[00:00:02] Speaker 02:
Good afternoon and welcome to Seattle and to our William Nakamura Courthouse. It's a pleasure to have all of you here today. This is the time set for oral argument in the case of Mark Baird versus Rob Bonta.

[00:00:19] Speaker 02:
If counsel is ready to please come forward, you may do so.

[00:00:31] Speaker 03:
Good afternoon. My name is Amy Bellantoni, and I represent the appellant Mark Baird. I would like to reserve 10 minutes for rebuttal, please. May it please the court.

[00:00:44] Speaker 03:
The district court decision granting summary judgment in favor of the state and denying the appellant's Motion for summary judgment should be vacated.

[00:00:54] Speaker 03:
Judgment should be entered for Mr. Baird in his favor, and the two criminal statutes that are challenged in this case should be enjoined with respect to open carry.

[00:01:08] Speaker 03:
The district court never addressed the threshold constitutional defect in this case.

[00:01:16] Speaker 03:
Does California's criminalization of presumptively protected conduct violate the Second Amendment?

[00:01:25] Speaker 03:
This case challenges two California laws, Penal Code 25850 and 26350, both of which criminalize presumptively protected conduct protected by the Second Amendment right to bear arms.

[00:01:42] Speaker 10:
Can I ask about, you're using this term presumptively protected conduct. That's because of the type of carry that is permitted? Like if it were concealed carry, would you say it's also presumptively protected? Or do you just think open carry is presumptively protected?

[00:02:00] Speaker 03:
Well, I would say it's presumptively protected because the plaintiff's proposed conduct is to carry in public. which satisfies step one of the Bruin test. And for the state regulation that's being challenged to survive, there must be a longstanding national tradition that supports that regulation. So in this case, we are challenging the restraint on open carry in California. That is not to say that concealed carry is not also protected under the Second Amendment.

[00:02:33] Speaker 03:
That's just not the focus of this case.

[00:02:35] Speaker 00:
Counsel, can you tell me what level of generality I'm supposed to be looking at when we talk about the how?

[00:02:41] Speaker 03:
Could you be more specific, please?

[00:02:42] Speaker 00:
Sure.

[00:02:44] Speaker 00:
So we're talking about the how of restrictions. Are we looking at public carry? Does it matter the manner of the carry, whether it's public or open, public concealed? At what level am I supposed to be looking at this?

[00:02:57] Speaker 03:
Well, I would say specific to this case, because these are criminal statutes which have not yet been challenged in the Supreme Court or in this circuit. Historically, the challenges have been to the licensing scheme. So when it comes to challenging criminalization of a natural right, what the Supreme Court has held to be a pre-existing right that existed before any form of government, there is no level of generality, whether heightened or lowered, that would pass constitutional muster because these statutes are by threat of criminal penalties, forbid the general public from possessing loaded firearm and from possessing or from carrying openly an unloaded firearm.

[00:03:48] Speaker 07:
But then how do you reconcile that with the statement in the Bruin opinion itself? They said, obviously, under Bruin, states can't ban public carry altogether.

[00:04:01] Speaker 07:
But Bruin itself said they may, quote, lawfully eliminate one kind of public carry altogether. It seems like the proposition you just stated would be inconsistent with that part of the Bruin holding. So how do you account for that?

[00:04:17] Speaker 03:
Thank you. So footnote 9, which I believe that Your Honor is referring to, which discusses shall issue carrying regimes and or on page 59 of the Bruin decision, which talks about a handful of southern states that passed and upheld regulations banning concealed weapons, banning carrying weapons in a stealthy manner, concealed.

[00:04:46] Speaker 03:
That was not a holding specifically. That was just the Supreme Court surveying the landscape of the history of public carry. Because in Bruin, there was no challenge to a criminal statute. The challenge there was to one aspect of New York State's licensing scheme.

[00:05:05] Speaker 07:
I mean, so I'm not sure I agree with you on the characterization of what's holding and what's dictum in Bruin, but granting the point for sake of argument, we're trying to apply Bruin here.

[00:05:23] Speaker 07:
Why should we, even assuming that it's dictum, why should we disregard something that the court in Bruin said in trying to figure out how to apply the Bruin test?

[00:05:33] Speaker 03:
Certainly. Even assuming it was part of their holding, the state loses. Because when we're looking at a national historical tradition, let's even assume, which I'm not conceding, that those handful of southern states constituted a national tradition at the time.

[00:05:50] Speaker 03:
There is no evidence, in fact the evidence points in the opposite direction, of any type of regulation, criminalization, or banning, or infringement on open carry. In fact, those southern states recognized that even under their own state statutes, that open carry was the mode of carry that was protected by their state constitutions. And I believe one or two of them even mentioned the Second Amendment, which the states didn't believe applied to them at the time anyway.

[00:06:22] Speaker 03:
So even assuming that was part of the holding, there's no longstanding tradition of affecting or infringing on or regulating the open carriage of weapons. In fact, the underlying rationale for the southern states' decisions and the statutes was the concealed carry and the carry of concealed weaponry, which was considered stealthy and evil at the time, was just that. And they looked down upon concealed carry. There was no such rationale for, or no such holding for open carry.

[00:06:57] Speaker 10:
Can I ask you about, you have both an as-applied and a facial challenge to the restriction, correct? Correct.

[00:07:09] Speaker 02:
Do you have an as-applied?

