[00:00:00] Speaker 03:
22-3166, we the Patriots versus Grisham.

[00:00:11] Speaker 00:
Good morning, Your Honors.

[00:00:12] Speaker 00:
May it please the Court, Pete Patterson, for the Fort plaintiffs.

[00:00:15] Speaker 00:
I'm going to be splitting time with the Donk plaintiffs.

[00:00:17] Speaker 00:
We're going to try to do 10 and 5, and I'd like to reserve two minutes for rebuttal if we can.

[00:00:22] Speaker 00:
The governor's order is antithetical to the Second Amendment and should be enjoined.

[00:00:27] Speaker 00:
The order is premised on the notion that there is a crisis of violence in Albuquerque and Bernalillo County.

[00:00:35] Speaker 00:
And that is a time when the need for self-defense is most acute, not when it can be taken away.

[00:00:43] Speaker 00:
The founders were familiar with areas that were particularly vulnerable.

[00:00:47] Speaker 00:
And what they did in those locations is that they didn't disarm people.

[00:00:51] Speaker 00:
Instead, they required people to be armed.

[00:00:55] Speaker 00:
So the governor's order is directly contrary to the principles that underlie the Second Amendment.

[00:01:02] Speaker 04:
Well, Counsel, I'm a little confused.

[00:01:06] Speaker 04:
The district court in another case, Springer v. Grisham, granted the preliminary injunction that you're now seeking on your behalf.

[00:01:16] Speaker 04:
But it's done, isn't it?

[00:01:18] Speaker 00:
It's not done because a preliminary injunction is just that preliminary.

[00:01:22] Speaker 00:
Well, I understand that.

[00:01:23] Speaker 00:
There's no guarantee it's going to last for the duration of our case.

[00:01:26] Speaker 04:
Well, but right now, you've got the relief you wanted in this other case.

[00:01:33] Speaker 04:
your motion now or your appeal now, what would it do?

[00:01:39] Speaker 00:
Well, one, it's going to guarantee that that stays in place for the duration of our litigation.

[00:01:43] Speaker 04:
Speak into the microphone.

[00:01:44] Speaker 04:
I'm sorry.

[00:01:45] Speaker 00:
One, it's going to guarantee that it stays in place for the duration of our litigation.

[00:01:48] Speaker 00:
And two, it's not clear that that injunction covers us.

[00:01:51] Speaker 00:
Springer is an individual.

[00:01:54] Speaker 00:
There is one plaintiff in that case.

[00:01:55] Speaker 00:
The United States Supreme Court recently vacated an injunction in Labrador versus Poe to the extent it went beyond the name plaintiff in a case because it wasn't necessary to give him a relief.

[00:02:06] Speaker 00:
And so it's not clear that perhaps that injunction does cover us now.

[00:02:12] Speaker 00:
But even if it does, that could be a weakness in the injunction that could render us not protected.

[00:02:19] Speaker 01:
Did you make that particular argument in your supplemental brief?

[00:02:22] Speaker 00:
Well, we noted in the supplemental brief that it could be there were

[00:02:28] Speaker 01:
issues with injunction that could cause it to be narrowed, including that it purports to enjoin the order and not the... But did you make that specific argument that you began with in responding to Judge Kelly that this preliminary injunction in Springer

[00:02:44] Speaker 01:
related to an individual that wouldn't necessarily relate to your particular.

[00:02:49] Speaker 00:
We didn't make that specific argument.

[00:02:51] Speaker 00:
We made the argument that the injunction purports to enjoin the order itself rather than an official, which is not the normal form for an injunction.

[00:03:00] Speaker 00:
Then this is related in that the order does not give clarity as to who

[00:03:05] Speaker 00:
the injunction protects.

[00:03:08] Speaker 00:
And this is similar to the Ninth Circuit and Eleventh Circuit cases that we've cited, which said despite nationwide injunctions, we're still going to consider entering an injunction on behalf of the plaintiffs in the case before us.

[00:03:22] Speaker 03:
What about redressability here?

[00:03:26] Speaker 03:
Yes.

[00:03:28] Speaker 03:
From what I can tell, any place in Bernalillo County that you're covering already has an ordinance, some legal prohibition against carrying a firearm in those places.

[00:03:44] Speaker 00:
Yes, Your Honor.

