[00:00:00] Speaker 06:
21-1251, Rocky Mountain Gun Owners versus Polis.

[00:00:14] Speaker 00:
May it please the Court, I'm Shannon Stevenson, Solicitor General on behalf of Governor Polis.

[00:00:19] Speaker 00:
The question presented here is whether plaintiffs can get preliminary injunction on a second amendment challenge without putting

[00:00:26] Speaker 00:
any evidence regarding historical understanding into the record?

[00:00:30] Speaker 00:
The answer is no.

[00:00:32] Speaker 00:
At Bruin Step 1, plaintiffs have the burden to show that the public understanding of the Second Amendment at the founding covered their proposed conduct.

[00:00:41] Speaker 06:
Well, I think you're conflating prongs one and two of Bruin.

[00:00:48] Speaker 06:
As I read Bruin, the first step is whether the activity involved is covered under the Second Amendment and whether

[00:01:00] Speaker 06:
the persons involved are part of the people.

[00:01:05] Speaker 06:
I agree with you.

[00:01:07] Speaker 06:
And then we get into the second prong and we're in a historical undertaking about what kind of restrictions existed at the founding and maybe but not clearly at the time of the passage of the 14th Amendment.

[00:01:27] Speaker 06:
So if you look at

[00:01:29] Speaker 06:
this Supreme Court's analysis under prong one with respect to weapons, guns, it makes very clear under prong one, we're not frozen in time.

[00:01:42] Speaker 06:
Would you agree with that?

[00:01:43] Speaker 00:
I agree that Heller addressed that specific question and said yes, with respect to firearms, we are not frozen in time.

[00:01:50] Speaker 06:
But you would argue that with respect to the people, we are frozen in time.

[00:01:55] Speaker 00:
Well, I think we have a couple of arguments with respect to the people.

[00:01:58] Speaker 06:
Well, answer that first.

[00:01:59] Speaker 06:
Are we frozen in time?

[00:02:01] Speaker 00:
I think we have no indication that we are not frozen in time.

[00:02:04] Speaker 06:
Well, then I can't own a gun.

[00:02:07] Speaker 06:
You can't own a gun, right?

[00:02:09] Speaker 06:
We're not protected by the Second Amendment because we're female.

[00:02:13] Speaker 00:
With respect to the sort of odious classifications, as I think they call them, that existed at the time of the founding, I think those are a little bit of a red herring because the 14th Amendment,

[00:02:22] Speaker 00:
guaranteed equal protection, I think, cures some of those problems.

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And of course, age has never been treated in the same way as distinctions drawn on race or gender and things like that.

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And I think to come to that question about the people, the corresponding problem on the other side is that if we say it's all people, then we have the problem of children of all ages being swept into having Second Amendment rights.

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And I don't think anyone is seriously advocating that five-year-olds or 10-year-olds

[00:02:51] Speaker 00:
were ever understood at the time of the founding, or ever to have the right to keep and bear arms.

[00:02:55] Speaker 06:
Yet.

[00:02:58] Speaker 00:
Fair enough.

[00:02:59] Speaker 00:
So just to take a step back, because I agreed with your summary of Bruin step one, which is we have to look at the conduct.

[00:03:08] Speaker 00:
And it's the plain text of the Second Amendment.

[00:03:11] Speaker 00:
But as understood at the time of the founding, was that conduct understood to be protected by the Second Amendment?

[00:03:18] Speaker 00:
And I think we have to look at the conduct and then, as you said, at the people too.

[00:03:21] Speaker 00:
But here, because the conduct is only with respect to certain people, I think the conduct prong really resolves this question and the fact that the plaintiffs have put forward no evidence to show that 18 to 20-year-olds were ever understood at the time of the founding to have Second Amendment rights.

[00:03:40] Speaker 00:
Their only argument on this point was that they had an implied right, just looking at the plain text,

[00:03:46] Speaker 00:
that the right to keep him there must necessarily include the right to acquire.

[00:03:51] Speaker 00:
That's their exclusive argument based on prom law.

[00:03:54] Speaker 06:
Okay, so you're focusing on the right to acquire now as opposed to 18 to 20 year olds.

