[00:00:36] Speaker 09:
The United States Court of Appeals for the Ninth Circuit is now in session.

[00:00:41] Speaker 12:
Thank you.

[00:00:42] Speaker 12:
You may be seated.

[00:00:42] Speaker 12:
Good afternoon.

[00:00:46] Speaker 12:
Welcome to the Richard Chambers Courthouse here in Pasadena.

[00:00:54] Speaker 12:
This is the time set for oral argument in the case of Todd Yukitake, David Koaw.

[00:01:02] Speaker 12:
Versus and Lopez in her official capacity as the Attorney General of the state of Hawaii and the city and County of Honolulu if Council are ready to proceed you may come forward Joanne soccer on behalf of the state of Hawaii may please the court

[00:01:26] Speaker 11:
This case is about two administrative details of Hawaii's shall-issue licensing regime for acquisition of firearms, the handgun permit validity period, and the inspection requirement for guns not purchased from licensed dealers.

[00:01:37] Speaker 11:
These administrative details, much like the rest of the shall-issue licensing regime, are presumptively constitutional under Bruin and Heller.

[00:01:44] Speaker 11:
To rebut that presumption, those same precedents required the plaintiffs to show that these provisions have been put to abusive ends, or, in this court's terminology, that they functioned as a meaningful constraint on the right to keep and bear arms.

[00:01:57] Speaker 11:
The plaintiffs here have not made that showing.

[00:02:00] Speaker 11:
As Judge Baia noted in dissent from the panel opinion, the plaintiffs have offered no evidence and have made no claims that either the permit validity period or the inspection requirement prevented them from keeping and bearing arms.

[00:02:10] Speaker 11:
30 days is plenty of time to pick up a gun that you've purchased, and that permit validity period ensures that the purchaser's criminal history and mental health status, which are indisputably permissible conditions on the acquisition of firearm, are current.

[00:02:23] Speaker 11:
Likewise, it's no great burden to bring a 3D printed gun to the police station for inspection.

[00:02:28] Speaker 11:
And that inspection requirement ensures that there's a serial number on the firearm, just like there would be on any firearm purchased from a licensed dealer.

[00:02:35] Speaker 11:
For that reason, plaintiff's challenge fails.

[00:02:40] Speaker 06:
Well, okay, I'll ask a question.

[00:02:42] Speaker 06:
So meaningful constraint, you seem to kind of

[00:02:46] Speaker 06:
You mentioned meaningful constraint, but as I understand meaningful constraint, that comes up at what we would, I guess, sometimes call prong one of of of Bruin.

[00:02:55] Speaker 06:
So your position, I guess, is that this isn't even this doesn't even implicate the Second Amendment at all.

[00:03:02] Speaker 06:
Is that right?

[00:03:04] Speaker 11:
Yes, Your Honor.

[00:03:04] Speaker 11:
I think we haven't reached that point.

[00:03:06] Speaker 11:
And as Bruin explained, there's an initial plain text analysis in which you're supposed to analyze whether the Second Amendment right is implicated by examining the text of the statute and the text of the Second Amendment.

[00:03:16] Speaker 06:
And so let's do that because the second amendment, as you know, says it shall not be infringed.

[00:03:23] Speaker 06:
Where does meaningful constraint?

[00:03:25] Speaker 06:
I understand we have case law that's, you know, that applies meaningful constraint there.

[00:03:30] Speaker 06:
But where does meaningfully meaningful constraint fit within that textual analysis of shall not infringe?

[00:03:37] Speaker 11:
We'd say it's the third step of what the court had explained in the plain text analysis.

[00:03:41] Speaker 11:
First, you look at whether it's one of the people that's covered.

[00:03:43] Speaker 11:
Then you look at whether the arms are in common use.

[00:03:46] Speaker 11:
Then you look at the proposed.

[00:03:47] Speaker 05:
I'm having trouble hearing you a little bit.

[00:03:49] Speaker 05:
Can I get you to lean in?

[00:03:50] Speaker 11:
Oh, sure.

[00:03:50] Speaker 11:
Sure.

[00:03:52] Speaker 11:
So as Bruin explained, there are three things that you analyze when you're looking at the text.

[00:03:55] Speaker 11:
You look at the people, you look at the arms and you look at the proposed course of conduct.

[00:04:00] Speaker 11:
As I read this court's case law and the weight of authority among other courts of appeals, this is part of that analysis of whether the proposed course of conduct is covered.

[00:04:07] Speaker 11:
That's how we view these ancillary rights questions.

[00:04:10] Speaker 11:
And often acquisition is going to be something that does or does not, depending on the proposed course of conduct and the statute that we're analyzing, may or may not be something that impinges on that Second Amendment right.

[00:04:20] Speaker 11:
So I would put meaningful constraint there.

[00:04:24] Speaker 05:
For something to be a meaningful constraint, I know there's some language about

[00:04:28] Speaker 05:
It for an ancillary right if it effectively denies is that what is your view of?

[00:04:33] Speaker 05:
Are those the same thing something meaningfully constrains if it effectively denies your ability to Exercise the right your honor.

[00:04:41] Speaker 11:
I'd say that these are all different ways of saying the same thing Bruin and footnote 9 explained that sometimes there's going to be a law that By its text does not does not impinge the second.

[00:04:51] Speaker 05:
That's why I thought and I

[00:04:53] Speaker 05:
Effectively denies, we've kind of had this issue, I'm sure, in lots of areas, but especially in the Second Amendment of sort of meaning drift in words.

[00:05:00] Speaker 05:
Like, we'll start with something and before you know it.

[00:05:03] Speaker 05:
And effectively denies is, you know, if that's the standard, if you have to show that Second Amendment doesn't cover it unless it effectively denies a right, basically, well, then meaningfully constrains and effectively denies don't sound like the same thing.

[00:05:16] Speaker 05:
Effectively denies is really harsh.

[00:05:17] Speaker 05:
It's basically you have to show that this means that you don't have any Second Amendment rights at all.

[00:05:22] Speaker 05:
Well, how come those two things, I mean, how do we get that drift and how come those two things mean the same thing?

[00:05:28] Speaker 11:
I think you don't need to take that drift.

[00:05:30] Speaker 11:
Other circuits formulations have used words like effectively denies or de facto prohibition.

[00:05:35] Speaker 11:
You have been pretty consistent in using the words meaningfully constraints.

[00:05:38] Speaker 11:
And I think you've offered content on that in your case law.

[00:05:40] Speaker 11:
I think we've learned from, for example.

[00:05:42] Speaker 05:
If it isn't effectively denies, because that does seem like a pretty black and white standard, but seems like a really harsh standard, then

[00:05:50] Speaker 05:
Meaningfully constraints is kind of fuzzy.

[00:05:54] Speaker 05:
So how do we apply that if how do we apply that that standard?

[00:05:59] Speaker 11:
So I think in a facial challenge, the thing you would be looking at when you're looking at a word like meaningfully constraints is whether the plaintiff was able to exercise their right to creep and bear arms.

[00:06:08] Speaker 11:
And I think you've explained, for example, in Wynn, that it's not enough to say, well, you've got other guns at home, you've got to be able to get a new gun if that new gun is what it is that you want.

[00:06:16] Speaker 11:
And I think you've explained it in other cases.

[00:06:18] Speaker 05:
Wasn't it Wynn that we said 30 days was...

[00:06:22] Speaker 05:
30 days did meaningfully, like making somebody wait 30 days to get a second firearm, I guess, did meaningfully constrain.

[00:06:30] Speaker 05:
But it seems to me somebody could reach a different conclusion and say, well, that's 12 a year.

[00:06:36] Speaker 05:
And my wife thinks that's a lot if I buy 12 a year.

[00:06:42] Speaker 05:
So I don't know if that meaningfully, I'm having trouble with, this seems like an inherently fuzzy concept.

[00:06:50] Speaker 05:
And you're saying,

[00:06:52] Speaker 05:
Well, you just look at what meaningfully means.

[00:06:56] Speaker 05:
You don't think it's a fuzzy concept?

[00:06:58] Speaker 11:
No, Your Honor.

[00:06:58] Speaker 11:
I think that the fact that all of the courts of appeals have been pretty consistent in how they've resolved these tests and resolved these different new cases have shown that it's a reasonable test that's easy to apply for courts.

[00:07:09] Speaker 11:
It's something that's familiar to you, having the word meaningfully before a standard is something that courts often apply.

[00:07:16] Speaker 11:
I'm not sure.

[00:07:17] Speaker 07:
I mean, I guess I would argue against the point that you just made about all the circuits are being consistent.

[00:07:21] Speaker 07:
I mean, you read these cases and it seems to me that the rationale that judges are applying here is all over the map.

[00:07:29] Speaker 07:
Candidly, I think the Supreme Court has given us contradictory direction in its case law, and everybody is trying to figure out, what do we do about that?

[00:07:37] Speaker 07:
How do we resolve the conflict that is in the language?

[00:07:40] Speaker 07:
So I'm not sure that it's true that there is a sort of broad consensus about how this should go.

[00:07:48] Speaker 11:
I think that it is true with respect to acquisition, Your Honor.

[00:07:50] Speaker 11:
I think everyone has agreed that when it comes to acquisition, we're talking about an ancillary right.

[00:07:54] Speaker 11:
And when we're talking about ancillary rights, you have to add some sort of content.

[00:07:57] Speaker 11:
There's something something that the plaintiffs have to come forward and show extra in order to be able to show that their panel opinion.

[00:08:03] Speaker 05:
I mean, you know, Judge Bayer and Judge Collins, I think, would agree about a whole lot of things.

[00:08:09] Speaker 05:
You know, they're not this is not like people that are complete different ends of the spectrum on a lot of issues.

[00:08:15] Speaker 05:
And yet they had diametrically opposed views of whether this meaningfully constrained.

[00:08:20] Speaker 05:
And so it does.

[00:08:22] Speaker 05:
even even the panel opinion in this case seem like it sort of illustrates how you kind of it seems like it's more of a I don't know if I'm going to wear it but Rorschach block test like you see what you want to see you don't really necessarily it doesn't provide guidance as much as now I'm not saying you can't say whether something meaningfully constraints or not judges can say that but is it actually doing anything is it giving judges any guidance

[00:08:46] Speaker 11:
Your honor, I think that even if you find the term meaningfully constrained to be a difficult one as a general matter, it's pretty easy to apply in this case because of the evidence that was before the court, the district court at summary judgment, and because of the allegations and complaint.

[00:09:00] Speaker 11:
I think it's very clear that the plaintiffs in this case could get their guns, the guns that they wanted, under the current Hawaii laws, under the 30-day validity period, and under the inspection requirement as reformulated.

[00:09:12] Speaker 11:
And I think that that's all you have to decide in this case, whether

[00:09:14] Speaker 05:
you decide that's that that's true there's no meaningful constraint because we're talking about acquisition or whether it means effectively denies right like because if they could because that it sounds like what you're saying is an effectively denied standard that didn't effectively deny them and so

[00:09:27] Speaker 11:
So I think we could win under that standard.