[00:07:11] Speaker 03:
The district court dismissed the as-applied challenge. And gave you an opportunity to amend, and you never took it. Right. So I think there was a miscommunication, to be quite honest, throughout this litigation about what the scope of the as-applied challenge was. And I think the district court interpreted the as-applied challenge... to mean that Mr. Baird was challenging, because the court directed us into the direction of challenging the sheriff or naming the local sheriff who would not issue open carry licenses.

[00:07:43] Speaker 03:
To that point, we're challenging facially these two criminal statutes as applied to open carry. So 25850 is a general ban on carrying a loaded handgun in public Assuming the court finds that there's a national tradition of banning concealed carry, our focus here is as applied to open carry.

[00:08:04] Speaker 02:
So you didn't take the district court up on her offer, is that correct? That's correct. And then here on the appellate brief, I was trying to figure out, where is your applied challenge? I don't understand where it is in your brief.

[00:08:20] Speaker 03:
Right. So it's, again, in defining the as applied challenge as challenging... The non-issuance of an open carry license in the over 200,000 population counties, we're not doing that because this is not a licensing challenge. This is a challenge to criminal statutes.

[00:08:36] Speaker 01:
Okay, but my problem is in response to Judge Nelson, I thought you said you have an as-applied challenge, but I read the briefs the way Chief Judge Murguia did. So is your answer that you don't have an as-applied challenge today? No.

[00:08:49] Speaker 03:
As applied to Mr. Baird's particular circumstances, living in a county of less than 200,000 individuals, that is not an as-applied challenge because we're not pursuing that because we're not challenging the licensing statute. We're challenging the criminal statute. So in challenging the criminal statutes facially, because 25850 applies to all manner of carry, it criminalizes carrying a loaded firearm in public. Theoretically, the court could say, well, concealed carry, that is not as applied to concealed carry unconstitutional.

[00:09:26] Speaker 03:
But our focus has always been as applied to open carry, it is.

[00:09:30] Speaker 01:
I honestly don't understand the answer to your question. I'm sorry. I'm not trying to be difficult. I understand you have a facial challenge. Yes. You have an as-applied challenge? And if so, can you just tell us which pages of the brief where we would look to see that described?

[00:09:44] Speaker 03:
We do not have an as-applied challenge to Mr. Baird's particular circumstances as a resident of a county of 200,000.

[00:09:50] Speaker 10:
On the open carry. I know you don't as to the licensing, but you don't as to the open carry criminal statute either. So we're just dealing with facial. That's what we're trying to figure out.

[00:10:01] Speaker 03:
Yeah, you know, it's linguistics here too. Well, it's not linguistics.

[00:10:05] Speaker 10:
It actually has pretty significant ramifications. But look, let's set this aside for a minute.

[00:10:12] Speaker 10:
As to the facial, we normally say, in most contexts, that you have to prove that it would be unconstitutional in all circumstances. Do you agree that that is the test that we apply for a facial challenge under the Second Amendment? Or is there more leniency in the Second Amendment? The majority below cited some case law that they were suggesting, said, well, if it's in most. And I'm wondering if you agree with that, or if you think you have to show in all circumstances.

[00:10:44] Speaker 03:
I know there was discussion in the panel decision and in the Wolford case about overbreath applying to Second Amendment challenges, which I would agree with.

[00:10:53] Speaker 03:
But that being said, I don't necessarily think, because that's also subject to interpretation, right? Someone could say, well.

[00:11:01] Speaker 10:
All I'm asking you is what is the legal test you think you're bound by? Is it all or is it most?

[00:11:09] Speaker 03:
I think I'm bound by the Bruin decision and specifically whether the state can identify a longstanding national tradition that supports the statute.

[00:11:20] Speaker 10:
My question is as to facial versus as applied. You apparently have told us you don't have an as applied challenge. So as to facial, what is your legal test? I understand Bruin fits in there, but when we apply Bruin, do we have to say that Bruin applies in all, it would prohibit this in all circumstances or just in most circumstances?

[00:11:40] Speaker 03:
In this case, and the challenge to these statutes, that in all circumstances, this statute would be unconstitutional.

[00:11:49] Speaker 10:
Okay. And you think you meet that standard?

[00:11:52] Speaker 03:
With respect to open carry, yes, because that is our focus here. Yes. Because it bans the actual right itself. It prohibits by criminal penalties the right to carry a loaded firearm in public and the right to carry... Well, it doesn't prohibit a right to carry in public.

[00:12:11] Speaker 10:
It prohibits a right to open carry in public, but you can carry... I mean, I guess you're using public as open because you can still carry it in public if it's concealed, right?

[00:12:20] Speaker 03:
No, you can't. No, you can't unless you apply for the shall issue permit. Unless you apply for and are granted a license. But licensing, and this is one of the points I wanted to get to, one of the errors in the district court was that the court treated the licensing exemption as though it negated the criminal penalties, which it does not.

[00:12:42] Speaker 01:
Can you say more about that?

[00:12:43] Speaker 03:
Sure. So the right to bear arms exists before the licensing, not because of it.

[00:12:53] Speaker 03:
So the period of time that an individual decides they would like to exercise that right, they can't. They're bound and prohibited under threat of criminal penalty until such time as they seek permission from the state and are granted permission. But then again, open carry... I mean, under that theory...

[00:13:15] Speaker 10:
Any licensing scheme would be unconstitutional in your view because even Shell, you're basically saying if I have to go and ask for a permit, it's unconstitutional to apply it to me until I ask for a permit.