[00:04:00] Speaker 00:
So I think you have to look at them both together when you look at the conduct because that's all that the Colorado statute regulates.

[00:04:06] Speaker 00:
We only limit the right to purchase, not to own or possess, only the right to purchase

[00:04:11] Speaker 00:
for 18 to 20-year-olds.

[00:04:13] Speaker 00:
And so that's the conduct that we have to look at at step one.

[00:04:16] Speaker 06:
Isn't that kind of like when I'm trying to remember which justice it was said, it doesn't do you any good to have a right to bear arms if you can't also buy bullets?

[00:04:29] Speaker 00:
Yes.

[00:04:29] Speaker 00:
I know it was Justice Thomas, actually.

[00:04:32] Speaker 00:
And I think the issue here is we have to come back to what does Bruin tell us to do with respect to figuring out what conduct is swept in and is protected by the Second Amendment?

[00:04:41] Speaker 00:
And we have to look at what the historical understanding was.

[00:04:44] Speaker 00:
And both with respect to 18 to 21-year-olds and with respect to acquisition, the plaintiffs have put forward nothing, no evidence to show a right to acquire generally or a right to acquire specifically by that age group.

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And of course, on the other side, the governor has put in hundreds of pages of expert testimony explaining that 18 to 20-year-olds at the time had no rights whatsoever.

[00:05:09] Speaker 04:
So, again, on the... Isn't the logical extension of your argument that if the prohibition is on the acquisition, and your statute relates only to 18 to 21-year-olds... And only certain acquisitions.

[00:05:26] Speaker 04:
Right.

[00:05:27] Speaker 04:
But isn't the logical extension that a state could pass a law prohibiting purchase by any person?

[00:05:37] Speaker 04:
Because it's not covered by the second amendment purchases.

[00:05:41] Speaker 00:
So your honor, I think what you would look to in that case, I think the answer is likely no.

[00:05:45] Speaker 00:
But I think the way you would go about figuring that out is to have the plaintiffs come forward with evidence that at the time of the founding, the public understanding was that there were rights to acquire weapons.

[00:05:56] Speaker 00:
I don't know what that record would look like if they haven't developed it, but I think that's what you would want to develop in that case.

[00:06:03] Speaker 00:
And if you could show that and show that the, you know, then the government couldn't get over step two, then they wouldn't, you know, that the government wouldn't prevail on that issue.

[00:06:13] Speaker 06:
And if you read Bruin and Heller, it appears that what we're being told is that step one, the presumption is you're within the people.

[00:06:26] Speaker 06:
And you've got to show something to suggest that you're not, not the other way around.

[00:06:33] Speaker 00:
So what I will say about, and I will grant you, I think the issue of the who is the people is a hard one.

[00:06:39] Speaker 00:
And I don't think this court needs to resolve it to reverse this preliminary injunction.

[00:06:44] Speaker 00:
And they use all kinds of words to describe who the people are, right?

[00:06:49] Speaker 00:
It's all the people, it's adult citizens, it's responsible law abiding citizens.

[00:06:54] Speaker 00:
We don't have a great pinned down definition.

[00:06:57] Speaker 00:
And so I think what we have to do is look at Bruin and say,

[00:07:00] Speaker 00:
What does Bruin tell us about how we figure out who the people were for purposes of the Second Amendment?

[00:07:06] Speaker 00:
And sorry to sound like a broken record, but we come back to what was the evidence at the time of what the public understood who the people were who were protected by the Second Amendment?

[00:07:16] Speaker 00:
On the plaintiff's side, they have nothing to show that 18 to 20 year olds were viewed as being protected by the Second Amendment at that time.

[00:07:23] Speaker 00:
On the other side.

[00:07:24] Speaker 06:
What do you do about the Militia Act, where not only were they permitted, they were ordered

[00:07:31] Speaker 06:
to bring a gun and come join the militia.

[00:07:35] Speaker 00:
So I think there's two problems with the militia laws.

[00:07:37] Speaker 00:
The first is just a logical problem.

[00:07:39] Speaker 00:
On their face, the militia laws conscript people into government service and order them to come to certain militia service with a certain weapon.

