[00:00:25] Speaker 01:
The United States Court of Appeals for the Ninth Circuit is now in session.

[00:00:39] Speaker 08:
And welcome to San Francisco.

[00:00:42] Speaker 08:
This is the time set for oral argument in the case of Virginia Duncan versus Rob Bonta.

[00:00:50] Speaker 08:
If the parties are ready to proceed, you may come forward.

[00:00:58] Speaker 11:
Good morning and may it please the Court, Mike Mongan for the Attorney General.

[00:01:02] Speaker 11:
With the Court's permission, I'd like to reserve five minutes for rebuttal.

[00:01:07] Speaker 11:
The Supreme Court has recognized that not every type of weapon is protected by the Second Amendment, and that certain weapons, like M16s, may be banned.

[00:01:17] Speaker 11:
The statute challenged here restricts the capacity of magazines to 10 rounds without putting any limit on the number of lawful magazines or the amount of ammunition

[00:01:27] Speaker 11:
that gun owners may possess and use.

[00:01:30] Speaker 11:
That statute is constitutional at both stages of Bruin's framework.

[00:01:35] Speaker 11:
At the first stage, it's plaintiff's burden to show that large capacity magazines are presumptively protected under the original meaning of the Second Amendment.

[00:01:45] Speaker 11:
And that inquiry includes consideration of the objective character of the device and whether it's a self-defense weapon.

[00:01:52] Speaker 11:
The record here establishes that large capacity magazines

[00:01:55] Speaker 11:
are not self-defense weapons.

[00:01:57] Speaker 11:
These are especially dangerous devices that allow an attacker to maximize casualties with a huge volume of rapid and uninterrupted fire.

[00:02:06] Speaker 07:
So which party bears the burden of proof at the first prong of the Bruin test?

[00:02:13] Speaker 11:
I think we're in agreement here, Your Honor.

[00:02:15] Speaker 11:
The plaintiffs agree that they carry an initial burden.

[00:02:17] Speaker 11:
I think we disagree about what the scope of that burden is.

[00:02:20] Speaker 11:
That's consistent with sort of normal

[00:02:23] Speaker 11:
standards of civil litigation, and I think it's inherent or implied in the Bruin decision itself, which is quite specific that the government has the burden at the second stage.

[00:02:33] Speaker 11:
I think that implies that it's the plaintiff's burden at the first stage, Your Honor.

[00:02:36] Speaker 07:
Counsel.

[00:02:37] Speaker 07:
Oh, I'm sorry.

[00:02:38] Speaker 07:
Oh, I just was specifically with respect to the question of whether or not LCMs are arms.

[00:02:45] Speaker 07:
Who has the burden of proving that?

[00:02:48] Speaker 11:
I think both parties agree that that burden is on the plaintiffs in the first instance, Your Honor.

[00:02:53] Speaker 09:
I'm just going to ask why isn't the first step a simple textual step and the question for us whether a magazine or a large capacity magazine is an arm at all or whether it's an accessory or something else?

[00:03:14] Speaker 11:
Sure, Your Honor.

[00:03:15] Speaker 11:
I do think that that's part of the first step, but it's not the only part of the first step.

[00:03:19] Speaker 09:
Why don't the other issues belong in the second step?

[00:03:23] Speaker 11:
Two answers to that, Your Honor, precedent and history.

[00:03:27] Speaker 11:
So as a matter of precedent, I think Bruin is quite clear on this.

[00:03:31] Speaker 11:
At page 32 of that opinion, it says you have to look at is this device in common use today for self-defense before it held, at page 33 of the opinion that the plaintiff's proposed conduct

[00:03:43] Speaker 11:
was presumptively protected

[00:03:58] Speaker 11:
go at the first stage because they bear on the original meaning of the Second Amendment.

[00:04:03] Speaker 09:
But how do they bear on whether something is or is not an arm, which seems to me the sort of going in question, or whether it is an accessory to a firearm?

[00:04:15] Speaker 11:
Right, Your Honor.

[00:04:16] Speaker 11:
So I think we do look at the definition of arm, but as Heller and Bruin recognized, the Second Amendment codified a pre-existing right, and it's clear in the Heller decision itself and discussing the founding era conception of that right that it excluded certain types of arms.

[00:04:35] Speaker 11:
So I think that the common use for self-defense and dangerous and unusual inquiries

[00:04:41] Speaker 11:
are relevant in understanding what the original meaning of that right is.

[00:04:47] Speaker 02:
Well, I'm still not sure you've answered Judge Gruber's question.

[00:04:50] Speaker 02:
At least I'm still confused.

[00:04:53] Speaker 02:
Second Amendment does not protect non-arms, does it?

[00:04:58] Speaker 11:
Well, I think it does not protect non-arms unless they- Well, does it protect this?

[00:05:03] Speaker 11:
I think what this circuit has said in Teixeira and other cases is it protects arms and it protects certain other things if they are necessary to the realization of the Corbett Discipline.

[00:05:15] Speaker 02:
Okay, fair enough.

[00:05:16] Speaker 02:
So I guess I'm stuck on what Judge Graber was asking you.

[00:05:20] Speaker 02:
If we were to determine that a large caliber magazine by itself is not an arm, it's not used to attack anybody else, and it's not necessary

[00:05:32] Speaker 02:
for the operation of a semi-automatic weapon.

[00:05:35] Speaker 02:
Do we have to go further than that?

[00:05:38] Speaker 11:
Your Honor, I don't think you do have to go further than that.

[00:05:40] Speaker 11:
That is our argument.

[00:05:42] Speaker 11:
I think that you may, it may make sense to go further as some courts, the Co-Tech District Court in Oregon, for example, answered that initial question exactly.

[00:05:50] Speaker 02:
Well, sure, we can answer all sorts of questions, but I think what Judge Graber was asking, at least in my mind, was whether or not that textual analysis requires us to look at

[00:06:00] Speaker 02:
history or common understanding or anything else, or whether it just allows us to look at the characteristics of the implement at issue.

[00:06:11] Speaker 11:
I understand and I agree.

[00:06:13] Speaker 11:
I think that at that first part of Bruin's first stage, you can look just at the definition of arm.

[00:06:20] Speaker 02:
But I want to be clear to you about your answer.

[00:06:22] Speaker 02:
If we answer at that first part of Bruin's first stage that this is not an arm, need we go any further?

[00:06:29] Speaker 11:
I don't think you need to as a matter of the framework, no.

[00:06:32] Speaker 11:
But if you were to answer that it is an arm or falls under that ancillary protection, which is not our argument, then that would bring you to the other considerations, common use for self-defense and dangerous and unusual, which I do think are properly considered part of that first stage.

[00:06:51] Speaker 10:
Dangerous and unusual.

[00:06:52] Speaker 10:
As it first appeared, and I think, Haylor, it said something like dangerous and unusual,

[00:06:57] Speaker 10:
weapons, which I would have taken to mean dangerous weapons and unusual weapons, not necessarily dangerous and unusual weapons.

[00:07:05] Speaker 10:
Has that been, has the court backed off that and made clear that it has to be both?

[00:07:12] Speaker 11:
Your Honor, I don't think that the Supreme Court has ever elaborated on that in a way that would suggest that it should be understood in the sort of strict numerical way that my friends have suggested, i.e., their view is no matter how exceedingly dangerous a weapon is, if it is numerically prevalent past a certain point, then it's no longer unusual and it's outside that tradition.

[00:07:36] Speaker 10:
So the common use criteria is really the unusual criteria.

[00:07:41] Speaker 10:
Those are the same.

[00:07:42] Speaker 11:
I think they're closely related, Your Honor, but I'm not sure that they're exactly the same.

[00:07:47] Speaker 11:
And if I can elaborate, I mean, what Heller was trying to do was to invoke a tradition that was well-known and discussed by commentators and treatises at the founding.

[00:07:57] Speaker 11:
And so I think it would be a mistake to look at those words, dangerous and unusual, or dangerous or unusual, as Blackstone put it.

[00:08:04] Speaker 10:
Well, it's not really dangerous or unusual, exactly.

[00:08:06] Speaker 10:
I mean, that's kind of, that's a finger on the scale, because add seems to mean add.

[00:08:12] Speaker 10:
Instead, the original phrase was an adverbial phrase for a noun, and the and just seemed to me was to say that it amounts to or, but it's not because and is or, it's because this was just a shorthand way of saying dangerous weapons and unusual weapons.

[00:08:36] Speaker 11:
Well, Your Honor, if I can offer two responses.

[00:08:39] Speaker 11:
I think even if we were just parsing it sort of linguistically, I don't think it needs to be read or should be read in the conjunctive way that my friends have suggested.

[00:08:47] Speaker 11:
But I think the better understanding is that this was meant to refer to a historical tradition.

[00:08:53] Speaker 11:
And Heller said that, look, we're not exhaustively covering the history here.

[00:08:58] Speaker 11:
So if we today want to understand what dangerous and unusual refers to,

[00:09:03] Speaker 11:
we should look to the history and it was always understood by those founding era treatise writers as referring to especially dangerous weapons.

[00:09:12] Speaker 11:
Sometimes, often in fact, the government acted after those weapons had become numerically prevalent because of course that's when they start to create real world harms.

[00:09:22] Speaker 11:
That's exactly what happened I think with crossbows which is one of the leading examples that treatise writers like Sharp were pointing to.

[00:09:30] Speaker 11:
These were especially dangerous weapons.

[00:09:33] Speaker 11:
They became prevalent in England.

[00:09:36] Speaker 11:
And at that point, Henry VIII decried them and said, now that they're creating real problems within the realm, I'm going to prohibit the possession by most of my subjects.

[00:09:47] Speaker 11:
And so I think that that's contrary to the interpretation that's been offered by plaintiffs.