[00:03:45] Speaker 00:
So the first answer on that is that the New Mexico Constitution preempts local firearm laws.

[00:03:51] Speaker 00:
And there's a New Mexico Supreme Court decision, BACA, that says that this bars concealed carry bounds in localities.

[00:03:59] Speaker 03:
Don't you have to get that resolved before you seek relief in federal court?

[00:04:04] Speaker 00:
We don't have to get it resolved.

[00:04:05] Speaker 00:
And this is a distinction between the cases the other side cites

[00:04:09] Speaker 00:
And that in all those cases, redressability was dependent on or most of them was dependent upon actions of a third party, whether the cockfighting market would come back, whether somebody would contract with them, whether an employer would impose a vaccine mandate here.

[00:04:24] Speaker 00:
If this order is enjoined, our clients, they don't have to rely on anybody else.

[00:04:30] Speaker 00:
Fort has said he would carry if this order was enjoined, so that would have redressed the harm.

[00:04:35] Speaker 00:
He said he would.

[00:04:36] Speaker 00:
He said he would if this order were enjoined, notwithstanding any other local jurisdictions.

[00:04:42] Speaker 00:
And the Smith and Donk have both said, they're still carrying now.

[00:04:47] Speaker 00:
despite the fact that this order is in place.

[00:04:51] Speaker 00:
So the harm that they're facing is... But we would have to accept your argument.

[00:04:59] Speaker 03:
We would have to make our own determination of New Mexico constitutional law, would we not?

[00:05:05] Speaker 00:
You wouldn't have to.

[00:05:06] Speaker 00:
I would submit that the New Mexico Supreme Court has already resolved this, and we've got an attorney general letter saying that a location-specific ordinance couldn't stand.

[00:05:14] Speaker 01:
The court hadn't ruled.

[00:05:15] Speaker 00:
So I think it's straightforward.

[00:05:18] Speaker 00:
But you would not have to, because again, you don't have to redress all of our injury, every potential injury that we've had.

[00:05:26] Speaker 00:
Our clients have said, if this order isn't joined, we will carry.

[00:05:31] Speaker 00:
That means that the injury we are facing from the governor's order will be redressed by what this court does.

[00:05:37] Speaker 00:
Maybe we will face some other potential injuries.

[00:05:40] Speaker 00:
We don't think so due to the New Mexico Constitution.

[00:05:43] Speaker 00:
But this court does not have to make that determination in order to rule in our favor.

[00:05:49] Speaker 00:
And so briefly, touching on the merits, I would like to say the governor overwhelmingly relies on municipal park regulations from the late 18th century to support the order.

[00:06:04] Speaker 00:
First of all, those had nothing to do with an emergency circumstance.

[00:06:07] Speaker 00:
New Mexico is fine generally with carries and parks.

[00:06:10] Speaker 00:
The premise here is that we're having an epidemic of violence.

[00:06:13] Speaker 00:
As I said, there's no principle in history that would allow barring carry in that circumstance.

[00:06:18] Speaker 00:
But even putting that to the side, these are too little and too late.

[00:06:22] Speaker 00:
Our submission is that the date is set in 1791, as you know.

[00:06:26] Speaker 00:
But even if it were 1868, there were only three of these municipal regulations by 1868.

[00:06:32] Speaker 00:
And also, what is important is that Bruin teaches you have to look at why these regulations are in place.

[00:06:37] Speaker 00:
The governor has not explained why these park regulations are in place.

[00:06:41] Speaker 00:
Even if they assert they're a dead ringer, that doesn't matter.

[00:06:44] Speaker 00:
Bruin said, assumed for sake of argument, there were some handgun carry bans in colonial times, but they said those were because handguns were dangerous and unusual weapons then.

[00:06:53] Speaker 00:
They're not now, so we have to know the why.

[00:06:56] Speaker 00:
And if we look at the why in these parks, it readily becomes apparent that these parks are a departure.

[00:07:02] Speaker 00:
from our national traditions, not something that we should be drawing constitutional values from.

[00:07:07] Speaker 00:
These were an effort to create idyllic rural aristocratic type spaces within cities.

[00:07:12] Speaker 00:
And you can see that from the regulations that were in place in these parks, such as no ball playing, no musical instruments, no walking on the grass outside of the lawns, no indecent language, and yes, no firearms.