[00:13:30] Speaker 10:
That's not what Bruin said.

[00:13:33] Speaker 03:
So Bruin requires any regulation upon the Second Amendment right to have a long-standing national tradition. Licensing did not exist in 1791, the founding era, the ratification, and the state conceded that point in oral argument at the summary judgment level in page ER-115, beginning at line 18.

[00:13:55] Speaker 04:
But doesn't this get us back to the question Judge Miller asked about footnote 9?

[00:14:02] Speaker 03:
I'm sorry?

[00:14:02] Speaker 04:
How, I mean, you're going on about what Bruin should have said, not what Bruin did say because of footnote nine.

[00:14:08] Speaker 03:
Right, well, footnote nine. So in Bruin, which is...

[00:14:12] Speaker 03:
distinguishable in this respect. Bruin challenged a licensing scheme, not criminal penalties. The petitioners in Bruin conceded that licensing statutes and regimes were constitutional. And the footnote 9 language is a response to the oral argument transcript, the response to the petitioner's position at oral argument that they prefer New York had a shall issue regime that incorporated objective factors and not the may issue subjective licensing regime that they have.

[00:14:48] Speaker 03:
So it was dicta-based guidance arising from a party concession. It was not a holding. And in fact, may I please? In fact, the licensing scheme, which wasn't challenged, was never subjected to the actual Bruin test. So it couldn't have resulted in a holding where they didn't apply their own test to it.

[00:15:09] Speaker 08:
But so all the circuit courts that have spent a lot of pages on what footnote nine means and what it doesn't mean, all of them are wrong.

[00:15:17] Speaker 03:
Well, I'm not really sure what context the challenges involve in those circuit courts, but I can say in this specific challenge, which is to a criminal statute, it's not holding.

[00:15:27] Speaker 08:
But why would it matter if it's a criminal statute or if it's a civil penalty? What's the distinction?

[00:15:35] Speaker 03:
Well, the issue, because criminal penalties cannot be applied to a natural right.

[00:15:39] Speaker 08:
But I assume the same would be a civil penalty. I mean, I think from your perspective, you're saying that there should be no restrictions, correct?

[00:15:45] Speaker 03:
I'm not saying, yeah.

[00:15:46] Speaker 08:
Whether it's a criminal or civil.

[00:15:48] Speaker 03:
Because licensing is not part of our national tradition. So open carry has never been subjected to licensing and should have no penalties.

[00:15:55] Speaker 08:
Right. But to be fair about that, footnote 9 says that this shall issue licensing scheme. So I'm trying to understand. It's a pretty big lightning bolt to throw on the court to say all of these circuits that have spent all this time trying to figure out what footnote 9 means, you're saying, well, we can just ignore footnote 9.

[00:16:10] Speaker 03:
I'm saying footnote 9 is very relevant and important to challenges to licensing schemes that continue to have discretionary factors and continue to be may issue as opposed to shall issue. It's an important footnote with respect to licensing schemes, which are predominantly and always have been affecting concealed carry. And so footnote 9, if used in a challenge to a particular part of a licensing regime, is extremely important because it gives the imprimatur to the objective shall issue schemes as opposed to the may issue schemes.

[00:16:46] Speaker 03:
But in the context of this particular case where we're talking about open carry, which has never been regulated or subject to licensing even, And the licensing schemes came out in the late 1800s. They started out locally and then moved on to statewide licensing schemes. But they always remained concealed carry licensing schemes. Open carry has never been regulated in that respect.

[00:17:15] Speaker 06:
I realize that you are challenging this as a criminal penalty as opposed to the licensing scheme, but do you think that the licensure here is shell issue, or are there subjective components in obtaining the license?

[00:17:32] Speaker 03:
I've been told that California has changed their licensing to shell issue for concealed carry license. Since 2012, they've never issued an open carry license, so I'm not really sure how that would affect our challenge, even if we did agree that licensing was appropriate for open carry.

[00:17:48] Speaker 03:
But from what I understand, there have been changes to the concealed carry licensing scheme.

[00:17:54] Speaker 06:
Do you think it is now shell issue?

[00:17:56] Speaker 03:
As it applies to concealed carry, that's my understanding.

[00:18:06] Speaker 03:
The state was required to identify a longstanding national tradition, and it failed.

[00:18:11] Speaker 03:
There was no evidence in the historical record here of criminalizing peaceful public carry. There is no evidence of criminalizing open carry at all in any of the historical analogs or examples that have been provided by the state. And as I said before, licensing did not exist in 1791 as the state conceded. And when it did come around in the late 1800s, That was over a century after the ratification of the Second Amendment, which the Bruin Court has stated even 75 years after the ratification.

[00:18:46] Speaker 03:
It's just too remote in time if there is no previous indication that such a regulation has been adopted and passed. and made part of our national tradition.

[00:18:58] Speaker 02:
Why shouldn't we look to the Second Circuit's recent decision in Frey v. City of New York?

[00:19:05] Speaker 03:
Right. So the Frey case, which I also represent the plaintiffs in that case as well, the Second Circuit quoted the Bruin decision but added their own language to it, which really just was necessary to form the basis for of their, you know, holding.

[00:19:24] Speaker 03:
The Bruin decision recognized that the handful of southern states that had passed concealed laws against concealed carry, they concluded that that established a tradition that states could regulate one form of concealed carry, one form of public carry dash concealed carry.

