[00:00:00] Speaker 00:
case number 24, that 7127 record T angel at balance versus the district of Columbia at L. I'm still lying for the balance.

[00:00:11] Speaker 00:
You still put that for the at least morning council.

[00:00:15] Speaker 03:
Mr. Lyon, please proceed when you're ready.

[00:00:17] Speaker 01:
Good morning, your honors.

[00:00:20] Speaker 01:
I've asked to reserve two minutes for rebuttal.

[00:00:29] Speaker 01:
Since Susan B. Anthony's list, no other circuit follows the Navigar Seeger's rule, if they ever did, that standing in a pre-enforcement challenge to a criminal law other than in the First Amendment context requires a specific threat or the plaintiffs being uniquely targeted for enforcement.

[00:00:50] Speaker 01:
Indeed, four circuits have found standing in the exact circumstances of this case, a challenge to a ban on carry or transport on public transportation and standing is uncontested in a fifth case, 50 versus more in the Fourth Circuit.

[00:01:12] Speaker 01:
Conventional expectation that the law will be enforced constitutes substantial risk of enforcement to confer standing.

[00:01:20] Speaker 01:
It's time for this circuit to realize that intervening Supreme Court clarification

[00:01:27] Speaker 01:
And the overwhelming weight of authority from your sister circuits requires this court to recognize that the Navigar Seeger's line is no longer good law.

[00:01:39] Speaker 01:
Although, again, I believe that the cases are distinguishable.

[00:01:45] Speaker 03:
So everything you just said sounds like the first paragraph of an on-bank petition that we would take a look at.

[00:01:51] Speaker 03:
And I'm just wondering, for panel purposes,

[00:01:55] Speaker 03:
What's your best argument that the Navigar Seeger's cases that you rightly started out by referencing isn't binding on us?

[00:02:10] Speaker 01:
Well, one argument is that they're distinguishable, which we've made in the brief.

[00:02:17] Speaker 01:
Beyond that, it's not binding because intervening Supreme Court decisions have eviscerated the rationale of Navigar and Seegert's

[00:02:28] Speaker 01:
And if you don't believe that, that at the very least undercut it and the weight of authority from all the other circuits is inconsistent with Navigar and Siegert's.

[00:02:42] Speaker 02:
If they're distinguishable, why on earth would we talk about whether they should be overruled or talk about what the Supreme Court has said or done?

[00:02:52] Speaker 02:
If they're distinguishable, then we don't have to wade into that constitutional question.

[00:02:57] Speaker 01:
Well, exactly, Your Honor.

[00:02:59] Speaker 01:
But I can't assume that you'll agree with me on that.

[00:03:04] Speaker 01:
So I have to make every argument that I have.

[00:03:07] Speaker 02:
Well, you shouldn't underestimate your powers of persuasion.

[00:03:12] Speaker 01:
Good point, Your Honor.

[00:03:15] Speaker 02:
So Navigar, just like other circuits, has been struggling with what the Supreme Court has meant and has continued to repeat.

[00:03:22] Speaker 02:
And that is, what is the test for a credible threat of enforcement?

[00:03:28] Speaker 02:
And I think the Supreme Court has said, as this Court has said, the mere fact that someone wants to do something, and there's a statute out there that says you can't, isn't enough.

[00:03:41] Speaker 02:
Now, your briefs object to the what more was required in Navigar and Siegers in some subsequent cases.

[00:03:52] Speaker 02:
And if you don't want that what more,

[00:03:56] Speaker 02:
Is the what more that you propose to make something transform from statute exists out there prohibits something?

[00:04:03] Speaker 02:
I don't like that.

[00:04:03] Speaker 02:
I'd like to do it to a credible threat of enforcement.

[00:04:09] Speaker 01:
Well, Your Honor, I might disagree with you a bit because the Supreme Court has said that there is a risk

[00:04:25] Speaker 01:
unless the government has disclaimed the intent to prosecute or the law has fallen into disuse.

[00:04:33] Speaker 01:
I would cite the book- A substantial risk under dry house.

[00:04:38] Speaker 01:
Under Susan B. Anthony, it is a substantial risk, but that's- What makes something a substantial risk?

[00:04:44] Speaker 02:
What makes something a credible threat?

[00:04:46] Speaker 02:
Is it just the existence of a statute that says you can't do this?