[00:07:24] Speaker 00:
But in context,

[00:07:26] Speaker 00:
What that indicates is that the worry was that people would be hunting or target shooting and thus disturbing the tranquility.

[00:07:32] Speaker 00:
of these locations.

[00:07:34] Speaker 00:
This was not about public safety.

[00:07:35] Speaker 00:
And then the Schuyler source that the governor cites says that when Prospect Park in Brooklyn was being made in this mold, Olmstead urged them to purchase an adjoining parcel for another park that would allow active recreation, including military training exercises.

[00:07:53] Speaker 00:
So these parks were essentially, if you would look at it in the First Amendment context, a time, place, and manner sort of regulation for

[00:08:00] Speaker 00:
putting activities in various places, but it's just apparent that this is not something we should be drawing our tradition of firearm regulation from, even if it were not too late.

[00:08:12] Speaker 00:
And I will pass the time on to my co-counsel so hopefully we can reserve a few minutes for rebuttal.

[00:08:17] Speaker 00:
Thank you.

[00:08:25] Speaker 02:
Good morning, Your Honors.

[00:08:25] Speaker 02:
Anthony Napolitano for Plaintiff Appellants, Gov.

[00:08:28] Speaker 02:
of America, Gov.

[00:08:29] Speaker 02:
Foundation, and Randy Donk.

[00:08:31] Speaker 02:
It pleases the Court.

[00:08:32] Speaker 02:
I intend to specifically address the issues of playgrounds, as affected by the New Mexico Public Health Order, and the Donk plaintiff's departure from the other plaintiffs.

[00:08:42] Speaker 02:
And in footnote seven, the assertion of the Supreme Court has not ruled that any place is conclusively a sensitive place.

[00:08:51] Speaker 02:
The Court merely discusses that possibility in dicta.

[00:08:54] Speaker 01:
And in Heller, which you refer to as dicta with regard to government buildings and schools, Judge Abel, speaking for a unanimous panel in a published opinion, held that the dicta for government buildings

[00:09:14] Speaker 01:
does bind our panel because we are typically consider ourselves bound as much by Supreme Court dicta as much as holdings.

[00:09:24] Speaker 01:
So why doesn't Bonadie's prescription for binding us to the dicta on government buildings bind us also to the Hiller dicta on schools?

[00:09:38] Speaker 02:
problem here is that Heller did not address the states.

[00:09:42] Speaker 02:
And so I would distinguish that on those grounds.

[00:09:47] Speaker 01:
Also, simply put, the Supreme Court announced in later... So it doesn't... Would you say it doesn't affect the states?

[00:09:55] Speaker 01:
You're heller to address the federal government, but not the state.

[00:09:58] Speaker 01:
Yeah, but in both Bruin and McDonald, the Supreme Court specifically held that the scope of the Second Amendment and the incorporation into the due process closer to the Fourteenth Amendment are identical.

[00:10:09] Speaker 01:
So why does the reference to federal government or states matter, since they're identical?

[00:10:15] Speaker 02:
Because of the new analysis, the historical analysis set out in Bruin, which was not addressed in Heller, that specifically laid out, there must be a historical analog for the regulation.

[00:10:30] Speaker 02:
The Supreme Court has since then not addressed the issue of schools.

[00:10:35] Speaker 02:
In fact, in Bruin, the

[00:10:38] Speaker 02:
The majority opinion reference the Friedman schools where teachers were armed and it addresses that approvingly so we can see that there's an analysis there that is yet to be done and nevertheless schools in particular.

[00:10:54] Speaker 02:
Well, the government side does try to analogize those to playgrounds.

[00:11:00] Speaker 02:
Playgrounds and schools are not synonymous.

[00:11:02] Speaker 02:
One could say that they have the exact same relationship between playgrounds and cafeterias, right?

[00:11:06] Speaker 02:
Some cafeterias are in schools, some are not.

[00:11:09] Speaker 02:
Some playgrounds are in schools, some maybe, and it's hard to tell from this order, and I do believe this is one of the

[00:11:16] Speaker 02:
specific issues that Springer did not address and that does not moot out this case is the orders applied to playgrounds was not addressed.