[00:09:52] Speaker 11:
And we have to understand the Second Amendment in light of that original conception of the pre-existing right that it codified.

[00:09:59] Speaker 13:
Council, as I see it, I think common usage is in both step one and step two of Bruin.

[00:10:04] Speaker 13:
I agree with you that common usage should be taken into account of what is an arm, but do you agree that it also has a place in step two where if a state proffers a historical analog that prohibits something that's dangerous, unusual, do we then say, well, it might have been dangerous, unusual back then, but given that it's common use today, it's not a proper analog?

[00:10:27] Speaker 13:
That's what I think Bruin was telling us.

[00:10:29] Speaker 11:
Well, Your Honor, I'm not sure that I would characterize it that way, but I will grant you that

[00:10:35] Speaker 11:
especially in a case like this one where we're dealing with a dramatic new technology and a problem that didn't exist in the relevant historical periods, that you have to have a nuanced understanding of the history.

[00:10:48] Speaker 11:
I think if you get to this stage too, we have a long tradition before and after the founding of governments heavily restricting and sometimes banning especially dangerous weapons.

[00:11:00] Speaker 11:
And Bruin teaches that you need to take a nuanced view of that history in a case such as this one.

[00:11:07] Speaker 11:
I think that the type of restriction that we're dealing with today falls comfortably within that tradition.

[00:11:14] Speaker 11:
And certainly, if you proceed to the other questions that Bruin says we have to ask, is it comparably burden the right to self-defense?

[00:11:22] Speaker 11:
Is it comparably justified?

[00:11:24] Speaker 11:
I think we satisfy those points.

[00:11:26] Speaker 11:
I mean, the First Circuit, I think, just addressed this recently.

[00:11:28] Speaker 11:
But when you have a law like ours that does not restrict how many magazines, lawful magazines somebody can carry, it does not restrict the amount of ammunition they can use and possess or how many shots they can fire.

[00:11:43] Speaker 11:
It just limits the capacity of a particular magazine.

[00:11:48] Speaker 11:
I think that in

[00:11:49] Speaker 11:
In comparative terms, the burden on the right to self-defense is much less than some of the historical analogs where governments looked at particularly dangerous weapons and banned their possession altogether.

[00:12:01] Speaker 09:
Counsel, I have a question about the analogous issue.

[00:12:06] Speaker 09:
There is a case in front of the Supreme Court now, Rahimi, that does not concern the nature of the weapon or its accessories, but concerns who can possess firearms, and it deals with domestic violence, as I'm sure you're aware.

[00:12:24] Speaker 09:
But in that context, in your view, should we wait for the Supreme Court's opinion on the theory that it might shed light on just how analogous the analogs have to be?

[00:12:41] Speaker 11:
Your Honor, certainly that case addresses some of the aspects of the analogical framework established by Bruin.

[00:12:49] Speaker 11:
I think it could shed light on the analysis here.

[00:12:52] Speaker 11:
I think we can safely expect that that decision will come down by the end of June.

[00:12:56] Speaker 11:
And yes, it may be sensible for this en banc panel to await that decision before finally deciding this appeal, whether that's done informally or through formal abeyance, I would defer to the court.

[00:13:08] Speaker 11:
But yes, I think it could shed some light.

[00:13:10] Speaker 04:
Council, can I ask a question?

[00:13:12] Speaker 04:
You agree that we've already issued a decision in this case in 2022, this en banc court, right?

[00:13:18] Speaker 11:
There was a prior appeal and that case was decided, yes, and then it was- And this is a new decision that we're issuing in light of Bruin, correct?

[00:13:25] Speaker 11:
This is a new appeal in the same case or controversy, Your Honor.

[00:13:29] Speaker 04:
and that seems to be the problem with your argument under section forty six is you only look at the language about case or controversy but the case or controversy language seems to be a a prerequisite true but then it says the same panel senior judges are only able to serve

[00:13:49] Speaker 04:
to issue the decision.

[00:13:52] Speaker 04:
And as you just acknowledged, this is a new decision.

[00:13:55] Speaker 04:
Section 46 does not say senior judges are able to serve on all subsequent decisions in the case.

[00:14:02] Speaker 04:
Why doesn't that answer the question about whether this en banc panel has statutory authority?

[00:14:07] Speaker 11:
Sure, Your Honor, and we've studied this closely since the court's briefing order.

[00:14:11] Speaker 11:
We do think that the en banc panel's decision and its application of General Order 3.6

[00:14:18] Speaker 11:
B is consistent with the broad authority granted by Section 46C.

[00:14:23] Speaker 11:
Let me address directly your point about that final clause and I think subsection two of 46C.

[00:14:30] Speaker 11:
I think that that language has to be understood in context.

[00:14:34] Speaker 11:
So if we get down there, we're in a case where the

[00:14:39] Speaker 11:
an active, sorry, a majority vote of the active judges has already happened within that case or controversy, an en banc panel has been constituted.

[00:14:49] Speaker 11:
And then what subsection two says is that a senior judge who was active at the time of that initial vote here in 2021.

[00:14:56] Speaker 04:
That's not what the statute says.

[00:14:57] Speaker 04:
The statute doesn't say active at the time.

[00:14:59] Speaker 04:
The statute says active at the time that the case was heard or reheard.

[00:15:04] Speaker 04:
This is a rehearing of a prior case, so I think we need to stick to the statutory language and explain to me how this is not a rehearing and why the judges don't need to be active at the time this case is reheard.

[00:15:21] Speaker 11:
Well, Your Honor, I think that just focusing on the text of the statute, it says that the en banc

[00:15:27] Speaker 11:
panel shall consist, in this circuit there's an exception under 92 statute 1633 of a number of judges as prescribed in accordance with that law, except that any senior circuit judge of the circuit shall be eligible, and then to subsection two, to continue to participate in the decision of a case.

[00:15:45] Speaker 04:
Isn't that the point?

[00:15:46] Speaker 04:
Continue to participate in the decision?

[00:15:49] Speaker 04:
And you just acknowledged

[00:15:50] Speaker 04:
that if anybody had taken senior status, and I think they did, before the first decision was taken, that would be covered by the statute.

[00:15:58] Speaker 04:
But this is a new decision, as you just acknowledged.

[00:16:02] Speaker 02:
So how can senior judges continue to sit?

[00:16:04] Speaker 02:
Could you continue with the rest of the subsection two?

[00:16:06] Speaker 11:
Sure, Your Honor.

[00:16:07] Speaker 11:
And with respect, I think I just read this differently, and I'll try and explain how I come at it.

[00:16:12] Speaker 11:
So subsection two, to continue to participate in the decision of a case or controversy

[00:16:18] Speaker 11:
that was heard or reheard by the court in bank at a time when such judge was in regular active service.

[00:16:23] Speaker 11:
I'd like to address both the decision, the singular that you focused on, and case or controversy.

[00:16:29] Speaker 11:
Case or controversy is a term of art.

[00:16:32] Speaker 11:
It has broad meaning to extend to the entire adversarial dispute between the parties, not just an appeal.

[00:16:39] Speaker 11:
that when Congress says the decision, it's common that there may be multiple decisions or orders or actions in the context of deciding

[00:16:49] Speaker 11:
a case or controversy.

[00:16:50] Speaker 11:
Indeed, Your Honor, as plaintiffs have noted, in the prior appeal, there were multiple decisions.

[00:16:56] Speaker 11:
I don't think it's sensible to read subsection two to say that a senior judge only gets one shot to serve on an en banc panel.

[00:17:04] Speaker 09:
No, it's not only one shot.

[00:17:05] Speaker 09:
It's until the decision is final.

[00:17:06] Speaker 09:
Excuse me.

[00:17:06] Speaker 09:
I have a follow-up question that I'd like to ask actually both counsel to answer.

[00:17:12] Speaker 09:
Clearly, this is a very important case, and we actually have never taken a case to the full court en banc, but that would appear to be under our general orders the next potential step.

[00:17:28] Speaker 09:
What is your view as to whether we ought to do that in this case?

[00:17:33] Speaker 09:
And that would moot this issue that has been raised,

[00:17:38] Speaker 09:
and it would ensure that whatever decision comes out would reflect accurately the entire court's view.

[00:17:47] Speaker 11:
Your Honor, we haven't taken a position on that.

[00:17:49] Speaker 11:
It's certainly an option.

[00:17:50] Speaker 11:
If the members of this court thought that was appropriate to consider full court en banc, I would defer to the judgment of the court on that.

[00:17:57] Speaker 04:
If we did that, counsel, would the senior judges currently on this panel be able to serve on that full en banc panel?

[00:18:04] Speaker 11:
Your Honor, I don't know.

[00:18:06] Speaker 11:
We haven't briefed that.

[00:18:07] Speaker 04:
I think the answer has to be no, because we'd have to take a new vote and they wouldn't be able to serve, which begs the question, how does a limited en banc court get composed of judges who couldn't even sit on the full en banc court?

[00:18:21] Speaker 04:
It seems to undermine the entire statutory construction of the en banc process.

[00:18:27] Speaker 04:
so your honor we haven't briefed that we were asked to brief that i'm not sure that i read the general orders that way although you know obviously i i'd a little bit hesitant to know that you're on the status we don't need to go to the general orders the statute says the only time that a senior judge can serve on the on boncourt is that is if they were on the three judge panel none of the senior judges were on the three judge panel so if we go to the full on boncourt it it i don't know what the statutory basis would be

[00:18:53] Speaker 04:
other than just ignoring the statute to allow the senior judges on this panel to serve on that panel.

[00:19:02] Speaker 10:
Why do you say that there was a decision in this case?