[00:04:49] Speaker 01:
Well, that appeared to be the case in American booksellers, Your Honor.

[00:04:53] Speaker 02:
That's what your position is.

[00:04:56] Speaker 02:
I think they've been visited by some agents in American booksellers.

[00:04:59] Speaker 02:
So what is the legal test you're proposing in lieu of the opinions you disagree with?

[00:05:09] Speaker 02:
Establish, you can call it, substantial risk of prosecution or credible threat of prosecution, whichever words you want to use.

[00:05:19] Speaker 01:
I guess I would say, again, going back to the Supreme Court, unless the threat is wholly speculative or the government... Substituting another word for undefined word for this one.

[00:05:35] Speaker 02:
So what shows us that it's not speculative that you will be arrested if you engage in this activity?

[00:05:44] Speaker 01:
Well, one, the district vigorously enforces its gun laws.

[00:05:50] Speaker 01:
There's no doubt about that.

[00:05:52] Speaker 01:
There have been more than, we documented more than 72 arrests for carrying a firearm in Metro.

[00:06:01] Speaker 01:
Police have... What time period was that?

[00:06:04] Speaker 01:
I think that was over a five-year period, Your Honor.

[00:06:08] Speaker 02:
How many people rode the Metro in that five-year time period?

[00:06:13] Speaker 01:
Probably millions, Your Honor.

[00:06:14] Speaker 02:
So 72 out of millions?

[00:06:17] Speaker 01:
But we don't.

[00:06:18] Speaker 02:
That's a substantial risk?

[00:06:21] Speaker 02:
It is.

[00:06:21] Speaker 02:
No, I don't have to take this.

[00:06:22] Speaker 02:
I tell a lot of things.

[00:06:24] Speaker 01:
Your Honor, there is a substantial risk if my plaintiffs ride the metro carrying their firearms.

[00:06:31] Speaker 01:
For one, there could be inadvertent disclosure of the firearm.

[00:06:34] Speaker 01:
If they bend over to pick up something, somebody could bump into them.

[00:06:38] Speaker 02:
That's something they can completely control.

[00:06:41] Speaker 01:
Possibly, but someone could bump into them, which they can't control.

[00:06:45] Speaker 01:
And there are police techniques designed to determine whether someone is carrying a gun.

[00:06:51] Speaker 01:
The district uses those techniques to arrest people carrying illegal concealed firearms every day.

[00:06:58] Speaker 02:
Moreover, the metro, if it's only 72 out of millions.

[00:07:03] Speaker 02:
I mean, you have to, you know, the enforcement of this law, which is one, unless you're talking about on buses and things like that too.

[00:07:10] Speaker 01:
Again, Your Honor, I would suggest that license concealed carriers don't violate the law.

[00:07:17] Speaker 01:
As my clients have said here, they will not intentionally violate the law, but that doesn't mean that their rights are not being impeded.

[00:07:25] Speaker 02:
I completely understand that point.

[00:07:26] Speaker 02:
It's just, I feel like

[00:07:29] Speaker 02:
We're getting nowhere on the question of what the right legal test is in your view.

[00:07:33] Speaker 02:
You told us what you think the wrong legal test is.

[00:07:36] Speaker 02:
I don't know what the right one is.

[00:07:38] Speaker 02:
It seems to me to be coming down to there's a law.

[00:07:45] Speaker 02:
She rarely enforced.

[00:07:48] Speaker 02:
And.

[00:07:51] Speaker 02:
We don't like it and we want to engage in that conduct.

[00:07:54] Speaker 01:
Well, Your Honor, in the first ever said that that amounts to a credible threat or a substantial risk in the First Amendment context, we assume a conventional expectation that the law will be enforced.

[00:08:07] Speaker 01:
And that is enough.

[00:08:08] Speaker 01:
And there is no basis to make a distinction between the First Amendment and any other amendment.

[00:08:14] Speaker 01:
As the court has said in McDonald and in Bruin and most recently in Whole Woman's Health, we do not treat rights differently.

[00:08:28] Speaker 01:
And in here, there is no other way that my clients could contest this law that is prohibiting them from carrying on the metro.

[00:08:37] Speaker 01:
What would you want them to do?

[00:08:39] Speaker 01:
Get arrested?

[00:08:39] Speaker 01:
That's the only way.

[00:08:42] Speaker 02:
Just to be clear, so your position is that the test is there is a statute.

