[00:00:00] Speaker 00:
first case, 23-6047, United States versus Jackson.

[00:00:05] Speaker 00:
Mr. Autry.

[00:00:09] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:00:12] Speaker 03:
Based on a 14-year-old Kansas misdemeanor conviction for domestic violence, Mr. Jackson was charged in the Western District under 922G9 for illegally possessing a firearm

[00:00:28] Speaker 03:
because he had this old misdemeanor conviction in Kansas that the record indicates didn't even involve a firearm.

[00:00:37] Speaker 03:
And it's our position, Your Honors, that notwithstanding the Rahimi decision that came down from the Supreme Court this last term, construing 922G8, where somebody is barred from having a firearm because they're under a victim protective order, that that does not translate

[00:00:57] Speaker 03:
into showing that the government can shoulder its burden of proof.

[00:01:01] Speaker 00:
Counsel, are you making a facial challenge or an as-applied challenge?

[00:01:05] Speaker 03:
I think it's both, Your Honor.

[00:01:06] Speaker 03:
It's a facial challenge and impliedly, impliedly, I think.

[00:01:12] Speaker 03:
In our brief, we raised an as-applied challenge, noting that this is a 14-year-old misdemeanor conviction that doesn't even involve a firearm.

[00:01:21] Speaker 00:
Is that how the district court understood it?

[00:01:22] Speaker 00:
I mean, district court resolved this purely as a facial challenge.

[00:01:27] Speaker 00:
Where I'm a little stuck is how you can have a facial argument after Rahimi.

[00:01:34] Speaker 03:
I think we can have a facial argument challenging 922G9 after Rahimi because you're dealing with apples and oranges, really.

[00:01:43] Speaker 03:
922G8 applies to an individual who is an imminent current threat to somebody else against whom a victim protective order has been taken out

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He's gotten the procedural protections that go along with that.

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And he's found to be an immediate current threat.

[00:02:05] Speaker 03:
Now that's quite a bit different from 922 G9, because under 922 G9, what you have in effect is a lifetime ban for the possession of a firearm for anybody who has ever been convicted for domestic violence misdemeanor, regardless of how old it is.

[00:02:27] Speaker 03:
And regardless of whether or not the prior incident in this case, which was 14 years old, even involved a firearm.

[00:02:35] Speaker 00:
Is it a lifetime ban?

[00:02:36] Speaker 00:
The government seems to suggest that it's not.

[00:02:39] Speaker 03:
It's a lifetime ban in effect because they talk about, well, you can get it expunged or you can get pardoned or some kind of extraordinary remedy to displace the misdemeanor conviction.

[00:02:52] Speaker 03:
In effect, it's a lifetime ban.

[00:02:53] Speaker 03:
You could say the same thing for felons in possession of a firearm.

[00:02:57] Speaker 03:
Well, maybe a guy who's a felon in possession of a firearm can get his conviction expunged somehow or get it reversed on appeal or get a governor's pardon or something of that nature.

[00:03:10] Speaker 03:
So it's in effect a lifetime ban absent extraordinary circumstances, just as it would be for somebody who is a felon in possession of a firearm.

[00:03:22] Speaker 03:
And I think one of the interesting things here is that in the district court, the government argued that 922 G9 was analogous to the old surety statutes, the going armed statutes, the afraid statutes, and things of that nature.

[00:03:43] Speaker 03:
The district court did not rule on any of that.

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The district court didn't adopt any of those arguments.

[00:03:49] Speaker 00:
The district court relied on Heller, right?

[00:03:51] Speaker 03:
Yes, the dicta and heller that it's analogous, according to the district court, to somebody who's been convicted of being a felon in possession of a firearm.

[00:04:02] Speaker 00:
How does the district court's reliance on the heller dicta change after Rahimi?

[00:04:08] Speaker 03:
I think it changes, Your Honor, because being a felon in possession of a firearm is an entirely different category as we argued in our briefs than

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being a misdemeanor.

[00:04:23] Speaker 00:
Does that distinction hold in the domestic violence context, given what we have said and the Supreme Court has said about folks who engage in domestic violence?

[00:04:32] Speaker 00:
Why is that?

[00:04:34] Speaker 03:
Because it's a category error.