[00:19:05] Speaker 10:
There wasn't a decision in this case.

[00:19:07] Speaker 10:
There was a decision, but it was vacated, so there was no decision.

[00:19:12] Speaker 10:
It was then remanded essentially as what we call a limited remand to get some information so we could continue to make a decision, but there was no decision by this panel that actually concluded.

[00:19:26] Speaker 11:
Well, Your Honor, I will grant you that.

[00:19:28] Speaker 11:
I guess I was referring to the initial decision, which was vacated, and then the subsequent decision for the remand.

[00:19:33] Speaker 10:
So the answer to whether there was a decision is there hasn't been a decision by this Court on this issue.

[00:19:39] Speaker 11:
I guess that could be debated.

[00:19:40] Speaker 11:
I guess the point that I'm trying to make as I come afresh to this statute and issue is that I don't think it makes sense to say that

[00:19:49] Speaker 11:
By referring to the singular, the decision, that means that only one decision is in play.

[00:19:54] Speaker 10:
It's referring to the... There has not been a decision binding on this court on this case or controversy.

[00:20:00] Speaker 11:
Sure, Your Honor, and I think even if we take that view, the interpretation that I'm advancing

[00:20:06] Speaker 11:
You know, it would still suggest that that the en banc panel's decision to keep this case is consistent and your honor, I guess that the other point that I would make.

[00:20:14] Speaker 11:
I think if you look at the history of the statute.

[00:20:16] Speaker 11:
I mean, obviously we have different interpretations.

[00:20:20] Speaker 11:
But I think what is clear under Western Pacific and other cases is that this was meant as a

[00:20:25] Speaker 11:
grant of authority to the circuits to devise policies and procedures that they view as sensible.

[00:20:31] Speaker 04:
Well, I don't disagree with that.

[00:20:32] Speaker 04:
It certainly expanded what existed in 96.

[00:20:36] Speaker 04:
The question is how far it expanded it.

[00:20:38] Speaker 04:
And I have a hard time envisioning that Congress sat there and thought that when this comes back from the Supreme Court, if we get reversed again, that we're going to sit here and we're all going to be the, these 11 judges are going to be the arbiters of the Second Amendment.

[00:20:55] Speaker 04:
forevermore in this court.

[00:20:56] Speaker 04:
That doesn't make sense.

[00:20:57] Speaker 04:
And it seems very inconsistent with how the en banc process was set up.

[00:21:02] Speaker 04:
As you acknowledge, it is intended to allow the active judges to set the policy of the court.

[00:21:09] Speaker 11:
Well, Your Honor, I guess if I can just make two points, and I do want to make sure that I save some time for the other constitutional questions in this case.

[00:21:17] Speaker 11:
I think, first, it is envisioned in the statute that the circuit would set policies and procedures

[00:21:24] Speaker 11:
3.6b has been part of the general orders, but of course, the court in its normal procedures could address some of the concerns that have been raised by some members of this en banc panel and change that.

[00:21:33] Speaker 11:
We've just been asked to brief the statutory question.

[00:21:36] Speaker 11:
And second, Your Honor, I think if you're asking, well, why would the court or why would Congress want to have a scenario where an en banc panel can keep a comeback case, I think that this case is a pretty good illustration of that.

[00:21:49] Speaker 11:
I think we understand that there are efficiencies sometimes to have a panel

[00:21:52] Speaker 11:
keep a case, and here we've got an appeal arising out of the same motion on the same claims, same parties, substantially similar record.

[00:22:00] Speaker 04:
I would agree with you if case or controversy were the only language, but I think we've probably got it.

[00:22:05] Speaker 00:
Can we go back to the first point?

[00:22:09] Speaker 00:
Yes, of course, Your Honor.

[00:22:11] Speaker 00:
This is an interesting question, but I'd like to get back to the merits.

[00:22:16] Speaker 00:
So one of the arguments that the plaintiffs make is that these magazines are integral

[00:22:21] Speaker 00:
to the operation of a semi-automatic firearm.

[00:22:26] Speaker 00:
And they also point to California's statute that apparently requires that a user, an owner of such a weapon, has to have a device that allows the magazine to automatically be disconnected.

[00:22:42] Speaker 00:
So in that context, why isn't the magazine entitled to some sort of corollary

[00:22:49] Speaker 00:
second amendment protection or why isn't it all sort of fit together?

[00:22:54] Speaker 11:
So your honor, I want to answer that and then I do want to address some of the objective characteristics that we think are relevant here.

[00:23:00] Speaker 11:
So we would agree that for most semi-automatic firearms that accept detachable magazines, they need a magazine in order to

[00:23:09] Speaker 11:
function.

[00:23:10] Speaker 11:
And so, you know, as this core is recognized in Teixeira and FIOC that some type of detachable magazine would come within that ancillary protection.

[00:23:18] Speaker 11:
I think where we part ways with the plaintiffs is that we think the record here is undisputed that every semi-automatic that can accept a large capacity magazine can also accept

[00:23:29] Speaker 11:
a 10-round magazine and function as intended.

[00:23:31] Speaker 03:
Can I ask you a question about that?

[00:23:32] Speaker 03:
Yes, Your Honor.

[00:23:34] Speaker 03:
The way you're treating magazines, it seems like you could use the same sort of rationale as between a non-semitomatic firearm, say a lever action or bolt action or revolver type action, and a semi-automatic firearm.

[00:23:46] Speaker 03:
I'm trying to figure out, if you're saying, well, what we do is we say, have people ever banned particularly dangerous

[00:23:53] Speaker 03:
And now we're saying large capacity magazines are particularly dangerous.

[00:23:59] Speaker 03:
Why couldn't that same reasoning be used to ban semi-automatic firearms altogether?

[00:24:04] Speaker 03:
Because think about it, during the Revolutionary War, if the United States had had semi-automatic firearms that only held five to 10 rounds, it had been about 10 minutes and it would have been over, as against muskets.

[00:24:16] Speaker 03:
So clearly, the semi-automatic mechanism is way, way, way, way, way more particularly dangerous

[00:24:23] Speaker 03:
than the difference, the delta between a 10-round magazine and a 15-round magazine.

[00:24:28] Speaker 03:
So why does your reasoning not mean that, if this reasoning works, why does your reasoning not mean that a state could just ban the semi-automatic firearms altogether?

[00:24:37] Speaker 11:
So if we're just start talking, Your Honor, about this initial sort of textual question, I think if you're dealing with a semi-automatic, that would fit the definition of an arm.

[00:24:48] Speaker 03:
No, but that semi-automatic could be a revolver.

[00:24:51] Speaker 03:
Like it could be, I mean, just like, just like this, that high capacity magazine could be a lower capacity magazine.

[00:24:56] Speaker 11:
Right, your honor.

[00:24:57] Speaker 11:
So I think that that would fit the definition of arm.

[00:24:59] Speaker 11:
And then you'd move on to the other aspects of the Bruin analysis at stage one is a particular weapon that's being addressed by the law in the tradition of dangerous and unusual.

[00:25:10] Speaker 11:
is it in common use for self-defense, and we think Heller is clear that that has to consider the character as well as the numbers.

[00:25:16] Speaker 03:
I'm not understanding your, I guess I'm, I think I'm missing your response to my, it seems to me that just as you could say, are you saying that yes, so it would be an arm under, you're not conceding that it would be an arm under stage one, so why are you saying it wouldn't be an arm, but the semi-automatic versus revolver, say, distinction is something that we're stuck with.

[00:25:36] Speaker 03:
I mean, you would agree that you can't ban

[00:25:38] Speaker 03:
the automatic, the automatic mechanism.

[00:25:42] Speaker 11:
Well, an automatic mechanism, I think that you can ban.

[00:25:44] Speaker 11:
I think the Supreme Court has recognized that.

[00:25:46] Speaker 03:
No, no, the automatic mechanism is a term that semi-autos and full-autos use an automatic mechanism.

[00:25:50] Speaker 11:
Sure, Your Honor.

[00:25:51] Speaker 11:
I'm sorry for the confusion.

[00:25:52] Speaker 11:
No, I don't think that we could ban all semi-automatic weapons.

[00:25:54] Speaker 11:
I think Heller makes that clear.

[00:25:56] Speaker 11:
The point I was just making is with respect to accessories, I think we have a difference of opinion where my friends suggest any accessory

[00:26:04] Speaker 11:
that is somehow helpful to arms of the fish.

[00:26:07] Speaker 03:
So that's important because your argument turns on whether you can characterize accessories.

[00:26:11] Speaker 03:
So you would say that the revolver versus semi-automatic is not an accessory, but that a magazine is an accessory.

[00:26:18] Speaker 03:
So what would you think about like a red dot sight, you know, electro-optics, which many, many firearms are going to electronic optics nowadays.

[00:26:27] Speaker 03:
Could you, they're obviously an accessory because you could have iron sights.

[00:26:30] Speaker 03:
Could you ban those?

[00:26:31] Speaker 11:
Well, so, Your Honor, I'm not intimately familiar with that, and I do want to answer this question and make sure that I save time for rebuttal.

[00:26:39] Speaker 11:
I think that the question at the outset would be, is that, if it's an accessory, is it within the Teixeira principle that it's necessary to the realization of the right to self-defense?

[00:26:50] Speaker 11:
And you'd have to build a record and analyze it in that case.

[00:26:53] Speaker 10:
So, Counsel, you're saying that... I'd like to address the history questions on the assumption that this is an arm.

[00:26:59] Speaker 11:
Yes, Your Honor.

[00:27:00] Speaker 11:
So we have a long and established tradition in this country and before and after the founding.

[00:27:08] Speaker 11:
that with respect to especially dangerous weapons, those have been heavily regulated and at times banned.