[00:11:28] Speaker 03:
Playgrounds for kids and from what your co-counsel was talking about before kids don't and we wouldn't want them to carry guns to protect themselves there so we would

[00:11:45] Speaker 03:
That would be a rationale for keeping guns totally out of premises connected with schools.

[00:11:53] Speaker 03:
Would it not?

[00:11:55] Speaker 02:
No, Your Honor.

[00:11:56] Speaker 03:
You don't think it makes a difference that we're talking about kids here, where kids play and are active?

[00:12:01] Speaker 02:
Your Honor, this is not a case about whether people under the age of 18 can carry a firearm.

[00:12:07] Speaker 02:
This is really a case about whether people, including individuals such as my client, who's a concealed carry permit holder, may be barred from choosing to protect his family when he takes them to a playground.

[00:12:18] Speaker 02:
Schools also differ from playgrounds in that at schools, the

[00:12:23] Speaker 02:
school or the government is in loco parentis authority and responsibility over the students and but that make a difference to how the playgrounds being used if it's for school activity for football practice or something like that

[00:12:39] Speaker 03:
Would that make a difference because then wouldn't you have to say that the scores and moco parentis for the athletes?

[00:12:47] Speaker 02:
One could assume so and in that case we would have to look at historical analogs from 1791 or there about and see that in those cases the

[00:12:57] Speaker 02:
regulations were only on the students, not on faculty or visitors to the school because that in local parentis authority does not exist.

[00:13:07] Speaker 02:
And further, to have the playgrounds addressed, we don't even have a clear picture on where

[00:13:19] Speaker 02:
Playground ends meaning a McDonald's play place a slide and swing set provided for in a private shopping center Or in a mall with those count as a playground under this order and those have nothing to do with schools I'd like to reserve the rest of the time if that's all right your honor

[00:13:50] Speaker 05:
Good morning, and may it please the Court, I'm Janet Carter, representing Defendants Appellees.

[00:13:55] Speaker 03:
Do you concede that these local ordinances are unconstitutional under the New Mexico Constitution?

[00:14:05] Speaker 05:
Do I concede that the local ordinances are unconstitutional?

[00:14:08] Speaker 05:
No.

[00:14:10] Speaker 05:
I'm here representing the defendants, I believe, not the local entities who are the ones responsible.

[00:14:16] Speaker 03:
Right, but this is relevant to standing and redressability.

[00:14:22] Speaker 03:
Well, would you address redressability to start with?

[00:14:25] Speaker 03:
Or are you arguing that they lack standing because they can't get redress?

[00:14:31] Speaker 05:
Yes, they do like standing because they have not established redressability.

[00:14:37] Speaker 05:
And the reason for that is that each of the parks in which they wish to carry are also covered by a separate local ordinance.

[00:14:47] Speaker 05:
As your question goes to, they do argue that those ordinances are unconstitutional under the state constitution.

[00:14:54] Speaker 05:
But I don't think it's appropriate for them to come to this court asking this court to answer a hypothetical question of state law when they've decided not to challenge those

[00:15:05] Speaker 05:
state ordinances that they acknowledge separately prohibit their conduct in the state court.

[00:15:11] Speaker 03:
But there seems to be something inconsistent in the government's position there.

[00:15:16] Speaker 03:
Because if they are constitutional, it's hard to see what the purpose of this emergency order is.

[00:15:25] Speaker 03:
The emergency order just duplicates what's already local law.

[00:15:29] Speaker 03:
And so you can't say it's necessary to have an emergency order

[00:15:34] Speaker 03:
at the same time as you're saying these local laws prohibit the same thing.

[00:15:41] Speaker 05:
I think this is just the political judgment that is reserved to the democratic branches of determining what is the best way to protect the people of Albuquerque and Benaleo County.

[00:15:51] Speaker 05:
And the judgment was made that having a state-level order in place was important.

[00:15:57] Speaker 05:
I don't think any judgment was made in there that separate ordinances were unconstitutional, but those ordinances are in place and under this court's decision in Valdez, as well as the decisions from other circuits in cases like White,

[00:16:12] Speaker 05:
and the exotic animals case from the Second Circuit.

[00:16:16] Speaker 05:
That means that there isn't redressability in this case.

[00:16:19] Speaker 01:
Does it matter that the penalties may be different?