[00:09:29] Speaker 11:
I think we could also win, even if you say acquisition is fully covered to the same extent as keep and bear, I think we could still win because we have a shallish regime.

[00:09:37] Speaker 11:
And Footnote 9 has explained that shallish regimes are treated a little bit differently, that they've already been considered to meet a certain standard, and that in order to challenge a provision of a shallish regime, you need to show that the law had been put to abusive ends.

[00:09:50] Speaker 11:
And there's been no showing here on the abusive ends front.

[00:09:53] Speaker 11:
I think we could win through either of those paths.

[00:09:55] Speaker 11:
And so if you find that to be a difficult question, you can look at this case as a shall issue case and answer the abuse of ends question.

[00:10:01] Speaker 13:
To what extent do you think these really are viewed as part of a shall issue regime?

[00:10:06] Speaker 13:
So take the inspection one first.

[00:10:08] Speaker 13:
So it does seem it's sort of removed from the background check process and other things like that that seem like more the focus of footnote nine.

[00:10:17] Speaker 11:
I disagree, Your Honor, and it's because the inspection requirement is part of registration.

[00:10:20] Speaker 11:
So every gun, however it is that you acquire it, needs to be registered.

[00:10:25] Speaker 11:
And the way that registration works when it's a gun that you have not acquired from a licensed dealer is that you've got to bring the gun in for inspection as one component of registration.

[00:10:34] Speaker 11:
But everybody, including somebody who buys a gun from a licensed dealer, needs to return that slip that says, I did in fact acquire this gun, and here's the serial number for it.

[00:10:42] Speaker 11:
And I did pass the background check and I did pass the mental health status check.

[00:10:46] Speaker 11:
And so it's all part of one unitary scheme.

[00:10:49] Speaker 13:
So you disagree with the panel decision in that respect as well?

[00:10:52] Speaker 11:
I do, Your Honor.

[00:10:53] Speaker 11:
And I think that if you're looking for guidance on how to understand whether something is part of a chalice regime or not, all you have to do is look at footnote nine, which explained that when we're talking about chalice regime, we're just looking for something that has narrow objective and definite criteria and does not admit discretion on the part of the issuer.

[00:11:09] Speaker 11:
We have very clear statutory requirements as to when it is you do and do not, when it is you do and do not have to apply with the inspection requirement.

[00:11:16] Speaker 11:
We have very clear statutory criteria with respect to who would and would not pass the background check and what sorts of mental health statuses are disqualifying.

[00:11:24] Speaker 11:
And so this is a very black and white, you can look at the statute and know whether you qualify or not sort of regime.

[00:11:30] Speaker 12:
What case, I guess, do you point to that best supports your proposition that both provisions are not meaningful

[00:11:38] Speaker 12:
meaningful constraints on the plaintiff's right to keep and bear arms.

[00:11:43] Speaker 11:
We'd rely on V&L, Your Honor.

[00:11:44] Speaker 11:
I think that that's the case in which you've most recently and most clearly explained what it is when you're talking about what it is you mean when you're talking about ancillary rights and how to analyze those questions.

[00:11:54] Speaker 11:
And we think that this is that same sort of acquisition framework, the same sort of analysis would apply.

[00:11:58] Speaker 12:
And what about any of our sister courts?

[00:12:02] Speaker 11:
Which case would you point to?

[00:12:04] Speaker 11:
Sure, Your Honor.

[00:12:05] Speaker 11:
We think that McCrory, Judge Smith's opinion for the Fifth Circuit and McCrory applies the same sort of analysis explaining that acquisition should be treated differently and that often acquisition won't be a plain text analysis that meets the Second Amendment.

[00:12:17] Speaker 11:
I think Judge Larson's opinion for the Sixth Circuit and United States v. Nip is also very instructive on that point.

[00:12:23] Speaker 11:
She makes the same point that, of course, that it's going to be the case that the Second Amendment protects the right to acquire a firearm only when necessary to enable the acquirer to possess or carry one.

[00:12:31] Speaker 11:
So I think that that is the consensus among many different courts of appeals and it's one that you've adopted already in B&L.

[00:12:38] Speaker 08:
Is there a, are you aware of a circuit court decision that takes a different view that any type of acquisition right necessarily falls within the scope of the second amendment and therefore necessarily needs to be subject to a history and tradition analysis?

[00:12:54] Speaker 11:
The closest I could offer you on that front would be Judge Rushing's concurrence in Maryland shall issue in the Fourth Circuit, in which she said that she read Bruin footnote nine to mean that when we're talking about shell issue regimes, the Supreme Court has already told you that there is a historical analog at Bruin step two for all shell issue regimes and that surety laws.

[00:13:16] Speaker 11:
And so she would reach the same result, but through a different method, she would say the historical analysis has already happened.

[00:13:22] Speaker 11:
But it's effectively the same outcome as in the other circuits where they've read it more as a step one question.

[00:13:27] Speaker 08:
But I mean, it seems to me it would be hard to square the Supreme Court's presumptively lawful language with getting past the first step of the analysis because they seem to start from opposite ends of the spectrum.

[00:13:39] Speaker 08:
I mean, if something's presumptively lawful, then it would seem to not also be a constitutionally protected activity that the government must then justify under a regulatory tradition.

[00:13:51] Speaker 08:
You know, do you – is there a way to square at – you know, to Judge Forrest's point, these kind of competing points in tension in what this court describes as presumptively lawful and the Bruin two-step analysis?

[00:14:06] Speaker 11:
I think the best I could offer you, Your Honor, is an analogy to how it is that we consider other constitutional rights.

[00:14:11] Speaker 11:
I mean, it's often going to be the case that in the first instance, a plaintiff must show that their constitutionally protected right has been impinged upon, and then only after that does the state have to come forward and say that that's justified despite the constitutional prohibition.

[00:14:23] Speaker 11:
That's the same sort of analysis we're doing here when we say that we're trying to figure out if the proposed course of conduct is one that is protected by the Second Amendment, whether this acquisition law really does affect your keep and bear right.

[00:14:33] Speaker 11:
And then at that point, after the plaintiff has made that showing that their right has been impinged upon, would the state come forward with our evidence that that's actually OK?

[00:14:40] Speaker 11:
And in this case, that would be this historical evidence that we would need to move forward with.

[00:14:44] Speaker 07:
So I want to jump in on that point because I'm very interested in how we treat rights generally as opposed to just how we treat the Second Amendment rights so that there's consistency across our constitutional law doctrine.

[00:14:55] Speaker 07:
I'm aware that one of our principles that we share across other rights is that if a regulation incidentally burdens a constitutional right, it's not a violation.

[00:15:06] Speaker 07:
We've said that in the context of the Sixth Amendment.

[00:15:08] Speaker 07:
We've said that in the context of the First Amendment.

[00:15:11] Speaker 07:
I think we've said that in the context of the Fifth Amendment.

[00:15:14] Speaker 07:
So what would that mean here if we said that acquisition, yes, is covered by the Second Amendment because you have to be able to acquire to possess?

[00:15:24] Speaker 07:
We've said that.

[00:15:25] Speaker 07:
Other courts have said that.

[00:15:26] Speaker 07:
That seems like a common sense proposition to me.

[00:15:28] Speaker 07:
So if we say that the Second Amendment applies, but then we look at this rule and we say, is it an incidental burden or not?

[00:15:35] Speaker 07:
Where would that fit in the Bruin analysis, or does it fit in the Bruin analysis?

[00:15:39] Speaker 11:
I think, Your Honor, that you could offer that as an alternative way of understanding the meaningful constraint test.

[00:15:45] Speaker 11:
I mean, it seems to me that if you're talking about something that's an incidental burden on the right, it's not something that meaningfully constrains.

[00:15:52] Speaker 11:
If I were to try and put that into Bruin's framework, I would also put that in the proposed course of conduct analysis and say, we're talking about that same first step Bruin textual analysis.

[00:16:02] Speaker 11:
Is this something that affects the Second Amendment right?

[00:16:04] Speaker 11:
And here, we're saying it's incidental.

[00:16:06] Speaker 11:
I think that that's a reasonable way of understanding things.

[00:16:09] Speaker 11:
Of course, there are many ancillary rights that are going to affect your right to keep and bear.

[00:16:13] Speaker 11:
I mean, obviously, if you don't have enough money to buy a gun, that's going to be something that affects your right to keep and bear.

[00:16:18] Speaker 11:
But there's no constitutional right to have enough money to buy a gun.

[00:16:21] Speaker 11:
that could be something that's an incidental burden that's not the state's fault.

[00:16:26] Speaker 11:
You could analyze it from that perspective.

[00:16:28] Speaker 11:
I would just say that it's the opposite of the meaningful constraint.

[00:16:30] Speaker 07:
So would you say that the regulations involved in this case are incidental burdens or more than that?

[00:16:35] Speaker 11:
I would agree that they're incidental burdens.

[00:16:37] Speaker 11:
I would say that they don't burden, but if you must find that there is a burden, I would say that burden is incidental.

[00:16:41] Speaker 07:
So let's take the inspection.

[00:16:43] Speaker 07:
We've talked a little bit about the in-person inspection.

[00:16:45] Speaker 07:
Why is it an incidental burden to require somebody who has already obtained possession of property to have to present it to the state at the state's decree?

[00:16:54] Speaker 07:
Why is that incidental?

[00:16:55] Speaker 07:
It may be permissible, but why is it merely incidental?

[00:16:59] Speaker 11:
As opposed to a meaningful constraint.

[00:17:01] Speaker 07:
I mean, set aside, I'm not sure the incidental burden in that analysis marries on to meaningful constraint.

[00:17:08] Speaker 07:
I think those might be two separate things.

[00:17:10] Speaker 07:
But an incidental burden is one that, I mean, I guess other terminology on the law might be a de minimis.

[00:17:16] Speaker 07:
imposition on a right, right?

[00:17:18] Speaker 07:
And we just say, like, this is too small, too trivial, to whatever word you want to give it for the law to take attention to this.

[00:17:25] Speaker 07:
So why is having to show up with something that you have already obtained possession of, it is your personal property, and you have to bring it to bear to the government for it to inspect?

[00:17:36] Speaker 07:
Like, you know, normally, in other inspection contexts, the Fourth Amendment gets triggered.

[00:17:41] Speaker 07:
We don't treat those things as incidental or trivial.

[00:17:44] Speaker 07:
So why would that be trivial?

[00:17:47] Speaker 11:
I hesitate to call it trivial, Your Honor, but if that's the format of the hypo, I would say that it's not a burden because it's not actually preventing you from keeping and bearing.

[00:17:59] Speaker 11:
The constitutional right is not to have complete privacy in your gun ownership.

[00:18:03] Speaker 11:
The constitutional right is to be able to keep and bear arms, whether that's to walk around town with them or whether that's to keep them in your home.

[00:18:10] Speaker 11:
That was the substance of Bruin and Heller, and I don't think that the

[00:18:14] Speaker 11:
the court ever said that there was going to be no way in which the state could impinge upon that right.

