[00:00:00] Speaker 04:
for the day 23-6028, United States versus Harrison.

[00:00:06] Speaker 04:
Mr. Kreger.

[00:00:07] Speaker 01:
Thank you, Your Honor, and may it please the Court, Stephen Kreger, on behalf of the United States.

[00:00:12] Speaker 01:
I will endeavor to try and reserve at least three minutes for rebuttal.

[00:00:16] Speaker 01:
Approximately 22 months ago, the District Court granted Mr. Harrison's motion to dismiss the indictment in this case and found that 18 U.S.C.

[00:00:25] Speaker 01:
Section 922-3 is unconstitutional.

[00:00:29] Speaker 01:
Section 922G3, as the court knows, is the federal prohibition on the possession of firearms by unlawful users.

[00:00:35] Speaker 01:
Could you pull the microphone over a little bit?

[00:00:37] Speaker 01:
Sorry.

[00:00:38] Speaker 01:
As the court's aware, Section 922G3 is the federal prohibition on the possession of firearms by unlawful users of controlled substances.

[00:00:47] Speaker 01:
The biggest development in the law in the last 22 months with regard to this case is the Supreme Court's decision in the United States v. Rahimi.

[00:00:56] Speaker 01:
In Rahimi, the Supreme Court explained that the Fifth Circuit made a couple of large mistakes.

[00:01:04] Speaker 01:
The first mistake that Rahimi identified, that the District Court made a similar mistake, has to do with the scope and with how to apply either a facial or an as-applied challenge.

[00:01:18] Speaker 04:
So let me stop you there and you'll recall the facial as-applied from the last time you were at the podium.

[00:01:26] Speaker 04:
Do we have an as-applied challenge, or does the government concede that we have an as-applied challenge?

[00:01:30] Speaker 01:
So Your Honor, I think in this instance, if I can work my way into answering your question.

[00:01:37] Speaker 01:
Sure, yeah.

[00:01:38] Speaker 01:
I think this case presents what this court in the United States v. Supreme Court of New Mexico called a duality of claims.

[00:01:45] Speaker 01:
It presents a partial facial challenge, a partial as-applied challenge.

[00:01:49] Speaker 01:
So for example, at page 12 of Mr. Harrison's response brief, as well as pages one and three of his supplemental brief, Mr. Harrison argues that section 922-G3 is unconstitutional as applied to him as an unlawful user of marijuana.

[00:02:07] Speaker 01:
That's why I'm sorry.

[00:02:07] Speaker 01:
As an unlawful user of marijuana or an alleged unlawful user of marijuana.

[00:02:13] Speaker 01:
So to the extent that we're talking strictly about marijuana,

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I think this court's view would be restricted to marijuana only.

[00:02:22] Speaker 01:
But to the extent, do we apply a facial standard or do we apply an as-applied standard?

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In Supreme Court of New Mexico, this court explained that where there's such a duality of claims,

[00:02:35] Speaker 01:
This court will apply the standard from the facial challenge, but only to the extent that the law impacts the challenged class.

[00:02:43] Speaker 01:
So I think the best way of describing, I think, the issue is, it's ultimately developed, is whether Section 922-G3, to the extent that we're talking about unlawful users of marijuana, is facially constitutional.

[00:02:59] Speaker 03:
What's an unlawful user of marijuana?

[00:03:02] Speaker 03:
Right now any... In New Mexico or in Colorado.

[00:03:06] Speaker 03:
I almost get high walking down the street here.

[00:03:11] Speaker 01:
So this court in Morales Lopez explained that it has to be somebody who has a regular and ongoing use of marijuana.

[00:03:18] Speaker 01:
Somebody that has, who regularly and ongoingly uses marijuana.

[00:03:24] Speaker 01:
How often?

[00:03:26] Speaker 01:
This court has not been entirely clear about how often.

[00:03:29] Speaker 03:
What's the government's position on that?

[00:03:32] Speaker 03:
If I use it once?

[00:03:34] Speaker 03:
Your Honor, I would say if you use it only once, probably not.

[00:03:38] Speaker 01:
I'd be an unlawful user.

[00:03:41] Speaker 01:
Maybe I should say, to the extent that you are using it and simultaneously have possession, you probably fall within the ambit of 922-23.

