[00:00:00] Speaker 01: Thank you. [00:00:01] Speaker 01: Good afternoon your honors. [00:00:03] Speaker 01: I'm Amy Bell Antoni and I represent the appellant Mark Baird I'd like to reserve five minutes for rebuttal This case is about a challenge to two California laws penal law section 25850 which bans the possession of a loaded firearm in public and 26350 which bans the unloaded open carriage of a handgun and [00:00:29] Speaker 03: So what is the nature of your challenge? [00:00:33] Speaker 03: Is it an applied challenge? [00:00:36] Speaker 01: The nature of the challenge is twofold. [00:00:38] Speaker 01: It's a facial challenge to both of the statutes because under any argument... It's a facial challenge? [00:00:43] Speaker 01: There's a facial challenge to both of the statutes. [00:00:45] Speaker 01: Yes, they criminalize conduct that is presumptively protected by the plain text of the Second Amendment. [00:00:51] Speaker 03: So if it's a facial challenge, then it was okay for the district court to talk about licensing because that's a part of this challenge? [00:01:02] Speaker 03: Because it is the fact if you're going to challenge the whole statute, licensing is a part of the whole statute. [00:01:11] Speaker 03: And so that's why I said, what is this challenge? [00:01:14] Speaker 01: And there is also an as applied challenge as well. [00:01:17] Speaker 03: Okay, so the as applied challenge, what is that? [00:01:22] Speaker 01: The as applied challenge is the challenge to both statutes as applied to my clients as far as the open carriage of a handgun is concerned. [00:01:31] Speaker 03: okay so it's the as it applies to your client so how was the statute applied to your client why can't your client apply for an open carry license using the existing application that's in the statute under the penal code section uh... california requires all applications for a pistol license to be uh... [00:02:02] Speaker 03: Submitted that every application for pistol license must be the application that is published by the California Department of Justice And there's one published they're sure they're sure is yes, and this this application that's published seems to apply to both a concealed carry and and an open carry [00:02:24] Speaker 01: Well, the application that, last I checked, was published by the DOJ has no avenue for the application for an open carry license. [00:02:32] Speaker 03: Well, just a minute, just a minute. [00:02:33] Speaker 03: It says here that the license shall be issued in either of the following formats. [00:02:40] Speaker 03: The license to carry the concealed pistol, which is the concealed carry, and where the population of the county is less than 200,000 persons, then the license to carry loaded and exposed. [00:02:54] Speaker 03: You can issue this license on both. [00:02:57] Speaker 01: The actual application that's filled out and the application that's submitted to the DOJ is simply entitled concealed carry. [00:03:05] Speaker 01: There is no application. [00:03:06] Speaker 03: Well it is entitled, but under the very application here it says you can do it for either. [00:03:12] Speaker 01: It does identify that section of the statute that allows for open carry, but in fact, there has been no open carry license issued. [00:03:21] Speaker 01: Now, just a minute. [00:03:22] Speaker 03: How do you know there's been no open carry license issued? [00:03:26] Speaker 01: Because every licensing officer in the state of California is required to submit to the Department of Justice [00:03:32] Speaker 03: Every application denial and approval of every license application that is made and through a FOIA request which is part of the record here There has been no Application made and no open carry license well that is I mean I've read your FOIA application letter It says we checked with knowledgeable persons and searched logical places, and we didn't find any documents which are responsive to this request and [00:04:03] Speaker 03: The sections authorize the sheriff to issue these permits because the department is not the issuing authority for the permits and because the information the department has is only as reliable as what is reported by the local agencies, it does know what has happened in the local agencies. [00:04:27] Speaker 01: And in the sworn declaration of my client, he averts that no open carry license has been issued in his county as well. [00:04:34] Speaker 01: How does he know that? [00:04:35] Speaker 01: He's had conversations, personal conversations with both sheriffs that have governed his county in Siskiyou. [00:04:43] Speaker 01: And neither would have, and neither has, he's applied, and neither has issued an open carry license, and neither is, both were reluctant to even address why no open carry license would be issued. [00:04:56] Speaker 01: And again, the application itself says concealed carry, and there is no avenue for open carry. [00:05:01] Speaker 01: And you know, since 2019 when this case was commenced, [00:05:05] Speaker 03: There's been no evidence put forth by the state to even suggest that any the one open carry license has been issued The reason that I we've got to go on the record that's in front of us and the record in front of us has the license which I read from it has The FOIA request which I read from and otherwise it just has your clients [00:05:33] Speaker 03: good declaration that nobody's getting them but really that's not very good evidence that nobody gets them in California. [00:05:42] Speaker 03: So I'm having a tough time whether are you arguing this is a ban just for his county or is it a ban for all of California or what is it you're arguing? [00:05:53] Speaker 01: We did ask the state to produce documentation. [00:05:55] Speaker 01: Again, there is a legal requirement for every licensing officer throughout the state to send documentation of every application and every denial and every approval. [00:06:06] Speaker 01: So if there had been an open carry license application submitted or taken- Is that in the record? [00:06:12] Speaker 01: Yes, your honor. [00:06:14] Speaker 03: Where? [00:06:15] Speaker 03: I have his affidavit. [00:06:17] Speaker 03: What else do I have? [00:06:18] Speaker 01: In the record, it makes reference to the penal law section, I believe, in my brief that talks to the requirement of the licensing officers to provide that information to the State Department of Justice. [00:06:30] Speaker 01: So there is a presumption there that they would have complied with the law, and had there been an open carry license issued, it would have been on file and recorded with the Department of Justice, which there is not. [00:06:40] Speaker 03: Well, but did we ever ask the Department of Justice? [00:06:43] Speaker 03: I mean, I have the FOIA request and I know what they're saying and all they're saying is, I don't know what happened with the sheriffs. [00:06:53] Speaker 01: And the state has not, in the state we're suing the Attorney General, who is the head of the Department of Justice, and they've produced absolutely no documents to support [00:07:02] Speaker 01: the issuance of one open carry license in the state. [00:07:05] Speaker 03: Well, the reason I'm asking you these questions is because when I read the in part of their briefs, it doesn't seem to me that they agree with you that there's never been a license issued. [00:07:21] Speaker 03: They think this license applies to both, and they don't agree with you that they can say whether there's ever been a license issued or not. [00:07:33] Speaker 03: Their brief suggests that there's no evidence in this record to suggest that. [00:07:37] Speaker 03: That's why I'm kind of focusing on you. [00:07:40] Speaker 03: I'm not trying to beat you up at all. [00:07:44] Speaker 03: If this is an as applied ban, I'm trying to figure out why the ban is. [00:07:52] Speaker 03: I mean, on his affidavit, I might say the ban applies to his counties, or could. [00:07:59] Speaker 03: Not sure it's enough evidence, but could. [00:08:02] Speaker 03: But that's all I'm trying to do is get to the bottom line on that. [00:08:06] Speaker 01: And in the record, during summary judgment or at least a portion of the summary judgment or in the complaint, but in the record, you know, I had personally gone through the websites for each licensing officer in the entire state and put website information in there. [00:08:23] Speaker 01: which demonstrates that when you go to their websites, the only, for each one, the only available license is an open, is a concealed carry