[00:18:18] Speaker 11:
And in fact, the court went out of its way to say there are in fact ways in which the state can impinge upon that right.

[00:18:23] Speaker 11:
That was the point of Bruin footnote nine.

[00:18:24] Speaker 11:
That was the point of the Kavanaugh concurrence.

[00:18:26] Speaker 11:
which commanded the chief's vote as well.

[00:18:28] Speaker 11:
And of course, without Kavanaugh on the chief, he would not have had a majority in Bruin.

[00:18:31] Speaker 11:
And so I think the Supreme Court has actually gone out of its way to explain that, yes, of course, the state can burden your right a little bit.

[00:18:37] Speaker 11:
And there are certain circumstances in which that's going to be OK.

[00:18:40] Speaker 11:
There's a reason why the court specifically carved out background checks and mental health status and any other narrow objective and definite criteria.

[00:18:47] Speaker 11:
There is a strong holding from the Supreme Court that those things must be permissible.

[00:18:53] Speaker 13:
Well, I mean, one could listen to the exchanges here and kind of ask, you know, is this getting a little too far away from Bruin in the sense that it seems like by the logic of some of these arguments, whether it's meaningful constraint or incidental or some other tests, we're not leaving a whole lot of room for the analogical reasoning to come into play, the history and tradition component that Bruin seemed to emphasize heavily.

[00:19:14] Speaker 13:
How would you respond to that potential criticism?

[00:19:17] Speaker 11:
The first thing I would say, Your Honor, is that I think that you'd only get to the historical analysis after you've done the plain text analysis.

[00:19:24] Speaker 11:
And I think that we're still in plain text world.

[00:19:26] Speaker 11:
And of course, if the plaintiff can make the showing that they need to make at the plain text stage, the state will have to come forward with historical analogs.

[00:19:32] Speaker 11:
To the extent that you disagree with that view, though, I would commend Judge Rushing's reasoning to you.

[00:19:37] Speaker 11:
And my argument would be that this is a chalice regime.

[00:19:40] Speaker 11:
And the Supreme Court has already held under Judge Rushing's reasoning, which I think is a very fair reading of footnote nine,

[00:19:45] Speaker 11:
all shellish regimes have satisfied the Supreme Court's analysis of step two as analogs of surety laws.

[00:19:51] Speaker 13:
And how about the reference to abusive laws?

[00:19:54] Speaker 13:
Is that some separate test or is that part of the same inquiry?

[00:19:58] Speaker 11:
It's a slightly different part of the inquiry.

[00:20:00] Speaker 11:
And so I think that what the abuse of ends analysis is acknowledging is there may be a law that is facially constitutional in the sense that it does permit on narrow objective and definite criteria somebody to keep and bear arms.

[00:20:13] Speaker 11:
But the problem is, is that in practice it operates as such a constraint on an individual's right to keep and bear arms, that it's something that is actually preventing somebody from keeping and bearing arms.

[00:20:24] Speaker 11:
And so it's meant to be a practical analysis

[00:20:26] Speaker 11:
Justice Kavanaugh's concurrence explains that the as-applied challenge must, of course, always be there.

[00:20:31] Speaker 11:
It could be, for example, that you have a wait time that you only get one gun a month, and you've got to wait 30 days after every gun you apply for, and that's going to be an excessive amount of time.

[00:20:41] Speaker 11:
Or you could have a restraint where the background check fee, instead of being $42, is actually $1,000, and that's going to be prohibitively expensive for most people to use.

[00:20:49] Speaker 11:
And so it could be that there are objective and definite criteria that prevent you from keeping and bearing arms.

[00:20:54] Speaker 11:
and that's what that abuse of ends point is, is the state can't do that.

[00:20:57] Speaker 05:
I'm a little confused at your answer because the first part of your answer seemed like you're saying basically facially you could have what I think a lot of people would think would be very onerous requirements but if they're being applied a certain way that would be abusive so I thought that was your answer to the abusive at the beginning but then you started the examples you were giving were

[00:21:15] Speaker 05:
for examples of things that would be facially like a really high, you know, a really high fee or, you know, 30 days since we already have precedent on that.

[00:21:25] Speaker 05:
And so, which is it?

[00:21:29] Speaker 05:
Like, because if it's, if you can have facial requirements, like a high fee, then I kind of go back to my, where do we draw the line?

[00:21:38] Speaker 05:
That puts us, like, what counts as, as,

[00:21:42] Speaker 05:
Enough to meaningfully constrain or to not be de minimis or to whatever language we want to use and I'm struggling with what kind of guidance because because practically speaking I doubt seriously that very many of us are Purchasing firearms or ammunition or any number of things very so we don't have like real-life experience to judge us by we're basically just asking ourself an abstract question of

[00:22:06] Speaker 05:
when, you know, does this seem a meaningfully constraint?

[00:22:10] Speaker 05:
And so somewhat not surprisingly, given that we don't do this very much, it doesn't, you know, our answer is very different than it might be if we were purchasing internet service or any number of other things that we purchase regularly.

[00:22:19] Speaker 05:
So that's what I'm struggling with, because it seemed like your answer initially was, I thought, I was taken away from it, that you're, that it really can almost put any

[00:22:29] Speaker 05:
any barrier I'm calling the barrier let's use a different word any requirements that you want as long as they don't completely eliminate your ability to in this instance get a firearm but if you apply those somehow abusively is that your answer or is your answer that that things that make it difficult to get can rise to the level even if they're across the board requirements like like too high a rate too high an amount

[00:22:54] Speaker 11:
The as-applied answer that I was giving about abusive was about as-applied challenges.

[00:22:59] Speaker 05:
So when you have a shallish regime, the Supreme Court has exempted shallish regimes, like, at a categorical level, has said that- When you have a shallish regime that had a $3,000 per permit requirement for everybody, you couldn't bring a facial to that, and you'd have to bring in as-applied and say, I'm not a billionaire, so $3,000 is a lot of money for me, I guess, but a billion.

[00:23:19] Speaker 05:
I'm trying to figure out, why wouldn't you be able to bring a facial for that, unless your position is,

[00:23:25] Speaker 05:
those things are just like, that doesn't prevent a person from getting one.

[00:23:29] Speaker 05:
You know, if you can scrape together $3,000.

[00:23:31] Speaker 05:
I'm trying to figure out what your position is.

[00:23:33] Speaker 11:
I think the Supreme Court has been very selective about facial challenges in recent years.

[00:23:39] Speaker 11:
And I think that, you know, even 10 years ago, my answer to that question would have been, yes, of course, you can be bring a facial challenge to that type of regulation.

[00:23:46] Speaker 11:
My answer, you know, four years ago, or two years ago would have been that case.

[00:23:49] Speaker 11:
But I think that

[00:23:50] Speaker 11:
in a post-CASA world, in a post-Moody world, I think the Supreme Court has been very rigorous about how narrow facial challenges are.

[00:23:58] Speaker 05:
I understand why you're attracted to the barrier to bringing facial challenges.

[00:24:07] Speaker 05:
And I understand the arguments there.

[00:24:09] Speaker 05:
So are you saying, let's use a hypothetical, $10,000 per year permit requirement, you could not bring a facial challenge to that as a meaningful constraint?

[00:24:21] Speaker 11:
that you could not bring a facial challenge.

[00:24:23] Speaker 11:
Somebody could bring a facial challenge, and I could very much imagine the evidence that would be offered.

[00:24:28] Speaker 00:
But it's not winnable?

[00:24:29] Speaker 11:
No, it could be winnable.

[00:24:30] Speaker 11:
It could be the case that almost all Hawaiians would not be able to acquire as many guns as they would want to be able to acquire with a $10,000 fee.

[00:24:39] Speaker 11:
I mean, if you have a $10,000 fee, even a billionaire might find it difficult to get as many guns as they want.

[00:24:44] Speaker 05:
So as soon as we say that, then meaningfully constraints is some sort of standard that you can have.

[00:24:50] Speaker 05:
that can be violated by things like having to bring your gun in person or something.

[00:24:55] Speaker 05:
Then we have to ask ourselves whether it's a meaningfully constraint.

[00:25:00] Speaker 05:
I'm just trying to figure out how your standard holds up because it's not a complete

[00:25:06] Speaker 05:
You can do, in some ways you keep saying that your standard is you can do anything you want as long as it doesn't completely keep somebody from being able to exercise their first-minute rights, second-minute rights by getting a firearm.

[00:25:19] Speaker 05:
But then later you'll can see that no, there are things that would be a barrier.

[00:25:23] Speaker 05:
If I make a hypothetical that's like hard enough.

[00:25:26] Speaker 05:
So then how are we supposed to evaluate whether something meaningfully constrains, if it is possible for requirement to be too onerous?

[00:25:35] Speaker 11:
Your facial challenges are hard.

[00:25:38] Speaker 11:
And when you offer hypotheticals that are very difficult and that would make it extremely difficult for most people to acquire a firearm, I'm going to tell you that that's something that could be the basis of a facial challenge.

[00:25:50] Speaker 11:
But Rahimi does say that you need to be able to not imagine any application of that law that would be constitutional in order for it to be a facial challenge.

[00:25:58] Speaker 05:
The problem with that is you can always do that.

[00:26:00] Speaker 05:
That's the problem.

[00:26:00] Speaker 05:
You can always say, for Elon Musk,

[00:26:03] Speaker 05:
$10,000 isn't a problem.

[00:26:06] Speaker 05:
I mean, that's the problem with that.

[00:26:08] Speaker 05:
I don't know what Supreme Court is thinking.

[00:26:10] Speaker 05:
I don't think they know what they're thinking.

[00:26:11] Speaker 05:
But that's the problem with that, with this facial thing we keep relying on, the facial.

[00:26:17] Speaker 12:
Let me ask you a question, if I can.

[00:26:20] Speaker 12:
Where do you believe this shall issue presumption resides in the Bruin two-step analysis?

[00:26:26] Speaker 12:
Does it apply to the specific provisions challenged in this case?

[00:26:33] Speaker 11:
Do I believe that this is a shell issue regime?

[00:26:34] Speaker 11:
Yes, Your Honor, I do believe this is a shell issue regime.

[00:26:36] Speaker 11:
And where do you apply it?

[00:26:37] Speaker 11:
I would apply that at brew in step one.

[00:26:39] Speaker 11:
I think that footnote nine has explained that we're at step one when we're talking about shell issue regimes.

[00:26:43] Speaker 11:
But again, like I was saying to your colleague that if you disagree with that, you could go with the judge wishing view and say that they're analyzed at step two, but are all analogs of surety laws.

[00:26:51] Speaker 13:
Can I ask you, you know, whether it's facial wear as applied, how would you analyze a law like the inspection law that instead of 30 days said 24 hours?

[00:27:01] Speaker 13:
How would you analyze that?

[00:27:03] Speaker 13:
You have to purchase, excuse me, the purchase provision.

[00:27:06] Speaker 13:
You have to purchase it within 24 hours.