[00:03:48] Speaker 01:
You've just wiped down half of Colorado.

[00:03:55] Speaker 01:
Notwithstanding Colorado's decision to decriminalize marijuana, it is still a Schedule I controlled substance under federal law.

[00:04:02] Speaker 04:
Well, at the very least, marijuana users consists of contemporaneous users, which we say is, you know, from time to time, and actively intoxicated marijuana users, right?

[00:04:15] Speaker 04:
Correct, Your Honor.

[00:04:17] Speaker 04:
Here's where I'm stuck at the very outset of this case, which is sort of an antecedent procedural question.

[00:04:24] Speaker 04:
We're on a motion to dismiss the indictment.

[00:04:27] Speaker 04:
Typically, we're confined to the four corners of the indictment, which here is charged as marijuana use, Mr. Harrison's unlawful marijuana.

[00:04:37] Speaker 04:
He's a marijuana user.

[00:04:39] Speaker 04:
The case was litigated, and the district court's decision seems to rely on understanding marijuana use users as being both contemporaneous users

[00:04:52] Speaker 04:
and non-intoxicated marijuana users as applied to Mr. Harrison.

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In other words, the fact of Mr. Harrison's non-intoxication seems to be an undisputed fact in this case that's outside the indictment.

[00:05:07] Speaker 04:
So what I'm asking for is for you to help me understand whether we're in the four corners or we're in the four corners plus the undisputed fact of Mr. Harrison's non-intoxication.

[00:05:23] Speaker 01:
So as far as within the Four Corners or even within the Four Corners, plus the findings that the district court made, whether Mr. Harrison was intoxicated or not was never litigated, was never fully addressed.

[00:05:37] Speaker 01:
It's what this court and pope called a latent factual dispute.

[00:05:41] Speaker 04:
But the government never made that point until your supplemental briefing in a footnote.

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So did you waive the argument that I think you righteously had at one point that

[00:05:52] Speaker 04:
district court, it's premature, kind of like you argue vagueness.

[00:05:57] Speaker 04:
It's premature to adjudicate this Second Amendment challenge because we don't know whether Mr. Harrison was a non-intoxicated user, and without knowing that, it's too soon to know whether he has a complete defense.

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So under our case law, this needs to

[00:06:18] Speaker 04:
You never made that argument.

[00:06:21] Speaker 01:
So two responses to that.

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First, to the extent we're talking about in Pope and also in Reese, this court explained that there has to essentially be a stipulation.

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So there has not been a stipulation as to the fact that Mr. Harrison was not intoxicated.

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And so the district court, as a matter of law, could not determine that he was not intoxicated.

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The second response goes to what the Supreme Court explained.

[00:06:43] Speaker 03:
Back up to that first response, I did not follow what you were arguing.

[00:06:48] Speaker 03:
So, let me give you an example.

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You have the prerogative of indicting however you want to.

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And you did not indict saying he was intoxicated.

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You said he was a marijuana user.

[00:07:04] Speaker 03:
Correct, Your Honor.

[00:07:05] Speaker 03:
Okay.

[00:07:06] Speaker 03:
And so now what are you saying?

[00:07:07] Speaker 03:
That you can't assume he was not intoxicated?

[00:07:11] Speaker 01:
Your Honor, what I'm saying is the indictment does not allege whether he was intoxicated or he was not.

[00:07:17] Speaker 01:
Well, whose fault is that?

[00:07:18] Speaker 01:
Well, Your Honor, intoxication is not an element of the offense, so it's not required to be alleged in the indictment.

[00:07:24] Speaker 01:
That being said, what this Court said in Pope is even if there are late and factual disputes, it may determine whether or not there is a constitutional question or an as-applied challenge.

[00:07:41] Speaker 01:
Those latent factual disputes preclude under Rule 12 the determination of a pretrial as applied, at least as specifically applied to facts that either aren't alleged in the indictment or there's not a stipulation to.

[00:07:55] Speaker 04:
You never made this argument to the district court.

[00:07:58] Speaker 01:
Your Honor, the arguments that were made to the district court were on a higher level that did not address the specifics of, really, of Mr. Harrison's situation.

[00:08:07] Speaker 01:
We were comparing at the time

[00:08:09] Speaker 01:
historic laws to current law, we weren't saying as applied to the specific instance.