[00:07:48] Speaker 00:
So on its face, we're talking about statutes that compel you to do something.

[00:07:51] Speaker 00:
You're ordered by the government to do it.

[00:07:53] Speaker 00:
So on its face, I don't think that those statutes say anything about what were the rights of those people to go out and acquire guns

[00:08:00] Speaker 00:
for other reasons and other purposes.

[00:08:03] Speaker 00:
They're just apples and oranges, and you can't conflate the two.

[00:08:05] Speaker 06:
Well, it's some indication that they didn't have a problem with 18, 19, and 20-year-olds having guns.

[00:08:11] Speaker 00:
Right.

[00:08:12] Speaker 00:
I agree, Your Honor.

[00:08:13] Speaker 00:
I think there was no problem with 18, 19, and 20-year-olds having guns at the time.

[00:08:17] Speaker 00:
The question is, what was the view of what the public understood the Second Amendment of their rights to protect?

[00:08:23] Speaker 00:
Yes, they had guns.

[00:08:24] Speaker 00:
But does that mean they had a constitutional right to have them?

[00:08:28] Speaker 00:
And again, I'm back to the evidentiary point here.

[00:08:30] Speaker 00:
The governor has put in hundreds of pages of expert opinion explaining why those militia laws did not generate any public understanding of rights in that age group to acquire weapons.

[00:08:45] Speaker 06:
And the plaintiff said nothing on the other side.

[00:08:50] Speaker 06:
Maybe I'm not.

[00:08:52] Speaker 06:
And you have to look under stage one, you have to bring it forward historically so that the people can include non-white property owners, right?

[00:09:06] Speaker 06:
It seems to me that the history isn't as helpful of what happened then as today, how we treat an 18, 19 or 20-year-old.

[00:09:18] Speaker 00:
So I think I disagree with you on Bruin's step one, Your Honor.

[00:09:22] Speaker 00:
I do think that analysis is confined to the public understanding at the time of the founding.

[00:09:27] Speaker 00:
And I agree with you.

[00:09:28] Speaker 06:
The public understanding at the time of the founding was white property owners had a right to bear arms.

[00:09:37] Speaker 00:
Well, that would be true.

[00:09:39] Speaker 00:
But again, we don't have a record put forward by the plaintiffs saying that it was limited to that.

[00:09:44] Speaker 00:
There might have been more people included in that.

[00:09:47] Speaker 00:
but we don't have that record in front of us.

[00:09:49] Speaker 00:
And just to make a point on this evidentiary record issue, if you look at Bruin footnote six, it is clear that these questions are to be decided on an evidentiary basis with deference to the rules of evidence and based on party presentation principles.

[00:10:04] Speaker 00:
So again, when we're looking at what is the record that the plaintiffs have given us on who was covered by the second amendment at the time of the founding based on what type of conduct was, they have just put forward nothing.

[00:10:16] Speaker 00:
And here, I think that's dispositive, given its procedural posture.

[00:10:18] Speaker 01:
Can you read Heller and Bruin in step one still?

[00:10:22] Speaker 01:
If there's a presumption that the people includes all the people, as Heller says, does that same presumption apply to the keep and bear, which is really the conduct I think at issue in this law is the commercial transaction to acquire?

[00:10:33] Speaker 01:
Do we apply that same presumption to that language?

[00:10:36] Speaker 00:
No, Your Honor.

[00:10:36] Speaker 00:
I think the people and the conduct are two separate issues.

[00:10:40] Speaker 00:
And again, when Heller was talking about the people and doing that analysis,

[00:10:45] Speaker 00:
I just want to be clear, it was very focused on this distinction of were the people only the militia?

[00:10:51] Speaker 00:
And it really wasn't looking at other categorizations of people.

[00:10:54] Speaker 00:
And so I think we have to be careful not to over-read Heller in that regard.

[00:10:59] Speaker 00:
But I think the people is one question.

[00:11:01] Speaker 00:
I think the conduct is a separate question.

[00:11:03] Speaker 00:
And I think the conduct one is the easier one here and one that necessitates a reversal of the preliminary injunction just on its own.