[00:08:48] Speaker 02:
that outlaws something my clients wish to engage in that activity.

[00:08:51] Speaker 02:
And that is enough to establish, a live statute on the books, that is enough to establish, and it's enforced 72 out of multiple millions of times, against 72 out of multiple millions of people.

[00:09:06] Speaker 02:
And that is, I just want to make sure I'm being fair to what your legal position is, that that is a substantial risk, incredible threat of unfortunate.

[00:09:16] Speaker 02:
Yes, your honor.

[00:09:20] Speaker 01:
That's the law of every other circuit.

[00:09:23] Speaker 01:
That is what I get out of Whole Women's Health, where in fact the law at issue indicated it could not be enforced by any state actor.

[00:09:36] Speaker 01:
But the Supreme Court nevertheless found that case was judiciable.

[00:09:41] Speaker 01:
So as the Second Circuit had said, the test is a very low hurdle.

[00:09:51] Speaker 01:
And certainly in this case, where there is no other way that my clients can vindicate their rights, I think that that test is wholly appropriate.

[00:10:08] Speaker 03:
Now you'd reserved two minutes for rebuttal and we'll definitely give you the rebuttal.

[00:10:12] Speaker 03:
Thank you.

[00:10:22] Speaker 03:
Mr. Patek.

[00:10:23] Speaker 04:
Thank you.

[00:10:23] Speaker 04:
May it please the court, Ashwin Patek, for all the appellees in this case.

[00:10:26] Speaker 04:
And I'll just dive right into where my friend left off, which is it does seem like there are two arguments that are being made here.

[00:10:32] Speaker 04:
Either Navigar, Seegers, and Parker are distinguishable, or that subsequent Supreme Court decisions have clearly eviscerated those decisions.

[00:10:40] Speaker 04:
And I think both of those contentions are wrong.

[00:10:42] Speaker 04:
And let me explain each of them.

[00:10:43] Speaker 04:
As to the distinguishable point, I think that Navigar, Seegers, and Parker laid

[00:10:49] Speaker 04:
out a test, and this is directly responding to your point, Judge Millett, which is that you need to be uniquely targeted or singled out in order to bring a pre-enforcement challenge, a constitutional challenge to a criminal law.

[00:11:01] Speaker 04:
Now, that's the test that the court clearly articulated in Parker.

[00:11:05] Speaker 04:
It reiterated it in Ord.

[00:11:07] Speaker 04:
a case where the court actually found that there had been that kind of unique targeting or singling out, but it found that it didn't exist in Parker.

[00:11:14] Speaker 04:
And I have a tough time really seeing the difference between a case like this where all really the allegations that I'm seeing in the opening brief, page four of the opening brief I think lays out there

[00:11:24] Speaker 04:
theory of this case, which is essentially that there's a law in the books.

[00:11:28] Speaker 04:
That law in the books is chilling their conduct, and therefore they think they should be able to bring a pre-enforcement suit.

[00:11:34] Speaker 04:
I just don't think that's consistent with this court's precedence in that line of cases.

[00:11:39] Speaker 04:
And I think this court is bound to apply those precedents, Judge Srinivasan.

[00:11:42] Speaker 04:
You mentioned the appropriate avenue for kind of overturning those prior decisions would be in an en banc proceeding.

[00:11:48] Speaker 04:
I think that's correct, and I think that's sort of the avenue to go if the court is concerned about them, but not

[00:11:54] Speaker 04:
to kind of overrule them now before the panel stage.

[00:11:58] Speaker 04:
And that kind of turns me to the clearly eviscerated side of the argument, which is whether- Let me get there.

[00:12:03] Speaker 02:
Can I ask a question?

[00:12:04] Speaker 02:
So it does seem to me that there's something that's different about this case.

[00:12:09] Speaker 02:
And that is we're not just left with a there's a law, we want to do it, we can't argument.

[00:12:17] Speaker 02:
They also say, because of that law, we have

[00:12:23] Speaker 02:
on many occasions and will continue to have to take alternative forms of transportation that cost us more money.

[00:12:31] Speaker 02:
They allege a pocketbook injury that happened and is going to continue to happen.

[00:12:39] Speaker 02:
It's exactly what the law is intended to accomplish.

[00:12:45] Speaker 02:
Don't bring those here.

[00:12:46] Speaker 02:
Don't come here with those.