[00:27:08] Speaker 11:
Yeah, I would look at what evidence was offered at summary judgment, and I would look at the allegations in the complaint, and perhaps a plaintiff in that situation would say,

[00:27:16] Speaker 11:
I got off the plane from the mainland, and I had just moved here, and I brought my guns with me, and it was just infeasible for X, Y, and Z reasons.

[00:27:23] Speaker 11:
I showed up on a Friday, and the police said- That's an as-a-plot.

[00:27:25] Speaker 06:
That's an as-a-plot.

[00:27:25] Speaker 06:
Exactly, and you could say that- Could you have a facial challenge in that scenario?

[00:27:29] Speaker 11:
I think you could if you showed that as a general matter, it was the vast majority of people or nearly everyone would be unable to comply with that requirement such that it would make it very hard or nearly impossible or effectively deny or meaningfully constrain most people from being able to keep and bear arms.

[00:27:46] Speaker 13:
Would you say that a 24-hour period would be a meaningful constraint?

[00:27:50] Speaker 11:
I would say that we offer five days.

[00:27:53] Speaker 13:
You offer five days for the inspection, but how about for the purchase?

[00:27:58] Speaker 11:
Oh, if there were only 24 hours in which you could purchase a gun.

[00:28:01] Speaker 11:
Hawaii has modified its laws to be more permissive, and now there are 30 days in which to acquire a gun.

[00:28:07] Speaker 11:
I'm not able to offer an answer that the state does not have a position on whether one day would be enough.

[00:28:11] Speaker 11:
We definitely thought that 10 days was enough, but it's certainly the case that 30 is.

[00:28:15] Speaker 13:
Right, I'm just trying to figure out how you draw the distinction.

[00:28:18] Speaker 13:
So if 30 days is enough and 10 days is enough, and one day may not be enough, what is doing the work?

[00:28:24] Speaker 13:
What tests are being applied to help us make those judgments?

[00:28:27] Speaker 11:
Yeah, so the test that's being applied to help make that judgment is that meaningful constraint rule.

[00:28:32] Speaker 11:
The plaintiffs have said, oh, this law is unlawful.

[00:28:36] Speaker 11:
And the next question you ask is, oh, did it stop you from keeping and bearing?

[00:28:39] Speaker 11:
And the answer to that question is no.

[00:28:40] Speaker 11:
I mean, if you look at the evidence that was offered at the summary judgment stage, there's no statement that they were unable to keep and bear arms as a result of this, as a result of a 30-day period.

[00:28:50] Speaker 11:
A statement that they tried to.

[00:28:53] Speaker 06:
Procedure because you amended it after.

[00:28:55] Speaker 06:
So they did bring in evidence that they couldn't comply with the 7 day time period.

[00:29:01] Speaker 11:
They offered some statements about why the 10 day period was difficult for them to meet.

[00:29:06] Speaker 06:
I would say that most of that was not that was enough either.

[00:29:09] Speaker 06:
But when you amend it then.

[00:29:11] Speaker 06:
I'm trying to figure out how we can expect them to have an as applied challenge to a kind of a constantly changing law.

[00:29:20] Speaker 06:
I mean, you changed it like three times.

[00:29:22] Speaker 11:
After we changed it, your honor, we did suggest that this court should remand to the district court so that we could do this type of analysis.

[00:29:28] Speaker 06:
Well, that runs into a whole separate issue, which we won't get into.

[00:29:31] Speaker 06:
But how is that fair?

[00:29:35] Speaker 06:
I guess my question is, how is that fair to put that burden on the plaintiff when

[00:29:38] Speaker 06:
They come in and bring a challenge.

[00:29:40] Speaker 06:
I used to think you were correct.

[00:29:42] Speaker 06:
I'm now second-guessing in light of Hawaii's repeated approach here, where they just keep amending it.

[00:29:48] Speaker 06:
So every time a plaintiff comes in, then they just amend it.

[00:29:51] Speaker 06:
And then you say, well, you don't have any evidence.

[00:29:53] Speaker 06:
Well, that's because they didn't challenge that specific law.

[00:29:55] Speaker 06:
They challenged the other law, and then you amended it.

[00:29:58] Speaker 11:
Your Honor, the Attorney General does

[00:30:01] Speaker 11:
Did not change the law here.

[00:30:03] Speaker 11:
The legislature changed the law and these are different branches of government.

[00:30:07] Speaker 11:
We don't control one another.

[00:30:08] Speaker 11:
We are separate from one another.

[00:30:10] Speaker 11:
And so I cannot say what it was that prompted the legislature to make a change or whether there will ever be a change again.

[00:30:18] Speaker 11:
What I can say is that with respect to this particular law that's in front of us, whether you analyze it at the 10-day mark or whether you analyze it at the 30-day mark, there aren't—there just isn't evidence in the record showing that the plaintiffs were unable to keep and bear.

[00:30:31] Speaker 11:
And I think that if the answer is that the state of Hawaii has loosened its restrictions, then I think the plaintiffs are able to get what they want.

[00:30:41] Speaker 11:
I mean, if you were to look at this through a mootness lens, you'd be asking, were the plaintiffs able to achieve their goals?

[00:30:45] Speaker 11:
Were they able to get what they wanted?

[00:30:47] Speaker 11:
Right now, they want guns that aren't subject to the inspection requirement.

[00:30:51] Speaker 11:
They want extra time to purchase guns, and they have both of those things.

[00:30:57] Speaker 11:
And so we would say that they've gotten what they wanted out of this lawsuit.

[00:31:00] Speaker 01:
In Nguyen, we concluded that the purpose of the statute, the one gun a month law, was delay.

[00:31:08] Speaker 01:
That the reason California had passed that was for the purpose of delay and that that was abusive.

[00:31:12] Speaker 01:
That was not a legitimate means.

[00:31:14] Speaker 01:
So here, given Hawaii's repeated amendments of its statutes, can we conclude that the purpose of these statutes is to create impediments and to prevent people or to make it difficult for people to acquire firearms?

[00:31:27] Speaker 01:
And that is abusive.

[00:31:29] Speaker 11:
No, Your Honor, I don't think so.

[00:31:30] Speaker 11:
And I think that the most important thing that I hope that you take from those amendments is that they were all amendments to make it easier to buy guns.

[00:31:38] Speaker 01:
After Hawaii lost before the district court, right?

[00:31:41] Speaker 01:
And then this happened also in another case.

[00:31:42] Speaker 01:
We had teeter involving the knives, the butterfly knives.

[00:31:47] Speaker 01:
So we've seen Hawaii doing this repeatedly where there

[00:31:50] Speaker 01:
It feels like they're sort of jerking around their citizens by throwing up something that's meant to make it difficult to acquire a weapon or keep and bear a weapon.

[00:32:01] Speaker 01:
And then when they get pushback from the courts and they amend the statute.

[00:32:05] Speaker 01:
And to me that seems to be evidence that this is abuse if these aren't

[00:32:09] Speaker 01:
regulations that have long standing in our historical tradition, that there's some other motivation.

[00:32:18] Speaker 01:
I know you said you're not here on behalf of the legislature, but you're here on behalf of Hawaii, and Hawaii is the state that is doing this.

[00:32:24] Speaker 01:
So I don't think you can dodge the answer by saying I'm here on behalf of the Attorney General.

[00:32:27] Speaker 11:
Sure, Your Honor.

[00:32:28] Speaker 11:
And the answer that I would give you that is most direct to that is that to the extent the legislature has been responsive to what is happening in the judiciary, that responsiveness has been to make it easier to get guns.

[00:32:39] Speaker 11:
What Hawaii keeps doing is saying, oh, a district court judge has said that this type of provision violated the Second Amendment.

[00:32:47] Speaker 11:
Here's what we'll do.

[00:32:47] Speaker 11:
We'll get rid of that restricted provision.

[00:32:49] Speaker 11:
We'll make it less restrictive.

[00:32:51] Speaker 11:
We'll go from 10 days, which the district court said was too short, to 30 days.

[00:32:54] Speaker 11:
We're going to triple the time.

[00:32:56] Speaker 11:
will say that the district court said too many guns were being inspected, will really narrow that requirement.

[00:33:01] Speaker 11:
So the vast majority of guns that are purchased in Hawaii aren't going to be subject to that requirement.

[00:33:05] Speaker 01:
The amendments had sunset clauses, so they would revert back to the previous statute, which is additional evidence that

[00:33:14] Speaker 01:
Hawaii is just moving the goalpost at will when they feel like they can do that to get around judicial decisions.

[00:33:22] Speaker 01:
So how are we to know that Hawaii won't change these periods again so that the acquisition permit is good for 24 hours or two days and the inspection has to happen within three hours, 24 hours or two days?

[00:33:36] Speaker 11:
So two things, Your Honor.

[00:33:37] Speaker 11:
One, I think that if you keep moving the goalposts so that it's easier for the plaintiffs to score a touchdown, that's a good thing.

[00:33:43] Speaker 11:
I think the legislature is being responsive in the right way.

[00:33:46] Speaker 01:
How do we know that they're going to do that?

[00:33:47] Speaker 01:
I mean, having a sunset clause in those amendments does not suggest that that is what Hawaii intends to do.

[00:33:52] Speaker 11:
The sunset provisions were removed, Your Honor.

[00:33:55] Speaker 11:
So these rules are permanent now.

[00:33:58] Speaker 11:
There's been a permanent loosening of all of the restrictions.

[00:34:00] Speaker 11:
The other thing I would say, Your Honor, is that there's a presumption of regularity with respect to governments.

[00:34:04] Speaker 11:
Throughout any type of litigation, we do think that governments mean well and are trying to do the right thing.

[00:34:10] Speaker 11:
And I think that when somebody makes a change to make it easier for the plaintiffs in a way that's responsive to a court decision, that's something that should be commended on the part of the legislature, that they are trying to be responsive.

[00:34:20] Speaker 11:
in a way that helps the plaintiffs.

[00:34:22] Speaker 01:
I want to ask you something about your argument with respect to facial challenges.

[00:34:26] Speaker 01:
So if there is a regulation that implicates the plain text of the Second Amendment, and it is not supported by our nation's historical tradition of regulation of firearms,

[00:34:40] Speaker 01:
So it fails under both prongs of the Bruin test.

[00:34:44] Speaker 01:
Does a plaintiff then have to show that in every application it's unconstitutional?

[00:34:50] Speaker 01:
I mean, how do you import this facial as applied analysis if the regulation fails under Bruin?

[00:34:57] Speaker 11:
If it fails at step two, it fails at step two, Your Honor.

[00:35:00] Speaker 11:
We're not saying that there's some sort of additional analysis that you would do after step two.

[00:35:04] Speaker 11:
If a plaintiff has brought a facial challenge like

[00:35:08] Speaker 11:
Let's say we're talking about the McRory situation from the Fifth Circuit where there's an age restriction.

[00:35:14] Speaker 11:
Nobody who is under the age of 16 is able to buy a firearm.

[00:35:18] Speaker 11:
And that's something that applies to all people under the age of 16.

[00:35:20] Speaker 11:
That's a reasonable facial challenge.

[00:35:22] Speaker 11:
It's unconstitutional in all of its applications.

[00:35:24] Speaker 11:
You get to step two.