[00:16:22] Speaker 01:
For example, hypothetically, let's say the ordinance says at Park X that if you are found carrying a firearm you are subject to a $25 fine.

[00:16:33] Speaker 01:
The government's emergency order, hypothetically, says if you are found with a firearm at

[00:16:39] Speaker 01:
Park X, you were subject to imprisonment for up to one year, a fine of $100,000, and a lifetime ban on voting.

[00:16:53] Speaker 01:
Does it matter that the individual may have absolutely no concern about paying a $25 fine, may have no concern about being found in violation of the ordinance, but may very well object to the extraordinary penalties under my hypothetical emergency order?

[00:17:10] Speaker 05:
So I don't want to fight the hyper, but I do want to start out by saying that I think the inverse is the case here.

[00:17:15] Speaker 05:
I think it's clear that the penalties for the unchallenged local ordinances are actually stricter than the governor's order.

[00:17:25] Speaker 05:
But even if that weren't the case, the law presumes that an order is enforceable, that a law that is in place will be enforced.

[00:17:36] Speaker 05:
That's the Consumer Data Association case.

[00:17:40] Speaker 05:
And these plaintiffs are here alleging that they are law-abiding individuals.

[00:17:45] Speaker 05:
I mean, they've declared that in their, put that in their declarations.

[00:17:48] Speaker 05:
So I don't think that it is appropriate to say that they just intend to violate those laws at the same time they're saying that they're law-abiding individuals.

[00:17:57] Speaker 05:
So I think that's why there isn't redressability in this case.

[00:18:00] Speaker 05:
I also agree that the case is moot, or at least the appeal is moot, not the case.

[00:18:06] Speaker 05:
The appeal is moot as to the

[00:18:09] Speaker 05:
the pass prohibition because of the separate injunction that is in place in Springer.

[00:18:16] Speaker 05:
It is not the case that that is limited to Mr. Springer.

[00:18:19] Speaker 05:
In fact, the defendants in that case asked the court to clarify that it was limited to Mr. Springer, and the court said no.

[00:18:27] Speaker 05:
It is clear that that does cover these plaintiffs, and that moots the relief that they're trying to seek.

[00:18:33] Speaker 05:
If I may speak to the merits quickly, in our view,

[00:18:39] Speaker 05:
There are at least three reasons why plaintiffs are not likely to succeed on the merits, very briefly.

[00:18:46] Speaker 05:
There are well over 100 historical laws specifically prohibiting guns in parks.

[00:18:52] Speaker 05:
And those make clear that the governor's prohibition sits firmly within this nation's historical tradition of firearms regulation and within what Rahimi called the principles that underpin our regulatory tradition.

[00:19:08] Speaker 01:
Assuming we consider 19th century regulations, correct.

[00:19:12] Speaker 05:
Yes, so to be sure, the Supreme Court has not resolved this very complicated technical issue of whether 1791 or 1868 is the central focus of the original list.

[00:19:25] Speaker 01:
Now, you take the interesting position in your brief that we don't consider 1791.

[00:19:32] Speaker 01:
We only consider 1868.

[00:19:34] Speaker 01:
both for the Second Amendment and incorporation into the Due Process Clause.

[00:19:38] Speaker 01:
Other circuits have said you consider both 1791 and 1868.

[00:19:42] Speaker 01:
Now, I'm not questioning your position, but how can we consider both 1791 and 1868 if Bruin and McDonald said that the extent of the Second Amendment and the incorporation into the Due Process Clause are identical?

[00:19:59] Speaker 01:
In other words, if we have the exact same emergency order that is

[00:20:03] Speaker 01:
evaluated safe under your view in 1868.

[00:20:08] Speaker 01:
But we have a federal statute that does exactly the same thing.

[00:20:12] Speaker 01:
Hypothetically, then we would not consider these historical analogs that you're asking us to consider from the 19th century.

[00:20:19] Speaker 01:
And we would be circumscribed by 1791.

[00:20:22] Speaker 01:
And it would be impossible then to harmonize into McDonald and Bruin, where we have the exact same scope for those two rights.

[00:20:33] Speaker 05:
So I think these very difficult questions about the two different time periods really only matter in cases where there is an actual conflict between the understanding at 1791 and the understanding at 1868.

[00:20:51] Speaker 05:
And that is absolutely not the case here.