[00:04:35] Speaker 03:
Now, they're analogous to the extent that they're both categories of crime, one's a felony, one's a misdemeanor.

[00:04:42] Speaker 03:
But to say that being a felon in possession of a firearm is analogous to being a misdemeanor who is barred from firearm possession,

[00:04:51] Speaker 03:
just doesn't hold water.

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It was never suggested by Heller or any subsequent case construing Heller that misdemeanance can be barred under the historical traditions of firearm regulations stemming from the Second Amendment.

[00:05:08] Speaker 03:
That was never said in the Heller dicta.

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It was never said in the McDonald case that went up from Illinois.

[00:05:15] Speaker 03:
So we think it's just, it's not analogous at all.

[00:05:19] Speaker 03:
It just isn't analogous.

[00:05:21] Speaker 03:
One is a felony, one is a misdemeanor.

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They're both crimes, of course, but that just paints with too broad a brush, we believe.

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And the other distinction here is that, well, the government on appeal abandoned initially

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arguments that 922 G9 was analogous to the old surety statutes and the going arm statutes and the appraised statutes.

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They abandoned all that, that they argued in the district court.

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The district court didn't rely on any of that.

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Now, granted, the district court said toward the end of its order, okay, I'm denying the motion to dismiss on constitutional grounds.

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preserved your record for any further appeal, but we're going to have to wait to see what higher courts do as Bruin is construed in other cases.

[00:06:20] Speaker 03:
And the reason that Rahimi doesn't apply here, I don't think, Your Honors, and the logic of Rahimi, which did rely and reference old surety statutes and things of that nature, is that

[00:06:34] Speaker 03:
The surety statutes, the phrase statutes, going armed statutes did not work a lifetime ban on firearm possession.

[00:06:43] Speaker 03:
In fact, they didn't really work a ban on possessing a firearm so long as you put up a bond or so long as certain other conditions were met.

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But Rahimi says that the surety in going armed laws confirm what common sense suggests.

[00:06:59] Speaker 00:
When an individual poses a clear threat of physical violence to another,

[00:07:03] Speaker 00:
the threatening individual may be disarmed.

[00:07:05] Speaker 00:
So how does that not apply squarely here?

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A clear threat, meaning a current threat.

[00:07:10] Speaker 03:
That's how I would interpret it.

[00:07:12] Speaker 03:
A current immediate threat.

[00:07:14] Speaker 03:
And somebody who's under a victim protective order, as we indicated earlier, is a current immediate threat to somebody and has been found to be such by a court after certain procedural protections were afforded to the accused on the

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on the protective order case.

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But those statutes, those old statutes, you could still go around armed if you put up a bond.

[00:07:39] Speaker 03:
Here, it's in effect a lifetime ban for being convicted of a misdemeanor over a decade in the past, as was clear in this case.

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So that's the reason, Your Honor, we don't believe that those surety statutes and the life which the government

[00:07:56] Speaker 03:
now relies on based on Rahimi apply in this context.

[00:08:01] Speaker 03:
One is a temporary ban.

[00:08:03] Speaker 03:
One is a lifetime ban.

[00:08:05] Speaker 03:
One deals with an immediate and current threat to other people.

[00:08:10] Speaker 03:
One is based on an old, old conviction that may or may not show that somebody is a current clear threat.

[00:08:19] Speaker 03:
There was no showing that because of this 14-year-old misdemeanor domestic violence convention out of Kansas, that Mr. Jackson was a clear and present threat or a clear and present danger to anybody.

[00:08:34] Speaker 00:
What authority can you point us to that suggests how old that prior is, informs our analysis after Rahimi?

[00:08:41] Speaker 03:
No specific authority, Your Honor, just the fact that it is a significant difference.

[00:08:47] Speaker 03:
between an old conviction for domestic violence misdemeanor and yet again somebody who poses a current threat as has been found by a judge who issues a protective order.

[00:09:01] Speaker 04:
Well, how do we factor in or do we factor in the fact that he appears to be a current threat based on the conviction in this case?

[00:09:11] Speaker 03:
In this particular case, I guess you could say that he's a current threat because he was convicted on a guilty plea for possessing a firearm due to a misdemeanor conviction.