[00:11:16] Speaker 00:
And just to come back quickly to these, to Bruin footnote six and the party presentation principles, I do think it's really important that the plaintiffs have to put forward a record here.

[00:11:25] Speaker 00:
I think what they've tried to do in their arguments is bootstrap in evidence from other district court and circuit court decisions.

[00:11:31] Speaker 00:
And I think that's not appropriate.

[00:11:32] Speaker 00:
I don't think citations to law review articles are appropriate evidence for the court to consider.

[00:11:36] Speaker 00:
And we look at what they put forward, especially on step one, where their sole argument is based on an implied right to acquire

[00:11:45] Speaker 00:
which an implied rights analysis is not even contemplated by Ruin, they just failed that test.

[00:11:51] Speaker 00:
And with the court's permission, I'd like to reserve the balance of my time for rebuttal.

[00:12:04] Speaker 05:
Thank you.

[00:12:04] Speaker 05:
May I please support?

[00:12:05] Speaker 05:
My name is Barry Errington.

[00:12:06] Speaker 05:
I'm representing the plaintiffs in this case.

[00:12:09] Speaker 05:
With respect to this issue of the people,

[00:12:12] Speaker 05:
The Ninth Circuit absolutely nailed it just last week, uh, in a case called, uh, United States versus Duarte, uh, 2024, uh, WL 206-8016 at night.

[00:12:29] Speaker 05:
This is a Ninth Circuit decision, uh, May 9th, 2024.

[00:12:33] Speaker 05:
And I will quote from that, um, Duarte

[00:12:38] Speaker 05:
who is the criminal defendant in that case, is one of the people because he is an American citizen, citing Heller.

[00:12:44] Speaker 05:
Heller resolved this textual question when he held that the people includes all Americans because they fall squarely within our national community.

[00:12:54] Speaker 05:
Heller went on to say, well, let me back up.

[00:13:02] Speaker 05:
had said that at the first step, what Bruin later called the first step, the textual step, you interpret the words of the Second Amendment based upon the original public understanding.

[00:13:14] Speaker 05:
And how do you do that?

[00:13:15] Speaker 05:
Well, you look at what Heller looked at.

[00:13:17] Speaker 05:
You look at dictionaries from the... This defies literalism, doesn't it?

[00:13:22] Speaker 04:
Because the Second Amendment doesn't say American citizens.

[00:13:28] Speaker 04:
It says people.

[00:13:30] Speaker 05:
Well, and Heller said that that means, the phrase, the people means all Americans.

[00:13:40] Speaker 05:
Heller said that, too.

[00:13:42] Speaker 05:
Duarte was quoting Heller.

[00:13:44] Speaker 05:
Heller said,

[00:13:45] Speaker 05:
the word the people means all Americans, and then it went on to say not some unspecified subset.

[00:13:53] Speaker 04:
So according to that, that just nails it back to Heller.

[00:13:57] Speaker 04:
You don't need Duarte.

[00:13:59] Speaker 05:
You don't need Duarte?

[00:14:01] Speaker 05:
I'm just saying that Duarte got it right, and I would ask the court to follow that precedent.

[00:14:08] Speaker 01:
Well, what about keep and bear?

[00:14:11] Speaker 01:
We're talking about the people, the presumption.

[00:14:13] Speaker 01:
What's your position on where we can look to establish that your burden on brew in step one, that keep and bear the right here to engage in a commercial transaction to acquire a firearm, that there is evidence in this record, or that we can look to determine that question in your client's favor?

[00:14:33] Speaker 05:
So first of all, I would say it is, and here's where the state

[00:14:37] Speaker 05:
and the plaintiff's heart company emphatically.

[00:14:41] Speaker 05:
Bruin Step 1 is not an evidentiary question.

[00:14:45] Speaker 05:
It is a textual question.

[00:14:47] Speaker 05:
The only evidentiary question occurs at Bruin Step 2.

[00:14:52] Speaker 05:
At Bruin Step 1, what do the words mean?

[00:14:55] Speaker 05:
That's not an evidentiary issue.

[00:14:57] Speaker 05:
And Heller also addressed this.

[00:15:00] Speaker 05:
It says, to have

[00:15:02] Speaker 05:
means to keep and bear arms.