[00:19:47] Speaker 03:
But what the Second Circuit did was they added in brackets open carry or concealed carry. And that just completely changed the conclusion that the court had reached, the Supreme Court, and it changed substantially the national tradition or the seven states in the South and the reasons why they had made their decisions about concealed carry.

[00:20:11] Speaker 03:
So in their holding... The Second Circuit was not adhering to the Supreme Court decision, and they were not adhering to the tradition that was discussed with respect to the southern states.

[00:20:26] Speaker 02:
Did you want to reserve the balance of your time?

[00:20:28] Speaker 03:
I do. Thank you.

[00:20:53] Speaker 05:
Good afternoon, Your Honors, and may it please the Court, Samuel Harbert on behalf of the California Attorney General.

[00:21:00] Speaker 05:
In Bruin, the Supreme Court recognized that states may impose licensing requirements on the public carry of firearms and that there is a longstanding tradition of states regulating the manner of carry without prohibiting public carry altogether. In our view, those principles resolve this case. The two statutes challenged here, Penal Code Section 25850 and 26350, impose a licensing requirement on the open carry of firearms And far from prohibiting public carry altogether, California law allows for licensed concealed carry in every county across the state.

[00:21:36] Speaker 10:
How many licenses have been given for concealed carry? Do you know?

[00:21:39] Speaker 05:
For concealed carry? I'm not sure, Your Honor.

[00:21:42] Speaker 01:
Is it your understanding that we just have a facial challenge before us?

[00:21:45] Speaker 05:
That is our understanding. That was the district court's understanding, for example, at page 17 of the excerpts of record. I think opposing counsel this afternoon acknowledged that Mr. Baird is seeking relief that's facial in nature.

[00:21:59] Speaker 10:
And that's as to both the licensing and the open carry provision. They're both just only facial.

[00:22:09] Speaker 05:
That is our understanding from, for instance, the prayer for relief in Baird's operative complaint. You can see that at pages 1456 to 57 of the excerpts of record, and it's seeking declaratory and injunctive relief as to those two challenge provisions of the penal code in their application to all individuals covered by those provisions, at least as to open carry as opposed to concealed carry. Okay.

[00:22:34] Speaker 10:
And what, in your view, is the standard? Does he have to show that it's unconstitutional in all circumstances? I mean, there's sort of this position that, well, look, this applies to 99.5. I mean, if you're in the largest county that's below 200,000, you could have it only in your county. I mean, is that enough to say that this covers everyone?

[00:23:01] Speaker 10:
everywhere, or are you saying they just can't have a facial out of the gate because it doesn't apply in all circumstances?

[00:23:10] Speaker 05:
So a couple of important responses to that. First, we do think that standard is the Salerno standard, all applications. That's what the Supreme Court said in the Rahimi decision. That's consistent with, as Judge Smith noted in his panel dissent, consistent with the holdings of every other circuit that's looked at this. They've rejected the extension of the facial over-breath doctrine from the First Amendment context to the Second Amendment.

[00:23:35] Speaker 05:
The other response is that I don't think that the difference between over-breath or the Salerno standard would make a practical difference here, Your Honor, because I think that the more direct response to Your Honor's question about the geographic restrictions is They're not constitutionally salient for the reasons provided by the Second Circuit in the Fry decision, which upheld a categorical statewide ban in New York on open carry. We think the court there got it absolutely right. And so as a constitutional matter, it would be permissible for California to ban open carry in all counties.

[00:24:12] Speaker 05:
across the state. The fact that policymakers have chosen to allow those licenses in counties with populations under 200,000 does not give rise to a Second Amendment entitlement to an open carry license.

[00:24:26] Speaker 09:
So in your view, is concealed carry and open carry fungible? That is, because California theoretically allows concealed carry, can limit open carry. Is that the state's view?

[00:24:38] Speaker 05:
I think that is the practical consequence of our view. It's not exactly how I would state the legal analysis. The legal analysis looks to the historical tradition reflected by the analogs that we've relied on, the concealed carry prohibitions from the 19th century as well as the going armed prohibitions. laws enacted in colonial times and thereafter. And Bruin looked at this same set of historical analogs, and its takeaway is that there's a tradition of regulating the manner of carry without prohibiting public carry altogether.

[00:25:11] Speaker 09:
If you look at the history, it's overwhelming that open carry was not regulated at all in the founding era or post-14th Amendment. There are some restrictions on concealed carry. So, I mean, shouldn't we at least give some deference to that historical tradition, given that it's unanimous, almost no restriction on open carry? And we kind of do that in other contexts. At First Amendment, we give more protection to political core speech. I actually don't think there's a historical basis for it, but I think our decisions claim it does, and we follow it.

[00:25:41] Speaker 09:
Kind of do that in the Fourth Amendment. Again, I don't think there's any historical basis, but we say, well, Fourth Amendment was about the home, so we give more protection. Here, we actually have historical basis that says open carry was protected repeatedly. This is the way. If you're going to carry, you should carry it openly. I mean, shouldn't we give at least some deference to that?

[00:25:59] Speaker 05:
What I think you should do is follow the analysis adopted by Judge Smith and his panel dissent in the Second Circuit in the Fry decision, which said the purpose of Bruin and Rahimi's historical framework is not to freeze in place the precise policy decisions made by 18th and 19th century lawmakers. Rahimi is especially clear about this, that we're really looking for a broader principle reflected by those historical regulations. So the question is, what is the broader principle reflected by historical prohibitions, including the prohibitions Your Honor mentioned on concealed carry, which we agree were widely adopted.