[00:09:24] Speaker 03:
But to say that the fact that he had the old misdemeanor conviction makes him a current threat, I think is the pertinent.

[00:09:32] Speaker 04:
You don't think a person who engages in road rage with a gun

[00:09:37] Speaker 04:
And then stashes the gun in a child's backpack.

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And then subsequently discovered that there are three other guns, a total of five guns, with two, what, 36 round magazines.

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And that person's not a current threat.

[00:09:56] Speaker 03:
Based on looking at it through and on that prism or through that prism, yes, I think that argument could be made.

[00:10:02] Speaker 03:
But the point I'm trying to make, not very successfully, apparently,

[00:10:07] Speaker 03:
is that when you're talking about a current threat, you're talking about, in the instance of a protective order, somebody's been demonstrated as that based on ass conduct versus an old misdemeanor conviction.

[00:10:21] Speaker 04:
Then you may need to also correct me on the record.

[00:10:27] Speaker 04:
My understanding of the record is that there were two misdemeanor convictions.

[00:10:31] Speaker 03:
That's correct.

[00:10:31] Speaker 03:
He had a misdemeanor conviction out of Tulsa County in a domestic violence case, but that was not the predicate upon which the federal charge was based.

[00:10:41] Speaker 03:
They simply charged him under 922 G9 because he had the old 14 year old domestic violence misdemeanor conviction in Kansas.

[00:10:53] Speaker 03:
The case in Tulsa County for which he got a deferred sentence

[00:10:58] Speaker 03:
was not part of the charging document.

[00:11:00] Speaker 04:
It was not in the indictment?

[00:11:01] Speaker 03:
It was not in the indictment.

[00:11:02] Speaker 03:
He did not plead guilty based on the Tulsa County case.

[00:11:06] Speaker 04:
Was it referenced in the sentencing proceedings?

[00:11:08] Speaker 03:
Was it referenced in the sentencing proceedings?

[00:11:11] Speaker 03:
I don't believe so, Your Honor.

[00:11:12] Speaker 03:
I don't believe so.

[00:11:13] Speaker 03:
And I'll point out one other thing.

[00:11:17] Speaker 03:
The case of N. Ray, United States, Judge Murphy, you issued a dissenting opinion in that case.

[00:11:23] Speaker 03:
It was a 2009 case that preceded Bruin.

[00:11:28] Speaker 03:
However, in your dissent, Judge Murphy, you indicated that you didn't think 922 G9 was historically a proper basis for the ban.

[00:11:42] Speaker 03:
And this was before Bruin, but your dissent presupposed or foreshadowed the reasoning in Bruin.

[00:11:50] Speaker 04:
So you allow for the fact that that dissenter became educated by Bruin.

[00:11:56] Speaker 03:
Well, that's entirely possible, you're right.

[00:11:59] Speaker 03:
But I still think that the court's logic or your logic in that dissenting opinion is clearly applicable here and it tracks the Bruin analysis.

[00:12:10] Speaker 03:
And there's just not a historical analog that is close enough that would ban somebody for life from having a firearm because of an old decade and a half

[00:12:24] Speaker 03:
misdemeanor, domestic violence, conviction, period.

[00:12:28] Speaker 03:
You can say, well, felony misdemeanor, old statute versus new statute.

[00:12:34] Speaker 03:
There's nothing analogous, nothing analogous.

[00:12:37] Speaker 03:
So we would request, Your Honor, very respectfully that the judgment in this case be reversed.

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And if there are no further questions, I'd like to reserve the remainder of my time.

[00:12:48] Speaker 03:
Thank you, Your Honor.

[00:12:54] Speaker 00:
Mr. Krieger.

[00:12:59] Speaker 02:
Good morning and may it please the court.

[00:13:01] Speaker 02:
Stephen Kreger on behalf of the United States.

[00:13:04] Speaker 02:
The district court properly denied Mr. Jackson's motion to dismiss the indictment that was filed pre-trial and properly concluded that 18 USC section 922 G9 is facially constitutional.

[00:13:15] Speaker 00:
How did the district court's analysis comport with Rahimi?

[00:13:18] Speaker 00:
Because it seems that it didn't at all.