[00:27:16] Speaker 11:
And that often comes about after they have become sufficiently prevalent in numerical terms that they start to create real world problems.

[00:27:24] Speaker 10:
So what do you end up doing with the common use notion?

[00:27:27] Speaker 10:
I mean, whether it's in the front end or the back end, is your essential answer is that it cannot drive the conclusion?

[00:27:36] Speaker 10:
or what exactly.

[00:27:39] Speaker 10:
There are lots of these things.

[00:27:42] Speaker 10:
It seems like they are in common use.

[00:27:44] Speaker 10:
Maybe they're not in common use for self-defense.

[00:27:46] Speaker 10:
That's one possibility.

[00:27:49] Speaker 10:
What else?

[00:27:49] Speaker 11:
We think that numbers alone are not sufficient, Your Honor, and I think that this follows from Heller.

[00:27:54] Speaker 11:
Heller said you have to examine the character of the weapon, not just the numbers or subjective statements about people's preference.

[00:28:01] Speaker 11:
When it looked at handguns, it actually focused on the

[00:28:05] Speaker 11:
objective features of those weapons and what made them helpful in ordinary self-defense situations.

[00:28:11] Speaker 11:
And I think it's a fair inference from Heller that with respect to something like a fully automatic machine gun or an M16, the court was inferring that the objective characteristics of those weapons were not self-defense weapons.

[00:28:26] Speaker 11:
They made them offensive attack-style weapons that maximize deaths and fatalities and casualties in an attack situation.

[00:28:35] Speaker 11:
And I think that that has to be considered because if you just looked at the numbers alone, it would, as the Seventh Circuit has indicated, create some real circular and absurd consequences.

[00:28:47] Speaker 11:
I mean, just take machine guns.

[00:28:49] Speaker 11:
I still haven't quite heard an answer as to whether my friends think that machine guns are constitutionally protected.

[00:28:56] Speaker 11:
Heller said it would be startling to think so.

[00:28:58] Speaker 11:
But if we accept their sort of numbers-only approach, I think there's only two possible scenarios.

[00:29:04] Speaker 11:
they already think that these weapons are protected because by some measures there's 176,000 of them in civilian hands or the other alternative is they are not yet protected but on the cusp of protection and the only thing that's keeping the federal ban on machine guns constitutional

[00:29:21] Speaker 11:
is that ban itself, which prevents more civilians from purchasing machine guns.

[00:29:27] Speaker 11:
That is not a sensible way to understand the Second Amendment.

[00:29:30] Speaker 11:
It's not consistent with what Bruin did, because Bruin didn't look at numbers when it said that sawed-off shotguns and machine guns can be banned, and it's not consistent with the history

[00:29:40] Speaker 11:
Because if you look at the founding era, treatises, and historical examples, those aren't saying that the ability of the government to regulate or ban especially dangerous weapons just disappears when they become more prevalent in society.

[00:29:55] Speaker 08:
Your Honor, I do want to make sure that I have some time to... Yes, I'll give you some time, but before you step back, let me just ask Judge Ikuta if she has any questions for you.

[00:30:07] Speaker 10:
Thank you, Don.

[00:30:08] Speaker 08:
Thank you.

[00:30:25] Speaker 06:
Good morning, Your Honors, and may it please the Court, Erin Murphy, on behalf of the plaintiffs.

[00:30:30] Speaker 06:
Tens of millions of law-abiding citizens across the country keep and bear magazines capable of holding more than 10 rounds for lawful purposes like self-defense.

[00:30:40] Speaker 06:
Under the Supreme Court's decisions in Brewer and Heller, that forecloses California's effort to ban them because the Court has been emphatic that our tradition is one of protecting the right to possess arms that are in common use today.

[00:30:54] Speaker 06:
The state's efforts to resist that conclusion are fundamentally incompatible with what Heller instructs and Bruin instructs, or the definition of the term arms and the historical tradition about what kinds of arms the state may ban consistent with the second amendment.

[00:31:10] Speaker 10:
Is your position that the number of these that are out there now is the answer?

[00:31:15] Speaker 10:
I mean, that's simply once there is passed a certain number, whatever that number is,

[00:31:24] Speaker 10:
they're in common use and you cannot ban them.

[00:31:26] Speaker 10:
Is that your ultimate conclusion, no matter what else may be true?

[00:31:30] Speaker 06:
They have to be commonly possessed by a common number of people for lawful purposes like self-defense.

[00:31:36] Speaker 10:
Like self-defense or for self-defense?

[00:31:39] Speaker 06:
The language of Heller is like self-defense, so self-defense certainly counts.

[00:31:43] Speaker 10:
I thought self-defense was the whole premise of the Second Amendment projection.

[00:31:49] Speaker 06:
I think here it doesn't really matter whether you can go beyond self-defense because

[00:31:53] Speaker 06:
These magazines are just unquestionably in use for self-defense in the manner that Heller contemplated and brewed after it, because Heller analyzes that question in terms of whether something is typically possessed by law-abiding citizens for the lawful purpose of self-defense.

[00:32:08] Speaker 10:
So if Brady Bill had remained in effect and there were, the number of these weapons, of these magazines had atrophied and they were no longer in common use, then they would have lost their protection?

[00:32:21] Speaker 06:
No, I don't think that's right, because I think that law was unconstitutional when it was passed.

[00:32:26] Speaker 10:
And if you take something that's already in common use... Somebody had passed a national law in the 1930s, that would have been the end of it?

[00:32:33] Speaker 06:
No, I think that if you look historically at how this actually worked with respect to machine guns, it's a great example.

[00:32:39] Speaker 06:
Machine guns didn't come on the market until 1921.

[00:32:43] Speaker 06:
People didn't really want them.

[00:32:45] Speaker 06:
The state's own expert talks about how the company that made them was only able to sell about a third of them, and within four years, states were banning them all over the country.

[00:32:55] Speaker 06:
And by the time the federal government came along in 1934, more than half the states had already enacted

[00:33:00] Speaker 06:
Bans or severe restrictions and I think that goes to show that this idea that there's no content to the Common use test is is belied by history people actually do make decisions about what comes on the market and when that came on the market the widespread reaction throughout the country was this is different than the Semi-automatic firearms that have already been on the market for 40 years.

[00:33:22] Speaker 06:
We can we can Articulate what is different about this?

[00:33:26] Speaker 13:
What's your response to your friend's argument that there's I think 700,000 machine gun licenses out there in the world right now?

[00:33:35] Speaker 13:
That seems like a pretty big number.

[00:33:37] Speaker 06:
It's a decently big number.

[00:33:39] Speaker 06:
I mean, you know, obviously it's bigger than the number Justice Alito talked about in Catano.

[00:33:43] Speaker 06:
We don't have any real analysis of the manner of the kind of typical use question there.

[00:33:50] Speaker 06:
How many of them are really owned more as

[00:33:52] Speaker 06:
kind of a novelty or something that can only be used under very, very strict circumstances at particular places, as opposed to actually being kept and used by people for self-defense.

[00:34:02] Speaker 06:
Nobody's tried to make a record on that.

[00:34:04] Speaker 09:
So, Council, it sounds like you're agreeing that common use is connected to self-defense.

[00:34:10] Speaker 09:
It's not just that they're common in number, but they're commonly used for self-defense.

[00:34:16] Speaker 09:
So, and there was, there is a record about that, and there's evidence about that.

[00:34:21] Speaker 06:
So I think the state, and I have a fundamental disagreement about what use means when it comes to use for self-defense.

[00:34:29] Speaker 06:
Heller speaks of use as possession.

[00:34:31] Speaker 06:
It ties use to the concept of the Second Amendment itself, which the Second Amendment doesn't just, the Second Amendment itself doesn't protect the right to engage in self-defense.

[00:34:41] Speaker 06:
That exists independent of the Second Amendment.

[00:34:43] Speaker 06:
The Second Amendment protects the right to keep and bear arms.

[00:34:46] Speaker 06:
Do you have them at the ready for self-defense?

[00:34:48] Speaker 09:
Well, yes.

[00:34:49] Speaker 09:
So if someone,

[00:34:51] Speaker 09:
is trying to attack your home and you are holding a semi-automatic weapon with a magazine of 10 rounds and someone else's home has, they're holding a magazine with 20 rounds.

[00:35:06] Speaker 09:
In terms of how the intruder visualizes that deterrent, how is that any different?

[00:35:14] Speaker 09:
Do you understand my question?

[00:35:15] Speaker 09:
In other words, merely carrying the weapon with a magazine in it ready to fire is the deterrent.

[00:35:23] Speaker 09:
I don't think the intruder is looking at the number and counting them out.

[00:35:28] Speaker 09:
So why isn't it equally usable for self-defense with a 10-round magazine?

[00:35:34] Speaker 06:
Well, I don't think that's the relevant legal question is whether it's equally usable.

[00:35:40] Speaker 06:
It's an arm if it's usable at all, and it's in common use if you're keeping and possessive, if you're keeping and carrying it.

[00:35:47] Speaker 06:
for self-defense, to be ready to engage in self-defense.

[00:35:51] Speaker 09:
If you tried to have a... But it isn't the size of the magazine that makes it a deterrent.

[00:35:56] Speaker 06:
It may or may not be.

[00:35:57] Speaker 09:
It's the existence, isn't it?

[00:35:59] Speaker 06:
I mean, it all depends on the circumstances.

[00:36:02] Speaker 06:
It could make a big difference in some circumstances.

[00:36:05] Speaker 03:
Council, if that's the analysis, why wouldn't you be able to ban semi-automatics?

[00:36:09] Speaker 03:
Because as long as somebody has a revolver, I'd say you're pretty scary if somebody's trying to break into your house.