[00:08:14] Speaker 04:
But then I guess what I'm trying to understand is why did the district court go into so much effort to understand whether there was a historical tradition of disarming the non-intoxicated?

[00:08:29] Speaker 04:
if that was not part of the case yet?

[00:08:32] Speaker 01:
Well, yeah, I would submit that that goes into the second problem or the other problem that the Supreme Court in Rahimi noted with the Fifth Circuit's opinion, which is, like the district court here, the Fifth Circuit was looking at how there could be conflicts.

[00:08:48] Speaker 01:
I believe, as I argued in one point, the district court was looking to the least culpable conduct to invalidate the entire statute, for example,

[00:08:58] Speaker 01:
The district court relied on the fact that 400,000 Oklahomans had state authorization to use medical marijuana.

[00:09:06] Speaker 01:
But the record was, at least, was clear that there's no evidence that Mr. Harrison had any state authorization to use medical marijuana.

[00:09:15] Speaker 01:
The district court specifically at page 123 of the appendix, but note 119, expressly declined to consider the facts of Mr. Harrison's case.

[00:09:26] Speaker 01:
As far as intoxication goes, the facts of the district court.

[00:09:29] Speaker 02:
Before you go on, in your filings in the district court, is it expressly clear or implicitly clear that you viewed this as a facial or as this hybrid that you've talked about?

[00:09:49] Speaker 02:
Kind of one foot in as applied and one foot in facial.

[00:09:55] Speaker 01:
Your honor, I would submit that there wasn't much clarity throughout the entire district court process about whether this was a facial challenge or an as-applied challenge.

[00:10:03] Speaker 02:
So as far as you could tell, it was maybe wholly or some part as-applied.

[00:10:13] Speaker 01:
Well, your honor, this is the situation this was presented in.

[00:10:17] Speaker 02:
But wait, you can go on, but I want you to know.

[00:10:23] Speaker 02:
You saw that it could have been in whole or in part as applied.

[00:10:29] Speaker 01:
Your Honor, Mr. Harrison, other than addressing marijuana, didn't really talk about any of the specific facts of his case on the district court.

[00:10:38] Speaker 01:
What did your filings indicate?

[00:10:40] Speaker 01:
That's what I'm saying.

[00:10:41] Speaker 01:
What's your filings in district court?

[00:10:43] Speaker 01:
We did not address whether this was facial or as applied.

[00:10:47] Speaker 01:
And I don't think that ultimately creates a problem.

[00:10:50] Speaker 01:
Well, it raises this problem for me.

[00:10:53] Speaker 02:
So you don't address which it is.

[00:10:57] Speaker 02:
It's got to be one or the other, or this hybrid.

[00:11:00] Speaker 02:
And so you're at risk.

[00:11:02] Speaker 02:
So did you ask for an evidentiary hearing so that you could put on other evidence other than what was alleged in the indictment?

[00:11:13] Speaker 01:
No, Your Honor, I don't believe we did.

[00:11:15] Speaker 02:
And generally quite... So if this is remanded,

[00:11:24] Speaker 02:
In order to conduct an as-applied analysis consistent with Morales-Lopez, are you precluded from putting on evidence, and you're stuck with the record you got?

[00:11:41] Speaker 01:
No, Your Honor, and the reason why I would say that is, in light of this court's decision in Pope, the factual, and even Reese, the factual development for an as-applied challenge in a criminal case is at trial.

[00:11:52] Speaker 04:
It's not.

[00:11:53] Speaker 04:
OK, but here's the problem.

[00:11:54] Speaker 04:
Here's what Pope says.

[00:11:56] Speaker 04:
Pope says that we typically don't examine facts outside the indictment when you're on a motion to dismiss, but we may when the operative facts are undisputed, the government fails to object to the district court's consideration of the undisputed facts, and the district court can determine from them as a matter of law that the government can't prove its case.

[00:12:20] Speaker 04:
The undisputed fact that the litigation history seems to prove up is that Mr. Harrison was not intoxicated.

[00:12:31] Speaker 04:
That's how the district court understood it.

[00:12:33] Speaker 04:
That seems to be how you understood it, the government understood it.