[00:13:23] Speaker 02:
So I will admit it's not the option I would have chosen if I had been in the district court's shoes, which is why we presented some additional arguments on appeal to support that.

[00:13:41] Speaker 00:
Why shouldn't we just send the case back to the district court and give this very experienced district court judge an opportunity to decide the case under

[00:13:52] Speaker 00:
the applicable Supreme Court precedent.

[00:13:55] Speaker 02:
The reason why I would say you don't need to do that is this case is currently before this court on de novo review.

[00:14:00] Speaker 02:
So even while I would admit the explanation of the district court may provide additional guidance or additional an additional source for this court, the matter is currently present before this court and this isn't a matter of

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It's before this court in the first instance.

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It's before the court on a deferential standard of review.

[00:14:25] Speaker 02:
It's before the court de novo.

[00:14:27] Speaker 02:
And so at the end of the day, there's nothing really to be gained by sending it back just to come back and file the exact same pleadings, except more massaged with Rahimi.

[00:14:42] Speaker 04:
Let me ask you this under Morales Lopez.

[00:14:47] Speaker 04:
Do we have the discretion to determine this on a facial challenge?

[00:14:56] Speaker 04:
Because on the face of the statute, with the indictment and the conviction, he is clearly subject to the statute?

[00:15:06] Speaker 04:
Correct.

[00:15:06] Speaker 04:
Can we do that?

[00:15:08] Speaker 02:
Can you consider it based on a facial challenge?

[00:15:09] Speaker 02:
Yes, Your Honor.

[00:15:10] Speaker 04:
A facial challenge?

[00:15:11] Speaker 02:
Yes, Your Honor.

[00:15:12] Speaker 04:
Is that what you want us to do?

[00:15:13] Speaker 04:
Yes, Your Honor.

[00:15:15] Speaker 00:
But there's also an as-applied challenge here, right?

[00:15:17] Speaker 02:
I don't believe so, Your Honor.

[00:15:19] Speaker 02:
Mr. Jackson never argued the district court erred by classifying this as a facial challenge.

[00:15:26] Speaker 02:
So the only order before this court for review, the only thing that was preserved through a pretrial motion to dismiss, was a facial challenge to the statute.

[00:15:36] Speaker 02:
If this court were to consider

[00:15:38] Speaker 02:
essentially a buried as applied challenge because that issue wasn't brought before the district court, especially because there was no motion to dismiss file after... Did you make an argument that the defendant was limited to his facial challenge?

[00:15:52] Speaker 00:
Because you can waive that, can't you?

[00:15:53] Speaker 02:
Your Honor, we argued very specifically that

[00:15:56] Speaker 02:
this court was reviewing a facial challenge.

[00:15:58] Speaker 02:
We based that on the district court's statement, I think at least twice in its order, that all that Mr. Jackson was raising was a facial challenge.

[00:16:08] Speaker 00:
Did you take that position in the district court?

[00:16:10] Speaker 00:
Did you take the position in the district court that what was, excuse me, before the court was only a facial challenge?

[00:16:16] Speaker 02:
I don't believe we did, Your Honor.

[00:16:17] Speaker 00:
So have you waived the argument that he can't bring in as applied challenge?

[00:16:22] Speaker 02:
No, Your Honor, initially I would say

[00:16:24] Speaker 02:
We would not have waived the argument even by failing to raise it because waiver requires an intentional relinquishment of a known right.

[00:16:31] Speaker 02:
We did not specifically say we're waiving the right, or we're waiving the ability to say this is only limited to a facial challenge.

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More importantly, this court can affirm, and this court

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ultimately would not be bound by such a concession.

[00:16:53] Speaker 02:
The court also is honestly reviewing the district court's order that says it's a facial challenge.

[00:17:00] Speaker 02:
Mr. Jackson would have had the opportunity either through a motion to reconsider or through filing a motion to dismiss at the appropriate time, which would have been after either a plea of guilty or adjudication by a jury to file an as-supplied challenge.

[00:17:15] Speaker 02:
As the district court explained in Pope,

[00:17:18] Speaker 02:
a pretrial as applied Second Amendment challenge is generally not available.

[00:17:24] Speaker 02:
That's because the facts of the case are to be developed through a trial.