[00:20:53] Speaker 05:
We have this enormous body of laws starting in 1858, and there is nothing

[00:20:59] Speaker 05:
at any point in history saying that anyone ever thought that it was unconstitutional to carry guns in parks.

[00:21:07] Speaker 05:
Bruin was a very different situation, because Bruin involved a challenge to a New York law that functioned as a complete prohibition on ordinary people with ordinary self-defense needs from carrying guns in public at all.

[00:21:22] Speaker 05:
And so what the Supreme Court said there was, we have found an overwhelming weight of other evidence from the 18th and 19th centuries that

[00:21:34] Speaker 05:
shows us that there was some right to carry outside the home.

[00:21:38] Speaker 05:
Here we don't have that.

[00:21:39] Speaker 05:
Now, plaintiffs say that they do have contrary evidence because they say that Boston Common and similar grazing areas from the founding were parks.

[00:21:50] Speaker 05:
And they say that because nobody has yet found any prohibitions on guns in places like Boston Common, that means prohibitions must have been unconstitutional.

[00:22:00] Speaker 05:
But they're wrong on both parts of that.

[00:22:02] Speaker 05:
First, Boston Common was not a park.

[00:22:04] Speaker 05:
The Second Circuit, the Ninth Circuit, district courts in Maryland and Virginia have all concluded that it was not a park.

[00:22:12] Speaker 05:
Parks emerged in the middle of the 19th century with Central Park as the paradigm example.

[00:22:17] Speaker 01:
Is it a factual issue or a legal issue?

[00:22:18] Speaker 01:
Because it's really not either one.

[00:22:20] Speaker 01:
It's a historical issue.

[00:22:21] Speaker 01:
But how do we pigeonhole that into either a factual or legal issue?

[00:22:26] Speaker 01:
You argue that Boston Commons in 1791 was just there for grazing.

[00:22:32] Speaker 01:
They argue, you point to historical sources that say that it was not only used for grazing for animals, but also for the source of recreation.

[00:22:42] Speaker 01:
You know, I'm not a historian, but how do I decide which one of you are right?

[00:22:49] Speaker 01:
Do I just look at your historical sources and decide, yeah, I think it was also used for recreation.

[00:22:55] Speaker 05:
Well, I don't think it's a question of whether it might also have had some incidental use for recreation, just as children might use an empty lot to play, and that just because there is some recreation going on does not make a place a park.

[00:23:07] Speaker 05:
But to answer your question of whether it's a legal or a factual issue, I think it's best understood as a question of legislative fact, which is one where this court can look at more evidence than with respect to the kind of factual questions of adjudicative fact.

[00:23:24] Speaker 05:
And indeed, if you do look at the sources that the plaintiffs have put in, for example, the Beamish article and the Walls article, their own articles acknowledge that parks emerged in the middle of the 19th century.

[00:23:39] Speaker 05:
The Beamish article

[00:23:40] Speaker 05:
refers to Boston Common.

[00:23:43] Speaker 05:
The article is called Before Parks and refers to Boston Common as a pre-parked landscape.

[00:23:47] Speaker 05:
So I think the only fair reading is that those earlier spaces were not parks.

[00:23:52] Speaker 05:
But even if you disagree with me on that, even if they were parks, I think the even more important point is that plaintiffs' argument is that the absence of legislation

[00:24:03] Speaker 05:
necessarily means unconstitutionality and that is absolutely not the case.

[00:24:08] Speaker 05:
It is a premise of our federalist system that governments can regulate as they please according to local needs and depending on policy choices within constitutional limits.

[00:24:21] Speaker 05:
It has never been the case that a government has to legislate up to the constitutional ceiling or else will lose the ability to legislate.

[00:24:30] Speaker 01:
That was what Justice Barrett... Assuming that's correct, in assuming that the contemporary phenomenon of a park wasn't developed until the mid-19th century,

[00:24:40] Speaker 01:
Don't we know from both Bruin and Rahimi that then the question is not whether in 1858 guns were allowed in parks.

[00:24:50] Speaker 01:
It's whether or not in historical analog, under their view, if we look at 1791, in 1791 there was an appropriate historical analog.

[00:25:01] Speaker 01:
And you argue that they were sensitive places, right?

[00:25:05] Speaker 01:
that parts were similar to schools, similar to places like that.