[00:26:34] Speaker 05:
And Bruin tells us that the answer is that states could permissibly regulate the manner of carry without prohibiting public carry altogether.

[00:26:42] Speaker 09:
Well, Bruin didn't address really, I mean, mention of it. It wasn't really about public open carry versus concealed carry. It was over shell issue versus may issue. So It only mentioned concealed and open and looking at the historical tradition of regulation. In doing so, it says basically no regulation whatsoever on open carry during this area here. Again, if the history was a little bit more mixed, maybe the state's argument would be better here, but it just seems I don't think there's any regulation of open carry during the founding era or the post-14th Amendment.

[00:27:17] Speaker 05:
Right, but that's not dispositive under Bruin, and especially as clarified in Rahimi, where there was also no dead ringer or historical twin for the modern regulation challenged in that case. And Rahimi, I think, is especially instructive here because it was addressing a social problem that existed at the founding, domestic violence, and there were historical regimes that the court discussed. which were developed to address that particular problem, in particular, the surety laws.

[00:27:48] Speaker 05:
And there was quite a lot of daylight between those historical statutes and the modern challenge regulation. But the court held that the modern regulation at issue in the case was still relevantly similar to those historical analogs, even though it wasn't a perfect one-to-one fit. And to Your Honor's question about under the Second Amendment, do we focus on certain core aspects of the right as in the First Amendment context where we look at the burden on political speech, I think Bruin actually speaks to this.

[00:28:20] Speaker 05:
And it's a critical part of Bruin's analysis at page 29 of the decision where it emphasizes that Our focus in undertaking the comparison of historical laws to the modern challenged regulation is on, and this is a quote from Bruin, the burden on the right of armed self-defense. So the core of the right recognized in Heller and Bruin was the right to armed self-defense. And I think that makes this case especially straightforward because California is providing a right to concealed carry in all counties across the state.

[00:28:55] Speaker 05:
And it's uncontested here that concealed carry is an effective mechanism for self-defense. I'd point your honors to two places in the record on that. So at page 70, the district court discusses this and said there's no evidence to suggest that handguns are ineffective for self-defense when concealed. And then to Mr. Baird's first amended complaint, which is at page 1498 of the excerpts of record. I think it's worth reading his statement on this in full because it's highly relevant to this question of the ultimate impact on self-defense.

[00:29:28] Speaker 05:
He said, 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 to one's firearm for self-defense, and practical considerations relating to one's wardrobe. So this is not a case where there is a significant or

[00:29:56] Speaker 10:
but doesn't that depend? I understand your argument here, but doesn't that depend on how available concealed carry is? And that's why I asked you, how easy is it to actually get it? Because there's some suggestion that it's not really that easy. I mean, and I, so I mean, it's a little, I'm wondering if it's a little bit misleading to say, Hey, don't worry about it. You can get concealed carry when it's not really that easy to get concealed carry. Hey,

[00:30:23] Speaker 05:
Your Honor, I don't think it's misleading for a couple of reasons. For one, if you look at the statute, so 26-150 and 26-155 of California's Penal Code very clearly was amended in response to Bruin to be a shall-issue licensing regime. It spells out objective considerations that bear on eligibility for a license. And I suppose what I'd say is I can imagine a hypothetical challenge to the features, the requirements for obtaining a license under California's post Bruin shall issue licensing regime and perhaps the development of it hasn't been brought in this case.

[00:30:58] Speaker 05:
If you'd like to look as just persuasive authority to an out-of-circuit decision that has addressed a claim along those lines, the Second Circuit's opinion in the Antonyuk case, which is 120F4th941, it examined the challenge to New York's shall-issue licensing regime, which is not, in all respects, identical to California's, but it is fairly similar. And it upheld it against this type of challenge that you're hypothesizing, Your Honor.

[00:31:25] Speaker 10:
But it seems like I'm asking a different question because it's not whether the shell issue is constitutional or not, but how available is it to actually get a gun? I mean, you could still have it be constitutional, and yet half the people don't comply with it, and it could be for a whole lot of reasons. Maybe there's other ways to get it. But here, if you're saying you cannot open carry, and your position is you can't open carry because you can conceal carry, then aren't those numbers relevant?

[00:32:00] Speaker 05:
I don't think so in a facial challenge where you're focusing on the text of the statutes. You look at the face of California's post-Bruin.

[00:32:08] Speaker 10:
The argument would be that whatever those numbers are, even if in practicality only 10% of people who apply for it get the concealed carry, you can't tell that from the face of the regulation, and therefore we're fine.

[00:32:21] Speaker 05:
That's right, at least in a facial challenge of this nature.

[00:32:23] Speaker 02:
That would be an as-applied challenge. It would.

[00:32:27] Speaker 06:
Your argument is focused on the historical analysis and whether there were historical analogs for regulating the manner of carrying a firearm. So you haven't mentioned, and I'm assuming that you would agree, that the conduct at issue, the proposed course of conduct, which is carrying handguns publicly for self-defense, does fall within the plain text of the Second Amendment. It is within the term bear.

[00:32:58] Speaker 06:
I mean, Bruin says that. Would you agree with that?

[00:33:01] Speaker 05:
We have not made a threshold textual argument as to Baird's challenge to the restrictions on open carry licenses. We did in our panel stage brief present a threshold challenge as to Mr. Baird's licensing claim that we don't think that because... Bruin Footnote 9 is just so clear that licensing schemes at least facially comport with the Second Amendment. We don't see a need to conduct a historical analysis as to licensing requirements. But as... Didn't the dissent... I'm sorry.