[00:17:30] Speaker 04:
On remand of Romini in the Fifth Circuit, there was one concurring opinion indicated that Romini foreclosed a facial challenge.

[00:17:46] Speaker 04:
Did the two

[00:17:49] Speaker 04:
other judges buy into that?

[00:17:55] Speaker 02:
I honestly am not certain, Your Honor.

[00:17:57] Speaker 02:
I do not remember what the Fifth Circuit opinion on Rahimi, on remand, specifically says.

[00:18:03] Speaker 02:
I would not be surprised, given the Fifth Circuit's view of the Second Amendment, that there was at least some disagreement and that an as-applied challenge would be available.

[00:18:16] Speaker 02:
But that's pure speculation on my part.

[00:18:20] Speaker 02:
I'm sure I have read essentially Rahimi 2 or Rahimi 3, however one might say that, the remand opinion on Rahimi.

[00:18:27] Speaker 04:
The reason why I ask is that there's a Sixth Circuit case, Gales, which indicates you can do a facial challenge after Ramini.

[00:18:39] Speaker 04:
But if the two other judges, unless the two other judges did not

[00:18:47] Speaker 04:
buy into that argument of the concurring opinion unless, if they did, then there would be a circuit split if we said you can do a facial challenge, that we will recognize the facial challenges.

[00:19:03] Speaker 04:
That's why I'm asking the question.

[00:19:05] Speaker 02:
Broadly speaking, if I can speak broadly to 922G as a whole, because I believe Yale's is the only court that's addressed 922G9 specifically.

[00:19:14] Speaker 02:
But as a whole, there already is a circuit split regarding whether as applied challenges and second amendment cases are available.

[00:19:21] Speaker 02:
The Eighth Circuit, I believe, and Jackson has taken the position that at least as far as felony convictions are concerned, as applied challenges are not available.

[00:19:31] Speaker 02:
The majority of other circuits, I believe, have concluded at least to some extent there would be as applied challenges available.

[00:19:40] Speaker 04:
All right.

[00:19:40] Speaker 02:
Thank you.

[00:19:44] Speaker 02:
On a facial challenge, or to the extent that this court is only reviewing a facial challenge, that wipes away many of the arguments that Mr. Jackson's attorney made just moments ago.

[00:19:56] Speaker 02:
The fact that sometimes a conviction or predicate for 922-29 might make the disagreement indefinite or permanent does not make that so in every case.

[00:20:09] Speaker 02:
In fact, the Supreme Court in Rahimi noted that there are instances where

[00:20:14] Speaker 02:
there might be a 40-year long or an indefinite restraining order.

[00:20:21] Speaker 02:
And the court said that did not foreclose concluding that the statute is spatially constitutional.

[00:20:27] Speaker 02:
And that's because the government's burden, at least to the extent that we get past the first step in the ruin, the government's burden is to show that the statute is constitutional in some cases.

[00:20:42] Speaker 02:
And as the government explained, Section 921A33C provides that in certain instances, a conviction would no longer qualify after five years.

[00:20:53] Speaker 02:
As the... It's 922G8.

[00:20:54] Speaker 02:
Is that what you referenced?

[00:20:57] Speaker 02:
I was referencing 921A33C, which defines what constitutes a misdemeanor crime of domestic violence for purposes of 922G9.

[00:21:07] Speaker 02:
Gales recognized also that under 921A33B2, not every case is going to be an indefinite disarmament because there are options like restoring civil rights, like expungement, pardoning, things like that.

[00:21:26] Speaker 02:
And in fact, in this case, had Mr. Jackson taken the opportunity, or taken the opportunity that Kansas law provided him, Section 21-6614A1,

[00:21:37] Speaker 02:
provided a path to seek expungement after a certain period of time.

[00:21:42] Speaker 02:
Putting a requirement that a defendant seek to take himself out of the class of people who the legislature has disarmed is perfectly consistent, for example, with the loyalists.

[00:21:53] Speaker 02:
In fact, the loyalists had to do something more than just seek some discretionary relief.

[00:21:58] Speaker 02:
They had to essentially commit high treason against who they believed their king was and sign an oath of loyalty to a new country in order to have their firearm rights restored.

