the

[00:56:33] Speaker 01:
I mean, we have seen various legislators say that all places in the city are sensitive placements or 50% or 60%.

[00:56:42] Speaker 01:
What if Congress or legislature says all of these paper crimes, we're not going to call that word misdemeanors, we're not going to call them felonies so that we can deprive a certain group of people

[00:57:16] Speaker 11:
and that the substance is what's important and that's correct that's correct so your honor I think I think there are a variety of reasons why legislators would not and haven't punished all kinds of minor crimes by more than a year in prison and the reason is that first of all that would that would allow

[00:57:41] Speaker 11:
minor crime like jaywalking to more than a year and a day it would it would have the effect of allowing anyone who was prosecuted for any of those crimes to have a right to a jury trial well your honor so they have again they haven't they haven't done it since 1961 and when when the definition was expanded on the prohibition on receipt of a firearm was expanded to all felons if they did I think that would be a significant

[00:58:12] Speaker 11:
serious crime.

[00:58:13] Speaker 11:
Now, I understand that there's some discomfort with that, but I think as a practical matter, legislatures have had an incentive to do that for a very long time, and they simply haven't chosen to disarm the wide swaths of the population by making every minor offense punishable by more than a year and a day.

[00:58:30] Speaker 11:
If the court has no further questions, we would ask the court to apply plain error and at least find no error, much less a plain one and affirm.

[00:58:52] Speaker 07:
trying to hit a few things here.

[00:58:53] Speaker 07:
In terms of the government saying that its danger category is bound by history, one big problem with that is that it does not have any historical example that comes close to disarming people permanently the way 922G1 does.

[00:59:09] Speaker 07:
Rahimi and Bruin tell us you need burdens and just

[00:59:19] Speaker 07:
They're not looking and seeing, oh, well, we're loyalists.

[00:59:22] Speaker 07:
We're disarmed for the duration of the war.

[00:59:24] Speaker 07:
So there's some analogy to the duration of the war.

[00:59:27] Speaker 07:
They're just saying we can do it forever without filling in that second half of the Bruin-Rahimi analysis.

[00:59:58] Speaker 07:
are not serious crimes.

[01:00:01] Speaker 07:
And so it doesn't make sense to apply the serious crime logic to them.

[01:00:07] Speaker 07:
In terms of

[01:00:35] Speaker 07:
context, they couldn't resolve it, and so they wrote the rule in such a way as to permit the Court of Appeals to decide if and how to apply rules 12 and 52.

[01:00:44] Speaker 08:
I should ask you a question about this, because, you know, I know what the panel did, because I was on, um, but can you respond to my question I asked about why does, why does rule 52 have to, for you to, for your, you to get, they know already why does rule 52 have to displace rule 12, or maybe I'm getting it backwards, because

[01:01:05] Speaker 08:
even if plein air applies, why don't you get the exception for changing the law that our circuit recognizes?

[01:01:13] Speaker 07:
I think he would.

[01:01:14] Speaker 07:
But I mean, I've started from good cause.

[01:01:18] Speaker 07:
You would have to have said what it said.

[01:01:19] Speaker 07:
You would get it anyway, it seems like.

[01:01:21] Speaker 07:
Under this court's current, I mean, I understand the government to be asking you to change that.

[01:01:25] Speaker 08:
But I'm just trying to make sure I understand that correctly.

[01:01:28] Speaker 08:
You think that even if plein air applies, you get in and you escape immediately because of the change in law.

[01:01:34] Speaker 07:
Yes.

[01:01:38] Speaker 07:
almost out of time here.

[01:01:40] Speaker 07:
Sorry, Judge Nelson, in terms of the 10th Circuit, the quote from Bow Line is, when an untimely argument subject to Rule 12 is raised for the first time on appeal, Rule 12, good cause standard, and not Rule 52 applies.

[01:01:55] Speaker 07:
That's why I've been saying it.