license. [00:08:32] Speaker 01: There is no avenue and they are applications digitally submitted online. [00:08:37] Speaker 01: There's no avenue for submitting an open carry license application. [00:08:43] Speaker 01: So that's the, and there was also discovery made of the state and they also could not identify. [00:08:49] Speaker 01: They're the record keeper. [00:08:51] Speaker 01: They're the record keeper. [00:08:52] Speaker 02: Yes. [00:08:52] Speaker 02: I'm trying to figure out how much, and I think it's related to the question my colleagues ask, I'm trying to figure out how much your argument turns on [00:09:00] Speaker 02: Whether there's a license or not understands one of your arguments, but am I correct in thinking that? [00:09:06] Speaker 02: For 95% of the state by population you just cannot get an open carry license I mean I'll ask the state this but that's my understanding well That's also correct unless you live in a county of 200,000 population or less open carry is not so if you live in a [00:09:24] Speaker 02: My understanding is if you, putting aside the, let's assume there's a form and you can use the regular concealed fare form. [00:09:32] Speaker 02: You, if you live in LA and you want to open carry in, I don't know the counties, they're right next to me where I live in Reno, but the rural counties, you can't get an open carry license for those counties, even though in theory a person could, you can't get it because you live in LA, you're a resident of LA. [00:09:50] Speaker 02: So it's only available to the residents of those counties in theory at least, at best. [00:09:54] Speaker 01: Under statute, the open carry license, if issued, would only be available for the residents of the population. [00:10:01] Speaker 02: So if you live in an urban county. [00:10:03] Speaker 01: No, you can't get an open carry. [00:10:04] Speaker 02: Or you live in Nevada, or you live anywhere other than in that county. [00:10:08] Speaker 02: And then if you get the permit, am I correct in understanding that you can only open carry in that county? [00:10:15] Speaker 01: It's void, crossing the county line. [00:10:19] Speaker 02: So even putting aside this whole can you apply for a permit, [00:10:24] Speaker 02: Best case scenario, you can only open carry in your county if you live in a rural county. [00:10:32] Speaker 02: All the people that don't live in rural counties, they have a flat band on open carry everywhere. [00:10:36] Speaker 02: I mean that's aside from all these other questions I think. [00:10:40] Speaker 03: I appreciate my colleagues' questions because that's why I ask you what's this all about. [00:10:48] Speaker 03: Because it seems to me that you are challenging sections 25, 850, 26, 350, [00:10:56] Speaker 03: You originally challenged 26-150 and 26-155, which he's now talking about, but you eliminated those from the third amended complaint, as I understand it. [00:11:12] Speaker 03: So now we're only back to the original criminalizing the open carriage of handguns for self-defense in 25-850 and 26-350, is that right? [00:11:24] Speaker 01: Correct. [00:11:25] Speaker 03: So we're not really able to talk about the fact that one can't get a license in all the counties or one can't carry it in all the counties because you left that out of your complaint. [00:11:43] Speaker 03: Well, how am I going to do it if you're lifted out of your complaint? [00:11:47] Speaker 02: I'd really be interested in hearing your answer to that question. [00:11:50] Speaker 02: Let her answer, please, if you don't mind. [00:11:53] Speaker 01: If I could just briefly begin with the facial challenge. [00:11:56] Speaker 01: This facial challenge is to criminal statutes [00:12:00] Speaker 01: that punish as a crime conduct that is presumptively protected by the plain text of the Second Amendment, bearing arms. [00:12:09] Speaker 01: Heller has defined bearing arms as open carry and concealed carry using Justice Ginsburg's dissent in the Muscarella case to wear upon the person or to carry in the pocket. [00:12:19] Speaker 01: The state brings up the exceptions and the defenses. [00:12:22] Speaker 01: And in those defenses and exceptions, they bring up the licensing statutes. [00:12:26] Speaker 01: So they're the ones leaning on the licensing statute. [00:12:28] Speaker 01: And if we're going to look at the licensing statute, which has no historical analog whatsoever, it's not even within, forget about an analogical twin, it's not even in the same family tree, then we need to look at what the statute and the licensing statute says. [00:12:44] Speaker 01: So even if it were an analog, [00:12:47] Speaker 01: The licensing statute provides no respite because it still bars the majority of Californians from exercising the right to open carry. [00:12:56] Speaker 01: And it doesn't even allow the people in those 200,000 or less populated counties from carrying outside of their county. [00:13:05] Speaker 02: So make sure I understand. [00:13:06] Speaker 02: I'm trying to follow the statutes that you are not challenging and the ones that you are challenging. [00:13:14] Speaker 02: Are you challenging the statute that bans open carry statewide? [00:13:23] Speaker 01: Yes. [00:13:23] Speaker 02: So that's challenging. [00:13:25] Speaker 02: And then the state has come in and said, yeah, but you're not challenging the fact that we grant a license. [00:13:31] Speaker 02: But there is no statute that allows you to get a license to carry in, say, San Francisco or San Diego, or is that? [00:13:40] Speaker 02: Correct. [00:13:40] Speaker 02: And so it's an odd thing to say, well, we have a statute that gives a license for something, but it doesn't give a license for the activity that you're saying that's run constitutionally. [00:13:49] Speaker 02: So you are challenging the statute that actually bans you from carrying in, say, San Francisco, open carrying. [00:13:58] Speaker ?: Yes. [00:13:58] Speaker ?: OK. [00:13:58] Speaker 02: I'll ask the state whether they agree that you are challenging that and it's their defense that nobody you can get a concealed carry permit And you're not challenging that You're not challenging and saying the concealed carry permit licenses some Statute is somehow problematic in this in this litigation. [00:14:18] Speaker 02: You're just saying it doesn't it doesn't save the ban on open carry and [00:14:24] Speaker 01: The availability of a concealed carry license does not save the ban on open carry. [00:14:29] Speaker 01: Why? [00:14:31] Speaker 01: Yes. [00:14:32] Speaker 01: Why does it not save the ban on open carry? [00:14:34] Speaker 03: Why? [00:14:35] Speaker 01: Because there is no historical analog nor has the state identified one for banning 50% of the rights to bear arms as the plain text codifies. [00:14:46] Speaker 03: Well, maybe we ought to look at that. [00:14:48] Speaker 03: I mean, doesn't Heller say that [00:14:54] Speaker 03: From Blackstone through the 19th century, cases, commentators and courts routinely explain that the right to keep and bear arms was not the right to keep and carry any weapon whatsoever in any manner whatsoever. [00:15:10] Speaker 01: Yeah, I love that phrase. [00:15:11] Speaker 01: So we're not looking to carry any weapon. [00:15:14] Speaker 01: We're not looking to carry machine guns. [00:15:16] Speaker 01: We're looking to carry weapons that, how they're recognized, are in common use for self-defense. [00:15:21] Speaker 01: And we're not looking to carry in any manner, we're not looking to carry brandishing or menacing individuals or terrorizing people, but in a peaceful and calm manner, in a holstered manner for self-defense, which is what's protected by the scope of the Second Amendment. [00:15:39] Speaker 03: Well, the worry that I have with your statement is that in the state of New York, which was Bruin's state, [00:15:48] Speaker 03: State of New York did not allow and does not allow open carry. [00:15:56] Speaker 03: And what was challenged there was not the open carry, but the concealed carry. [00:16:06] Speaker 03: The fact that the state of New York did not allow and did not ever allow open carry seemed to be a factor in the Bruin decision. [00:16:18] Speaker 03: Because even though they were challenging concealed carry and the Supreme Court threw out their [00:16:26] Speaker 03: challenge or throughout the concealed carry ban that one of the reasons it seemed for Bruin was that it was because New York had already outlawed open carry and they couldn't outlaw both of them because public carry was the [00:16:47] Speaker 