[00:36:13] Speaker 06:
And I think the problem gets even more significant than that because, as we know from the studies that are in the record, there's about 1.65 million self-defense incidents a year.

[00:36:25] Speaker 06:
In more than 80% of them, no firearm is fired at all.

[00:36:28] Speaker 06:
And so if all that counted was that you actually

[00:36:31] Speaker 06:
fire a certain number of rounds at somebody.

[00:36:33] Speaker 06:
I mean, once you even get inside that 18%, it's a very small number that involves rifles.

[00:36:38] Speaker 06:
And once you take out the semi-automatic rifles that California thinks are not covered by the Second Amendment anyway, I think you end up having to follow that train of logic to say that non-semi-automatic rifles aren't commonly used enough to be covered by the Second Amendment, which cannot be consistent with how they're approved.

[00:36:54] Speaker 08:
Does it matter how dangerous and unusual it is, in your view?

[00:36:58] Speaker 06:
If it's dangerous and unusual at the historical tradition test, that necessarily contemplates it's not in common use today.

[00:37:05] Speaker 06:
I mean, that's what unusual means, not in common use.

[00:37:08] Speaker 06:
The court specifically contrasts the language when talking about dangerous and unusual of in common use as opposed to highly unusual in society at large.

[00:37:18] Speaker 08:
And I want to make sure I understand.

[00:37:20] Speaker 08:
Are you saying dangerous and unusual together or dangerous and or unusual?

[00:37:27] Speaker 06:
So I think Justice Alito's right that it's a conjunctive test, dangerous and unusual.

[00:37:31] Speaker 06:
It has to be both of those things.

[00:37:33] Speaker 06:
Do you have any other?

[00:37:34] Speaker 10:
That's not, as I said before, where this language generated from.

[00:37:38] Speaker 10:
The language generated as an adjective for weapon and essentially could easily have meant dangerous weapons and unusual weapons.

[00:37:48] Speaker 06:
Sure, but I do think we have to take what the Supreme Court has said about it.

[00:37:51] Speaker 06:
The Supreme Court has articulated when the Supreme Court talks about the dangerous and unusual test, it contrasts the concept of in common use today with highly unusual in society at large.

[00:38:03] Speaker 10:
Well, I understand that that's the unusual part, but it doesn't mean it has to be dangerous, both dangerous and unusual.

[00:38:10] Speaker 10:
I don't see.

[00:38:11] Speaker 10:
Is there anything in the Supreme Court opinions that says that?

[00:38:13] Speaker 06:
Well, what the Supreme Court said, I mean, it was critical to the holding of Heller that the court said that the state cannot ban arms that are in common use today.

[00:38:23] Speaker 06:
That had to be resolved because there was a debate in the case.

[00:38:25] Speaker 10:
They are not standing on the notion that it has to be both dangerous and unusual.

[00:38:30] Speaker 06:
Yes, in order to be banned, it has to be dangerous and unusual.

[00:38:34] Speaker 08:
What's your authority for that?

[00:38:36] Speaker 08:
I'm trying to figure out what the authority is for that, because from what I can tell, besides Justice Alito's concurrence in Setanio, I'm looking for some other authority.

[00:38:46] Speaker 08:
Do you have it?

[00:38:47] Speaker 06:
Sure.

[00:38:47] Speaker 06:
I mean, the Supreme Court didn't address specifically that question of whether it's a conjunctive test in Heller and Bruin, but the language that they use when they're describing the tradition.

[00:38:57] Speaker 06:
What they say is we derive from the tradition of the ability to to be in arms that are dangerous and unusual That you can't ban arms that are in common use at the time That's the principle they're deriving from the tradition and so the way the court is understanding the tradition is even if they might be dangerous

[00:39:17] Speaker 06:
If they're in common use today, you cannot prohibit them.

[00:39:22] Speaker 06:
Now, I would also happily talk about the problem is even if you didn't think that question was already answered, the state would need to demonstrate a historical tradition that justifies banning arms that are in common use today.

[00:39:35] Speaker 06:
And they just haven't done that work.

[00:39:37] Speaker 09:
Wait, counsel, counsel, I would like to ask you the same question I asked opposing counsel.

[00:39:42] Speaker 09:
Should we await the Supreme Court's decision in Rahimi, which may further illuminate just how analogous an analog has to be to be instructive in this context?

[00:39:56] Speaker 06:
So I don't think it's necessary in this case because our- I didn't say necessary.

[00:40:00] Speaker 09:
Is it a good idea?

[00:40:02] Speaker 06:
Here's why I, you know, why I don't think it would be as useful in this particular case as in others because we believe that the Supreme Court has already told us what the historical tradition is when it comes to the ability to ban arms.

[00:40:15] Speaker 06:
And that's not a question that's going to be addressed in Rahimi.

[00:40:18] Speaker 06:
And because the court has already said what the tradition is.

[00:40:21] Speaker 09:
But there is considerable uncertainty, at least in my view, as to just how similar a historic practice has to be for it to translate to the current day.

[00:40:35] Speaker 09:
And domestic violence

[00:40:38] Speaker 09:
It seems to me would raise that question also because I don't know that we had those laws, you know, at the founding and we do now.

[00:40:47] Speaker 09:
So wouldn't it illuminate at all this issue of how close the analogy has to be?

[00:40:54] Speaker 06:
I think it could illuminate that.

[00:40:56] Speaker 06:
The sole point I was trying to make is our position in this case is that you don't actually need to get to go look at analogs because we believe the Supreme Court has already done that work and told the courts what the historical tradition is.

[00:41:11] Speaker 02:
So are you saying the historical tradition comes in at step one?

[00:41:17] Speaker 02:
No.

[00:41:18] Speaker 02:
So let me just pose a hypothetical for you.

[00:41:21] Speaker 02:
Let's assume it was 1965.

[00:41:24] Speaker 02:
the California legislature, an unusual burst of pressures, enacted the same legislation we now have in front of us, when large caliber magazines were not in common use.

[00:41:38] Speaker 02:
Would that be okay?

[00:41:39] Speaker 02:
So I would say no, and here's why, because... Because what I'm having trouble with is, it seems to me that a constitutional act can't become unconstitutional

[00:41:50] Speaker 02:
by virtue of subsequent common use.

[00:41:52] Speaker 02:
So I'm trying to figure out why common use solves both problems.

[00:41:57] Speaker 06:
And I'd like to make two points.

[00:41:59] Speaker 06:
First, just on that very specific point, I mean, Bruin pretty much says the opposite.

[00:42:04] Speaker 06:
Bruin says even if this 1860 or 1686 New Jersey ban on pistols really was a ban and was permissible because they were dangerous and unusual then,

[00:42:14] Speaker 06:
that wouldn't make the law constitutional today.

[00:42:18] Speaker 02:
Let's go back to machine guns to make the question easier.

[00:42:22] Speaker 06:
On your 1965 question, here's why I would say that that's still unconstitutional.

[00:42:28] Speaker 06:
In order for the state to come in and ban something that's

[00:42:32] Speaker 06:
It's not in common use.

[00:42:36] Speaker 06:
It's not in common use just by virtue of it being new.

[00:42:39] Speaker 06:
I think the dangerous and unusual test is best understood as the state also has to show that what it's banning is materially different in some way that makes it unusually dangerous vis a vis the arms that are already in common use today.

[00:42:52] Speaker 06:
and so if you know all the arms only had 10 round magazines because no one could figure out how to make 11 and tomorrow you know someone figures out how to make 11 I don't think that means the state can just come in and say well 11 is higher than 10 so we'll ban them immediately no one can ever have them they need to demonstrate that an arm with a magazine that holds 11 rounds

[00:43:12] Speaker 06:
is actually somehow meaningfully different from the arm that holds 10.

[00:43:16] Speaker 02:
So if machine guns today became in common use for self-defense, would the congressional ban of them become unconstitutional?

[00:43:26] Speaker 06:
If they were, you know, if we actually had some movement to lift all the machine gun bans... No, I'm not talking about any movement.

[00:43:32] Speaker 02:
Well, there has to be, though.

[00:43:34] Speaker 02:
There are 700,000 machine guns legally possessed in the country today.

[00:43:38] Speaker 02:
there's the capacity for many more people to get them because they can be licensed to get them well actually at this point that you really can't I mean it's really okay so what if those seven thousand people commonly use them for self-defense would the statute become unconstitutional because no let me finish before because of subsequent

[00:43:58] Speaker 02:
use of self-defense, common use?

[00:44:01] Speaker 06:
As I read the specific statement in Bruin when they say, even if handguns were dangerous and unusual in 1686, they're not today, and what matters whether they're in common use today, that is what the court said.

[00:44:15] Speaker 06:
They were confronting that very question and saying,

[00:44:18] Speaker 06:
if something actually becomes in common use that didn't used to be, it does become protected.

[00:44:23] Speaker 06:
Now, you know, I think there's a reason this is a hypothetical.

[00:44:28] Speaker 13:
Can I ask a question?

[00:44:29] Speaker 13:
According to your briefing, as I read it, common usage is only applied in step two of Bruin.

[00:44:34] Speaker 13:
Is that right?

[00:44:36] Speaker 13:
I think I might disagree with that.

[00:44:37] Speaker 13:
I think it seems that Bruin says that common usage could be used in the definition of what's an arm, and it could be used in whether or not it's a proper analogist

[00:44:46] Speaker 13:
analogy to historical legislation.

[00:44:48] Speaker 06:
I don't think that's right.

[00:44:49] Speaker 06:
Because the court speaks very specifically about the definition of arms.

[00:44:53] Speaker 06:
Yes.

[00:44:54] Speaker 06:
And the first test is just plain text.