[00:15:06] Speaker 05:
To keep arms means to have arms.

[00:15:09] Speaker 05:
It's just a plain text sort of analysis.

[00:15:13] Speaker 05:
And stepping up and using that exact same analysis, we would ask the court to follow the Third Circuit recently from Laura, who said to have means to acquire, because if you can't acquire, you can never have.

[00:15:27] Speaker 05:
One is subsumed within the other.

[00:15:29] Speaker 05:
And that's not an unusual analysis.

[00:15:31] Speaker 05:
Laura follows in the tradition of several other cases.

[00:15:35] Speaker 04:
Don't we just get all tied in knots when we talk about textualism and literalism, and then we talk about an implication of a right to purchase if you have the right to bear arms?

[00:15:49] Speaker 04:
And even with the concept of American citizens.

[00:15:54] Speaker 04:
I mean, you say stick to the text.

[00:15:59] Speaker 04:
Let's do that.

[00:16:00] Speaker 05:
And so Heller says stick to the text.

[00:16:03] Speaker 05:
And when it says stick to the text, Heller didn't say that these words are self-defining.

[00:16:09] Speaker 05:
Heller went about in a very systematic way of talking about what they meant in the original public understanding in the late 1700s.

[00:16:18] Speaker 05:
And how did it do that?

[00:16:21] Speaker 05:
It went back to dictionaries from the late 1700s.

[00:16:23] Speaker 05:
And it says, what did arms mean in the late 1700s?

[00:16:27] Speaker 05:
It's not a dictionaries.

[00:16:28] Speaker 05:
What does have mean?

[00:16:30] Speaker 05:
What does bear mean?

[00:16:31] Speaker 05:
All of these words are not self-defining.

[00:16:35] Speaker 05:
And if someone is suggesting that textualism or original public understanding means, well, the words of the Constitution are self-defining and we don't have to look to dictionaries, I don't think that that's what Heller or Bruin stand for.

[00:16:50] Speaker 05:
And so let's talk about the issue of commercial transactions.

[00:16:57] Speaker 05:
the state relies heavily upon its power to regulate commercial transactions, saying these are just commercial transactions.

[00:17:05] Speaker 06:
And they also tie that to Heller by saying one of the traditional categories that Heller at least said were not interfering with was the right to regulate the sales, right?

[00:17:21] Speaker 05:
And so I think it's important to say that that was not a holding of Heller.

[00:17:26] Speaker 05:
It was dicta in Heller.

[00:17:29] Speaker 06:
Well, this circuit at least follows dicta from the Supreme Court as much as we follow the holding, so I'm not sure that's very helpful.

[00:17:37] Speaker 05:
But I understand the court's point, but what was Heller really saying?

[00:17:43] Speaker 05:
It was a throwaway comment.

[00:17:45] Speaker 05:
a sentence or two, it was not a heavy analysis.

[00:17:49] Speaker 05:
It basically said, nothing we say here today is going to cast doubt upon these sorts of regulations that we presume to be constitutional.

[00:18:01] Speaker 05:
It was not establishing a legal presumption.

[00:18:06] Speaker 05:
It was saying, you know, when the time comes, we presume these will pass the test.

[00:18:10] Speaker 05:
And one of those was commercial transactions.

[00:18:16] Speaker 05:
We believe that regulations of commercial transactions are probably going to be constitutional, is all Heller was saying.

[00:18:22] Speaker 05:
And that's true.

[00:18:23] Speaker 05:
Regulations of commercial transactions are probably going to be constitutional in the broad sense.

[00:18:28] Speaker 05:
But that doesn't get the state home here because for two reasons.

[00:18:32] Speaker 05:
First, this is not primarily a regulation of commercial transactions.

[00:18:38] Speaker 05:
Primarily, it is a bar of a purchaser.

[00:18:43] Speaker 05:
So it says 18 to 20-year-old adult citizens cannot purchase these arms.

[00:18:50] Speaker 05:
That's not a regulation of a commercial transaction in any sense of the word.

[00:18:54] Speaker 05:
That's a regulation barring a person from purchasing.