03: Mantra, and I'm not saying that's it. [00:16:50] Speaker 03: I'm just saying when I read this in fact at a fit at 53 it says in fact however the history reveals a consensus that states could not ban public carry altogether Respondents cited opinions agreed that concealed carry options were constitutional only if they did not similarly prohibit open carry [00:17:16] Speaker 03: And at 59, they say, finally states are able to lawfully eliminate one kind of public carry, concealed carry, so long as it left the option to carry openly. [00:17:33] Speaker 03: Which seemed to suggest that when you're looking at these statutes, if you prohibit open carry, you can't prohibit also concealed carry. [00:17:46] Speaker 03: But if you're like California, and you don't prohibit concealed carry, but you allow it, that you can prohibit open carry. [00:17:59] Speaker 03: Now just answer, I mean, I don't know, I'm just reading this stuff. [00:18:04] Speaker 01: Okay, so a couple of things there. [00:18:07] Speaker 01: The Bruin case did not specifically challenge the open carry ban. [00:18:11] Speaker 01: There is a case pending now in the second circuit that does challenge New York State's open carry ban. [00:18:16] Speaker 01: Second, the historical analog for this, we can ban one but can't ban the other. [00:18:21] Speaker 01: First of all, that goes against Heller, which rejected any kind of alternative recipe. [00:18:28] Speaker 03: Where in Heller does it say that? [00:18:30] Speaker 01: Well, in Heller, it said, and it's not enough, I'm paraphrasing now, that the government... I think you're paraphrasing a lot because I don't think it said that in Heller. [00:18:39] Speaker 01: It's not enough that the government can say you can carry or you can possess rifles and shotguns. [00:18:44] Speaker 01: to the detriment of possessing handguns. [00:18:47] Speaker 01: So the either-or argument does conflict with Heller because handguns, rifles, and shotguns are all weapons in common use for lawful purposes. [00:18:58] Speaker 01: But I want to get back to those cases. [00:19:00] Speaker 02: My understanding was that this argument was already made and addressed by our court in Peruta. [00:19:06] Speaker 02: You're familiar with Peruta? [00:19:07] Speaker 02: Yes. [00:19:08] Speaker 02: Pre-Bruin. [00:19:09] Speaker 02: But as I understand it, I think it was maybe [00:19:15] Speaker 02: I was on that way. [00:19:17] Speaker 03: Go ahead. [00:19:18] Speaker 03: Give it to him. [00:19:19] Speaker 02: I'd love to hear what she's gonna say about pretty yes, I think it was some Judge said Willy Fletcher really funny. [00:19:28] Speaker 02: That's Fletcher. [00:19:29] Speaker 02: I think it's just Fletcher and he wrote that Because the argument I think that was made in Peru to was in San Diego you can't get [00:19:38] Speaker 02: and open carry. [00:19:39] Speaker 02: So you have to let us conceal carry. [00:19:41] Speaker 02: And as I recall, Judge Fletcher and the majority of our court rejected that and said, listen, essentially, now I'm paraphrasing, but the analysis was that they're not fungible. [00:19:51] Speaker 02: You can't just say, which I think is kind of what the state's argument is, that if you allow one, you have to allow the other, that it only works one way. [00:19:59] Speaker 02: And this is pre-ruin. [00:20:00] Speaker 02: And he said, if there is such a right to public carry, [00:20:04] Speaker 02: and we now know post-Bruin there is, it is a right to carry a firearm openly. [00:20:08] Speaker 02: And I thought Peruta rejected that. [00:20:12] Speaker 02: And so the question I've got, I guess, is one of the issues that comes up in a lot of these Second Amendment cases, and the state is regularly arguing that pre-Bruin precedent has not been abrogated by Bruin and Rahimi. [00:20:25] Speaker 02: And so I'm curious, what is your view, has this particular ruling of Peruta been abrogated by [00:20:32] Speaker 02: by Bruin, or is this still true? [00:20:37] Speaker 02: I mean, are we bound? [00:20:38] Speaker 02: Even if we were to want to go the other way, are we bound by the fact that they're not fungible because of Peruda? [00:20:46] Speaker 01: So I believe that this court recognized the abrogation of Peruda in the... Well, no. [00:20:51] Speaker 02: I mean, obviously, I think it says abrogated on other grounds. [00:20:55] Speaker 02: I'm not saying that some parts of Peruda were not abrogated. [00:20:58] Speaker 02: I mean, this particular part of Peruda, [00:21:00] Speaker 01: So can we go back to the reasons for this whole concealed carry can be banned as long as open carry is fully available? [00:21:07] Speaker 01: And by the way, concealed carry is not fully available. [00:21:10] Speaker 01: It's not unregulated. [00:21:11] Speaker 01: Those cases back in like the Nunn case and Bliss versus Kentucky and the State versus Reed and State versus Mitchell, those cases, first of all, the cases that said one, the concealed carry could be banned. [00:21:29] Speaker 01: Open carry was unregulated. [00:21:31] Speaker 01: There was no licensing requirement there. [00:21:33] Speaker 01: So to ban concealable weapons, [00:21:36] Speaker 02: So you're running low on time, I think. [00:21:39] Speaker 02: I understand that your argument is that they're not fungible. [00:21:41] Speaker 02: I think there is some precedent for the fact that you can ban concealed carry if there's open carry. [00:21:51] Speaker 02: That argument is out there. [00:21:52] Speaker 02: The Supreme Court's mentioned it in cases. [00:21:54] Speaker 02: The question is, can you just flip it? [00:21:56] Speaker 02: And what is your position on that? [00:21:57] Speaker 01: You cannot flip it. [00:21:58] Speaker 02: Absolutely not. [00:22:01] Speaker 01: It was deemed an evil practice. [00:22:02] Speaker 01: And that's why concealable weapons at the time in the 1840s [00:22:06] Speaker 01: or were banned. [00:22:07] Speaker 02: I guess the question would be is there, since we're extracting principles and various levels of generality in this circuit, I guess I'll ask the state where they find the principle that these things are fungible and that you can just, you know, you can allow, okay, but I don't know if you want to keep going or reserve time. [00:22:23] Speaker 03: Let me ask you another question. [00:22:25] Speaker 03: Since we're on Bruin and I think his questions were dead on for you, Bruin is really particular [00:22:32] Speaker 03: And peculiar to me, because if we only look at the history of banning concealed carry, concealed carry was the public carry most banned in history. [00:22:47] Speaker 03: And yet, it was the ban the Supreme Court said was unconstitutional in Bruin. [00:22:55] Speaker 01: Correct. [00:22:56] Speaker 03: Why? [00:22:57] Speaker 03: Could it be that open carry was already banned and remained banned in New York and thus because it was banned, therefore the ban on concealed carry had to be unconstitutional, whereas now California, concealed carry is allowed in California, so why can't they ban open carry? [00:23:25] Speaker 01: There is zero historical analog for banning open carry. [00:23:29] Speaker 01: It's been the preferred method of carrying weapons since the beginning of time and the dawn of ages. [00:23:33] Speaker 01: And it was only in determining that handheld pistols, pocket pistols, and breast pistols, and concealable weapons were dangerously unusual, and that the practice of concealing a weapon was deemed to be an evildoer's intent. [00:23:49] Speaker 01: And there were only five states that banned concealed carry of pistols and concealable weapons at a time when at Nunn versus Georgia was 1846 when there were 29 states. [00:24:00] Speaker 01: It absolutely was not a national tradition. [00:24:03] Speaker 01: And I would submit that it doesn't even apply any longer because pistols are now weapons in common use and concealed carry is deemed not to be an evil practice but practiced by the public at large. [00:24:16] Speaker 01: So I'll reserve what time I have left for rebuttal. [00:24:19] Speaker 01: Thank you. [00:24:56] Speaker 00: Good afternoon and may it please the court. [00:24:58] Speaker 00: Aaron Pennecamp appearing for the Attorney General. [00:25:00] Speaker 00: The Supreme Court has repeatedly explained that the right protected by the Second Amendment is not a right to keep and bear arms in any manner whatsoever. [00:25:09] Speaker 00: It's cautioned that nothing in its Second Amendment jurisprudence should be read to suggest that shall issue licensing