[00:22:10] Speaker 02:
And so the fact that

[00:22:13] Speaker 02:
there is an indefinite disarmament until somebody takes a step to relieve themselves of that disarmament is simply within the historic traditions of this country.

[00:22:23] Speaker 00:
And we should understand your position, as you just articulated, as responsive to this being a facial challenge, right?

[00:22:30] Speaker 02:
Correct.

[00:22:31] Speaker 00:
So let's assume that we conclude there is also an as applied challenge here.

[00:22:40] Speaker 00:
What is the government's response to that?

[00:22:42] Speaker 00:
Is it confined to the specific characteristics, Mr. Jackson's particular conviction here, which is based on this 14-year-old misdemeanor and so forth, right?

[00:22:55] Speaker 02:
So if I can expand slightly on that, first of all, I would start by saying specifically raising the district court erred and not addressing an as applied challenge would be forfeited.

[00:23:09] Speaker 02:
And this would be the first time for me to be able to respond.

[00:23:13] Speaker 02:
So I would say.

[00:23:13] Speaker 00:
Did you take the position in your briefing in our court that your friend on the other side is forfeited?

[00:23:21] Speaker 00:
the as-applied argument.

[00:23:23] Speaker 00:
It seemed to me that the government argued this also as-applied.

[00:23:27] Speaker 02:
We took the position in our brief that this was purely a facial challenge.

[00:23:31] Speaker 02:
We noted that if there was an as-applied challenge, there were things that would counsel in favor of it, but this would be just like in Rahimi, the Supreme Court said, this is a facial challenge, but it still looked

[00:23:44] Speaker 02:
in addressing the facial challenge to 922-G8 to the specific facts to support its conclusion that Section 922-G8 was facially constitutional.

[00:23:54] Speaker 02:
So I think to be more directly responsive to your question, there is a, I think, split in authority amongst the circuits about

[00:24:02] Speaker 02:
Would the court be restricted just to the underlying conduct in this case of the misdemeanor crime of domestic violence, which, perhaps while not involving a weapon, did involve grabbing the domestic partner's throat, causing a laceration, which, Justice Thomas explained in his voicing dissent, would be something that would fall within the Second Amendment.

[00:24:24] Speaker 00:
So let me tell you how I'm understanding the specific application, and tell me if the government agrees.

[00:24:29] Speaker 00:
So this would be reviewing 922-G9.

[00:24:32] Speaker 00:
as applied to those permanently disarmed, whose predicate misdemeanors did not involve firearms, and whose predicate convictions are over 10 years.

[00:24:41] Speaker 00:
So those are the relevant as applied facts.

[00:24:45] Speaker 00:
Is that fair?

[00:24:50] Speaker 02:
Well, I would limit it to 1 to 14 years.

[00:24:53] Speaker 02:
I would not say indefinitely, because while it might be indefinitely, there are ways that it could be undone.

[00:25:03] Speaker 02:
I would also point out, and there have been courts that have said we can look past just the underlying conviction.

[00:25:11] Speaker 02:
So if we are talking about an as-applied challenge, especially on plain error review, as Judge Murphy pointed out, I would also be looking at the fact that even as recently as what gave rise to the arrest in this case, as recently as December 30, 2021,

[00:25:30] Speaker 02:
Mr. Jackson was using firearms to shoot at a vehicle, leaving multiple bullet holes, including, I believe, at least one on the driver's side windshield.

[00:25:42] Speaker 02:
So there are additional facts beyond just the facts related to the Kansas misdemeanor crime.

[00:25:49] Speaker 01:
But that was not presented to the district court in that fashion, was it?

[00:25:57] Speaker 01:
I believe so.

[00:25:58] Speaker 01:
I think you're getting into the dangerous people area.

[00:26:02] Speaker 02:
Well, to the extent that we're talking about an as-applied challenge, and especially this court addressing an as-applied challenge right now, this court would have all of the facts that were in the PSR before it.

[00:26:14] Speaker 02:
To the extent that we're just talking about the district court's order, the district court explained that it was limiting itself to a facial challenge.

[00:26:20] Speaker 02:
So if we're talking about an as-applied challenge, we're not talking about the district court's order at this point.