[00:25:12] Speaker 01:
So isn't that really the analysis, whether or not guns were typically allowed in 1791, if we use their historical benchmark for firearms?

[00:25:23] Speaker 05:
Well, I think this question goes to the issue of looking at the whole span of history.

[00:25:28] Speaker 05:
And Rahimi instructs us to look for the principles that underpin our regulatory tradition.

[00:25:35] Speaker 05:
The principle here is the principle, as Justice Barrett put it in her concurring opinion in Rahimi, of

[00:25:42] Speaker 05:
the principle, she called it the sensitive places principle that limits the right to public carry.

[00:25:49] Speaker 05:
So that's the broad principle.

[00:25:51] Speaker 01:
So if we look at 1791, what sensitive places did allow wholesale bans on firearms?

[00:25:57] Speaker 05:
Well, Hella tells us that schools are one.

[00:26:01] Speaker 01:
So in 1791, we had Virginia.

[00:26:05] Speaker 01:
We had some guy who wrote that he thought the common law in England allowed firearms, which was never enacted in North Carolina.

[00:26:15] Speaker 01:
So we've got Virginia.

[00:26:17] Speaker 01:
And then we have the fact that in 1791, the whole idea of banning firearms was limited to students.

[00:26:27] Speaker 01:
You haven't produced any historical evidence, I don't think, that schools historically in the 18th century banned firearms for anybody other than students.

[00:26:37] Speaker 01:
And that was under a theory of in loco parentis.

[00:26:41] Speaker 05:
Well, as Your Honour said, I think this question is already resolved in Bonnerty because when the Supreme Court said in Heller that its decision was casting no doubt on prohibitions on guns in schools and government buildings, it didn't say

[00:26:59] Speaker 05:
It was disgusting, no doubt, on prohibiting children from having guns in schools.

[00:27:03] Speaker 01:
Well, did the Heller-Dicte actually say that firearms were completely banned in both government buildings and schools?

[00:27:12] Speaker 01:
I thought Heller's Addicta only referred to the fact that schools and government buildings could be regarded as sensitive places that would facilitate regulations on the possession of firearms.

[00:27:22] Speaker 05:
It could be wrong.

[00:27:25] Speaker 05:
I can read it.

[00:27:25] Speaker 05:
I have it here.

[00:27:27] Speaker 05:
Nothing in our opinion should be taken to dust, cast doubt on, and then another phrase, laws forbidding the carrying of firearms in sensitive places.

[00:27:36] Speaker 05:
such as schools and government buildings.

[00:27:38] Speaker 05:
So I think that's an absolutely unambiguous and universal prohibition.

[00:27:43] Speaker 05:
And as Your Honor said, when the question came up in Bonity of whether that is binding on this court, the court said, yes, it is.

[00:27:51] Speaker 05:
And it rested that solely on that historical proposition from Heller in this part of the opinion.

[00:27:57] Speaker 05:
It did not look at intermediate scrutiny in this part, and therefore nothing in Bruin, let alone Rahimi, disturbs it.

[00:28:05] Speaker 03:
Let me ask a question, if I may.

[00:28:09] Speaker 03:
How do you respond to the argument by opposing counsel that the parks where there were prohibitions on firearms were special parks where you couldn't even use bad language?

[00:28:26] Speaker 03:
How do you respond to that factually?

[00:28:32] Speaker 05:
I mean, these were all of the parks.

[00:28:34] Speaker 05:
The parks first emerged in the middle of the 19th century.

[00:28:38] Speaker 05:
Central Park was the first, then Prospect Park, then Fairmount Park.

[00:28:41] Speaker 05:
They spread all across the country.

[00:28:42] Speaker 05:
And these were parks for the people.

[00:28:44] Speaker 05:
They had rules, but all parks have rules.

[00:28:49] Speaker 05:
And one of those rules was

[00:28:52] Speaker 05:
no carrying firearms in the park.

[00:28:54] Speaker 05:
They were absolute.

[00:28:55] Speaker 05:
They were not, as plaintiffs suggest, targeted specifically at a certain kind of conduct with respect to firearms.

[00:29:03] Speaker 05:
It was an absolute flat prohibition on carrying firearms.