[00:12:36] Speaker 04:
And you said that when I asked you about waiver, you said, well, there has to be stipulation.

[00:12:40] Speaker 04:
This says you failed to object.

[00:12:42] Speaker 04:
The way that I read the record is this was available to you, to the government, but you didn't invoke it.

[00:12:48] Speaker 04:
And so now,

[00:12:49] Speaker 04:
We are, the runway is clear for us to understand this as a hybrid, as a sort of duality, with a fact that's not on the face of the indictment, meaning is this statute constitutional as applied to Mr. Harrison, who was a non-intoxicated user of marijuana?

[00:13:09] Speaker 04:
Why is that wrong?

[00:13:10] Speaker 01:
So, pushing back on the factual for a moment.

[00:13:14] Speaker 01:
I would submit the undisputed facts that were presented and that were outlined by the district court was that Mr. Harrison was alone in the vehicle, that there was an odor of burnt marijuana, that there were two partially smoked marijuana cigarettes in the container.

[00:13:30] Speaker 01:
Now, later on, the district court distinguished, not intoxicated, but the district court also distinguished caring, but there was no dispute.

[00:13:39] Speaker 01:
In fact, the district court specifically found that Mr. Harrison was caring.

[00:13:43] Speaker 01:
But going past that, even let's assume for purposes of argument, and since my time is running low, that we get to he's not intoxicated.

[00:13:55] Speaker 01:
Whether or not somebody's intoxicated, ultimately based on the historical record, would be essentially the mold or the twin of historic laws.

[00:14:06] Speaker 01:
Rahimi was clear, there doesn't have to be such a molder.

[00:14:09] Speaker 04:
You're skipping ahead.

[00:14:10] Speaker 04:
I'm so stuck here, and I'm really looking for your help on how to understand how we even proceed into the Rahimi-like analysis here, which is if the normal course of operations on a motion to dismiss the indictment is four corners, here that's marijuana users, unless there's an undisputed fact that the government doesn't object to that is essential to understanding the viability of the defense.

[00:14:35] Speaker 04:
Here, that is, whether Mr. Harrison was not intoxicated.

[00:14:40] Speaker 04:
Why is it wrong to understand this case as proceeding from that premise, that we have to decide whether the statute applies, constitutionally, to someone who is not intoxicated marijuana user?

[00:14:54] Speaker 01:
So, again, two responses in the same amount of time, if I can... Please do, yeah.

[00:14:58] Speaker 01:
I think to address the primary question that you asked,

[00:15:05] Speaker 01:
There was never an explicit assertion that Mr. Harrison was not intoxicated, other than the district court ultimately concluding that the armed intoxication laws do not count because somebody subject to 922G3 does not have to be intoxicated.

[00:15:27] Speaker 01:
What the district court did there, and I go back to the public carrying example,

[00:15:32] Speaker 01:
The district court said, I'm not going, finally I found that he was carrying, publicly carrying the firearm, but for purposes of addressing the statute, I'm going to treat this as mere possession.

[00:15:44] Speaker 01:
And so it also rejected the armed intoxication laws because they dealt with use and carrying, not mere possession.

[00:15:52] Speaker 01:
But the record here specifically, and I think there is no objection, no opposition either way on this, is that Mr. Harrison was carrying the firearm.

[00:16:03] Speaker 01:
publicly.

[00:16:03] Speaker 01:
And so the district court's analysis was not an analysis where it talked about this could be committed by somebody who's not intoxicated.

[00:16:14] Speaker 01:
Wasn't addressing specifically Mr. Harrison, but was addressing the statute as a whole, and specifically was addressing the least culpable conduct.

[00:16:22] Speaker 01:
So the district court was addressing mere possession of a firearm by someone who's not intoxicated.

[00:16:28] Speaker 01:
What the Supreme Court in Raheem explained

[00:16:32] Speaker 01:
is that where the Constitution and a statute come up against each other, the court's ultimate goal is not to, or it's defined, essentially commonality, I forget the exact phrase, not to try and find conflict.

[00:16:47] Speaker 01:
What the district court ultimately did here was try and find that conflict, and each time it found a conflict, it discarded a statute, or it discarded a predicate.

[00:16:56] Speaker 01:
I would welcome even the opportunity for Judge Weirich to consider this post-Rahimi.