[00:12:47] Speaker 02:
Get yourself around some other way.

[00:12:50] Speaker 02:
So this law says that to them.

[00:12:53] Speaker 02:
And it has happened, and they say will continue to happen.

[00:12:58] Speaker 02:
Now, in Virginia versus American booksellers, it was a preliminary injunction case.

[00:13:07] Speaker 02:
And what the Supreme Court found relevant there was that they had incurred and were going to incur substantial compliance costs.

[00:13:20] Speaker 02:
And that was their injury.

[00:13:22] Speaker 02:
Why is that not sufficient here?

[00:13:24] Speaker 04:
Well, so a few responses to that.

[00:13:26] Speaker 04:
I think it is, I think that theory is inconsistent with Navigar.

[00:13:30] Speaker 04:
So in Navigar, there clearly was a financial cost to those manufacturers.

[00:13:35] Speaker 02:
I get it was briefed.

[00:13:36] Speaker 02:
Our opinion does not analyze that issue at all.

[00:13:38] Speaker 02:
So now I'm raising it in this case to say, well, what if we analyze that?

[00:13:44] Speaker 04:
And I think another point here, I would just note that the offset cases have

[00:13:49] Speaker 02:
rested on, have addressed and said a pocketbook injury that has happened and will continue into the future, just like the expense, it was the expense of going through all their inventory in American booksellers that was the injury.

[00:14:03] Speaker 02:
What case of ours has rejected that as a basis for standing under Navigar and Seekers?

[00:14:09] Speaker 04:
I agree.

[00:14:10] Speaker 04:
I don't think any of that line of cases directly addresses that argument, but I think it's implicit in Navigar.

[00:14:16] Speaker 04:
It's implicit in Navigar.

[00:14:19] Speaker 04:
It just doesn't talk about it.

[00:14:22] Speaker 04:
Well, I think that's, I guess the way that I read Navigar is that you have ATFA agents coming to non-manufacturers and basically saying there's a new law in the books that prohibits certain manufacturing that you do.

[00:14:33] Speaker 02:
They didn't argue for standing on that basis, or they didn't, the opinion did not address an argument for standing on that basis in Navigar.

[00:14:42] Speaker 02:
Or in Seegers that I saw, or in Parker, and that wasn't the basis in Ord.

[00:14:48] Speaker 02:
And so I'm just asking,

[00:14:50] Speaker 02:
Why would this even be a case for OnBank?

[00:14:55] Speaker 02:
Because it seems to me there is standing because they have incurred the very financial costs that the law was designed to force them to incur.

[00:15:03] Speaker 02:
And that's an ongoing injury.

[00:15:05] Speaker 02:
I'm not saying they get damages, but it was sufficient for injunctive relief in American booksellers.

[00:15:11] Speaker 02:
Standing for injunctive relief, I don't know why it wouldn't be here.

[00:15:14] Speaker 02:
You have a way of distinguishing that.

[00:15:16] Speaker 04:
Well, American books, I have a way of distinguishing American booksellers, which is that it was a First Amendment case.

[00:15:22] Speaker 04:
And I'm happy to talk about the distinctions that I see between those two.

[00:15:25] Speaker 04:
But I do want to just directly take on the particular point that you're making, which is, and I think Judge Moss addressed this in his opinion, which is that basically, you can't have an economic injury that is fully premised on actions you are taking based on this very same speculative harm that you're making in the first instance.

[00:15:41] Speaker 04:
So the speculative harm that you're suggesting is that there's a law on the books that's-

[00:15:46] Speaker 02:
I think the whole purpose of this law is to say if you want to travel with guns.

[00:15:53] Speaker 02:
Do it on another form of transportation.

[00:15:55] Speaker 02:
Isn't that the whole point of this?

[00:15:57] Speaker 02:
Don't bring them here.

[00:15:58] Speaker 02:
If you've got guns and want to travel, do it on another form of transportation.

[00:16:02] Speaker 04:
Right, but I guess taking that other form of transportation is premised on you believing that there's a threat of prosecution.

[00:16:08] Speaker 04:
And if it's the same threat that you're asserting is based on the chill, the same chill that you're asserting based on the law that's in the books that you think is unconstitutional, I guess I just don't see the difference there.

[00:16:20] Speaker 04:
It's the same threat, right?

[00:16:22] Speaker 04:
It's the same threat that...