[00:33:32] Speaker 06:
So I'm looking at Bruin at page 32.

[00:33:37] Speaker 06:
And this is a quote. This definition of Bayer naturally encompasses public carry. So I don't think that that is fatal to your case at all. And it seemed as if your focus was on the second step, which is the historical analog.

[00:33:50] Speaker 05:
That's right.

[00:33:50] Speaker 06:
But I wanted to clarify, is that at play? Is that something that is in dispute? And we have to determine whether the plain text of Bayer includes public carry. Okay.

[00:34:01] Speaker 05:
It's not in dispute in the briefing. We haven't made the threshold textual argument as to the restrictions on open carry licenses. We think that they are straightforwardly constitutional for the reasons provided by Judge Smith in dissent and the Second Circuit in the Fry decision because there is this clear historical tradition discussed in Bruin itself of regulating the manner of carry, but we haven't made that threshold textual argument. I will note that Judge Smith in his panel dissent did offer a textual argument.

[00:34:33] Speaker 05:
We think it was reasonable, certainly credible. It's just it's not an argument that we advanced in our briefing.

[00:34:41] Speaker 10:
I think you just answered my question because I went back and he relied on that specifically, but you never made that argument?

[00:34:48] Speaker 05:
We did not.

[00:34:49] Speaker 10:
Not even before the panel? No. Okay.

[00:34:53] Speaker 05:
What I'd say respectfully is if the court is considering adopting that textual rationale, we'd urge the- You won't turn it down. We wouldn't turn it down, but we would urge the court to consider alternative holdings along the lines of- This court's unbunked decision in Duncan, which adopted a threshold textual rationale for upholding California's restrictions on large capacity magazines, but then also out of an abundance of caution turned to the historical analysis and upheld it on that ground as well.

[00:35:29] Speaker 05:
COULD YOUR HONORS JUST TURN TO THE PANEL MAJORITY'S OPINION AND HIGHLIGHT JUST A COUPLE OF AREAS WHERE RESPECTFULLY WE VIEW THE ANALYSIS AS FLAWED. SO ONE IS THE ASSUMPTION, I THINK SOME OF WHAT I'M ABOUT TO SAY IS IMPLICIT IN THE DISCUSSION QUESTIONING THIS.

[00:35:46] Speaker 01:
EXCUSE ME, THE PANEL MAJORITY IS THE VACATED OPINION. DO YOU WANT US TO TURN TO IT? IS THAT RIGHT?

[00:35:51] Speaker 05:
YES.

[00:35:54] Speaker 05:
just highlighting a couple of areas where we respectfully disagree with the reasoning there. One is that the panel majority perceived a need to describe the relevant historical regulations fairly granular or specific level of generality. And as I mentioned to Judge Lee just a few moments ago, I think that that's inconsistent with the approach taken in the Rahimi decision, as well as highlighted by Justice Barrett, of course, a member of the Bruin majority in her Rahimi concurrence, where she specifically warned against adopting too specific or narrow a level of generality, because what that does is it freezes in place.

[00:36:32] Speaker 05:
You mean too narrow of a level? Well, I see, too specific is what you're saying. That's right.

[00:36:38] Speaker 10:
It effectively freezes in place historical policies adopted in a... Why, I mean, maybe this just gets back to Judge Lee's questions, but, I mean, it does seem like there's a difference between concealed carry and open carry historically. And it was a meaningful difference. One was regulated, one was not. You want us to say, well, what we should take out of that is you're okay if you can do one or the other. But I don't know that that's really true.

[00:37:10] Speaker 10:
I mean, why is it too general to say, or too specific to say, yeah, they can regulate concealed carry in a way that they cannot regulate open carry? Is there something that's changed over the last 200 years?

[00:37:26] Speaker 05:
I think there is something that's changed, although that's not our only basis.

[00:37:30] Speaker 10:
Have you advanced that argument?

[00:37:33] Speaker 05:
We have certainly in the record here described some of this historical changes, in particular of firearm technology. I'd point the court, for example, to Professor Cornell's expert report in pages 1348 to 49 of the excerpts of record.

[00:37:48] Speaker 05:
where he explains that firearms have changed in the sense that they are far more dangerous today, they're more accurate, they're more fast loading. He describes how at the time that many of these provisions, these historical provisions limiting concealed carry were adopted, firearms were generally muzzle loaders. something like 30 or 40 seconds to load and reload, to far cry from modern semi-automatic weapons. And that does bear on the policy concerns, the public safety concerns, the risks, threats of interference with law enforcement that have led modern lawmakers, including California, to restrict open carry.

[00:38:25] Speaker 09:
But in California, I mean, the basis was actually less honorable. It was because Black Panthers in the 1960s were carrying weapons. guns publicly in the state capitol, so it was a racially discriminatory motivation. I don't think that gun technology changed so much immediately in the 1960s.

[00:38:42] Speaker 05:
Well, Your Honor, the provision enacted in 1967 on open carry in California has been amended, reenacted, expanded over 30 times in the ensuing decades. I don't think there can be any serious dispute that California lawmakers particular when they enacted the last major expansion of the law in AB 144 in 2012 were motivated by legitimate public safety concerns, including the very serious threats of interference with law enforcement.