[00:35:25] Speaker 11:
And we would say at step two, there's going to be historical analogs for that.

[00:35:29] Speaker 11:
But if there were not, then that would be the end of that law.

[00:35:32] Speaker 01:
So if there's a regulation and it implicates the text of the Second Amendment, and then there's no historical analog, you would not then turn around and say, but it could be constitutional in some instances.

[00:35:47] Speaker 01:
You would not make that argument, is that what I understand you to say?

[00:35:50] Speaker 11:
With respect to the remedy?

[00:35:51] Speaker 01:
with respect to the analysis, because part of what I think is problematic with our case law is that we're sort of smuggling back in the tiers of analysis.

[00:36:01] Speaker 01:
In Tierra, sitting on Banque, we said that acquisition is protected under the Second Amendment, but we didn't decide to what extent.

[00:36:08] Speaker 01:
That was pre-Bruin.

[00:36:10] Speaker 01:
Then B&L Products, just last year, came up with this meaningful constraint analysis that I think was made up out of whole cloth, in that opinion.

[00:36:18] Speaker 01:
It wasn't in our case law.

[00:36:19] Speaker 01:
It's not in Bruin.

[00:36:19] Speaker 01:
It's not in Heller.

[00:36:20] Speaker 01:
And then now we seem to have these subjective levels of scrutiny again.

[00:36:27] Speaker 01:
And then we have the issue of, well, if you can imagine some application where it's constitutional, then it doesn't violate Bruin.

[00:36:37] Speaker 01:
I mean, that's what I understood you to say in response to Judge Van Dyck's question earlier.

[00:36:41] Speaker 11:
No, Your Honor, that's not my position.

[00:36:42] Speaker 11:
There will be certain laws, including laws on acquisition, that could be unconstitutional in all of their applications.

[00:36:48] Speaker 11:
And that's going to be something like a blanket ban

[00:36:50] Speaker 11:
Or take, for example, the law that this court recently analyzed that was about how you could not get a permit to carry a gun if you were in a county with a population of greater than 200,000.

[00:37:01] Speaker 11:
That's going to be something that's unconstitutional in all of its application.

[00:37:04] Speaker 11:
And that is something that's a reasonable basis for a facial challenge.

[00:37:08] Speaker 11:
What we're talking about is when you dig down into the plaintiff's complaint and the issue that they're highlighting that prevents them from keeping and bearing firearms is respect to their personal circumstances.

[00:37:17] Speaker 11:
if it's something that it's not all applications of the law, that actually most people can purchase and purchase a gun within 30 days of the time they say they want to purchase it.

[00:37:25] Speaker 11:
That 30-day permit is plenty of time to get a gun that you bought.

[00:37:29] Speaker 11:
But it could be that for a particular plaintiff, they're unable to do it within that time.

[00:37:33] Speaker 11:
If it's for the particular plaintiff, it's an as-applied challenge.

[00:37:35] Speaker 11:
It would only operate, the remedy would only operate for that particular plaintiff.

[00:37:39] Speaker 01:
Thanks.

[00:37:39] Speaker 01:
I don't want to interrupt you.

[00:37:40] Speaker 01:
I apologize for interrupting you, but I want to get a question.

[00:37:47] Speaker 01:
Is it your position that the acquisition of a firearm is not implicated by the plain text of the Second Amendment?

[00:37:54] Speaker 01:
In other words, it's not keep and bear?

[00:37:56] Speaker 01:
So it's entitled to some lesser degree of protection?

[00:38:00] Speaker 01:
It's an ancillary right?

[00:38:01] Speaker 01:
Is that acquisition is somehow not protected by the Second Amendment or not protected to the same degree as keep and bear?

[00:38:09] Speaker 11:
Our position is that it's not always going to be protected by the Second Amendment.

[00:38:14] Speaker 11:
That often it will be, but sometimes it won't be.

[00:38:16] Speaker 01:
But even if you just... But how do you draw the distinction?

[00:38:18] Speaker 01:
I mean, is there a test?

[00:38:19] Speaker 11:
The meaningful constraint test is how you draw the distinction.

[00:38:21] Speaker 11:
It could be that with respect to ancillary rights, you end up hitting the full... And that comes only from B&L products, right?

[00:38:27] Speaker 11:
The meaningful constraint rule.

[00:38:28] Speaker 01:
Right.

[00:38:28] Speaker 01:
I mean, the Supreme Court has never said that.

[00:38:30] Speaker 01:
They've never suggested that test.

[00:38:32] Speaker 01:
In fact, they said the opposite.

[00:38:33] Speaker 01:
They pretty strongly rejected all these tiers of scrutiny in Bruin.

[00:38:36] Speaker 11:
So the meaningful constraint test is not a means and sort of scrutiny.

[00:38:41] Speaker 11:
We're not talking about the legislature's rationale.

[00:38:43] Speaker 01:
I mean, it just brings back in this subjective analysis of instead of having a bright line, this is protected by the text of the Second Amendment.

[00:38:50] Speaker 01:
Now you have to show a historical analog to justify that restriction.

[00:38:55] Speaker 01:
You would say, well, before we get there, we're going to shuffle these degrees, rights into various degrees.

[00:39:00] Speaker 01:
maybe acquiring a firearm really does bear on whether you can keep and bear a firearm because you can't keep and bear a firearm or you can't acquire it.

[00:39:09] Speaker 11:
In most cases, yes, Your Honor, but there will be certain situations like the situation that Judge Larson was considering in the Sixth Circuit when she said that acquisition is going to be different with respect to a law that

[00:39:18] Speaker 11:
prohibited receiving a firearm from a felon.

[00:39:21] Speaker 11:
She said, in that particular instance, that prohibition did not meaningfully constrain the right to keep and bear firearms, because you can acquire firearms from people who are not felons.

[00:39:29] Speaker 11:
Or like what Judge Smith was saying in the Fifth Circuit, where he said, background checks for 17-year-olds is not going to be something that prevents you from keeping and bearing arms, even though it's a regulation on acquisition.

[00:39:39] Speaker 11:
Not every acquisition case is going to be an acquisition case that affects your right to keep and bear arms in a negative way.

[00:39:45] Speaker 12:
Thank you.

[00:39:47] Speaker 12:
Thank you.

[00:39:50] Speaker 03:
Good morning may please court.

[00:40:05] Speaker 03:
My name is Alan back, and I'm counsel the plaintiff appellee Todd you talkie and David kikawa with me in the court is Mr.. Mr.. Are you talking?

[00:40:17] Speaker 03:
I'm going to endeavor to make three points during my presentation.

[00:40:22] Speaker 03:
It's an initial matter, B and L needs to be overturned.

[00:40:25] Speaker 03:
It doesn't square with the Supreme Court's precedent and simply has no basis in American jurisprudence.

[00:40:39] Speaker 03:
If this court does not, the second is if this court does not overturn B and L, the only way to square

[00:40:46] Speaker 03:
to say that something was a meaningful constraint without contradicting the Supreme Court is to find that anything that implicates arms-bearing conduct is a meaningful constraint.

[00:40:57] Speaker 03:
Finally, if this court were to adopt my friend on the other side's position, then this court would split with both the 10th Circuit in Ortega and the 5th Circuit in McGraw.

[00:41:15] Speaker 03:
In Ortega, the 10th Circuit found that a waiting period of seven days was unconstitutional.

[00:41:26] Speaker 03:
That clearly is not a

[00:41:31] Speaker 03:
a complete ban on acquiring an arm.

[00:41:36] Speaker 06:
What was that waiting period though?

[00:41:39] Speaker 06:
There's a number of waiting periods before you can buy a new gun.

[00:41:43] Speaker 06:
This is different and I'm trying to figure out where this one fits in from Hawaii because you've already had the waiting period, you've already had the background check and then there's

[00:41:52] Speaker 06:
a requirement that you take your permit in within, I guess, either 10 days initially or 30 days.

[00:41:59] Speaker 06:
Where does that fit in?

[00:42:00] Speaker 06:
I mean, I understand your point that that's inconsistent with Ortega, but the facts seem different.

[00:42:05] Speaker 06:
I mean, it seems to be more an analogy that if that was unconstitutional in Ortega, then this even has to be more unconstitutional.

[00:42:14] Speaker 03:
Yes, I agree with that statement.

[00:42:16] Speaker 03:
There's just simply, I mean, this doesn't really accomplish anything.

[00:42:21] Speaker 03:
What's the point of

[00:42:22] Speaker 03:
During this in third days and also the five day inspection period.

[00:42:27] Speaker 03:
I mean, this is these are arms are already have been owned by the individual.

[00:42:32] Speaker 03:
It's the

[00:42:34] Speaker 08:
But additionally, what if the firearm does not have a serial number?

[00:42:38] Speaker 08:
What if it's a ghost gun or a 3D printed gun?

[00:42:42] Speaker 08:
Why wouldn't there be a reasonable basis for Hawaii to want to inspect to make sure that there's a print of a registration number on the on the gun itself or or that it aligns with the rest of the registration requirements?

[00:42:55] Speaker 03:
This law applies to firearms are bought through a mainland FFL.

[00:43:01] Speaker 03:
So

[00:43:02] Speaker 03:
There's already ATF inspections that occurred, a type of FFL all throughout this country.

[00:43:08] Speaker 03:
Second, this law applies to firearms that are purchased through the civilian marksmanship program.

[00:43:14] Speaker 03:
which come directly from the federal government.

[00:43:19] Speaker 08:
So I'm trying to understand how to square Bruin's discussion of presumptively lawful regimes that relate to the acquisition of firearms, background checks, mental health checks, safety firearm training programs, which are not incidental things.

[00:43:37] Speaker 08:
I mean, people have to go through many steps in order to do them in order to

[00:43:41] Speaker 08:
acquire a firearm, but repeatedly now the court has said that these are presumptively lawful regimes and they didn't subject those regimes to some analysis of history and tradition.

[00:43:55] Speaker 08:
So do you agree that there are presumptively lawful regimes under Bruin?

[00:44:02] Speaker 03:
Under Bruin, the court has identified certain types of

[00:44:08] Speaker 03:
characteristics which are found and shall issue regimes that swear with our historical tradition of arms-bearing regulation.

[00:44:18] Speaker 08:
But the court didn't anchor that in an analysis in Bruin of history and tradition.

[00:44:23] Speaker 08:
I don't remember the court discussing a history and tradition to background checks.

[00:44:29] Speaker 03:
That's because this was a footnote.

[00:44:32] Speaker 03:
Right.

[00:44:33] Speaker 03:
This wasn't, this was dicta, it was Supreme Court dicta.

[00:44:36] Speaker 03:
That wasn't the matter before the court.

[00:44:39] Speaker 03:
the Corkin engaged in a full-blown analysis.

[00:44:43] Speaker 07:
I find that response a little bit unsatisfactory, because if there was only one reference to this idea in one Supreme Court opinion in one footnote, then maybe that would make sense.

[00:44:53] Speaker 07:
But there's a reference to this idea in every single modern Supreme Court Second Amendment case, that there's going to be this body of regulatory area that we're not casting doubt on.