[00:17:05] Speaker 01:
But ultimately, what the district court did here was commit the same errors that the Fifth Circuit did.

[00:17:13] Speaker 04:
Thank you, counsel.

[00:17:13] Speaker 01:
Thank you very much.

[00:17:21] Speaker 00:
May it please the court, Laura Deskin for Defendant Mr. Harrison.

[00:17:25] Speaker 00:
Good morning.

[00:17:28] Speaker 00:
I'll get straight to our view as to whether it's facial or as applied is that this was an as applied holding.

[00:17:38] Speaker 00:
And exactly as you stated, so yes, it was an indictment that specifically challenged marijuana use.

[00:17:46] Speaker 00:
And we did have undisputed facts.

[00:17:49] Speaker 00:
At trial, they would only have to prove that Mr. Harrison was a marijuana user.

[00:17:55] Speaker 00:
They wouldn't even have to prove that he was intoxicated at the time.

[00:17:59] Speaker 00:
But if you were to have a, so I don't think that could have been resolved properly at trial, but through some sort of evidence you're hearing that, as you said, was not requested.

[00:18:10] Speaker 00:
And I do not believe they can.

[00:18:13] Speaker 03:
Well, he admitted he was a user.

[00:18:15] Speaker 00:
Yes, that's correct.

[00:18:16] Speaker 00:
I don't think, and we do not dispute that he's a user.

[00:18:19] Speaker 03:
He doesn't either.

[00:18:20] Speaker 00:
No, he is a marijuana user.

[00:18:22] Speaker 04:
But doesn't your challenge to the, your Second Amendment challenge as applied here mean that we would be considering whether the statute is constitutional as applied to marijuana users, meaning users who are, what, both

[00:18:44] Speaker 04:
Contemporaneous and intoxicated at the time?

[00:18:49] Speaker 00:
In our situation, he was not intoxicated.

[00:18:51] Speaker 00:
So we're asking for it to be as applied to marijuana users.

[00:18:55] Speaker 04:
OK.

[00:18:55] Speaker 04:
So your position is that the fact of non-intoxication is in the mix.

[00:19:01] Speaker 00:
Yes.

[00:19:02] Speaker 04:
Why?

[00:19:02] Speaker 00:
Because those are the undisputed facts.

[00:19:04] Speaker 04:
And is that because the government hasn't argued Pope?

[00:19:07] Speaker 04:
I mean, I'm really trying to get clarity around the procedural, the antecedent procedural question.

[00:19:13] Speaker 04:
Rule 12, we're usually confined to the four corners.

[00:19:17] Speaker 04:
What do we do with this fact of non-intoxication?

[00:19:20] Speaker 00:
Well, because in this case, so we had a motion to dismiss the indictment, the indictment alleged marijuana use.

[00:19:29] Speaker 00:
We also had within the mix, at the time we were alleging, we made the vagueness challenge.

[00:19:35] Speaker 00:
And at the top of the motion, we discussed the facts of the case, which include

[00:19:43] Speaker 00:
Everything that you've already stated did not include that he was intoxicated at the time.

[00:19:47] Speaker 00:
And I do believe everybody agreed they could not prove it.

[00:19:49] Speaker 00:
There were not field sobriety tests.

[00:19:51] Speaker 00:
There was no allegation that he was under the influence at the time.

[00:19:56] Speaker 00:
You had this, you know, smell of maybe burnt marijuana, I think it was.

[00:20:02] Speaker 00:
But nobody alleged that he had just smoked it.

[00:20:05] Speaker 00:
And certainly, I can tell you that in Oklahoma, if they thought that he had been driving while he was under the influence of marijuana, they would have engaged

[00:20:13] Speaker 00:
what they do, the field sobriety test, and charged him with DUI.

[00:20:18] Speaker 00:
And none of that happened.

[00:20:20] Speaker 00:
And if this went, we're going to go back on remand, I think we'd be right back here because they cannot prove that.

[00:20:29] Speaker 04:
Is it because the government can't prove it or that they have waived the argument under Pope?

[00:20:34] Speaker 00:
It's both, frankly.

[00:20:36] Speaker 00:
They waived the argument because there was an entire hearing before

[00:20:42] Speaker 00:
Judge Weirich, essentially just oral argument before him.