[00:19:00] Speaker 05:
Now, we'd also point to Hirschfield, which said, you know, when Heller was talking about commercial regulations, what he was talking about

[00:19:08] Speaker 05:
is the hoops that states can ask sellers to jump through before they sell a gun to a person.

[00:19:15] Speaker 05:
Well, this is not a hoop that someone can satisfy.

[00:19:17] Speaker 05:
This is an absolute bar.

[00:19:21] Speaker 05:
There is nothing an 18- to 20-year-old can do to jump through any hoop to get to a place where they can purchase these transactions.

[00:19:29] Speaker 05:
It's a categorical prohibition on a purchase, not mere regulation of commercial transactions.

[00:19:35] Speaker 04:
But you're focusing on the buyer.

[00:19:37] Speaker 05:
Yes, sir, and so does the statute.

[00:19:40] Speaker 05:
The statute makes it illegal to purchase.

[00:19:43] Speaker 05:
It also makes it illegal to sell.

[00:19:45] Speaker 02:
It also makes it illegal to purchase.

[00:19:46] Speaker 02:
What about focusing on that?

[00:19:48] Speaker 02:
Isn't that a commercial regulation?

[00:19:51] Speaker 05:
Well, so just calling something a commercial regulation is the same question that you raised earlier, Your Honor.

[00:20:00] Speaker 05:
We can't just say, well, it's commercial regulation.

[00:20:02] Speaker 05:
We can prohibit everybody from purchasing.

[00:20:05] Speaker 05:
We can regulate.

[00:20:06] Speaker 05:
We can prevent it.

[00:20:07] Speaker 03:
No, no, no, no, no.

[00:20:08] Speaker 03:
It says, well, OK, but this statute limits it to 1821.

[00:20:13] Speaker 05:
So what's to prevent it from limiting it from 18 to 61?

[00:20:18] Speaker 05:
Because that would be unconstitutional, because there is no history and tradition of allowing.

[00:20:25] Speaker 04:
Well, that was the response.

[00:20:26] Speaker 04:
The exact response the state gave, and that is there is a historical analog that adults could purchase.

[00:20:37] Speaker 05:
Well, in the founding era, the state concedes that there was absolute zero regulation of 18- to 20-year-olds

[00:20:47] Speaker 05:
purchasing firearms.

[00:20:48] Speaker 05:
There was no ban, and there was nothing short of a ban in terms of regulation.

[00:20:53] Speaker 06:
Well, there's no ban on five-year-olds either that anyone can point to.

[00:20:57] Speaker 05:
That's true.

[00:20:59] Speaker 05:
And if a five-year-old were the plaintiff, you would say, okay, what's the historical tradition?

[00:21:05] Speaker 05:
of preventing five-year-olds.

[00:21:08] Speaker 05:
And there isn't.

[00:21:10] Speaker 06:
So under Bruin, does that mean no state can restrict five-year-olds from purchasing firearms?

[00:21:16] Speaker 06:
No.

[00:21:18] Speaker 05:
Why not?

[00:21:19] Speaker 05:
Because when you look at the historical tradition from the founding era, there was a line.

[00:21:31] Speaker 05:
And in 1791, the line was clearly 18.

[00:21:35] Speaker 05:
at which people were deemed to be mature enough to be required to have arms.

[00:21:41] Speaker 06:
No, to be required to join the militia.

[00:21:44] Speaker 05:
That's right.

[00:21:44] Speaker 06:
Just because they didn't require five-year-olds to join the militia doesn't tell me anything about whether there's historical support at the time of the founding of prohibiting five-year-olds from buying arms.

[00:21:58] Speaker 05:
And of course, the court can look at what was there, what was there at the time of the founding.

[00:22:07] Speaker 05:
And there is no indication that any state

[00:22:11] Speaker 05:
was going to require five-year-olds to come in and serve in the militia.

[00:22:15] Speaker 01:
But why would we anticipate seeing a regulation of activity that didn't really exist at the founding?

[00:22:20] Speaker 01:
And now I'm not talking about five-year-olds.

[00:22:23] Speaker 01:
Let's go to the militia service.

[00:22:24] Speaker 01:
So 18 would be the line of demarcation requiring militia service in a lot of states.