regimes like California's are unconstitutional and [00:25:21] Speaker 02: It is surveyed the relevant history and tradition and suggested that governments are free to interrupt your because it really you kind of hit the nail on the head we talked about license regime and as I read your briefing. [00:25:38] Speaker 02: Your briefing depends very heavily on the fact that this is a licensing regime, and I think that There's there's obviously more support for the argument that you can license things or you can regulate things from the Supreme Court precedent that the challenge I'm struggling with in this is is is this a challenge to a licensing regime or is this a challenge to a [00:26:02] Speaker 02: to a ban and that becomes sort of a framing issue. [00:26:06] Speaker 02: And so I guess I'll ask you some of the questions I asked her because I think, and I think I know the answers to these but I could be wrong. [00:26:14] Speaker 02: So you can't get, you cannot get a license, first of all you're banned by law from open carrying in let's just say major metropolitan areas or in urban areas, counties over 200,000 in population, is that correct? [00:26:29] Speaker 02: You're banned from getting a license to open carry in those large... And so you're banned from carrying because if you can't get the license, you can't carry. [00:26:36] Speaker 02: Is that correct? [00:26:37] Speaker 00: Well, that's not entirely true, Your Honor. [00:26:38] Speaker 00: There are other exceptions to the open carry prohibition, including sort of an exigent circumstances exception. [00:26:44] Speaker 00: If you're presented with an imminent risk of danger to yourself or your property, there are circumstances in which you are allowed to open carry even in those circumstances. [00:26:54] Speaker 02: So is that, I mean, that's actually probably important because, I mean, let's say it was just a flat ban on open carrying with a few of these [00:27:01] Speaker 02: If Iran attacks us, you can open carry, right? [00:27:08] Speaker 02: If they attack California. [00:27:10] Speaker 02: But if you had some exceptions like that, would you still call that a licensing regime or would you call that a ban? [00:27:18] Speaker 00: Well, I think we're talking about slightly different things. [00:27:21] Speaker 00: I mean, I think these sort of exigent circumstances exist. [00:27:24] Speaker 02: Those would be, that would be like a band with exceptions, I would think would be a good way to characterize it. [00:27:29] Speaker 00: I think that's right. [00:27:29] Speaker 00: I think that's separate from the sort of places. [00:27:31] Speaker 02: Okay, so, because that's important. [00:27:34] Speaker 02: Exceptions can matter. [00:27:35] Speaker 02: I agree with they can matter. [00:27:36] Speaker 02: But also, how we characterize this kind of matters because I'm trying to, if you, you pretty much can't, the average person in their average circumstances cannot carry [00:27:49] Speaker 02: openly in urban areas, in the counties that have over 200,000 people. [00:27:56] Speaker 02: Is that correct? [00:27:57] Speaker 02: And you can't get a license to do that. [00:28:00] Speaker 02: It's a little bit like having the state characterizing this as a licensing regime is sort of like saying, [00:28:07] Speaker 02: You can't drive a car in the wilderness, right? [00:28:10] Speaker 02: And then saying, and so I'm challenging that. [00:28:12] Speaker 02: I don't know what my theory would be to challenge. [00:28:14] Speaker 02: And then saying, well, this is just a licensing regime. [00:28:17] Speaker 02: You say, wait, but there's a flat ban on driving cars in wilderness areas. [00:28:22] Speaker 02: It's a ban. [00:28:23] Speaker 02: And maybe that's allowed, but let's at least be realistic about what we're characterizing it as. [00:28:31] Speaker 02: And so if you can't carry, and do you disagree with their characterization [00:28:37] Speaker 02: 95% of the population in California is in those areas where you can't get a license to open carry. [00:28:46] Speaker 00: This court reached that conclusion in the last case. [00:28:48] Speaker 00: I didn't rerun the population numbers, Your Honor, but I think it is probably fair to say that that's accurate. [00:28:53] Speaker 02: And would you agree that if you live in one of those urban areas, so for 95% of the people, they can't get a license to open carry because just the way the licensing is set up. [00:29:03] Speaker 02: I'm putting aside this whole question of whether you can get a license at all because of DOJ form, but let's assume you can. [00:29:10] Speaker 02: If you live in San Francisco, say, you can't get a license to open carry, not only not in San Francisco, but you can't get a license to open carry in Nevada County, that rural county right next to Nevada. [00:29:22] Speaker 02: Is that correct? [00:29:23] Speaker 02: You can only get that if you're a resident of Nevada County. [00:29:26] Speaker 00: That's correct, Your Honor. [00:29:27] Speaker 02: So if you live in San Francisco, you are banned from open carrying anywhere in the state. [00:29:32] Speaker 02: You would agree, except for those exceptions? [00:29:36] Speaker 00: Yes, your honor, but there's no dispute that one that lives in San Francisco, who qualifies, can get a concealed carry license. [00:29:42] Speaker 02: No, I know, I know. [00:29:43] Speaker 02: I'm just trying to, but it's just a little bit like saying, you know, you can't drive a car. [00:29:49] Speaker 02: So I decide I'm going to challenge not driving a car in a wilderness area. [00:29:53] Speaker 02: And then you say, yeah, but you can ride a camel. [00:29:55] Speaker 02: You just got to get a license for riding a camel. [00:29:56] Speaker 02: So this is really a licensing restriction. [00:29:58] Speaker 02: I mean, no, this is a car ban. [00:30:00] Speaker 02: And you're like, no, it's a licensing restriction. [00:30:01] Speaker 02: You see the challenge I'm having with that. [00:30:03] Speaker 00: I do, your honor, but I think [00:30:05] Speaker 00: Taking a step back, I think we need to remember that this is a facial challenge to two statutory provisions, which together, yes, broadly prohibit open carry to the extent one doesn't get a license. [00:30:18] Speaker 00: Now, because this is a facial challenge... No, no, no. [00:30:20] Speaker 02: They still broadly carry open... This is where I'm struggling. [00:30:24] Speaker 02: They broadly ban, prohibit open carry even if you do get a license because you can't get a license to open carry. [00:30:31] Speaker 02: That last part of it is what I'm struggling with. [00:30:33] Speaker 02: You can't drive the car in the wilderness. [00:30:36] Speaker 02: They broadly ban driving cars unless you get a license to ride a camel. [00:30:40] Speaker 00: I don't understand... I'll try to answer your Honor's question this way. [00:30:43] Speaker 00: So a facial challenge, the upshot of a facial challenge is that it's Mr. Baird's burden to show that the statute is unconstitutional in all of its applications. [00:30:52] Speaker 00: So to the extent there is one application that remains constitutional. [00:30:56] Speaker 02: That's a little bit of a, here's why I struggle with that a little bit, because if you think about the Bruin case, the Bruin case was a challenge, I'm not sure it was actually a challenge to open carry or concealed carry. [00:31:07] Speaker 02: As I understand Bruin, it was a challenge to public carry, right? [00:31:10] Speaker 02: They deliberately framed it. [00:31:12] Speaker 02: when they challenged it broadly and they weren't so worried about weather because they say we can't, it's kind of like peruda, we can't carry it all because we're banned both ways. [00:31:23] Speaker 02: What they could have said is the Supreme Court could have said, well, you can ban people from carrying at a courthouse, in a courthouse, or you can ban people from carrying in things we would all agree in a school. [00:31:36] Speaker 02: And so that ban is not unconstitutional in all of its applications. [00:31:40] Speaker 02: So you can't facially challenge the ban. [00:31:43] Speaker 02: That's not what they did, though, in Bruin. [00:31:45] Speaker 02: well I mean I think that would be a little bit comparing apples and oranges but I think just thinking about licenses so as a facial statutory matter open carry licenses are available in about what why is this case not like that because you can't carry a ninety five percent of California cannot open carry a ninety five you can't get a license to carry