[00:39:12] Speaker 05:
I point the court to the excerpts of record, pages 1386 to 88, where Kim Rainey, former head of the California Police Chiefs Association, explained that there is this serious risk of interference with law enforcement, in particular in active shooting scenarios when police arrive at the scene and have to make very quick judgments, as Rainey said, about who the bad guys are and who the good guys are if there are many people openly carrying firearms, that becomes a lot more complicated to make those quick and life-saving judgments.

[00:39:47] Speaker 05:
There are other rationales as well that we've discussed in our briefing.

[00:39:52] Speaker 10:
I would almost assume concealed carry is more dangerous for police because then they don't know where the risks are coming from and they have to make assumptions.

[00:40:01] Speaker 05:
And there are certainly different considerations that policymakers and law enforcement experts can balance, Your Honor, and there are some jurisdictions in the country that have authorized open carry. I will note, though, even in those jurisdictions, there are prominent dissenting voices that have criticized that policy decision. So for example, in Texas, which is an open carry state, there's a survey showing that 75% of Texas police chiefs object to that policy and think that open carry should be banned. You can find that survey cited in the amicus brief of 15 states in the District of Columbia.

[00:40:35] Speaker 05:
It was filed a few weeks ago after the court granted on-bank rehearing.

[00:40:42] Speaker 01:
MORE YOU WANTED TO POINT OUT TO US ABOUT THE MAJORITY OPINION? I HAD TURNED TO IT DUTYFULLY.

[00:40:48] Speaker 05:
So one was the level of generality issue, and I think I've covered that. The other is that, respectfully, we submit that the panel majority did not make a serious effort to reconcile its analysis with the Supreme Court's approach in the Rahimi decision.

[00:41:06] Speaker 09:
Since I was in the panel majority, if I can address the Rahimi decision. Rahimi is a little bit different because it was about domestic violence, and at the founding hour, unfortunately, it wasn't considered a crime. It didn't even enter the realm of of that. It was a personal matter. So it was a question of how do we apply that when, in fact, in the founding era, they didn't even think about domestic violence. So the Supreme Court relied on surety laws, etc. Here, the historical evidence shows they did think about open carry versus concealed carry. So that was resolved as opposed to domestic violence where they didn't even think about it.

[00:41:39] Speaker 09:
So I do think it's different from Rahimi.

[00:41:42] Speaker 05:
So, Your Honor, I respectfully push back on the idea that people at the founding, the time of the adoption of the Second Amendment, were not thinking about domestic violence. The Rahimi majority actually says the opposite, that the surety laws were designed in part to address the risk of domestic violence. So there was a legal regime in place to address that social problem, and notably it differed in pretty substantial ways, as Justice Thomas said.

[00:42:06] Speaker 09:
It wasn't under criminal law. Domestic violence wasn't under criminal law, so... A lot of it was trying to think, how do we apply this here? I mean, the historical evidence is so clear here of how what we thought of, what the framers thought of concealed carry versus open carry. The historical evidence is so much clearer than in Rahimi. We're trying to think, well, let's apply our modern standards, how that would have applied. And in that sense, we don't want to trap it in amber, as some of the decisions put it.

[00:42:37] Speaker 05:
The trap in Amber quote was exactly where I was going to go, where even if there was a very clear tradition with respect to concealed carry in the 18th and 19th centuries, there's no basis in the Bruin or Rahimi framework to trap that specific policy preference in Amber and freeze it in place forever. for all time. And I just note too that the historical analogs we're relying on with respect to California's restrictions on open carry are not limited to the concealed carry prohibitions. So I think it would be a little bit too simple to suggest that there's just been this complete flip or transposition in policy preferences over time.

[00:43:14] Speaker 05:
We're also pointing to the going armed laws, which were discussed in Bruin and in Rahimi, descended from the British Statute of Northampton, were widely adopted as a matter of common law or by statute in colonial times or early post-independence America.

[00:43:31] Speaker 05:
They're relevant here because they prohibited the open carry or display of firearms in ways that threatened fear or terror on the part of the public. They weren't identical by any means to California's modern restrictions on open carry. They were relevantly similar for purposes of Bruin's inquiry.

[00:43:52] Speaker 05:
And then if I could just briefly, Your Honors, I wanted to respond to some of the concerns that Judge Lee raised in his concurring opinion at the panel stage about the licensing form used to apply for concealed or open carry licenses in California. As we explained at our panel stage argument, the form... is available and can be used for either type of license, at least in counties where open carry licenses are lawful. That being said, we understand the concerns raised by Judge Lee.

[00:44:24] Speaker 05:
We have taken steps to initiate the statutory process under Penal Code Section 26-175 for revising the form. Requires convening a committee of representatives of the attorney general and local licensing officials. We've sent the letter to get that process started. We anticipate that a revised form will be adopted by September 1st of this year, and it will make it even clearer that the application form can be used for open carry licenses.

[00:44:56] Speaker 10:
But that hasn't been changed yet. So, I mean, it's interesting. Can we consider, in your view, can we consider that as part of the facial challenge, or you view that as just a side issue because it's not part of the statute? I mean...

[00:45:08] Speaker 05:
I think it's just a side issue. I just wanted to respond to serious concerns that a member of the court had raised in a separate opinion.

[00:45:19] Speaker 05:
If there are no further questions, Your Honors, we'd respectfully ask the court to affirm the district court's judgment.

[00:45:24] Speaker 02:
Thank you. Thank you.