[00:29:07] Speaker 05:
And that tradition reflects the longstanding principle, as Rahimi said, and as Justice Barrett said in her concurring opinion, that the people may choose

[00:29:16] Speaker 05:
to prohibit guns consistently with the Second Amendment in sensitive places.

[00:29:22] Speaker 05:
And this 19th century evidence shows that parks are one of the places that the people decided were sensitive places where guns should be prohibited.

[00:29:33] Speaker 03:
I interrupted you.

[00:29:36] Speaker 03:
If you have another point, you can state it very quickly.

[00:29:39] Speaker 03:
No?

[00:29:39] Speaker 03:
No.

[00:29:40] Speaker 03:
Very good.

[00:29:41] Speaker 05:
Thank you very much.

[00:29:47] Speaker 00:
Thank you, Your Honor.

[00:29:48] Speaker 00:
And I have five points, so I'm going to try to talk fast.

[00:29:50] Speaker 00:
So first, with respect to Vonity, I think that Bruin elaborated on Heller.

[00:29:55] Speaker 00:
And it said that it identified three specific government buildings.

[00:29:58] Speaker 00:
So it's certainly a refinement in that respect.

[00:30:02] Speaker 00:
And then it also said you can reason by analogy from those three locations.

[00:30:06] Speaker 01:
Well, on the three, though, it prefaced the signal EG.

[00:30:09] Speaker 00:
Well, OK, there could be more, but it could have just said government buildings.

[00:30:13] Speaker 00:
It said these three specific.

[00:30:14] Speaker 00:
And then it said you have to reason by analogy, which means you have to do the how and the why.

[00:30:18] Speaker 00:
And so it just is not consistent with Heller and Bruin to say, OK, government building, that's it.

[00:30:25] Speaker 00:
So undermine that.

[00:30:27] Speaker 00:
And with respect to the schools, the how and the why, it's clear it's because these students, it was students that were restricted, and the why was in local apprentice authority.

[00:30:36] Speaker 00:
And that certainly does not apply in parks and playgrounds.

[00:30:39] Speaker 00:
And certainly at a time of rising alleged criminality, the government, it's not like in school, when you drop your child off and the government takes responsibility for the school's protection, our clients are responsible for their own family's protection in these locations.

[00:30:53] Speaker 00:
The 1791, 1868, you're absolutely right, Your Honor.

[00:30:57] Speaker 00:
It has to be the same for both.

[00:30:58] Speaker 00:
The Supreme Court has held that.

[00:31:00] Speaker 00:
The only dispute is whether it's going to be 1791 for both or 1868 for both.

[00:31:05] Speaker 00:
And our submission is it makes much more sense.

[00:31:07] Speaker 00:
1791, that's when the right was adopted.

[00:31:10] Speaker 00:
1868 expanded the scope as to who the right applied, but it didn't change the right itself.

[00:31:16] Speaker 00:
With respect to Boston Common and its status at the founding,

[00:31:20] Speaker 00:
Their own source says it was the rallying ground for all public meetings, parades, picnics, celebrations, and sports for the children even before the revolution.

[00:31:28] Speaker 00:
And the same source said that nearly all of the New England towns, the square generally consisting from five to ten acres was laid out on public grounds.

[00:31:36] Speaker 00:
So maybe there's a semantic.

[00:31:38] Speaker 00:
Were these parks?

[00:31:39] Speaker 00:
I don't know, but they were places for public recreation.

[00:31:43] Speaker 00:
With respect to the founding era evidence, the 1786 Virginia law was one that you mentioned.

[00:31:50] Speaker 00:
And I think that law is actually very important.

[00:31:52] Speaker 00:
Bruin said it practically codified the common law, which means generally applicable law.

[00:31:56] Speaker 00:
And there were two parts to it.

[00:31:57] Speaker 00:
One said you could be barred from carrying in a terrifying manner in fairs and markets and other places.

[00:32:02] Speaker 00:
But the first part said that you can't bring guns into courts except for the judges and those assisting them.

[00:32:08] Speaker 00:
So what that shows is that there were certain places, yes, that were sensitive, but those were places where the government took on the burden of protection.

[00:32:17] Speaker 00:
Thank you.

[00:32:21] Speaker 03:
Thank you.

[00:32:21] Speaker 03:
Cases submitted.

[00:32:22] Speaker 03:
Council are excused.