[00:45:04] Speaker 07:
They say that every time.

[00:45:06] Speaker 07:
We've had four different authors in these cases and all four of them have said it.

[00:45:10] Speaker 07:
So what do we make of that?

[00:45:12] Speaker 03:
I think what we make of that is that the colonial period in this nation wasn't simply just a firearms free for all.

[00:45:20] Speaker 03:
I mean, there was quite a few laws were on the books that did regulate arms bearing conduct.

[00:45:25] Speaker 03:
And the court has looked back on that in every single one of these cases and seen there are some regulations that did occur during the colonial era, your honor.

[00:45:34] Speaker 07:
So I guess following up on Judge Sanchez's question, I have a related question.

[00:45:38] Speaker 07:
And that is, would you agree with me that if we're at Bruin step two, then whatever regulation we're looking at is presumptively unlawful until the state overcomes that burden by showing history and tradition support it?

[00:45:50] Speaker 07:
You agree with me with that?

[00:45:52] Speaker 03:
I agree that there's affirmative duty on the part of the government to justify its regulations under step two of the Bruin analysis, Your Honor.

[00:45:59] Speaker 07:
OK, so I think, as Judge Sanchez, I think, is saying, is if we're going to say that things are presumptively lawful, that's in tension with what's going on at step two of Bruin.

[00:46:10] Speaker 07:
So my question is, where does it fall in the analysis?

[00:46:15] Speaker 03:
The court was very clear in Rahimi that if something regulates arms bearing conduct, then it implicates plain text when we go to step two.

[00:46:24] Speaker 03:
And that's in the full body of the opinion, Your Honor.

[00:46:30] Speaker 07:
It's going to be very difficult to say that the right to acquire is not covered by the text of the Second Amendment, because the right to possess means nothing if you can't actually acquire.

[00:46:39] Speaker 07:
So the text is going, I mean, it seems to me, and it seems like there is some, you know, we were talking about, there's not a lot of consensus.

[00:46:46] Speaker 07:
There seems to be pretty good consensus on that small point in any event.

[00:46:50] Speaker 07:
So if that's true, then what?

[00:46:54] Speaker 07:
Every regulation, I think your argument is every regulation that touches on the ability to acquire, because we're going to say it's covered under the Second Amendment, is relatively bad until the state overcomes their burden.

[00:47:08] Speaker 07:
And that is contrary to these carve-outs in every single Supreme Court case.

[00:47:15] Speaker 03:
Yes, Your Honor.

[00:47:17] Speaker 03:
I think what's happened here is, you know, the Supreme Court has looked at the history for us in certain circumstances and said that, you know, in the case of certain background checks, things like that... Are you relying on the rushing reasoning that your friend across the aisle referenced?

[00:47:33] Speaker 03:
I am not, Your Honor.

[00:47:35] Speaker 03:
I have to say that's the only way that we could square the footnotes with the main body of the text because, you know, Rahimi and Brune have been very clear that you have a...

[00:47:47] Speaker 03:
It's a very simple test.

[00:47:50] Speaker 03:
If it's something that regulates arms-bearing conduct, then we go to step two.

[00:47:54] Speaker 03:
So if we accept that and we accept these footnotes are valid, then it has to be that the court is just simply suggesting that we've looked at the history.

[00:48:02] Speaker 10:
Can I clarify your argument?

[00:48:04] Speaker 10:
Are you saying that under your interpretation of footnote nine, the Supreme Court has already gone to the Bruin step two, done the analysis for us, but yet never explicitly said so because it was in the context of a footnote?

[00:48:18] Speaker 03:
I'm saying that in dicta, Your Honor, the court is suggesting that these types of regulations square with history.

[00:48:27] Speaker 03:
Therefore, we're going to not understep.

[00:48:31] Speaker 10:
The court said in footnote nine that forty three states have shall issue licensing regimes.

[00:48:38] Speaker 10:
And then it talked about the different types of permitting regimes that are presumptively lawful.

[00:48:45] Speaker 10:
You're saying that the district court already looked at history and tradition in determining that those shall issue regimes are constitutional.

[00:48:55] Speaker 10:
I'm saying I get your argument, correct?

[00:48:58] Speaker 03:
That's essentially correct.

[00:48:59] Speaker 03:
I'm saying that footnote nine, when it looks at a shower issue system, then we have to accept that obviously a shower issue system is a, you know, it deals with bearing an arm, so it implicates the first step.

[00:49:17] Speaker 07:
Counsel, I guess I don't understand your answer because if that's, like, when the Supreme Court does its historical analysis, it's pages and pages long.

[00:49:28] Speaker 07:
I don't see where they've done the work to say that their conclusion or the carve-out that seems to be occurring in all these cases is supported by historical analysis.

[00:49:36] Speaker 07:
Where would you point us to see that that work has been done?

[00:49:39] Speaker 03:
Your Honor, I mean, in each one of those examples where the Supreme Court's made these suggestions,

[00:49:47] Speaker 03:
They're essentially foreshadowing for the future because those are not the matter.

[00:49:50] Speaker 10:
It's really, it's really not there.

[00:49:52] Speaker 10:
So if we disagree with you and find that this falls within the shall issue license regimes that the court was talking about in footnote nine and approved as being presumptively constitutional, then where's the meaningful constraints in these particular provisions as compared to the examples that the court gave in footnote nine?

[00:50:15] Speaker 03:
These are dramatically different laws than the shell issue laws of 43 states.

[00:50:23] Speaker 13:
How many states have laws like the two we have here?

[00:50:26] Speaker 03:
The registration law is within five days doesn't exist anywhere in the country.

[00:50:34] Speaker 03:
Now, the only place that had it was at DC, and that was struck down in Heller III, Your Honor.

[00:50:41] Speaker 10:
So you said that this is dramatically different.

[00:50:44] Speaker 10:
How is it more meaningfully burdensome than the examples given by the Supreme Court?

[00:50:49] Speaker 10:
Is it more meaningfully burdensome than having to complete a firearm safety course?

[00:50:54] Speaker 10:
Yes, absolutely.

[00:50:56] Speaker 03:
Part of this system is you have to complete a firearm safety course, but the

[00:51:02] Speaker 03:
For example, if you don't use your permit within 30 days, you have to wait

[00:51:08] Speaker 03:
another 40 days in order to get another permit and then use that one within 30 days.

[00:51:15] Speaker 14:
And that's nothing like- But counsel, I share Judge Winn's question.

[00:51:19] Speaker 14:
I'm having a hard time understanding why this is any more onerous than something like a course.

[00:51:26] Speaker 14:
Presumably that also takes some time.

[00:51:29] Speaker 14:
It requires someone to go someplace.

[00:51:32] Speaker 14:
So I'd like to hear the answer to that question.

[00:51:35] Speaker 03:
Well, a course takes a few hours, Your Honor.

[00:51:38] Speaker 03:
The safety course is something that in Hawaii, I mean if you don't use this

[00:51:52] Speaker 03:
This permit within 30 days.

[00:51:54] Speaker 03:
I mean, you're going to have to wait about another 40 days in order to 30 days.

[00:51:59] Speaker 10:
If this week is not convenient, then go get it next week.

[00:52:02] Speaker 10:
That seems less burdensome than having to set aside time from possibly from work and signed up for a safety course somewhere.

[00:52:10] Speaker 06:
Also, I'd just like to note that... Can I just ask a clarification?

[00:52:14] Speaker 06:
I thought you had to go back through the safety course.

[00:52:16] Speaker 06:
I thought you had to start over.

[00:52:18] Speaker 06:
I thought that was... Maybe I'm all wet on this, but I thought the argument was you went through all these requirements, and then if you don't apply within 30 days, it's as if you didn't do them and you had to start over.

[00:52:28] Speaker 03:
Yes, you're right.

[00:52:29] Speaker 06:
I mean, you have to go... So I don't understand why this wouldn't be more onerous because you're actually putting every requirement

[00:52:37] Speaker 06:
Initially on the table plus now you're saying if you don't actually um, I don't want to say pull the trigger But if you don't apply within 30 days, then you got to go redo the whole thing again Yes, that's absolutely correct.

[00:52:51] Speaker 03:
Your honor

[00:52:51] Speaker 03:
And I'd just like to note in most of the country where there's these types of- So you're saying that 30 days is not long enough.

[00:52:59] Speaker 10:
Would 45 days be acceptable?

[00:53:02] Speaker 10:
At what point?

[00:53:04] Speaker 10:
Or any constraint would be unacceptable because you have to start over again?

[00:53:09] Speaker 03:
I think with all these laws, it has to be justified through history.

[00:53:12] Speaker 03:
That's my ultimate position.

[00:53:16] Speaker 06:
So they argued that the surety laws

[00:53:21] Speaker 06:
apparently are the historical analog.

[00:53:23] Speaker 06:
I didn't hear any other historical analogs mentioned by Hawaii.

[00:53:29] Speaker 06:
If we get to prong two, what are the historical analogs, or your position is there aren't any?

[00:53:35] Speaker 03:
I don't see any of the laws that issue before the court, Your Honor.

[00:53:38] Speaker 06:
Can you address the surety positions that Hawaii was relying on?

[00:53:43] Speaker 03:
Yes, Your Honor.

[00:53:44] Speaker 03:
The surety laws required a judicial determination that someone

[00:53:50] Speaker 03:
had the potential to be dangerous for a firearm that required them to post bond.

[00:53:59] Speaker 03:
That's dramatically different than laws here.

[00:54:02] Speaker 03:
For one thing, there are laws of general applicability.

[00:54:05] Speaker 03:
They don't require judicial determination.

[00:54:08] Speaker 03:
And there's no finding that my client, Mr. Yukitaki, is somehow unsafe for the firearm.

[00:54:14] Speaker 03:
In fact, there's the opposite, because he's just completed a firearm safety course.

[00:54:20] Speaker 03:
Whereas the shirt and the background check, Your Honor.

[00:54:23] Speaker 03:
And in addition to that, you sign a waiver of your medical privacy rights.

[00:54:29] Speaker 03:
So the state of Hawaii has a right to go into every single one of your medical files for your entire life back to the day you were born.

[00:54:37] Speaker 03:
I mean, this is a really comprehensive system.

[00:54:40] Speaker 08:
Counsel, what is a historical analog for a background check?

[00:54:47] Speaker 08:
The one that the Supreme Court already foretold makes this presumptively lawful.

[00:54:53] Speaker 08:
What's the historical record for a background check as a historical analog?

[00:54:59] Speaker 08:
Your Honor, we haven't challenged that, so the... Well, but you're saying surety laws are not a correct analog for Hawaii, for these type of laws.

[00:55:09] Speaker 08:
I'm just trying to get... But we understand that a background check is presumptively lawful, so what's the historical basis for a background check?

[00:55:18] Speaker 03:
Yeah, they haven't built a record on that.

[00:55:21] Speaker 03:
So, I mean, I haven't been able to rebut that.

[00:55:23] Speaker 03:
I mean, under the brute analysis, the basis, the burdens upon the government.