[00:20:47] Speaker 00:
Marijuana was clearly at issue.

[00:20:49] Speaker 00:
It was discussed at length.

[00:20:51] Speaker 00:
And nobody said, hold up, Judge.

[00:20:54] Speaker 00:
You know, we have proof that he was intoxicated at the time.

[00:20:56] Speaker 00:
We have evidence that we want to bring forward.

[00:20:59] Speaker 00:
None of that happened.

[00:21:00] Speaker 00:
They also could have my colleague brought forth in the initial argument on G9 that, you know,

[00:21:11] Speaker 00:
Mr. Autry should have brought forward a motion for reconsideration.

[00:21:15] Speaker 00:
In this case, the government did not do that.

[00:21:18] Speaker 00:
We've just been sitting here on a ruling stating that 922G3 is unconstitutional as applied to Mr. Harrison as a marijuana user.

[00:21:30] Speaker 00:
So I think that that's where we stand, the four corners plus the undisputed facts.

[00:21:36] Speaker 02:
You didn't get into... Would this be an abnormal

[00:21:41] Speaker 02:
as applied case, if we sent it back and said, do an as applied analysis, but you're limited to the specifics of what's alleged in the indictment, no more, nothing else, that would be an odd as applied proceeding, wouldn't it?

[00:22:05] Speaker 00:
Yes, it would.

[00:22:07] Speaker 00:
It would be.

[00:22:09] Speaker 00:
It's a type, I suppose, like quasi as applied.

[00:22:16] Speaker 00:
You're just talking about 922G3 facially, blanket, and every possible iteration of 922G3, you would be talking about 922G3 as applied to a marijuana user, period.

[00:22:34] Speaker 00:
So I would consider that like a quasi as applied.

[00:22:40] Speaker 00:
which I think that Judge Weirich was kind of doing somewhat of both here.

[00:22:45] Speaker 00:
He was discussing marijuana users as a whole while also mentioning that Mr. Harrison himself was not intoxicated at the time.

[00:22:58] Speaker 00:
And I don't think that, and 922G3 doesn't require that.

[00:23:01] Speaker 00:
It does not require that somebody be intoxicated at the time.

[00:23:06] Speaker 00:
I'd like to then get to some of the,

[00:23:09] Speaker 00:
next part of the analysis, the historical analysis.

[00:23:14] Speaker 00:
The government has stated in this case and in many cases across the country that there is a, that the legislature may categorically disarm anyone that it deems dangerous.

[00:23:29] Speaker 00:
Based in the history that they base that on, in our case is Catholics and loyalists on

[00:23:38] Speaker 00:
At the district court, they also included blacks, slaves, freedmen.

[00:23:45] Speaker 00:
I take issue with that as being a proper historical precedent here.

[00:23:51] Speaker 00:
We have to find something that is relevantly similar and loyalists, Catholics, slaves,

[00:24:00] Speaker 00:
Those are not relevantly similar to marijuana users by a stretch, nor is any justification for disarming them.

[00:24:09] Speaker 00:
I think that Rahimi kind of put that argument to bed as to Catholics, you have Catholics, Loyalists, these are arguably groups that were considered outside of the people anyway at the first step, and they were considered

[00:24:30] Speaker 00:
political insurrectionists.

[00:24:32] Speaker 00:
Why were we afraid of them?

[00:24:33] Speaker 00:
Why did they want to disarm them?

[00:24:35] Speaker 00:
Because they were worried they were going to overthrow the country.

[00:24:37] Speaker 00:
And as to slaves and freedmen, they, at the time, were not even considered a part of the people, and certainly not part of our political community.

[00:24:47] Speaker 00:
So.

[00:24:49] Speaker 04:
But with the Catholics and the Loyalists example, why does that not support the historical tradition of disarming

[00:24:59] Speaker 04:
those who are likely in the future to be dangerous?

[00:25:05] Speaker 00:
Because it's much too broad.

[00:25:08] Speaker 00:
I think it becomes untethered to any sort of limiting principle that the legislature allows the government to simply decide that broad categories of people are presumptively dangerous without any evidence

[00:25:28] Speaker 00:
That being so and without any chance to prove otherwise And so I think that is just wildly out of step with The disarmament of Catholics and loyalists do you have cases that support your understanding of how to read those particular historical sources we have the Third Circuit and range on the felon in possession of

[00:25:54] Speaker 00:
They rejected those as being a proper analogy.