[00:45:44] Speaker 03:
So with regard to the public safety concerns that were expressed by the state, the Supreme Court has been very clear that the interest balancing took place at the time that the Second Amendment was ratified. So this court, respectfully, cannot consider public safety concerns and the issues that have been raised by the state when rendering its decision. I will also mention that there are already statutes in place for preventing or punishing the possession of firearms by prohibited persons, felons, convicted felons, drug addicts, and so forth.

[00:46:26] Speaker 03:
And with respect to concealed carry, there is a licensing scheme for that as well. With respect to the manner of carry, while I do see how open versus concealed carry can be considered a manner of carry restriction, Historically, and again, I'll just point to the fact that this delineation between open carry and concealed carry was limited to a period in time from 1822 to 1850 by a handful of southern states that by the time 1850 rolled around, there were 31 states in the United States occupied.

[00:47:09] Speaker 03:
so that that cluster of states didn't even rise to a 25% makeup of the states. Arguably, it's not even a national tradition.

[00:47:20] Speaker 03:
But assuming that it is, in deciding whether...

[00:47:27] Speaker 03:
I would say that the statutes in that case, in those cases, really were regulating concealable weapons, weapons that were considered dangerous and unusual. There's language in the statutes that supports that. Pistols were, pocket pistols, breast pistols, were considered dangerous and unusual at the time. They are no longer considered dangerous and unusual, obviously.

[00:47:52] Speaker 03:
But manner of carry really historically has pertained to the affray laws, which are comparable to the present-day brandishing or menacing, where someone is acting, in the case of the Statute of Northampton, which has been disregarded by the Supreme Court, more than once, as not being analogous to peaceful public carry, which is what we're advocating here. Peaceful open carry, the affray statutes aren't analogous to that.

[00:48:27] Speaker 03:
When we talk about Rahimi, the court was very clear in indicating that the how and the why of the regulation is central to the inquiry, the constitutional inquiry.

[00:48:44] Speaker 03:
And the why of the regulations that were imposed on concealed carry by the southern states was the dangerousness of concealed carry, that only people who were engaging in criminal acts and had a criminal mens rea would concealed carry, because gentlemen would open carry. They would allow you to know that they were carrying a weapon and they weren't trying to. I think one of the cases involved an assassination by an individual who had been carrying the weapon concealed.

[00:49:14] Speaker 03:
So that was frowned upon by the southern states. So when we talk about the broader principle, that's really what is underlying that tradition. Open carry had no negative context and never has had any negative context. In fact, from the time that California became a state in 1850, For the next 117 years, open carry was unregulated. It was not licensed. It wasn't subject to criminal penalties until 1967.

[00:49:47] Speaker 10:
So, counsel, not to interrupt the train of thought, but why can we look to that level of specificity? I mean, California is saying you're asking for too close of an analog. Why do you think that fits within Bruin and Rahimi standards? these differences.

[00:50:06] Speaker 03:
Yeah, I think it's a very broad. I don't think it's narrow at all. It's carry. It's bare arms. Heller defined bearing arms as both concealed and open carry to wear upon the person or in the pocket or, you know, in a, you know, I can't remember the wording exactly, but it specifically does, Heller specifically does mention in referencing the Muscarello case wearing upon the person or in the pocket, which would encompass open carry and concealed carry as well.

[00:50:41] Speaker 03:
But if we're looking to a point in time in history where such delineation was made, which did not exist in 1791, and if you look at the Bliss v. Kentucky case, it recognizes that at the time that Kentucky statute was passed, concealed carry wasn't illegal at all. Open and concealed were both legal.

[00:51:02] Speaker 03:
But when we're looking at the generality of bearing arms, I don't think that it's very specific to say that concealed carry was the manner that was frowned upon and that open carry was the accepted manner of bearing arms at the time and has been throughout history in this nation. The state hasn't identified one statute that regulates open carry at all. Or one criminal statute, one licensing statute, nothing.

[00:51:32] Speaker 03:
And so there is no historical analog for this criminal statute. I just can't come to terms with how a decision can be made that upholds these two criminal statutes when there is zero historical analog for either.

[00:51:50] Speaker 06:
You said that for 117 years or so, California did not ban open carry. Did California regulate or ban concealed carry during that period?

[00:52:00] Speaker 03:
They did, yes. And the licensing schemes of the time, in the late 1800s and early 1900s, licensed concealed carry. So that tradition did continue. And I would just say, If, as the southern state cases indicated, they were concerned with the norms of the time, that the view of concealed carry was an evil practice, so they banished it and lauded open carry or upheld open carry as unregulated.

[00:52:32] Speaker 03:
Today, we have the exact opposite. We have the state saying, well... The norms of the time are concealed carry and not open carry because it's going to frighten people. And that just leaves us with no protected right at all if the government can just flip-flop on exactly what the right means. And Bruin said that the meaning of the right is pinned to the point in time that it was ratified in 1791.

[00:53:03] Speaker 03:
I submit to you that if at all open carry is the right historically that has been protected, and I ask that judgment be answered in favor of Mr. Baird and that these two statutes, 5850, be enjoined as to open carry and that 26350 be enjoined in its entirety.

[00:53:29] Speaker 02:
Thank you, Ms.

[00:53:32] Speaker 02:
Bell and Tony, and Mr. Harbaugh. We appreciate your argument presentations here today. The case of Mark Baird v. Rob Bonta is now submitted, and we are adjourned. Thank you.