[00:44:56] Speaker 06:
And the court's definition of arms, just as its definition of bear didn't admit of any distinction between public and private carry, its definition of arms, which is just something you can pick up and use for self-defense, doesn't admit of any distinction between how commonly something is used for self-defense.

[00:45:14] Speaker 06:
But then if you...

[00:45:15] Speaker 13:
But as a historical matter, the only arm protected by the right is the woes that are not dangerous and unusual and in common use.

[00:45:24] Speaker 13:
So why wouldn't it go into what's the definition of arm?

[00:45:27] Speaker 06:
Because I think at that point, you're baking the historical tradition into the front end of the analysis.

[00:45:32] Speaker 06:
The court instead, if you look at when Bruin is articulating how to do historical tradition, it talks a few times about the dangerous and unusual test.

[00:45:41] Speaker 06:
And it specifically says, I mean, it uses the phrase historical tradition to refer to that repeatedly.

[00:45:46] Speaker 06:
It says we found it fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

[00:45:53] Speaker 06:
that the Second Amendment protects the arms that are in common use today.

[00:45:56] Speaker 06:
It then goes on later and says, drawing from this historical tradition, we explain that the Second Amendment protects the arms that are in common use today.

[00:46:04] Speaker 10:
It's a very strange historical tradition that changes depending on what people's personal choices are over time.

[00:46:11] Speaker 10:
That doesn't sound like history or tradition.

[00:46:13] Speaker 10:
It sounds like people's contemporary decision-making.

[00:46:17] Speaker 06:
With respect, I disagree.

[00:46:19] Speaker 06:
The reason I think the court was able to coherently say what it said about the 1686 law versus today is the historical tradition is the principle, the rule of law that arms that are in common use today are protected.

[00:46:34] Speaker 06:
The application of that rule of law to the facts of today may have different consequences than it did 100 years ago or 200 years ago.

[00:46:41] Speaker 10:
What about the Bowie knife?

[00:46:43] Speaker 10:
statutes, which I gather were pretty prevalent when the knives were pretty prevalent.

[00:46:49] Speaker 06:
Here's the problem with the bowie knife statutes.

[00:46:52] Speaker 06:
There are not possession bans.

[00:46:54] Speaker 06:
The way that states regulated in response to concerns about bowie knives was concealed carry laws.

[00:47:00] Speaker 06:
And many of those are the same concealed carry laws that by their terms also apply to pistols and handguns.

[00:47:05] Speaker 09:
This is not a possession ban of an arm either.

[00:47:08] Speaker 09:
It's a possession ban of an accessory, isn't it?

[00:47:11] Speaker 06:
No, we do not agree that this is an accessory.

[00:47:14] Speaker 06:
A magazine is a functional component of a firearm.

[00:47:16] Speaker 09:
But a large capacity one is not.

[00:47:19] Speaker 09:
A 10 round one will make all of the, according to what I understand from this record, it is almost universally true that a weapon that will take a large capacity magazine also will take a 10 round magazine.

[00:47:37] Speaker 06:
I'm happy to accept that because I don't believe the test is essential.

[00:47:40] Speaker 06:
It's a functional component just because you I mean a magazine is just it's what actively feeds the ammunition into the firing chambers so that the firearm can fire a pretty much all firearms.

[00:47:53] Speaker 06:
at least ever since we got past one shot, have some sort of ammunition being used.

[00:47:58] Speaker 09:
Well, they all have ammunition, too, but we have bans on certain types of ammunition.

[00:48:03] Speaker 09:
For example, you normally can't hunt in certain areas with lead shots and hollow-point bullets and that sort of thing, and it's required for it to be a firearm, but it doesn't mean, does it, that there's no regulation?

[00:48:18] Speaker 06:
Well, for purposes of this discussion, I think we're just talking about the threshold textual inquiry of whether something qualifies as an arm.

[00:48:25] Speaker 06:
Of course, you then have a historical tradition analysis of the regulation.

[00:48:29] Speaker 06:
But a magazine doesn't cease being a functional component of the firearm just because it has 15 rounds instead of 10.

[00:48:37] Speaker 02:
What about an ammunition belt?

[00:48:40] Speaker 06:
It's still, I mean, it is being, it's an actively functioning part.

[00:48:43] Speaker 02:
So let's assume that you're right that there's no historical tradition of regulating this sort of thing.

[00:48:49] Speaker 02:
So is it your position that an ammunition belt that held several hundred rounds of ammunition could not be banned by the state?

[00:48:56] Speaker 06:
No, I think it probably could because as a practical matter, you're going to have, at a certain point, types of ammunition feeding devices that are not in common use because they're impractical.

[00:49:06] Speaker 06:
People can't actually bear them and use them.

[00:49:08] Speaker 02:
Well, but under your answer to my previous question, as long as people started buying them today and bought enough of them between now and the time the state banned them, it would be okay.

[00:49:19] Speaker 06:
As a legal matter, yes, but I think there's a reason.

[00:49:22] Speaker 06:
These are always hypothetical questions.

[00:49:24] Speaker 06:
I mean, these types of technology exist, yet people don't choose to arm themselves with grenades.

[00:49:30] Speaker 06:
Like, people don't all have hundred-round drums that are super cumbersome and tend to jam a lot.

[00:49:35] Speaker 06:
People tend to make reasonable choices.

[00:49:37] Speaker 06:
Technology has been around for a hundred years that people don't choose to keep and use in their homes for self-defense.

[00:49:44] Speaker 06:
So it's all well and good to talk about a hypothetical world where they don't.

[00:49:47] Speaker 10:
My understanding is that one reason that these larger magazines are so prevalent is because they are, when you buy the gun, it comes with those magazines.

[00:49:57] Speaker 10:
So people aren't making choices necessarily, they're just getting them.

[00:50:01] Speaker 06:
That only accounts for some of it, because typically people, I mean, if you look at the study by Professor English, typically people have more than one magazine, so they're making choices about what additional magazines to get.

[00:50:11] Speaker 06:
And there are firearms where you could ask for it to be in a smaller round, or you could purchase a different firearm.

[00:50:17] Speaker 06:
But people choose.

[00:50:19] Speaker 10:
It appears that the marketing has a lot to do with these choices.

[00:50:24] Speaker 10:
I don't think that's really... That's generally true that marketing will have a lot to do with the choices.

[00:50:28] Speaker 06:
I mean, marketing has something to do with the choices, but the manufacturers can't force people to go out and buy AR-15 rifles.

[00:50:36] Speaker 06:
People choose to buy them, and part of the reason they choose to buy them is because

[00:50:39] Speaker 06:
In states that don't have restrictions like California's, they come with 15 or 30-round magazines and people want that to defend themselves in their homes.

[00:50:47] Speaker 06:
Same with many of the popular handguns on the market today.

[00:50:50] Speaker 06:
Many of the most popular ones, people choose them because they have higher capacity, not magazines, not in spite of the fact that they do.

[00:50:58] Speaker 06:
But I also think, you know, if you look at Professor English's study where he's looking at also, you know, people buying additional magazines and people can buy different things and this is what people, given the freedom that they have in most of this country to make their own choices about what they want for self-defense, I mean, roughly half the magazines that people purchase in this country, well over a hundred million, are magazines that are unlawful under this law.

[00:51:22] Speaker 06:
And I don't think at that point you can really dispute that those numbers, wherever the limit, the cutoff is for common use when you're talking about something hundreds of millions owned by tens of millions of people for the purpose of keeping them in their homes for the lawful purpose of self-defense.

[00:51:38] Speaker 06:
I don't see how you can really dispute that that satisfies common use.

[00:51:41] Speaker 06:
And in a sense, I don't think the state really does.

[00:51:44] Speaker 06:
It just wants to change the meaning of use and not focus on any of that evidence.

[00:51:48] Speaker 03:
Going back to the dangerous and unusual, you know, trying to decouple that, if you decouple that, then you get rid of the unusual, I guess, and then you get into the just dangerous.

[00:51:59] Speaker 03:
But of course, every firearm is dangerous, so it seems to me like you'd have to have to have some threshold of dangerousness.

[00:52:08] Speaker 03:
And I'm struggling to think of how that's done in a way that doesn't involve some sort of balancing that starts to feel like the test that the Supreme Court threw out in Bruin.

[00:52:21] Speaker 03:
So can you speak to that?

[00:52:24] Speaker 03:
If you're going to decide that a certain type of firearm is too dangerous, say a semi-automatic, right, and a revolver's not too dangerous, even though both are dangerous, the state is gonna have to say why the one is dangerous enough to satisfy their view of how the Second Amendment scrutiny works, and that starts to feel just like the same old balancing we used to do in the battle days.

[00:52:46] Speaker 06:
I think that is the problem with trying to focus on it independent from common use and say that even things that are being commonly used

[00:52:53] Speaker 06:
are too dangerous for the people to have.

[00:52:55] Speaker 06:
The other thing that is particularly problematic about the argument that's being urged here is, for the most part, the state is not arguing that these are unusually dangerous in the hands of law-abiding citizens.

[00:53:05] Speaker 06:
Its argument is that they're unusually dangerous in the hands of people who want to commit mass murder and other horrific acts.

[00:53:12] Speaker 06:
But every firearm is incredibly dangerous in the hands of someone who wants to misuse it.

[00:53:17] Speaker 03:
So you take that logic, and I don't know what's wrong.

[00:53:19] Speaker 03:
Right, so under that sort of analysis, assuming that

[00:53:23] Speaker 03:
these horrible mass shootings went down, but crime went way up, it seems like you could rely on that as making just regular firearms.

[00:53:33] Speaker 06:
And I think it's quite notable that if you go back to Heller, these aren't

[00:53:38] Speaker 06:
new arguments.

[00:53:39] Speaker 06:
These are the arguments that were being made in Heller.