[00:26:06] Speaker 00:
And I believe also, well, we have the Third Circuit in Connolly.

[00:26:15] Speaker 00:
But they were sort of, that was also the G3 case.

[00:26:18] Speaker 00:
And I do take a little bit of issue with the way that the Fifth Circuit resolved that.

[00:26:23] Speaker 00:
then what they're asking for is a, it's not clear, but a dangerousness hearing in each individual case.

[00:26:33] Speaker 00:
And I think that becomes really difficult in practicality because it also allows the government to simply arrest, you know, anybody with marijuana who's a marijuana user that they find out has a gun.

[00:26:48] Speaker 00:
You know, you could round them up en masse and then have individual hearings to decide who's dangerous and who's not.

[00:26:56] Speaker 00:
And that seems very out of step with the Second Amendment and a little bit of a scary proposition.

[00:27:04] Speaker 02:
But your concern about disarming Catholics and loyalists is because it's due general.

[00:27:13] Speaker 02:
But those laws were in effect and we have to consider them in

[00:27:17] Speaker 02:
when we consider whether they're historical analogs, you would agree, okay, so you have this law that prohibiting the Catholics, of all things, because they might be dangerous.

[00:27:37] Speaker 02:
But it's clear that all Catholics were not dangerous.

[00:27:43] Speaker 02:
And yet they interdicted it or they disarmed them.

[00:27:47] Speaker 02:
So why doesn't that make it an applicable analog to disarming users?

[00:27:56] Speaker 02:
Because they might be dangerous.

[00:27:58] Speaker 00:
Because the Second Amendment repudiated that.

[00:28:01] Speaker 00:
It was like the Second Amendment was an answer to that.

[00:28:05] Speaker 00:
And that disarmament of Catholics

[00:28:09] Speaker 00:
no longer became possible once you have the Second Amendment in place.

[00:28:17] Speaker 00:
That's why.

[00:28:18] Speaker 00:
I mean, the English government was suspicious of Catholics.

[00:28:23] Speaker 00:
The Americans were concerned with loyalists overthrowing the government.

[00:28:30] Speaker 00:
And you could prove that you weren't, that you were loyal through a hearing or through

[00:28:39] Speaker 00:
You know, somebody individually deciding that you weren't a problem.

[00:28:43] Speaker 00:
Whereas with this marijuana user, 922G3, you don't have that opportunity.

[00:28:53] Speaker 00:
It's just a blanket.

[00:28:54] Speaker 00:
You become at some point where I would argue that most marijuana users in this country who are, who have firearms in the home or perhaps in a car,

[00:29:09] Speaker 00:
have no idea that they are violating federal law by having such a firearm.

[00:29:15] Speaker 04:
What did the district court do with the Catholic loyalists' body of evidence?

[00:29:20] Speaker 04:
I thought the district court was focused more on disarming those who acted violently in the past and so didn't think that that evidence was relevant.

[00:29:33] Speaker 00:
Yes, I would agree.

[00:29:34] Speaker 04:
Okay.

[00:29:34] Speaker 04:
Why is that not wrong?

[00:29:37] Speaker 04:
I mean, if we're thinking about the statute here as applying to non-intoxicated marijuana users, I think the government tried to show that non-intoxicated marijuana users are still violent and dangerous people.

[00:29:55] Speaker 04:
I mean, that might be wrong.

[00:29:57] Speaker 04:
But the district court just didn't engage with that body of evidence or the historical record because I think it was misdirected in its identification of the historical principle.

[00:30:10] Speaker 04:
They thought the historical principle was those who acted violently in the past.

[00:30:15] Speaker 04:
So why isn't there an error there?

[00:30:18] Speaker 04:
Shouldn't we send this back to the district court to look at, say, no, no, that evidence is relevant, the historical,

[00:30:24] Speaker 04:
Catholic loyalist evidence is relevant to discerning what the historical principle is.

[00:30:29] Speaker 04:
And the government, you know, tried to show that non-intoxicated marijuana users, which is the focus of the challenge, are actually disproportionately violent.