in ninety five percent of California and ninety five percent of Californians the ones that live in those area by ninety five it's not geographical it's the [00:32:12] Speaker 02: urban part, but the 95% that live, 95% of Californians cannot get an open carry license. [00:32:19] Speaker 02: I understand there's a separate question of, well, once we correctly characterize it, now we have to ask whether that's allowed, but I'm just saying as far as characterizing, why is that not more like the ban in Bruin that was considered, because in Bruin you could [00:32:35] Speaker 02: There were definitely areas where it was allowed to ban open carry, and that didn't kill their ability to... Same thing here. [00:32:44] Speaker 02: You've got a relatively small 5%, by one way of measuring it, where you can, in theory, get an open carry permit. [00:32:55] Speaker 02: But for the other 95% of people, [00:32:57] Speaker 02: They can't, and that doesn't even include the fact that people like, I believe, plaintiff in this case, Mr. Barrett, he can't, it works the other way. [00:33:04] Speaker 02: Make sure I understand the facts, but it works the other way too. [00:33:07] Speaker 02: In theory, if he could get an open carry in whatever rural county he lives in, that open carry license would only be good in that county, right? [00:33:14] Speaker 02: It wouldn't be good in the rural county next door where in theory somebody could go, and it certainly wouldn't be good in San Francisco or LA, is that correct? [00:33:20] Speaker 00: That's correct, your honor. [00:33:21] Speaker 00: So one could imagine a different claim brought by a different plaintiff, [00:33:26] Speaker 00: that specifically challenge the geographic restriction on the availability of open carry licenses. [00:33:30] Speaker 00: That's not Mr. Baird. [00:33:32] Speaker 00: That's not the claim that he's put before the court. [00:33:34] Speaker 02: I'm not sure if that's true because he specifically said he wants it to carry in the urban areas in his complaint, right? [00:33:41] Speaker 00: He says he wants to carry throughout the state. [00:33:43] Speaker 02: Right. [00:33:44] Speaker 00: But again, at least... So here is a constitutional... And your answer is, well, yeah, but you could get a license that would let you carry in your county. [00:33:52] Speaker 02: How does that... [00:33:53] Speaker 00: How does that Mr. Baird's burden in a facial challenge is to show that these statutes, it would be unconstitutional to enforce these criminal penalties in all circumstances. [00:34:02] Speaker 00: So a person like Mr. Baird in Siskiyou County, where a open carry license is available as a matter of statute, it would certainly be constitutional. [00:34:10] Speaker 00: Assuming we think the Supreme Court is right, that licensing regimes are consistent with the Second Amendment, it would be constitutional to continue to enforce this criminal... So in your view, if you had like a... I really want to push back on it. [00:34:25] Speaker 02: So let's say California's passed a law that says it can't open carry [00:34:29] Speaker 02: or conceal carry, and you can't carry publicly anywhere except for in this little five foot circle in the middle of the state. [00:34:36] Speaker 02: And you could not challenge that facially because there's this five foot circle, this we call it a free speech slash speech marked out carry zone where you can carry, and you could never challenge that facially. [00:34:49] Speaker 02: That seems kind of like, I'm not sure Bruin could have been brought if that's really true. [00:34:56] Speaker 00: Your Honour, again, because this is a facial challenge, there are consequences that flow from that. [00:35:02] Speaker 00: Mr. Baird could have attempted to bring an as applied challenge. [00:35:05] Speaker 00: that would have been specific to the facts of his case, but the district court dismissed those claims to the extent they ever existed, and Mr. Baird has made no effort to revive those as-applied challenges in this case. [00:35:17] Speaker 00: So again, what we are left with is a facial constitutional challenge to just two statutes, which do not talk about licensing requirements, do not apply any of the geographic restrictions that Your Honor is talking about, and instead his claim is that these criminal penalties [00:35:32] Speaker 00: would be unconstitutional if applied in any circumstance. [00:35:35] Speaker 03: What if we disagree? [00:35:37] Speaker 03: What if we suggest that he has an implied challenge, but the district court just simply ignored it? [00:35:47] Speaker 03: tried to get rid of it by suggesting that it was a licensing or it was something like that or that he didn't have standing or whatever. [00:35:58] Speaker 03: What if we were to say this isn't a supply challenge as applied to him? [00:36:06] Speaker 03: And that's the challenge, because that's what she suggests. [00:36:09] Speaker 03: There's an as applied challenge. [00:36:12] Speaker 03: She says there's a facial challenge, which you're arguing now. [00:36:16] Speaker 03: But what if we were to disagree? [00:36:18] Speaker 03: She says there's an applied challenge. [00:36:21] Speaker 03: And it's an applied challenge that's a ban to him. [00:36:24] Speaker 03: It's a ban to him because he can't ever get this license. [00:36:32] Speaker 03: What do you say about this idea that California has never issued any of these licenses? [00:36:39] Speaker 00: Well, if I can take a step back, even assuming that there was an as-applied challenge, I think the district court was absolutely right. [00:36:45] Speaker 00: If he wanted to bring that claim, he would need to bring it against the local licensing authority. [00:36:49] Speaker 03: You're just suggesting he doesn't have the standing to bring it against the state of California. [00:36:55] Speaker 03: Well, what if I disagree with that? [00:36:57] Speaker 03: I mean, my worry is that if the attorney general won't even issue the licenses, [00:37:04] Speaker 03: or the applications to get the license, that he has a challenge against the Attorney General to get him a license, get him a form to get the license. [00:37:16] Speaker 03: And so that makes it an as applied challenge. [00:37:19] Speaker 00: How do I deal with that? [00:37:21] Speaker 00: The legislature has given authority to review and issue licenses to local licensing authorities, the county sheriffs, the municipal police chiefs, [00:37:30] Speaker 00: The Attorney General does not have power to review applications. [00:37:33] Speaker 03: But the Attorney General is the only one who has the power to give him the form. [00:37:38] Speaker 00: Correct. [00:37:38] Speaker 00: And the Attorney General has published a form, as Your Honor has noted. [00:37:41] Speaker 00: Form 4012 is available on the California DOJ website. [00:37:45] Speaker 03: So you're saying now, as you've said before, that that form is the form he should have used to get an open carry license in the small counties. [00:37:56] Speaker 00: That is the form that the state has published that the counties can then use for purposes of accepting and reviewing applications. [00:38:03] Speaker 00: Yes, Your Honor. [00:38:04] Speaker 02: Who should he sue if he wants to get an open carry license in to open carry in San Francisco? [00:38:11] Speaker 00: Your honor, the statute doesn't allow him to get an open carry license. [00:38:13] Speaker 02: OK, so who should he sue in order to open carry in San Francisco? [00:38:17] Speaker 00: I think he would still need to sue the local licensing authority. [00:38:20] Speaker 02: That's kind of weird. [00:38:20] Speaker 02: That's like suing the DMV to get a license to shoot spacecraft when it's disallowed or something by federal law. [00:38:30] Speaker 02: You wouldn't sue the DMV, the local DMVs. [00:38:32] Speaker 02: That can't be right. [00:38:33] Speaker 02: you know i think there's a reason why he hasn't sued any local licensing authorities it's because he's not actually interested in getting a license right right because he's you don't ask actually enter i can agree with you on it he's not actually interested in getting a license that doesn't do him any good you're saying he has a light he could get a license to ride a camel and he's like i don't want to ride camel i don't like camels i want to drive a car and so you're saying he needs to sue the person who could give a license to ride a camel is that i don't care i want to be able to drive a car in in the in the wilderness so who does he sue to get [00:39:03] Speaker 02: to