[00:16:23] Speaker 02:
speculative.

[00:16:25] Speaker 02:
This isn't a vague law.

[00:16:28] Speaker 02:
The terms are crystal clear.

[00:16:30] Speaker 02:
The fact that their conduct would fall within it is crystal clear.

[00:16:33] Speaker 02:
And the purpose of it is crystal clear.

[00:16:37] Speaker 02:
There's no daisy chain of inferences at all.

[00:16:42] Speaker 02:
This is a criminal prohibition meant to change behavior.

[00:16:48] Speaker 02:
And they have changed their behavior in response to it in a way that's harmful to them.

[00:16:52] Speaker 02:
It's out-of-pocket expenses.

[00:16:55] Speaker 02:
And I just don't understand why you could say, well, it seems strange to me to have the district responding with the argument that, no, that's your fault for spending that money.

[00:17:06] Speaker 02:
Please ride the Metro with your guns.

[00:17:09] Speaker 02:
Well, I mean, I- They've got two options, ride the Metro with the guns or spend money.

[00:17:13] Speaker 02:
And your answer is, what are you worried about riding the Metro?

[00:17:17] Speaker 04:
I guess I don't see this as being that different than, I guess, the argument that the Supreme Court addressed in Clapper, right?

[00:17:22] Speaker 04:
I mean, that was a case where they asserted that they were changing their behavior in response to a threat.

[00:17:27] Speaker 02:
I don't know, but they were doing their—this people had already found that it was sort of a speculative daisy chain of things.

[00:17:31] Speaker 02:
You had to assume this person was going to get tapped, and then this person would do it, and then you would be here, and then this thing would here.

[00:17:35] Speaker 02:
There's nothing like that here.

[00:17:37] Speaker 02:
There's no chain.

[00:17:38] Speaker 02:
I guess there is— Where on?

[00:17:39] Speaker 02:
I guess— Law is accomplishing what it's meant to accomplish.

[00:17:43] Speaker 04:
I certainly understand the point, Judge Mallette, and I agree.

[00:17:47] Speaker 04:
That is a distinction, and I don't want to kind of keep harping the point.

[00:17:51] Speaker 04:
I do think that there is a similarity in the argument that a person is taking action in response to what we see as, under this court's precedence, a speculative threat of prosecution, that you can't sort of manufacture standing based on that same threat that otherwise wouldn't be sufficient to bring you into court and give you Article III standing.

[00:18:11] Speaker 04:
And I do think that is a distinction.

[00:18:13] Speaker 02:
I guess this is a criminal law meant to change behavior, correct?

[00:18:22] Speaker 02:
That's correct.

[00:18:23] Speaker 02:
And then to keep people with their guns off metro system transportation.

[00:18:27] Speaker 04:
It certainly is.

[00:18:28] Speaker 02:
And I don't exactly the purpose of it.

[00:18:30] Speaker 04:
That's right.

[00:18:30] Speaker 04:
But I just don't see that.

[00:18:32] Speaker 04:
I don't I don't see that as being much different from Parker, Seegers and Navigar.

[00:18:37] Speaker 04:
I mean, those were criminal laws intended to change behavior.

[00:18:40] Speaker 02:
I mean, pocketbook injury is usually your ticket directly through Article three.

[00:18:45] Speaker 02:
As long as it's not self-inflicted and this is not self-inflicted, it's inflicted by the statute.

[00:18:49] Speaker 02:
It's the whole purpose of the statute.

[00:18:52] Speaker 04:
I agree with that and I, you know, I just, I see that as being, you know, written through Navigar, even if the court didn't specifically say it, that that is like the premise of what the gun manufacturers were saying, rejecting, but rejecting pocketbook injury is sufficient in a case where.

[00:19:12] Speaker 02:
Statutes crystal clear.

[00:19:13] Speaker 02:
This isn't someone where it's like, I'm not sure if we're covered or things are covered or not, which is just a whole different either standing or right in this issue.

[00:19:20] Speaker 02:
Um, crystal clear, straightforward.

[00:19:23] Speaker 02:
The fact that their behavior falls under it again, no ambiguity whatsoever.

[00:19:27] Speaker 02:
Nothing speculative about that square on.

[00:19:31] Speaker 02:
Um, and so the government has chosen, if chosen to regulate us in this way and we're incurring these expenses.