[00:26:27] Speaker 00:
Say more.

[00:26:27] Speaker 00:
But I'm not sure I'm following you.

[00:26:30] Speaker 02:
So my understanding of Judge Kelly's question was, was the district court presented with these things, did the district court address these things?

[00:26:41] Speaker 02:
He asked that in response to the question, Judge Rossman, that you asked me about an as-applied challenge.

[00:26:47] Speaker 02:
So my response to Judge Kelly is that,

[00:26:51] Speaker 02:
to the extent we're talking about an ad supply challenge, the district court was not addressing an ad supply challenge.

[00:26:57] Speaker 02:
I understand this court may wish to do that.

[00:26:59] Speaker 02:
And if it does, it has the entire factual record before it.

[00:27:05] Speaker 02:
And so that factual record includes the Kansas misdemeanor crime, the Oklahoma misdemeanor crime, and the events that led to the arrest and conviction of this case.

[00:27:18] Speaker 00:
Did the government take the position in its

[00:27:21] Speaker 00:
briefing here that Mr. Jackson was on plain error review to the extent he was raising an as-applied challenge?

[00:27:28] Speaker 02:
No, Your Honor, because our position has been all along that this is a facial challenge.

[00:27:33] Speaker 00:
Your position is that that's how he has been arguing it?

[00:27:35] Speaker 00:
Correct.

[00:27:36] Speaker 00:
So you wouldn't have made the argument?

[00:27:37] Speaker 02:
Correct, because whenever I was writing this brief, I was basing my argument

[00:27:42] Speaker 02:
One on his brief and also on the district court's order, which very clearly laid out at least twice that this was solely a facial challenge.

[00:27:48] Speaker 02:
I see that my time has expired.

[00:27:50] Speaker 00:
Thank you, counsel.

[00:27:51] Speaker 02:
Thank you.

[00:27:53] Speaker 00:
Mr. Autry, you have two minutes and change.

[00:27:57] Speaker 04:
Let me take some of your change.

[00:28:05] Speaker 04:
If this court sent it back for an as applied

[00:28:11] Speaker 04:
analysis, what would happen?

[00:28:16] Speaker 04:
Would there be new evidence put on?

[00:28:17] Speaker 03:
I think that's a possibility if the court were to send it back to have the district court look to see whether an as applied challenge had any merit.

[00:28:29] Speaker 03:
I think at that point in the context of a hearing, you could supplement or augment the record.

[00:28:36] Speaker 03:
with new evidence.

[00:28:38] Speaker 03:
I believe that we could do that, or the government, I guess, could do that.

[00:28:41] Speaker 04:
But the new evidence could not contradict the underlying elements of the crime to which he was found guilty.

[00:28:58] Speaker 03:
I think that's correct, Your Honor, yes.

[00:29:00] Speaker 04:
So all we have is the misdemeanor.

[00:29:06] Speaker 04:
in 2008 and the allegations of the shooting in the December 2021 crime.

[00:29:21] Speaker 03:
Your Honor, based on what we discussed earlier, I don't think it's relevant.

[00:29:27] Speaker 03:
What he did with the drive-by shooting case, I don't think is relevant because the predicate... You're talking about the road rage case?

[00:29:35] Speaker 03:
The road rage case.

[00:29:36] Speaker 03:
Yes, he pled guilty to possessing a firearm because he had a prior misdemeanor conviction and the firearms that were possessed were related to the road rage case.

[00:29:46] Speaker 03:
But as far as the temporal prism, I hate to use that word again, against which this should be measured, it has to do with whether the prior misdemeanor conviction disqualifies him.

[00:30:03] Speaker 04:
And I think also, if nothing else... And those facts are set because there was a conviction.

[00:30:09] Speaker 03:
Yeah, sure.

[00:30:09] Speaker 04:
So those could not be challenged.

[00:30:11] Speaker 03:
I believe that's correct, yes, sir.

[00:30:12] Speaker 03:
Thank you.

[00:30:13] Speaker 03:
I see my time's up.

[00:30:14] Speaker 03:
Thank you very much.

[00:30:16] Speaker 00:
Thank you, counsel.

[00:30:20] Speaker 00:
Thank you.