[00:22:29] Speaker 01:
But as I read the state's record here, there's ample evidence they suggest to say that the firearms were provided to those 18-year-old militia members from the families, because those 18-, 19-, 20-year-olds

[00:22:41] Speaker 01:
did not have, did not engage in the practice of acquiring the firearms themselves.

[00:22:45] Speaker 01:
And it was commonly understood that until you were 21, you would not be out purchasing a firearm from a gunsmith or someone who's manufacturing those.

[00:22:54] Speaker 01:
So why would we regulate something that wasn't even in existence at that time?

[00:22:57] Speaker 05:
And so the answer is there were a few, a very few regulations at the founding

[00:23:06] Speaker 05:
requiring parents to provide their sons with firearms.

[00:23:12] Speaker 05:
Now, none of those regulations prohibited their sons from buying the firearms themselves.

[00:23:20] Speaker 05:
They required the parents to buy the firearms.

[00:23:23] Speaker 05:
And why did they do that?

[00:23:25] Speaker 05:
Probably because firearms are expensive.

[00:23:29] Speaker 05:
And when you're going to require a man to come in and bring his own firearm,

[00:23:34] Speaker 05:
you're not going to require him to do something that he can't afford.

[00:23:37] Speaker 05:
And so they required his parents to help him.

[00:23:41] Speaker 05:
Of course, that is only three or four of those.

[00:23:44] Speaker 05:
The vast majority of the statutes did not have the parent required parents.

[00:23:48] Speaker 01:
Well, why isn't that enough?

[00:23:49] Speaker 01:
I mean, what's the quantum of proof required when we look back at historical antecedents to say, well, that was being regulated at the founding?

[00:23:57] Speaker 05:
Bruin provides this when it says there has to be a widespread, enduring, nationwide tradition.

[00:24:06] Speaker 05:
Three or four.

[00:24:07] Speaker 05:
Bruin said three, for example, was not enough.

[00:24:10] Speaker 05:
And so in terms of

[00:24:13] Speaker 05:
The regulations at the founding, there were zero.

[00:24:18] Speaker 05:
And zero bans, zero regulations.

[00:24:22] Speaker 06:
And what do we do about the historical record when you look to the, after the Civil War and you have the 14th Amendment, I guess the second founding as it's sometimes called.

[00:24:36] Speaker 06:
How do we look at that?

[00:24:37] Speaker 05:
So the district court got this exactly right.

[00:24:40] Speaker 05:
Bruin itself said it is generally understood, it noted as a scholarly debate about the impact of 1868, but it said it's generally understood that the rights are pegged by the people who adopted them, and that was in 1791.

[00:24:57] Speaker 05:
What I think is absolutely dispositive on this is that if you go the other way, you violate McDonald and Bruin, who both said that when you're interpreting the right to keep and bear arms, you have to interpret it identically for the states and the federal government.

[00:25:14] Speaker 05:
And if you're going to say that the 14th Amendment, which applies to the states, is going to have a different rule from the federal government, that's going to violate that rule.

[00:25:22] Speaker 05:
And I also think that

[00:25:24] Speaker 05:
Espinosa versus Montana is utterly dispositive on this issue, where there was a tradition of First Amendment aid at the founding.

[00:25:35] Speaker 05:
And in the late 1800s, 30 states had passed no aid provisions.

[00:25:40] Speaker 05:
And what did Espinosa say?

[00:25:42] Speaker 05:
That 30 states passing regulations that conflicted with the original understanding in 1791, not enough.

[00:25:52] Speaker 05:
Now, the state says there were 19 states.

[00:25:56] Speaker 05:
Plaintiffs disagree for the reasons set forth in district court's opinion and in our brief that there were 19 states.

[00:26:02] Speaker 05:
For one thing, none of those states prohibited anybody, 18 and above, from purchasing long arms.

[00:26:13] Speaker 05:
And that's what we're talking about here.

[00:26:15] Speaker 05:
The states, as a practical matter, is prohibiting people 18 to 20 from purchasing lawnmowers.

[00:26:24] Speaker 05:
And they're saying that these statutes from the late 19th century are analogous.