[00:19:40] Speaker 04:
I mean, I guess I agree with everything that you're saying, and I don't see how that makes this case distinguishable from Parker and Seekers and Navigate.

[00:19:48] Speaker 02:
It's kind of a criminal law, but instead we're a regulatory decision.

[00:19:52] Speaker 02:
And they fell within the class of regulated parties.

[00:19:57] Speaker 02:
And they wanted to bring a pre-enforcement challenge to agency regulation that has cost and is going to cost them.

[00:20:08] Speaker 02:
much more money would they have standing under our precedent for for.

[00:20:14] Speaker 02:
It seems like agency cases, agency regulatory cases.

[00:20:17] Speaker 04:
Yes, it seems like the answer is yes.

[00:20:19] Speaker 02:
Article three answer those two questions differently.

[00:20:21] Speaker 04:
I agree that that is a strange feature of this court's precedent.

[00:20:25] Speaker 04:
I'm not going to deny that.

[00:20:26] Speaker 04:
I mean, I do think there's enforcement too.

[00:20:28] Speaker 04:
Right.

[00:20:28] Speaker 04:
I mean, I do think there's actual government action and it is there is clearly an article three bar when it comes to agency challenges as well.

[00:20:36] Speaker 04:
So I don't want to suggest that there's nothing there.

[00:20:38] Speaker 04:
You clearly have to show that it's directly impacting you.

[00:20:41] Speaker 02:
agency officials are ordering them to turn over documents.

[00:20:44] Speaker 02:
Correct.

[00:20:44] Speaker 02:
One of the ways you really get into court is go, this regulation is costing us money and it's going to keep causing us money.

[00:20:54] Speaker 02:
Let me talk to you about that.

[00:20:56] Speaker 02:
And we go, okay.

[00:20:58] Speaker 02:
And there's nothing, they're not misreading the statute or anything.

[00:21:01] Speaker 04:
No, I agree with that entirely, Judge Millett.

[00:21:04] Speaker 04:
And I think that I don't have a great answer for how this is.

[00:21:07] Speaker 04:
Article 3 in both situations.

[00:21:08] Speaker 04:
It is the same Article 3.

[00:21:09] Speaker 04:
That's exactly right.

[00:21:11] Speaker 04:
But I do think that Parker and Seeger specifically spoke to administrative cases and said that that is a different, a carve out, essentially.

[00:21:18] Speaker 04:
And it also said that First Amendment is a carve out, which does, I think, answer in part the Virginia v. American Booksellers case.

[00:21:24] Speaker 04:
And that is throughout this court's case law, whether it's the Woodhull decision from 2020.

[00:21:28] Speaker 02:
Usually when the First Amendment is a carve out, it's because it's chilling.

[00:21:31] Speaker 02:
Right.

[00:21:32] Speaker 02:
No, it's going to cost us a lot of money to go through our inventory and figure out what we can display and not display.

[00:21:38] Speaker 02:
It's going to cost us an extraordinary amount of money.

[00:21:41] Speaker 02:
That's what they were talking about.

[00:21:42] Speaker 02:
I mean, they said the requirements met here as a law is aimed directly at plaintiffs, this case too, who if their interpretation of the statute is correct, yeah, will have to take significant and costly compliance measures or risk criminal prosecution.

[00:21:58] Speaker 02:
Does that completely describe this case?

[00:22:00] Speaker 04:
In many ways, other than the First Amendment implications of that case, I think.

[00:22:05] Speaker 02:
But I agree entirely that— Citing Craig DeVos versus Boran, I don't even remember if that's a First Amendment case.

[00:22:11] Speaker 04:
I mean, I guess there is there does seem to be a First Amendment, you know, some distinctions in the First Amendment, right?

[00:22:16] Speaker 04:
Those overbreath claims are allowed in the First Amendment.

[00:22:18] Speaker 04:
They're not allowed with other constitutional rights.

[00:22:20] Speaker 04:
We're worried about prior restraints.

[00:22:23] Speaker 04:
Correct.

[00:22:23] Speaker 04:
And I agree with that.

[00:22:24] Speaker 04:
Right.

[00:22:25] Speaker 04:
But I think most of the First Amendment cases were really about overbreath and they were challenges where you really were worried about chill.