[00:53:41] Speaker 06:
There were even amicus briefs there making the argument that one of the reasons handguns shouldn't be protected is because handguns are the weapon of choice for people who want to commit mass murder.

[00:53:50] Speaker 06:
And of course, much of the case was focused on criminal use.

[00:53:53] Speaker 06:
And the Supreme Court didn't deny any of that.

[00:53:55] Speaker 06:
It didn't say, you're wrong.

[00:53:57] Speaker 06:
We don't think you've made a good record that people use handguns for criminal purposes.

[00:54:02] Speaker 06:
It said

[00:54:02] Speaker 06:
The second amendment has struck a different balance, and it takes off the table arms.

[00:54:06] Speaker 13:
Can we turn attention to the jurisdictional question?

[00:54:08] Speaker 13:
Absolutely.

[00:54:09] Speaker 13:
So as I understand your briefing, you argue that this is a new case of controversy mainly because there's a new case number.

[00:54:15] Speaker 13:
That's somewhat unsatisfying as a cutoff.

[00:54:19] Speaker 13:
How did you get to that definition?

[00:54:20] Speaker 06:
I think that really the dialogue that was occurring earlier about the decision, the hearing and the decision is key to it all.

[00:54:28] Speaker 06:
But there wasn't any decision.

[00:54:31] Speaker 06:
There was a decision.

[00:54:31] Speaker 09:
It was vacated by the Supreme Court.

[00:54:34] Speaker 10:
This panel does not have or this court does not have a final decision on the question of whether this California statute is valid or not valid.

[00:54:48] Speaker 06:
That is certainly correct, but that doesn't mean this court didn't issue a decision.

[00:54:52] Speaker 06:
This case came back to this panel.

[00:54:54] Speaker 06:
This panel debated whether to decide it on the merits.

[00:54:56] Speaker 06:
We actually urged the panel to decide it on the merits.

[00:54:59] Speaker 02:
Did you urge us?

[00:54:59] Speaker 04:
Did you tell us that we didn't have jurisdiction?

[00:55:02] Speaker 06:
We didn't think you did.

[00:55:03] Speaker 06:
We're lacking jurisdiction at that point.

[00:55:05] Speaker 04:
But isn't the answer to that, that the mandate hasn't had an issue?

[00:55:09] Speaker 04:
So we could have decided it coming back.

[00:55:13] Speaker 06:
What's so significant about the mandate?

[00:55:16] Speaker 06:
Once there was a GVR, there was no decision because the court vacated the decision.

[00:55:23] Speaker 06:
At that point, the hearing is still pending with no decision, but then this court issued.

[00:55:29] Speaker 06:
I absolutely appreciate that this court chose not to decide the case on the merits.

[00:55:35] Speaker 09:
Had we simply retained jurisdiction and remanded rather than giving it a new appellate number, would the answer be different?

[00:55:43] Speaker 06:
I don't think it would have been consistent with section 46C for the court to do that.

[00:55:49] Speaker 09:
We often do that when we send something back to a district court.

[00:55:54] Speaker 06:
I appreciate that, but I do think in the context of section 46C, since it contemplates

[00:55:59] Speaker 06:
that all decisions about whether to have a hearing en banc need to be made by active judges?

[00:56:05] Speaker 09:
It was, long ago.

[00:56:07] Speaker 09:
That's what we issued in 2021.

[00:56:11] Speaker 09:
But let me ask you the same question I asked opposing counsel.

[00:56:15] Speaker 09:
What is your view on whether this should be due to its importance and to your concerns about whether we ought to hear it as a limited en banc, whether this should be a full court decision?

[00:56:25] Speaker 06:
I mean, you know, I'd certainly

[00:56:29] Speaker 06:
enjoy participating in the first ever full en banc to sitting, but I don't know why the court has to go to that step.

[00:56:34] Speaker 09:
I didn't say we had to.

[00:56:36] Speaker 09:
I'm asking your view as to whether it's a good idea.

[00:56:39] Speaker 06:
You know, it seems to me the logical course would be to start with

[00:56:44] Speaker 06:
the ordinary procedures of take a full court vote.

[00:56:47] Speaker 09:
That sounds a lot like, that sounds a lot like judge shopping.

[00:56:50] Speaker 09:
If you, if you had a full court en banc, you would get by definition the real view of this entire court about this question.

[00:56:59] Speaker 09:
Why isn't that a good idea?

[00:57:00] Speaker 06:
I mean, it's perfectly fine, and it's the prerogative of this court.

[00:57:03] Speaker 06:
As a historical matter, the court has never done that and gone straight to that.

[00:57:08] Speaker 06:
And so I would think in the ordinary course, I wouldn't consider it judge shopping.

[00:57:12] Speaker 06:
I would just consider it following this court's ordinary procedures to start with the 11-judge panel.

[00:57:16] Speaker 10:
If we were to have another vote of the active judges and they voted to take it on bank,

[00:57:20] Speaker 10:
Would this be the panel or would it be a different panel?

[00:57:23] Speaker 06:
No, I think you'd have to have a new panel.

[00:57:24] Speaker 06:
Why is that?

[00:57:25] Speaker 06:
For one, I mean, I think that the voting contemplates that then you have a new panel, but I do think that independent of the issue about the vote, the final clause of the second sentence of the statute precludes

[00:57:38] Speaker 06:
the active judges, the senior judges, from participating in the hearing, because the senior judges can only participate in the decision if they were active when the case was heard.

[00:57:48] Speaker 10:
Of a case or controversy.

[00:57:49] Speaker 10:
There hasn't been a decision of the case or controversy.

[00:57:53] Speaker 10:
There isn't.

[00:57:54] Speaker 10:
No, there hasn't been.

[00:57:55] Speaker 10:
There might have been a decision on—well, there wasn't a decision on the last appeal.

[00:58:00] Speaker 10:
We just remanded it.

[00:58:01] Speaker 10:
But even if you consider that a decision, there wasn't a decision on the case or controversy, which is what started in the district court, and it's still ongoing.

[00:58:09] Speaker 06:
I don't think that that conception of case or controversy really fits with all the rest of the text in subsections in 46C, because the statute doesn't just speak of case or controversies in the abstract.

[00:58:21] Speaker 06:
It talks about how cases or controversies shall be heard and determined by this court, and then it tethers throughout the statute the notion of a hearing and a decision, and even the first provision that talks about when senior judges can participate because they were in a panel, an earlier panel,

[00:58:38] Speaker 06:
It contemplates that you're reviewing a particular decision.

[00:58:42] Speaker 06:
It has to be a decision that's under review that they participated in.

[00:58:45] Speaker 02:
Let me take you to the last part of the sentence, which nobody's talked about yet.

[00:58:49] Speaker 02:
It says, the decision of a case or controversy that was heard or reheard by the court in an en banc at the time when people were not yet senior.

[00:58:59] Speaker 02:
So your position is that that final language only went, and it says reheard, heard or reheard,

[00:59:07] Speaker 02:
You're fine.

[00:59:08] Speaker 02:
So obviously something has happened before under that language.

[00:59:12] Speaker 02:
That case was case or controversy was heard or reheard by the court before.

[00:59:17] Speaker 02:
And what you're saying is that language only applies if that prior panel never reached a decision.

[00:59:23] Speaker 06:
Correct.

[00:59:23] Speaker 06:
I think it ties together a hearing and a decision.

[00:59:26] Speaker 06:
The statute clearly contemplates.

[00:59:27] Speaker 02:
So if we had held on to this case pending Bruin, the panel would be the appropriate panel, would it not?

[00:59:33] Speaker 06:
Look, I think that would have been a circumvention of the rule.

[00:59:39] Speaker 02:
Let's assume that we knew Bruin was pending.

[00:59:41] Speaker 02:
And so we said, we're just going to sit on this case until Bruin is decided.

[00:59:46] Speaker 02:
The case had not been, we'd be OK to hear it, wouldn't we?

[00:59:50] Speaker 06:
I mean, if you hadn't issued a decision and a mandate, like, we'd have a different argument here.

[00:59:54] Speaker 06:
I still tend to think the better reading of the statute is unless you're doing, like, an actual limited remand in the sense that we need you to answer one other question because it's critical to our ability to decide anything.

[01:00:04] Speaker 06:
That's basically what we did.

[01:00:06] Speaker 10:
That is what we did.

[01:00:06] Speaker 04:
No, that's not at all what we did.

[01:00:08] Speaker 04:
We sent it back to decide the whole case again.

[01:00:11] Speaker 12:
Why do you think this is unusual?

[01:00:13] Speaker 12:
We've been doing it this way for over a quarter of a century in countless cases.

[01:00:19] Speaker 12:
senior judges stay on after remand, either from the Supreme Court or from the District Court.

[01:00:25] Speaker 12:
No, no, no.

[01:00:27] Speaker 12:
I totally disagree with the premise of the question.

[01:00:29] Speaker 12:
Let me go on.

[01:00:32] Speaker 12:
Let's take one of our more recent Second Amendment cases, Young versus Hawaii.

[01:00:36] Speaker 12:
We remanded it.

[01:00:38] Speaker 12:
There was a new decision, and two senior judges remained on that panel.

[01:00:43] Speaker 12:
In fact, Senior Judge Bybee wrote the majority opinion, and Senior Judge O'Scanlon wrote the dissent.

[01:00:51] Speaker 12:
We've been doing it this way for 25 years.

[01:00:53] Speaker 12:
I can give you countless examples of that where we've remanded to the district court, it's come back, and even though somebody's taken senior in the interim,

[01:01:02] Speaker 12:
We hear the case with the senior judge.