challenge the fact that he can't drive a car in the wilderness. [00:39:06] Speaker 02: It's not the person that gives him the license to ride a camel. [00:39:08] Speaker 02: Who does he sue in order to try to get the law that does not allow him to open carry in San Francisco struck down? [00:39:18] Speaker 02: Who does he sue about that? [00:39:20] Speaker 00: So if his claim is not, if his claim is something different from I want to get a license to do this activity and instead his claim is these statutes are unconstitutional under the Second Amendment because they impose [00:39:33] Speaker 00: Whatever geographic restrictions that aren't consistent with the second amendment. [00:39:36] Speaker 00: Yes, he would sue the attorney general but But again, I want to be clear there's been a lot of discussion about licensing I think from the face of anything in his thing that says I only want to carry in the county that Has he said I only want to carry me did you did you get to depose them or not? [00:39:54] Speaker 02: He has ever deposed it was deposed and did you ask him? [00:39:57] Speaker 02: Do you only want to carry in the in the county that that you I? [00:40:01] Speaker 00: I did not personally depose him. [00:40:02] Speaker 00: I don't remember if that question was asked. [00:40:03] Speaker 02: I can guarantee you didn't ask that, because you guys are all smart attorneys, and you know that his answer would be, no, I want to carry everywhere. [00:40:09] Speaker 00: But I think his answer was that he is not interested in applying for a license whatsoever. [00:40:13] Speaker 02: So his relevant comment... Right, but you keep saying that, but the license doesn't get him what he... Because nobody could give him a license, right? [00:40:21] Speaker 02: Because you would agree that some of the stuff he wants to do... [00:40:25] Speaker 02: like literally anywhere outside his county, he cannot open carry anywhere outside of his county with a license. [00:40:30] Speaker 00: That's correct. [00:40:31] Speaker 02: So what good does it do to apply for a license that if what he wants to do is carry outside of his county? [00:40:39] Speaker 02: I don't understand your argument on that. [00:40:43] Speaker 00: My point is that to the extent what his claim is, is he wants to open carry and he wants to do so without getting a license. [00:40:49] Speaker 00: Our position is that that is not something that is required by the Second Amendment's plain text or by the history and tradition. [00:40:56] Speaker 02: But if there's no license to get, like I guess I'm, you keep saying you can't, it's okay for states to allow a license, but it's kind of irrelevant in this case because there is no license available for literally the vast majority of where he wants to carry. [00:41:09] Speaker 00: Even if we assumed that you're correct on that premise that that let's say mr. Baird is right no open carry licenses have ever have ever issued or will ever issue Let's assume that he actually challenged. [00:41:21] Speaker 02: That is not right. [00:41:22] Speaker 02: That's not what I'm saying. [00:41:23] Speaker 02: It is I just want to make sure that you're You're understand it's the thing to do with in my right that he cannot get an open carry license whatever county lives in I don't remember what kind of [00:41:33] Speaker 02: But he can't get an open carry license that will allow him to open carry anywhere outside that county in California. [00:41:38] Speaker 00: That's correct. [00:41:39] Speaker 02: It's impossible. [00:41:39] Speaker 02: So let's assume for a second that's what he wants. [00:41:44] Speaker 02: That's what he wants. [00:41:45] Speaker 00: Then the California statutory scheme is still consistent with the Second Amendment. [00:41:50] Speaker 02: Right, but it's not a licensing problem, right? [00:41:52] Speaker 02: It's the fact that he can't. [00:41:54] Speaker 02: And then we have to do the work that... But most of your brief was treating this like it's a licensing problem. [00:42:01] Speaker 00: That's because that's the relevant conduct that he's put before the court. [00:42:05] Speaker 00: Again, he is the master of his complaint. [00:42:07] Speaker 00: He chose to bring the claim that he chose to bring. [00:42:10] Speaker 00: And what he chose to challenge were just two statutes, which do not entirely prohibit open carry. [00:42:16] Speaker 00: They only prohibit open carry to the extent [00:42:18] Speaker 00: You can't get a license, or you don't have a license, or another exigent circumstance is applied. [00:42:23] Speaker 03: And again... Let me change this. [00:42:27] Speaker 03: Do you think that the plaintiff's conduct is covered by the plain text of the Second Amendment? [00:42:35] Speaker 00: So we do think that there is room for a step one Bruin argument in this case given Mr. Barrett's particular challenge and again this is because... So you're agreeing as the district court did that the plain text covers the alleged conduct here. [00:42:49] Speaker 00: No, Your Honor, I'm sorry for misspeaking. [00:42:53] Speaker 00: What I think the court could do is it could resolve Mr. Baird's... I'm not asking you what I could do. [00:42:59] Speaker 03: I'm asking you, do you think that the conduct charged is covered by the Second Amendment? [00:43:08] Speaker 00: So to the extent that Mr. Baird's relevant conduct is not just openly carrying and instead is openly carrying without a license, [00:43:15] Speaker 00: We think that is conduct that is outside the plain text of the Second Amendment. [00:43:18] Speaker 03: So as a fact, to the extent that it's just carry without a license, it's not covered. [00:43:25] Speaker 03: What if it's that I can carry at all? [00:43:28] Speaker 00: Is that covered? [00:43:29] Speaker 00: We would concede at that point you would need to move on to Bruin Step 2 because we're talking about- Okay, if we move to Bruin Step 2. [00:43:39] Speaker 03: You'll agree with me, I guess, if we move there, that the most relevant and probate evidence would be that which prevailed at the time immediately before the Constitution was put together and after the framing of the Constitution and evidence from the antebellum [00:44:01] Speaker 03: which is particularly critical because it comes later on when the 14th Amendment was put together. [00:44:09] Speaker 03: You'll agree with me that's the appropriate history I'd look at? [00:44:14] Speaker 00: We think Supreme Court precedent is clear. [00:44:16] Speaker 00: Yes, Your Honor, that is the period that is most relevant. [00:44:18] Speaker 00: That doesn't mean we ignore later precedents so long as it's consistent. [00:44:23] Speaker 03: Or prior. [00:44:23] Speaker 00: Correct, Your Honor. [00:44:24] Speaker 03: Well, I looked at that, and during that time period, [00:44:30] Speaker 03: There were no state statutes. [00:44:34] Speaker 03: There were no public judicial decisions. [00:44:38] Speaker 03: There were no legal commentators which addressed whether the states could ban open carry for self-defense while allowing concealed carry. [00:44:54] Speaker 03: None of the regulations banned open carry while allowing concealed carry. [00:44:59] Speaker 03: None of the history did that. [00:45:03] Speaker 03: How does that merit up with what California is doing? [00:45:08] Speaker 03: I can't find any history to suggest what California is doing is the way it's been done in history. [00:45:15] Speaker 00: Well, two responses to that, Your Honor. [00:45:16] Speaker 00: The Supreme Court looked at this exact same set of historical analogs, and the principle that it drew from those lessons was not that concealed carry is not protected by the Second Amendment and can always be prohibited, and the only way that one can publicly carry is through open carry. [00:45:32] Speaker 00: Instead, it drew a more generalized principle. [00:45:35] Speaker 00: which is that governments are free to adopt manner of carry restrictions, including very restrictive restrictions that prohibit entirely one form of public carry, so long as another form of public carry is available. [00:45:48] Speaker 03: And that's exactly... I appreciate your argument, but the antebellum decisions that I looked at, and I looked at all of them, Chandler, Nunn, Reed, Bliss, they uniformly hold that a state may ban concealed carry [00:46:06] Speaker 03: without a problem, but they can't ban open carry. [00:46:11] Speaker 03: They say the only manner of public carry that effectuates the right of self-defense guaranteed by the Second Amendment and is therefore