[00:55:28] Speaker 04:
I'll jump in because I see where Judge Sanchez is going here.

[00:55:31] Speaker 04:
I think the question is, is that the Supreme Court has said that that's presumptively lawful.

[00:55:35] Speaker 04:
You're saying that has to be a step two analysis.

[00:55:38] Speaker 04:
So, I think what he's asking is that, well, what is the analog that the Supreme Court must have been pointing to?

[00:55:44] Speaker 04:
If it's a step two, if we're on step two, that means they've done some sort of analysis.

[00:55:47] Speaker 04:
What is the example they're using from history?

[00:55:50] Speaker 03:
Your Honor, what I was saying earlier is I believe based upon footnote nine that we have a strong suggestion they have, but the Supreme Court didn't engage in a full-blown historical analysis in footnote nine.

[00:56:03] Speaker 04:
That also then suggests maybe this is just a step one analysis, correct?

[00:56:07] Speaker 04:
I mean, I think footnote nine is a real problem for you in this case.

[00:56:10] Speaker 04:
So it's either it's step one and then you lose or it's step two and then you got to help us understand why the step two in Bruin is not the step two here.

[00:56:18] Speaker 03:
Again, I mean, we have to rectify footnote nine with the overall body of the opinions as something regulates arms bearing conduct, then we go to step two.

[00:56:32] Speaker 03:
Now, just because the Supreme Court didn't do a full-blown historical analysis with footnote nine doesn't mean we don't have to square a footnote with the main body of the opinion that's very clear in its command, that if something deals with bearing, keeping, any of that sort of stuff in arm,

[00:56:53] Speaker 03:
We go right to history, so we just know just sort of by definition.

[00:56:57] Speaker 10:
You're saying you haven't identified the historical analog.

[00:57:00] Speaker 03:
I have not.

[00:57:01] Speaker 09:
You're a question, a separate question.

[00:57:05] Speaker 09:
Your second point was that you think B and L should be overworld.

[00:57:10] Speaker 03:
Yes, Your Honor.

[00:57:10] Speaker 09:
Okay, can you tell, what specifically, which specific, because I'm reading B&L, it makes a, there's a lot of serial kind of holdings and distinguishing phrases, and I'm just wondering what exactly it is.

[00:57:25] Speaker 03:
I think that the meaningful constraint test should be overruled, and this court should simply make a... What would you replace it with?

[00:57:32] Speaker 03:
I would just have this court adopt the Supreme Court's holding, pre-existing holding, that

[00:57:39] Speaker 03:
If something implicates arms-bearing conduct, we go to step two.

[00:57:43] Speaker 03:
It's as simple as that.

[00:57:44] Speaker 09:
This court doesn't have to... Didn't meaningfully constrain come from Texera?

[00:57:50] Speaker 03:
Yes, Your Honor.

[00:57:51] Speaker 08:
So would we need to overrule that too?

[00:57:54] Speaker 08:
The Tejera case?

[00:57:56] Speaker 03:
Well, Texera was pre-brewed for one thing, Your Honor.

[00:58:00] Speaker 08:
But I mean, we have several cases now that have all relied on the meaningful constraint sort of paradigm, you know, Teixeira, Bienel, Nguyen.

[00:58:09] Speaker 08:
They all sort of reflect the notion that if this is an ancillary right, there has to be something to over, you know, to trigger a step two analysis.

[00:58:20] Speaker 03:
I don't think this court has to overturn Teixeira, and this is why.

[00:58:25] Speaker 03:
Teixeira wasn't

[00:58:27] Speaker 03:
dealing with didn't implicate the direct possessory interest of, you know, it wasn't an individual person that was suing here.

[00:58:35] Speaker 03:
In Techshare, we were dealing with a gun store that, and there was a gun store, something like 50 feet away from where maybe it was within, you know, a couple hundred feet.

[00:58:47] Speaker 09:
The school, the school.

[00:58:48] Speaker 09:
Yeah.

[00:58:49] Speaker 09:
And the statute prohibited having gun stores within the next number of feet of the school.

[00:58:55] Speaker 03:
Yes, Your Honor.

[00:58:56] Speaker 03:
The record also demonstrated there were plenty of other gun stores in Alameda County.

[00:59:02] Speaker 03:
And that's a dramatically different situation than what we have here, where we have a real human being that has to deal with a set of laws that make it harder for him to exercise.

[00:59:16] Speaker 09:
You said in Texas, you have the right to sell guns, but not anywhere, any time of your own choosing.

[00:59:23] Speaker 09:
Yes, Your Honor.

[00:59:26] Speaker 09:
Unless, if it's a meaningful constraint, then the law wouldn't stand.

[00:59:31] Speaker 09:
But unless your right to sell somewhere, sometime, is meaningfully constrained, then it's constitutional.

[00:59:40] Speaker 03:
Yes, and you know, tax share, you know, we can distinguish tax share from the situation here.

[00:59:46] Speaker 09:
Then why would we have to overrule it?

[00:59:49] Speaker 03:
Well, that's why I'm saying we don't need to over... Teixeira doesn't need to overturn.

[00:59:53] Speaker 09:
Maybe BNL... So what confuses me is that Teixeira was like maybe the first in our circuit that used meaningful constrain.

[01:00:01] Speaker 09:
Now other cases have all used meaningful constrain.

[01:00:04] Speaker 09:
All BNL does is follow all that precedent.

[01:00:09] Speaker 09:
I don't understand why that has to be overruled.

[01:00:12] Speaker 09:
why this whole case has to be overruled?

[01:00:15] Speaker 03:
I certainly don't need to.

[01:00:17] Speaker 03:
BNL doesn't need to be overruled for us to win.

[01:00:19] Speaker 03:
I just think that BNL needs to be overruled because it's contradictory to what the Supreme Court has said in its last two Supreme Court cases, Your Honor.

[01:00:31] Speaker 12:
How many licensed firearm dealers are there in Hawaii?

[01:00:35] Speaker 12:
Are there licensed firearm dealers in Hawaii?

[01:00:39] Speaker 03:
There's FFLs.

[01:00:41] Speaker 12:
A federally licensed firearms dealer?

[01:00:44] Speaker 03:
Yes, yes.

[01:00:45] Speaker 03:
Yes, sir.

[01:00:46] Speaker 03:
I don't know how many.

[01:00:46] Speaker 12:
Assume a number, correct?

[01:00:48] Speaker 12:
There are a number, yes.

[01:00:50] Speaker 12:
So your client can go to any licensed firearm dealer and get a gun.

[01:00:57] Speaker 12:
Is that correct?

[01:00:59] Speaker 03:
If he applies with the various federal laws at issue.

[01:01:04] Speaker 03:
Yes, sir.

[01:01:05] Speaker 12:
Okay.

[01:01:06] Speaker 12:
So it seems like the second provision here

[01:01:10] Speaker 12:
is specifically targeted regarding this inspection for non-licensed dealers, ghost guns, and those brought from out of state.

[01:01:23] Speaker 12:
Is that correct?

[01:01:25] Speaker 03:
Yes, but brought from out of state that was purchased from a FFL licensed firearms dealer on the mainland someplace.

[01:01:37] Speaker 03:
or through the civilian marksmanship program, which my client, we filed a declaration in response to the motion dismissed that demonstrates he also buys firearms through the civilian marksmanship program as well.

[01:01:50] Speaker 03:
And, you know, and he occasionally buys firearms from the mainland.

[01:01:55] Speaker 03:
So he, you know, this is something that still impacts him.

[01:01:58] Speaker 09:
Yeah, but he could choose to buy from a licensed firearms place, which I think is Chief Judge Merguia's point.

[01:02:07] Speaker 09:
I mean, there's plenty of them.

[01:02:08] Speaker 09:
Why manufacture a gun, or however they do it?

[01:02:15] Speaker 09:
Why do that when you potentially don't have a serial number?

[01:02:19] Speaker 09:
And isn't it reasonable for the state to want to make sure all the guns have serial numbers that are registered?

[01:02:27] Speaker 03:
The firearms that my clients are saying they want to buy, I mean, you know, ones, for example, civilian marksmanship programs,

[01:02:35] Speaker 03:
through the federal government, your honor.

[01:02:37] Speaker 03:
I mean, that has serial number.

[01:02:38] Speaker 09:
I'm sorry.

[01:02:39] Speaker 09:
Okay.

[01:02:39] Speaker 09:
I get that point, but you don't think the state of Hawaii has a reasonable interest in seeing that number as part of the registration process?

[01:02:49] Speaker 09:
Well, but you recording that number, you already have imported into Hawaii from another state.

[01:03:00] Speaker 03:
It's the you're already able to, I mean, you already have, you still have to register it.

[01:03:05] Speaker 03:
under the current regime, even if it's a firearm that is brought from a Hawaii FFL.

[01:03:15] Speaker 03:
They should go through the same process as the firearms are brought through the Hawaii FFL, Your Honor.

[01:03:23] Speaker 06:
Can I ask a question about this?

[01:03:24] Speaker 06:
Because maybe this would crystallize it a little better.

[01:03:29] Speaker 06:
When I take my car in, maybe this is just Idaho, when I take my car in to register it, I have to take my actual car and they come out and they check my VIN number against the registration.

[01:03:40] Speaker 06:
That's a car.

[01:03:42] Speaker 06:
Why isn't the same thing permissible for a gun?

[01:03:46] Speaker 06:
I mean, and the reason I'm asking this question is because I think these two restrictions could be treated differently.

[01:03:54] Speaker 06:
But I'm not sure I understand what the complaint is about having to bring the gun in and show the registration requirement if I have to do the same thing with my car.

[01:04:04] Speaker 03:
For one thing, Your Honor, the vast majority of the guns at issue here are purchased through either the federal government or an FFL.

[01:04:15] Speaker 03:
Also, even in private party transfers, these guns are already registered by definition.

[01:04:21] Speaker 03:
So the government has the serial numbers.

[01:04:26] Speaker 06:
No, well, they have my VIN number too.

[01:04:28] Speaker 06:
I mean, that's why I don't, I mean, look, I don't like it.

[01:04:33] Speaker 06:
I don't like having to bring the actual car in and walking out with somebody.

[01:04:36] Speaker 06:
Well, there's not a constitutional right at issue as well.

[01:04:39] Speaker 06:
Okay.

[01:04:39] Speaker 06:
So that's the difference is that because there's a constitutional right, you can't do it here.

[01:04:43] Speaker 06:
Okay.

[01:04:45] Speaker 08:
So in your view, any type of regulation, you don't buy this ancillary right dichotomy.

[01:04:54] Speaker 08:
So you can clarify it if I'm mistaken about this.

[01:05:00] Speaker 08:
Any type of gun regulation, government regulation for the acquisition, no matter how incidental, let's say it's a $5 licensing fee and that we're challenged,

[01:05:13] Speaker 08:
In your view, would that need to go through a step two brewing analysis because purchasing a gun is automatically covered by the Second Amendment?

[01:05:23] Speaker 12:
Yes, Your Honor.

[01:05:24] Speaker 12:
A 50 cent quarter?