[00:26:30] Speaker 05:
Well, how is that possible when none of them prohibited the purchase of law and orders by anybody?

[00:26:35] Speaker 01:
Can I ask one more?

[00:26:35] Speaker 01:
Yes.

[00:26:36] Speaker 01:
Counsel, briefly, on the injunction, the four factors, the last one, why would we not conclude that the public interest factor here favors the state when we're talking about a law passed by their duly elected representatives and signed the law by their governor?

[00:26:50] Speaker 05:
Because this court has held over and over and over again that if you

[00:26:54] Speaker 05:
If you get to the merits, and the merits say, they're probably going to win on the merits, the state has no interest in enforcing an unconstitutional law.

[00:27:07] Speaker 05:
You're asking, does that collapse that into the merits determination, and lots of courts say that it does.

[00:27:12] Speaker 05:
Thank you, Your Honor.

[00:27:13] Speaker 06:
Thank you.

[00:27:17] Speaker 00:
So I want to move forward to Bruin's step two, because I think we win independently on that grounds, too.

[00:27:24] Speaker 00:
that the plaintiffs more or less conceded that if you consider all of those dozens and dozens of laws that prohibited 18 to 20-year-olds from accessing weapons that were enacted from the time of the Civil War up to the early 1900s, that if you consider that information, then we win.

[00:27:44] Speaker 00:
And that the only way that they can prevail on that is to say, don't look at that at all.

[00:27:50] Speaker 00:
And the only way they can say, don't look at that at all, is if they show that it contradicts earlier history.

[00:27:55] Speaker 00:
And that's the piece that they're missing because there is no earlier history that had showed any clear right of 18 to 20 year olds.

[00:28:01] Speaker 00:
to access and purchase firearms.

[00:28:03] Speaker 00:
Again, all of the record shows.

[00:28:05] Speaker 06:
But that assumes that you're reading Bruin to say, on step two, what you're looking at is whether it's silent.

[00:28:14] Speaker 06:
But what Bruin says is you're looking to see whether there were historical restrictions.

[00:28:21] Speaker 06:
So a finding that there were no historical restrictions is evidence against you, not for you.

[00:28:27] Speaker 00:
So I disagree with that, Your Honor.

[00:28:30] Speaker 00:
You can look at all of the evidence, I think, is what we do, and we look at all of these laws.

[00:28:34] Speaker 06:
Well, I'm not sure we look at all the evidence.

[00:28:36] Speaker 06:
I mean, you know, Bruin says, we're not going to decide what you look at, but then three times says, but we really look at it at the time of the founding.

[00:28:46] Speaker 06:
And we only look at the 14th Amendment time period if it is the same, it is consistent with.

[00:28:55] Speaker 00:
I guess I would say it's slightly different in that it doesn't contradict what came before.

[00:29:01] Speaker 00:
And here there's no contradiction because there was no right of 18 to 20 year olds back at the founding time to go out and purchase firearms.

[00:29:08] Speaker 00:
They had no rights at all.

[00:29:10] Speaker 00:
And so the fact that they were then later specifically regulated and prohibited from purchasing weapons isn't a contradiction and it doesn't conflict.

[00:29:17] Speaker 00:
It's a continuation of the same history from the founding and therefore you can and should consider it.

[00:29:22] Speaker 00:
and it establishes this nation's overwhelming and consistent history of regulating the access to firearms and other weapons for this particularly sensitive age group.

[00:29:33] Speaker 00:
And then just to come back quickly to the plain text point that my opponent made, keep and bear arms was exhaustively those words, just the pure plain text, exhaustively considered in Heller and Bruin.

[00:29:45] Speaker 00:
And not only did they not say that includes a right to acquire it, they have numerous comments suggesting that the right to acquire weapons

[00:29:52] Speaker 00:
is that regulations on that are presumptively lawful.

[00:29:56] Speaker 00:
Indeed, this concurrence in Bruin Justice Solito specifically called out the federal handgun ban for purchasers under 21.

[00:30:05] Speaker 00:
Thank you.

[00:30:06] Speaker 06:
Thank you.

[00:30:06] Speaker 06:
Thank you for the briefing in this matter and for the argument today, and we will take it under advisement.