the public carry protected by the amendment is open carry. [00:46:26] Speaker 03: Those are the decisions from the antebellum decisions that I looked at. [00:46:31] Speaker 03: If I look at the 19th century, numerous states enacted laws banning the concealed carry of firearms, but they allowed open carry. [00:46:41] Speaker 03: They don't address this particular issue. [00:46:44] Speaker 03: And the reason I looked at it is because it seems to me your brief says, as long as we allow one, we don't need to allow the other. [00:46:51] Speaker 03: And not only did we do that, we gave some of the other because we let them license in the little counties. [00:46:57] Speaker 03: So I looked at all this historical stuff. [00:47:01] Speaker 03: And there's nothing that suggests that the ban California wants to do, if it's really a ban, and I'm not suggesting that you have to agree that it's a ban, that it would work in the history. [00:47:16] Speaker 00: Your Honor, if the government were obligated to identify a historical twin or a dead ringer, you may be right. [00:47:22] Speaker 00: But we know, at least from Rahimi, that the test in this kind of case is whether there is a relevantly similar historical analog. [00:47:29] Speaker 00: And even in Rahimi, the court didn't require a one-to-one match between the modern regime and the historical analogs. [00:47:36] Speaker 00: And in fact, I think we'd all recognize that the historical analogs were quite different. [00:47:39] Speaker 00: from the statute that was at issue in Rahimi. [00:47:42] Speaker 00: Here we have actually very close analogs. [00:47:44] Speaker 04: You have to look at the how and the why. [00:47:46] Speaker 04: Correct. [00:47:47] Speaker 04: So which law shows it's the how and the why? [00:47:50] Speaker 04: It's historically analogous. [00:47:52] Speaker 04: Which law would that be? [00:47:53] Speaker 00: So I think the court doesn't need to identify one. [00:47:56] Speaker 00: I think as an initial matter, the court's obligation is to look at the whole sweep of history and determine whether taken together, those historical analogs support the current regime. [00:48:06] Speaker 00: If the court wanted to, though, I think the court could focus on the early 1800 state statutes that broadly prohibited concealed carry because we know from those statutes that, one, they were adopted for a very similar justification to the modern regime and that the state legislatures thought that a particular form of carry was particularly dangerous to the public. [00:48:28] Speaker 00: Yes, at the time, that was particularly focused on concealed carry. [00:48:33] Speaker 00: historical circumstances change, and there's no reason why. [00:48:36] Speaker 04: And in California, the ban on open carry was actually has a pretty sordid history. [00:48:40] Speaker 04: It's because the Black Panthers were openly carrying the state capitals. [00:48:43] Speaker 04: It was motivated by racism. [00:48:44] Speaker 04: So I'm not sure that applies here, the why part. [00:48:48] Speaker 00: So many legislatures act for multiple reasons. [00:48:52] Speaker 00: I don't know that we can assume that the entire legislature was acting for a racist purpose. [00:48:57] Speaker 00: I think what we can determine from the current statute is that the California legislature has determined [00:49:03] Speaker 00: that open carry poses a particular public safety risk. [00:49:06] Speaker 00: That's what's described in the rainy declaration in the record in this case. [00:49:10] Speaker 03: So you're asking us to use a nuanced approach here? [00:49:13] Speaker 00: No, Your Honor, not at all. [00:49:15] Speaker 03: We have not asked the court to apply a nuanced approach in this case, and that's... But it seems to me you are, because what you're really saying is, hey, in the past it was a prohibition of concealed carry, and we're really allowing concealed carry, so we're going to allow open carry, and so [00:49:36] Speaker 00: No, Your Honor. [00:49:37] Speaker 00: I think what this is an example of is a good reason why the Supreme Court noted in Rahimi that the law is not trapped in amber. [00:49:44] Speaker 00: Some historical facts and circumstances and contexts can change, but the principle remains the same. [00:49:49] Speaker 00: So the principle that we're asking the court to rely on is the same one that the court announced in Bruin when it looked at the same history and tradition and determined that governments, again, [00:49:59] Speaker 00: were free to adopt broad manner of carry restrictions, including entire prohibitions on one form of carry, so long as they left open another form of public carry. [00:50:07] Speaker 00: Here, there's no dispute that concealed carry licenses are available throughout the state. [00:50:12] Speaker 00: So to the extent someone cannot open carry, the burden is simply that in that jurisdiction, they have to concealed carry. [00:50:21] Speaker 00: And there's been no serious suggestion that concealed carry is somehow an ineffective method to vindicate [00:50:29] Speaker 00: one's second amendment. [00:50:30] Speaker 02: Can I ask you, I know we're running low on time, but I want to ask you the question I asked about Peruta, because a similar argument was made, it was the reverse argument, but it was like we can't open carry, so you got to allow concealed carry, and our court shot that down in Peruta, and as I understood, the majority said [00:50:49] Speaker 02: Essentially, I don't know if they use the word fungible, but just because it goes one way doesn't mean it goes the other way. [00:50:56] Speaker 02: You have to look and see what would be protected. [00:50:59] Speaker 02: But your argument seems to be at odds with that some, because you basically are saying the principle at a high enough level of generality that as long as you allow some, you can ban other. [00:51:08] Speaker 02: But isn't that kind of inconsistent with Peruta or not? [00:51:11] Speaker 00: Your Honor, I think we'd all agree that Second Amendment jurisprudence has come a long way since the en banc decision in Peru. [00:51:16] Speaker 02: But we also, I mean, you're aware that the state, I'm trying to remember if California, but certainly other states, and probably California, have argued that certain of our precedents [00:51:26] Speaker 02: like our foul in their possession, precedents and stuff, are not abrogated by these more recent. [00:51:32] Speaker 02: So you kind of have to look at it on an issue by issue. [00:51:34] Speaker 02: And that thing, I don't know that Bruin addressed. [00:51:37] Speaker 02: So is that abrogated or not? [00:51:39] Speaker 00: So Peruta's square holding was diametrically opposed to the holding in Bruin. [00:51:42] Speaker 00: I mean, Peruta was about whether San Diego could have a good cause, or there could be a good cause requirement. [00:51:48] Speaker 02: Well, it's really kind of [00:51:49] Speaker 02: was it was a teeter or it was it was a later it was the Hawaii case it was really diametric because Hawaii is where I think we said if I remember correctly we said you just know if you can ban both you can ban both but in Peruta we kind of reserved the question of whether you could ban both and I thought we kind of said well [00:52:06] Speaker 02: Assuming you can't ban both, it would be open carry you'd be allowed to have. [00:52:10] Speaker 00: I think the majority opinion was careful to say that it wasn't actually reaching any holding or conclusion as to any open carry restrictions and instead what we're really deciding is just this concealed carry case that's before us. [00:52:22] Speaker 02: But I think it was doing that because it was leaving open the possibility that you could ban both forms of carry and that you wouldn't have the [00:52:29] Speaker 02: But that's what we know Bruin has foreclosed, right? [00:52:33] Speaker 02: But it did seem to say that if you got to allow one, it's going to be open carry. [00:52:37] Speaker 02: It did say that. [00:52:38] Speaker 02: So why is that? [00:52:39] Speaker 00: Your Honor, but it was relying on the same historical precedents that the court looked at in Bruin. [00:52:43] Speaker 00: And Bruin reached a different conclusion. [00:52:45] Speaker 00: So I don't see how, even if that conclusion was somehow a holding or something else that [00:52:50] Speaker 00: that could have been binding at some point, which we don't think it was. [00:52:53] Speaker 00: But even if it was, it would be clearly irreconcilable with Bruin's analysis. [00:52:59] Speaker 00: Because again, Bruin