[01:05:27] Speaker 03:
Yes, absolutely.

[01:05:29] Speaker 03:
One penny.

[01:05:30] Speaker 03:
As long as it implicates the arms bearing conduct, we go to step two, right?

[01:05:34] Speaker 03:
And, you know, there's

[01:05:35] Speaker 03:
plenty of taxes throughout this country.

[01:05:39] Speaker 08:
I'm sorry to interrupt you, but how does that square with footnote nine of Bruin that talks about exorbitant fees, that these are presumptively lawful licensing regimes, but of course there's always the possibility that a government can abuse that power

[01:05:56] Speaker 08:
And the example that the court gives is exorbitant fees or an excessively long wait time.

[01:06:05] Speaker 08:
Why would they use the word exorbitant fees if they wanted to run a $5 licensing fee through Step 2 Bruin Analysis?

[01:06:12] Speaker 03:
Well, because there were fees during the colonial era on all sorts of stuff, Your Honor.

[01:06:17] Speaker 03:
So what the courts are saying is you'd be able to go look at the colonial era, 1791.

[01:06:25] Speaker 03:
There were taxes, there were fees for all sorts of things, including firearms.

[01:06:28] Speaker 03:
And the likelihood governments were able to point to reasonable fees being assessed during the colonial period and justify that regulation.

[01:06:41] Speaker 03:
Whereas a fee that was exorbitant, for example, there was a $1,000 tax in Saipan that was struck down by the trial court there.

[01:06:53] Speaker 03:
that couldn't be justified through looking at the colonial period.

[01:06:57] Speaker 08:
Is there any circuit court that agrees with your position?

[01:07:02] Speaker 08:
Wouldn't we be the first to, if we were to agree with you, would we be the first circuit to say, no matter how de minimis this type of regulation is on acquisition, it must go through a step two prune analysis?

[01:07:16] Speaker 08:
Wouldn't we be the first to announce that?

[01:07:19] Speaker 03:
I don't think so, Your Honor.

[01:07:21] Speaker 08:
I mean, what's an example of a different case?

[01:07:23] Speaker 03:
Well, I think Ortega is a very good case for me, Your Honor.

[01:07:27] Speaker 03:
Ortega, which one is the Ortega case?

[01:07:29] Speaker 03:
It's the seven-day waiting period case, Your Honor.

[01:07:32] Speaker 03:
The 10th Circuit.

[01:07:33] Speaker 04:
Yes, 10th Circuit, Your Honor.

[01:07:34] Speaker 04:
Tinkovich's opinion.

[01:07:35] Speaker 01:
So what do you do about the second part of the Second Amendment that says, so the first part says the right to keep and bear arms, and then the next part says shall not be infringed, right?

[01:07:47] Speaker 01:
So doesn't it, it seems that many regulations and perhaps regulations that the Supreme Court was discussing in footnote nine of Bruin are regulations that are not deemed an infringement.

[01:08:01] Speaker 01:
Something that implicates a right under the second amendment is your position then we go straight to the historical analysis without considering Whether it's to use term judge Sanchez.

[01:08:11] Speaker 01:
She's de minimis.

[01:08:13] Speaker 01:
I mean How does it become an infringement?

[01:08:15] Speaker 03:
If it can't be justified through our historical tradition test your honor

[01:08:21] Speaker 01:
Well, maybe you have to get past the language of the Second Amendment first.

[01:08:24] Speaker 01:
It has to be an infringement before you then, the right has to be infringed before you then go to see if that can be justified by a historical analog.

[01:08:32] Speaker 01:
If there's no infringement, then the Second Amendment is not infringed.

[01:08:35] Speaker 03:
I think, definitionally, if infringement has to be discussed,

[01:08:40] Speaker 03:
based upon our nation's historical tradition of arms-bearing conduct.

[01:08:44] Speaker 07:
Except for our, which is what I was asking your friend across the aisle about, our incidental burden idea, which is that if we identify a right and we decide that the burden on that right is incidental, we claim it not a violation.

[01:08:56] Speaker 07:
We claim it not infringement.

[01:08:57] Speaker 07:
We do that across rights.

[01:08:59] Speaker 03:
Look, in this situation, that would be because there were incidental burdens on

[01:09:04] Speaker 03:
arms-wearing conduct during the colonial period, Your Honor.

[01:09:07] Speaker 03:
Therefore, those insular burdens would be easily justified.

[01:09:12] Speaker 07:
I understand why that's your answer, but if I look at these other areas of law that have talked about the incident standard, they're not rooted in history when they analyze whether something is an incidental burden or not.

[01:09:23] Speaker 07:
They're rooted mostly in common sense.

[01:09:26] Speaker 03:
Yes, Your Honor, but in

[01:09:28] Speaker 03:
The Supreme Court analysis in the Second Amendment law is somewhat unique in the history.

[01:09:36] Speaker 07:
Your idea is that Bruin is just setting aside that whole principle that otherwise applies to constitutional rights.

[01:09:45] Speaker 03:
Your Honor, Bruin made it very clear what we have to do in this situation.

[01:09:49] Speaker 03:
So yes, we can't use comments.

[01:09:52] Speaker 07:
Except for saying repeatedly that certain things are presumptively valid.

[01:09:57] Speaker 07:
Or I guess they only use presumptively once, but then all the other times they say, we're not casting doubt on the validity of these things.

[01:10:04] Speaker 03:
Again, because there were firearms regulations during the colonial era.

[01:10:09] Speaker 03:
It's a bit of a misnomer that there were none.

[01:10:14] Speaker 03:
And the Supreme Court is simply saying that there are a host of firearms regulations from the colonial era that could be pointed to justify a number of firearms regulations, Your Honor.

[01:10:24] Speaker 03:
That's how we interpret that.

[01:10:28] Speaker 12:
Thank you very much.

[01:10:30] Speaker 12:
Thank you very much.

[01:10:33] Speaker 12:
We went over time, but I'll give you a couple minutes, two minutes.

[01:10:39] Speaker 11:
Thank you, Your Honor.

[01:10:41] Speaker 11:
Bruin's footnote nine made clear the court's intention to leave largely undisturbed those permitting regimes, which do not require applicants to show an atypical need for armed self-defense.

[01:10:51] Speaker 06:
Those permittings didn't make clear whether it was prong one or prong two.

[01:10:54] Speaker 06:
That seems to be what we're struggling with.

[01:10:57] Speaker 11:
Your honor, I would say they did make clear that it was prong one.

[01:10:59] Speaker 11:
And the reason why I take that position is because there just simply aren't historical analogs for background checks and safety courses and all of the mental health statuses.

[01:11:07] Speaker 06:
No, I actually totally disagree with you.

[01:11:08] Speaker 06:
If you read my Jones versus Bond opinion, I gave a whole historical analysis of why safety checks are historically analogous.

[01:11:16] Speaker 06:
But let's set that debate aside.

[01:11:18] Speaker 11:
So even if you do decide to reach step two, Your Honor, I would commend the historical analogs that we've offered already.

[01:11:24] Speaker 11:
That's docket 52-1.

[01:11:25] Speaker 11:
That was our post Bruin brief, the supplemental brief that we offered that has a set of historical analogs that we'd say match our

[01:11:32] Speaker 11:
our laws, the laws at issue here pretty well.

[01:11:35] Speaker 11:
We could also offer additional ones.

[01:11:37] Speaker 11:
I mean, there is a lot, there are a lot greater resources now than there were at the time that we offered that brief and we have additional analogs that we could offer.

[01:11:44] Speaker 11:
We would say that if you think this is a Bruin step two case, you really should remand to the district courts for us to offer additional evidence.

[01:11:50] Speaker 11:
So for example, you can look at Rahimi itself and the chief justice's discussion of surety laws then in which he explicitly acknowledges that that determination was a time limited determination.

[01:12:00] Speaker 11:
It was a six month period.

[01:12:02] Speaker 11:
the same way that our determination that somebody satisfies the background check and mental health status requirements is a term limited determination here.

[01:12:09] Speaker 11:
Information does go stale and so the permit validity period has that historical analog.

[01:12:13] Speaker 11:
We would also offer firearm proving laws under which at the time of the founding multiple states had laws that required a government inspector to look at every firearm that was manufactured and offer a little stamp on it to prove that it was safe.

[01:12:25] Speaker 11:
We would say that's very similar to the inspection law that we have offered here

[01:12:28] Speaker 11:
The other thing we would say at Bruin Step 2 is to be very careful with the analysis that was offered in Rahimi, in which the Supreme Court gave instruction that when you're looking at how and why, there is some room for play in the joints for legislatures as long as there's a reasonable why, and the reasonable why can be offered with safety.

[01:12:45] Speaker 11:
The how that a legislature used, the how they go about satisfying that why, the safety rationale, is something that you should offer some deference to.

[01:12:54] Speaker 04:
we think that this is a step one case but to the extent that you believe it's a step two case remand would be appropriate but we could still i'm sorry chief go ahead i assume you're saying though be appropriate or do you think on the record before us we could we could

[01:13:08] Speaker 04:
uphold Hawaii's law on step two.

[01:13:10] Speaker 04:
Do we have to remand?

[01:13:11] Speaker 11:
You could absolutely uphold Hawaii's law on step two.

[01:13:14] Speaker 11:
We have additional things to offer if you think that we couldn't get there.

[01:13:17] Speaker 11:
But I would say that we've offered a brewing step two brief.

[01:13:20] Speaker 11:
There is a step two set of analogs.

[01:13:21] Speaker 11:
And I think Judge Rushing is right that the Supreme Court has already said that all shell issue regimes are satisfactory under vertical stare decisis.

[01:13:28] Speaker 11:
The Supreme Court has made that assessment.

[01:13:30] Speaker 12:
Thank you.

[01:13:31] Speaker 12:
Just a clarification on the 30-day law.

[01:13:35] Speaker 11:
Is that all guns or just handguns?

[01:13:38] Speaker 11:
Um, all gun permits have a validity period.

[01:13:42] Speaker 11:
We're talking about here, just the permit, uh, validity period for hand guns, which is 30 days.

[01:13:47] Speaker 12:
And then the second provision is limited to those three types of scenarios.

[01:13:52] Speaker 11:
Yes, your honor.

[01:13:53] Speaker 11:
Um, the vast majority of guns that are sold in Hawaii are sold through licensed dealers.

[01:13:57] Speaker 11:
And so it, they would not be covered.

[01:13:59] Speaker 11:
It's just this very narrow set that have been, um, that are subject to this inspection requirement.

[01:14:04] Speaker 12:
All right.

[01:14:05] Speaker 12:
Thank you very much.

[01:14:07] Speaker 12:
Thank you both.

[01:14:08] Speaker 12:
Mr. Becker for your oral argument presentations here today.

[01:14:12] Speaker 12:
The case of Todd, you could talk to David.

[01:14:17] Speaker 12:
Versus and Lopez and the city in her official capacity as attorney general, the state of Hawaii and city and kind of Honolulu is now submitted and we are adjourned.

[01:14:27] Speaker 12:
Thank you.