[01:01:04] Speaker 04:
It's worth noting that Judge O'Scanlon was on the three-judge panel in Young, so with all due respect to Judge Thomas.

[01:01:10] Speaker 06:
I do recall that.

[01:01:11] Speaker 06:
I would simply note, you know,

[01:01:13] Speaker 12:
Well, you take D&C versus Hobbs.

[01:01:16] Speaker 12:
I mean, D&C versus Reagan, where he was not on the panel.

[01:01:19] Speaker 12:
And it came back two years later, and it was seated.

[01:01:24] Speaker 06:
The question for us is that we were asked by this court is whether this is consistent with the statute, whether this court has been violating the statute for a long time or just once.

[01:01:33] Speaker 06:
I don't know.

[01:01:33] Speaker 06:
And every other circuit does it the same way.

[01:01:34] Speaker 06:
Every other circuit does it the same way.

[01:01:36] Speaker 06:
Well, every other circuit.

[01:01:37] Speaker 06:
I mean, this court obviously has a very different dynamic, given that this court.

[01:01:40] Speaker 06:
I'm sorry.

[01:01:40] Speaker 08:
Did you say every other circuit what?

[01:01:43] Speaker 06:
No other circuit has the same dynamic that this circuit has of not having all active judges participate in en banc proceedings.

[01:01:51] Speaker 12:
Right.

[01:01:51] Speaker 12:
We have a limited en banc, but in terms of where the case goes back, who hears it and whether senior judges stay on it, every other circuit does it pretty much the same way.

[01:01:59] Speaker 04:
Every other circuit doesn't do it our way.

[01:02:01] Speaker 08:
That's the point.

[01:02:02] Speaker 08:
Judge Anelson, I'm sorry.

[01:02:04] Speaker 08:
You can ask the question.

[01:02:05] Speaker 04:
I'm responding to a statement by another panel member that's not accurate.

[01:02:12] Speaker 06:
We have had a difficult time finding that there's any rule or anything that contemplates that that would be the way that the way this court operates is how it would operate in other circuits.

[01:02:21] Speaker 06:
But of course, it doesn't really come up quite the same way.

[01:02:24] Speaker 02:
Well, but it does come up in other circuits.

[01:02:25] Speaker 02:
My recollection, and I must admit that it's dim, is that the Second Circuit, although it sits totally en banc, if a judge was on the panel, he sits on the en banc panel, and then when the cases came back,

[01:02:42] Speaker 02:
to that they came back to the same panel, including the senior judge.

[01:02:46] Speaker 02:
I may be wrong about that.

[01:02:48] Speaker 06:
I will note that the language, with respect to kind of the hearing and decision and all that, it's different in the provision that deals with a judge who was on the three-judge panel.

[01:03:00] Speaker 06:
That provision that says a three-judge panel, a judge who was on the three-judge panel may participate.

[01:03:06] Speaker 02:
Speak about like being active at any particular it seems unfair in a second amendment case to make you spend ten minutes on this But we made I find it fascinating we made the other side spent ten minutes on it so but so but I'm interested so you think that there's a different

[01:03:20] Speaker 02:
So let's assume a judge was on the three-judge panel, and by virtue of that was on the en banc court.

[01:03:25] Speaker 02:
And then exactly the same thing happened.

[01:03:28] Speaker 02:
Your view is that judge would be able to serve.

[01:03:30] Speaker 06:
So I think the best reading in that circumstance is that they can't because their decision is no longer under review when you get to the comeback case.

[01:03:40] Speaker 06:
But if their decision still is under review, if they stay out, it goes back to a three-judge panel and all that.

[01:03:45] Speaker 06:
But that first provision specifically ties it to the decision that's being reviewed.

[01:03:50] Speaker 06:
So, you know, it's just going to depend a little bit on the factual circumstances, but the second provision very specifically ties it to being active when the hearing takes place, and this case is being heard en banc right now.

[01:04:07] Speaker 08:
Let me ask Judge Ikuta, do you have any questions for counsel?

[01:04:11] Speaker 10:
No, thank you.

[01:04:14] Speaker 08:
Thank you very much.

[01:04:19] Speaker 08:
So we went over, so I'll give you five minutes total.

[01:04:25] Speaker 11:
Thank you, Chief Judge McGill.

[01:04:26] Speaker 11:
I'll try not to use all that time.

[01:04:28] Speaker 11:
I'd just like to make three quick points about the Second Amendment.

[01:04:33] Speaker 11:
Understanding of the Second Amendment that you've heard from plaintiffs today and in their briefs can't be squared with precedent, and it's not supported by history.

[01:04:42] Speaker 11:
So first point, in plaintiff's view, at the first stage of Bruin, anything that fits their definition of the word arm is presumptively protected by the Second Amendment without any other consideration of objective characteristics or dangerousness.

[01:04:57] Speaker 11:
So we're not just talking about large capacity magazines, mind you, but M16s, sawed-off shotguns, hand grenades, all presumptively protected.

[01:05:06] Speaker 11:
But Bruin is clear on this point at pages 32 to 33 of the opinion that a plaintiff at least has to satisfy the common use for self-defense inquiry before any weapon is presumptively protected.

[01:05:20] Speaker 11:
And Heller said you have to examine the character of the weapon

[01:05:24] Speaker 11:
and whether it's a self-defense weapon and that certain types of weapons like M16s are not eligible for protection.

[01:05:32] Speaker 11:
That's based on history and the original public meaning of the Second Amendment, which codified

[01:05:37] Speaker 11:
a pre-existing right that plainly excluded certain types of weapons.

[01:05:42] Speaker 11:
Second, at stage two, plaintiffs' view is that the only question, the only question that a court can ask is the number of a particular device that's possessed today by civilians in states that don't prohibit it.

[01:05:56] Speaker 11:
And if that number exceeds a certain threshold, then the device is categorically protected and every state law

[01:06:03] Speaker 11:
banning it suddenly becomes unconstitutional.

[01:06:06] Speaker 11:
Again, without any history, my friend said, without any consideration of history or objective characteristics.

[01:06:13] Speaker 11:
And I'd note, I think it's very surprising, since this is sort of the sole determinative factor that plaintiffs point to, that they haven't said what that threshold is or even how a court would go about determining it.

[01:06:26] Speaker 11:
But what they've suggested in the past is that maybe it's around 200,000

[01:06:31] Speaker 11:
which would mean if one in every 1,600 Americans possessed this device, it would satisfy their test.

[01:06:38] Speaker 11:
Your Honor, if that were the law, then the Supreme Court absolutely would have considered the numbers of sawed-off shotguns and M16s

[01:06:47] Speaker 11:
before it announced that those weapons are unprotected and may be banned.

[01:06:51] Speaker 11:
And if the focus really is on history, then plaintiffs would need to identify some historical evidence supporting their view that the government may only ban exceedingly dangerous weapons when those weapons are exceedingly rare.

[01:07:07] Speaker 11:
and that those bans somehow become impermissible when the weapons become sufficiently prevalent that they start to create actual real-world problems.

[01:07:16] Speaker 11:
Your Honor, it's the actual history from before and after the founding shows exactly the opposite, that especially dangerous weapons and devices were heavily regulated and banned after they became numerically prevalent.

[01:07:30] Speaker 11:
And my last point, I think... What is your best example of that?

[01:07:34] Speaker 11:
Well, Your Honor, I think that if you want to look before the founding, you can look at crossbows.

[01:07:39] Speaker 11:
If you want to look after the founding in the kind of relevant early 19th century period, slung shots and bowie knives are prime examples.

[01:07:47] Speaker 11:
And the last point I'd just quickly make, perhaps because of their choice of how to argue this case, you haven't heard much of anything from my friends in their briefs or today about sort of the actual characteristics and dangerousness of large capacity magazines.

[01:08:05] Speaker 07:
Doesn't that go into the how and why analysis by which trigger, which informs our understanding of what regulation is relevantly similar?

[01:08:17] Speaker 07:
I haven't heard any of that discussion here today.

[01:08:20] Speaker 11:
Sure, Your Honor.

[01:08:20] Speaker 11:
I'm happy to address that in the time that I have remaining.

[01:08:25] Speaker 07:
But it seems to me very relevant to, I mean, because there is no regulation on points.

[01:08:32] Speaker 07:
So we have to look to regulations that are relevantly similar.

[01:08:36] Speaker 07:
doesn't that require us to look at how and why these weapons are actually used?

[01:08:43] Speaker 11:
I think that it does and take a nuanced approach because we're dealing with a dramatically new technology and unprecedented societal concern and if we look back at the historical precursors we see

[01:08:54] Speaker 11:
a number of instances over time where governments have regulated heavily or banned the possession of particular types of weapons or devices that are especially dangerous and pose a dire threat to public safety.

[01:09:08] Speaker 07:
That's why the numbers, the sheer raw numbers, is not really that

[01:09:14] Speaker 07:
relevant in terms of the Bruin analysis.

[01:09:18] Speaker 11:
I don't think it's sufficient, Your Honor.

[01:09:19] Speaker 11:
I think that, you know, Heller talked about numbers and subjective preferences, but it didn't make that the only thing that a court has to look to.

[01:09:27] Speaker 11:
I see that my time is up, and with that, Your Honors, we'd ask the Court to reverse the District Court's judgment and remand for entry of judgment in favor of the Attorney General.

[01:09:37] Speaker 11:
Thank you.

[01:09:38] Speaker 08:
Mr. Mangan and Ms.

[01:09:40] Speaker 08:
Murphy, thank you so much for your helpful oral arguments today.

[01:09:45] Speaker 08:
This is obviously a very significant case for us, and we appreciate the answers to all the different questions that were presented.

[01:09:53] Speaker 08:
Thank you very much.

[01:09:54] Speaker 08:
We are adjourned.