looked at the exact same history and came to the conclusion, a different conclusion from the court in Peruta, which was that, yes, you can ban one or the other. [00:53:09] Speaker 00: You just have to leave one available. [00:53:10] Speaker 02: So I just want to make sure that is your position, that you basically, there's almost what I'm calling fungibility. [00:53:16] Speaker 02: That's not your word. [00:53:18] Speaker 02: It doesn't matter what areas are banned. [00:53:21] Speaker 02: They're kind of fungible. [00:53:21] Speaker 02: That's why I'm calling it fungible, because you can ban certain things as long as you allow enough left. [00:53:28] Speaker 02: And that's the principle that you're extracting from us. [00:53:30] Speaker 00: Yes, Your Honor. [00:53:31] Speaker 00: And there's good reason for that. [00:53:32] Speaker 00: Again, the core Second Amendment right is the ability to publicly carry for purposes of self-defense. [00:53:37] Speaker 00: And there's been no suggestion that concealed carry is somehow an ineffective manner to defend yourself as opposed to open carry. [00:53:44] Speaker 00: And in fact, I'd point the court to 7 ER 1498, which is Mr. Barrett's. [00:53:48] Speaker 00: First amendment complaints was complained just before the operative one where he specifically alleged that quote concealed carry is the universally preferred method of law abiding individuals including plaintiffs to carry a firearm for reasons including tactical advantage over an attacker convenience of carry location accessibility of one's firearm for purposes of self-defense [00:54:08] Speaker 00: Practical considerations relating to one's wardrobe so the burden that we're talking about here your honor is a minimal one We're talking about in certain jurisdictions someone is not going to be allowed to open carry and instead They're going to have to concealed carry concealed carry is a perfectly available effective method for vindicating the Second Amendment right [00:54:26] Speaker 04: If I could ask one quick question on a slightly different topic. [00:54:30] Speaker 04: Do you concede Mr. Barrett's argument or contention that no open carry license has been issued in counties with fewer than 200,000 people? [00:54:39] Speaker 00: Your Honor, the record is the same as it was at the preliminary injunction stage, so there isn't any record evidence of any open carry licenses having been issued. [00:54:48] Speaker 00: And standing here today, I don't have any additional evidence to offer. [00:54:52] Speaker 02: There isn't any record evidence that they haven't been issued? [00:54:55] Speaker 00: That they have been issued. [00:54:56] Speaker 02: That they have? [00:54:56] Speaker 02: Okay. [00:54:57] Speaker 04: And I'm looking at the form, the state of California issues to get a concealed weapon. [00:55:04] Speaker 04: And I guess your contention is they could also be used to get open carry in these counties, smaller counties, but the titles [00:55:10] Speaker 04: refers to concealed weapon. [00:55:12] Speaker 04: I did a quick search of it. [00:55:14] Speaker 04: It uses the word concealed or CCW 52 times. [00:55:18] Speaker 04: It's a 17-page document. [00:55:19] Speaker 04: At one point, it does mention the word exposed, that you can use a gun in those counties. [00:55:24] Speaker 04: I mean, isn't this pretty deceptive? [00:55:25] Speaker 04: I mean, your boss would be suing private companies if they did something like this, where you have this, you tuck it, hide it in a little sentence, 17-page documents, big headline, concealed weapons, CCW, concealed, concealed, concealed, and then you tell them, oh, look, it's right here. [00:55:39] Speaker 04: Why is it formatted that way? [00:55:42] Speaker 04: Why doesn't it say concealed weapon in counties larger than 200,000 and open carry? [00:55:47] Speaker 00: I hate to argue technicalities, Your Honor, [00:55:51] Speaker 00: The form defines CCW as a license to carry concealable weapons, so it's not necessarily a concealed weapons license. [00:55:58] Speaker 04: That's exactly my point. [00:55:59] Speaker 04: A lot of this suggests a little bit of bad faith here about the state. [00:56:02] Speaker 00: No, you're on it. [00:56:03] Speaker 00: Not at all, you're on it. [00:56:04] Speaker 00: It tracks the language of the statute. [00:56:05] Speaker 00: So the statutory scheme is set up as licenses to carry concealable weapons. [00:56:10] Speaker 04: You sound like a defense lawyer that your boss would be going after these large companies who are just deceiving consumers. [00:56:15] Speaker 04: Well, I won't belabor your point at this point, so great. [00:56:19] Speaker 04: Unless there are other questions now? [00:56:21] Speaker 04: Great, thank you. [00:56:22] Speaker 00: Thank you, Your Honor. [00:56:22] Speaker 00: We'd ask the court to affirm. [00:56:41] Speaker 01: So I want to make a couple of points with the remaining time I have left. [00:56:45] Speaker 01: The Bruin case was a challenge to proper cause. [00:56:47] Speaker 01: There was no challenge to the licensing requirement specifically. [00:56:51] Speaker 01: And in fact, the plaintiffs in the Bruin case conceded that licensing was constitutional, which is not a concession that we make here. [00:56:57] Speaker 01: There is absolutely no history or tradition of licensing the open carriage of a handgun. [00:57:02] Speaker 03: And to the extent that one... But if you amended your complaint, [00:57:06] Speaker 03: to take out those statutes that are supposed directly as it relates to licensing, then it seems to me you're not challenging it either. [00:57:19] Speaker 03: I mean that's my worry. [00:57:21] Speaker 01: That's why I read through it and that's why I ask you the questions So here's well, let's get to a question that hasn't been answered yet And that is whether the criminal statutes violate the Second Amendment I mean because the criminal statutes they're the teeth that in for they're the enforcers for the licensing statute if there weren't any criminal statutes like the two specific statutes that were challenging here and [00:57:43] Speaker 01: If those were deemed to be unconstitutional and violating the Second Amendment, then who cares about the licensing statutes? [00:57:50] Speaker 02: It seems like these arguments are relevant to him carrying in his home county, because arguably, theoretically, maybe he can get a license to open carry in his home county. [00:58:04] Speaker 02: You do it am I correct that he wants to carry outside of his home county and that he has said he wants to carry is that in in this case or not oh yes he has he said then what light what what good would the license do him in carrying outside of his home openly carrying outside of his home county it wouldn't and we are positioned so so why so you understand like you're kind of messing up your own case a little bit I think by focusing on the licensing requirement you [00:58:32] Speaker 02: The state is making this about you don't want to have a license. [00:58:35] Speaker 02: I understand you and your client. [00:58:37] Speaker 02: You guys hate licenses. [00:58:38] Speaker 02: I mean, I understand that. [00:58:40] Speaker 02: But what does the license have to do with him carrying outside of his home county? [00:58:46] Speaker 01: We're challenging criminal statutes. [00:58:48] Speaker 01: We're not challenging the licensing statutes. [00:58:50] Speaker 01: But the only reason they're required is because there are criminal penalties associated with not getting a license. [00:58:57] Speaker 01: So to the extent that there is no history and tradition of criminalizing someone for just merely walking out of their home and traveling throughout the state of California like he was able to do or the public was able to do in 1967, back to the beginning of time, if that's going to be punished as a crime, then that's a violation of the plain text of the Second Amendment. [00:59:18] Speaker 01: And I would also just say when we talk about the... If you could wrap up your time, so. [00:59:25] Speaker 01: Talk about one manner of carrying versus the other and one being banned and the other being available. [00:59:31] Speaker 01: Available isn't the term. [00:59:33] Speaker 01: It's unregulated. [00:59:34] Speaker 01: Open Carry was unregulated at the time they concealed Carry was banned. [00:59:38] Speaker 01: Thank you. [00:59:38] Speaker 04: Thank you. [00:59:38] Speaker 04: Thank you both for their helpful arguments. [00:59:40] Speaker 04: The case has been submitted and we are adjourned.