[00:30:38] Speaker 04:
They submitted empirical, social science, et cetera, district court disregarded all that under Bruin.

[00:30:45] Speaker 04:
Why isn't that an error that is correctable here on remand?

[00:30:49] Speaker 00:
Well, I think that that's because the

[00:30:53] Speaker 00:
The cat, like in Rahimi, they largely disregarded the government's arguments there, saying they were disarmed for different reasons.

[00:31:04] Speaker 00:
You have to have a comparable how and a comparable why.

[00:31:08] Speaker 00:
And the comparable why here is different.

[00:31:13] Speaker 00:
You disarm Catholics, you disarm loyalists, because you viewed them as a political threat.

[00:31:21] Speaker 00:
That is not the case with marijuana users.

[00:31:23] Speaker 00:
So the principle to be pulled from that is not in fact that we just disarm people because the government can decide whoever it wants is presumptively risky.

[00:31:34] Speaker 00:
It's that we disarm people who they turned then to the surety laws, to going armed laws, to show that we disarm people who have demonstrated that they are a danger with firearms.

[00:31:47] Speaker 00:
And that is why Rahimi,

[00:31:50] Speaker 00:
My 922G8 was upheld only as to the one prong, the C1.

[00:31:59] Speaker 00:
But we don't have any of that with 922G3.

[00:32:05] Speaker 00:
It's just wildly dissimilar and a different and not a comparable Y is my answer to that.

[00:32:15] Speaker 00:
I'm out of time.

[00:32:16] Speaker 04:
I'm happy to give you another minute since your adversary went a little over.

[00:32:20] Speaker 00:
Thank you.

[00:32:21] Speaker 00:
I know that their other argument is that marijuana users are akin to the mentally ill.

[00:32:31] Speaker 00:
What kind of marijuana users?

[00:32:33] Speaker 00:
Non-intoxicated marijuana users?

[00:32:35] Speaker 00:
They did not say.

[00:32:37] Speaker 00:
They just said marijuana users.

[00:32:40] Speaker 00:
And they actually keep referring just to controlled substance users in general.

[00:32:45] Speaker 00:
But I am confining this to marijuana users.

[00:32:48] Speaker 03:
And... Doesn't it break down when you talk about alcohol and alcoholics?

[00:32:57] Speaker 00:
Doesn't it break down?

[00:32:58] Speaker 03:
Yeah.

[00:32:58] Speaker 03:
In other words, there's no whole theory breakdown.

[00:33:00] Speaker 03:
And if a recovering drunk can carry a gun, then why can't a non-intoxicated marijuana user carry a gun?

[00:33:13] Speaker 00:
Yes, and I think, and that's exactly what the Fifth Circuit did hold in their Connolly case.

[00:33:18] Speaker 00:
They compared that exactly saying what is a marijuana user more like, an alcoholic or anybody else?

[00:33:27] Speaker 00:
And the answer is they're more like an alcoholic and we certainly do not go around disarming alcoholics.

[00:33:32] Speaker 00:
And also when, you know, where is the line there?

[00:33:36] Speaker 00:
Is it that they have to have two or three drinks a day or, you know,

[00:33:42] Speaker 00:
When does somebody become quote unquote an alcoholic?

[00:33:46] Speaker 00:
And also here importantly I think is that they have not alleged that Mr. Harrison is an addict.

[00:33:53] Speaker 00:
He is charged with being a marijuana user.

[00:33:58] Speaker 00:
And a lot of their arguments going towards the mentally ill would be perhaps more akin to somebody who is an addict, such that they're a habitual user to the point that they lose control of their functions.

[00:34:11] Speaker 00:
So I don't see that as a relevant analogy, not analogous enough.

[00:34:20] Speaker 00:
Do I have more time?

[00:34:21] Speaker 04:
I think we understand your argument.

[00:34:23] Speaker 00:
Okay.

[00:34:24] Speaker 00:
Thank you.

[00:34:24] Speaker 04:
Thank you.

[00:34:29] Speaker 04:
Okay.

[00:34:31] Speaker 04:
Thank you.

[00:34:31] Speaker 04:
The case will be submitted.

[00:34:32] Speaker 04:
Thank you for your helpful arguments.

[00:34:35] Speaker 04:
The court will be in recess until tomorrow morning.