[00:22:31] Speaker 04:
Whereas as a general matter,

[00:22:32] Speaker 04:
Or even the Supreme Court in the Whole Woman's Health decision, five votes for the proposition that, and I'll quote, the chilling effect associated with the potentially unconstitutional law being on the books is insufficient to justify federal intervention in a pre-enforcement suit.

[00:22:46] Speaker 04:
But I understand the distinction that you're making, Judge Mallette.

[00:22:50] Speaker 04:
I agree with you that the court did not directly address that argument in those prior cases.

[00:22:56] Speaker 04:
I see it as being implied, at least in Navigar.

[00:22:58] Speaker 04:
But I don't want to push back too hard on that point.

[00:23:02] Speaker 03:
What do we do with the language in Bruin that says that Second Amendment rights are not second class rights?

[00:23:07] Speaker 03:
Because if you draw a distinction between the First Amendment and other rights,

[00:23:12] Speaker 03:
I get that the cases have a kernel of that in them, and one could follow that in a certain way.

[00:23:17] Speaker 03:
But then there's language that says, the one thing we don't do with the Second Amendment is treat that as differently.

[00:23:22] Speaker 04:
That's second class right.

[00:23:23] Speaker 04:
That's right.

[00:23:24] Speaker 04:
That language is there, Judge Srinivas.

[00:23:25] Speaker 04:
And I guess I'd have a few responses to it.

[00:23:27] Speaker 04:
The first is that in the whole woman's health decision, I think the court actually implies that actually maybe it was wrong about the First Amendment.

[00:23:36] Speaker 04:
In other words, that everything needs to be leveled up.

[00:23:38] Speaker 04:
That's how I read that passage from Whole Woman's Health.

[00:23:41] Speaker 04:
So that may be where they're headed with this and maybe some of the prior decisions that they've issued as to the First Amendment.

[00:23:48] Speaker 04:
They're going to think about revisiting and that maybe they think that everything should be held to kind of a higher pre-enforcement standard.

[00:23:54] Speaker 04:
But I guess the other thing that I would say is that since both Bruin and Whole Woman's Health have come out,

[00:24:00] Speaker 04:
Many other circuits have reasserted that there is the special First Amendment rule as to standing.

[00:24:06] Speaker 04:
And I think it's not necessarily inconsistent with the notion that the Second Amendment is not, you know, a second class right that you might just have a special standing pre enforcement rule for First Amendment challenges in particular, given the nature of the injury that we think about in those cases.

[00:24:22] Speaker 04:
It's chill.

[00:24:23] Speaker 04:
It's about prior restraints.

[00:24:25] Speaker 04:
I mean, you could have a prior restraint in the Second Amendment context, right?

[00:24:28] Speaker 04:
That's licensing and registration.

[00:24:29] Speaker 04:
The Supreme Court has made clear that, you know, for the most part, those types of regimes are okay.

[00:24:34] Speaker 04:
You certainly can't have a license, you know, requirement to go out on the street and say what you want to say.

[00:24:41] Speaker 04:
put aside parades and things like that.

[00:24:43] Speaker 04:
But as a general matter, I do think the First Amendment is thought of as just a little bit different in that regard.

[00:24:49] Speaker 04:
And of course, as I mentioned, you can bring an over-breath challenge in the First Amendment context.

[00:24:52] Speaker 04:
So I completely understand that language from Bruin.

[00:24:57] Speaker 04:
I just don't think that the court has fully fleshed out

[00:25:00] Speaker 04:
how that should impact reinforcement constitutional challenges and whether it really is true that the First Amendment and all of the other constitutional rights are exactly the same, because I think that would be quite a sea change in the case law.

[00:25:13] Speaker 04:
So I just worry about sort of assuming that they've completely altered that without something a little bit more concrete.

[00:25:20] Speaker 03:
And then can I ask you in response to some of the colloquy that you have, Judge Millett, so is your understanding of Navigar and Seeger that

[00:25:30] Speaker 03:
the common assumption from those decisions is that conduct that would have been engaged in will not be engaged in because of the fear that it violates the law.

[00:25:45] Speaker 03:
But still, there can't be a challenge.

[00:25:47] Speaker 03:
Yes, that is how I read.

[00:25:49] Speaker 04:
Yes, that's correct.

[00:25:50] Speaker 04:
That's how I read Seekers, Parker, and Avedon.

[00:25:52] Speaker 03:
No, this is not that you're supposed to actually go ahead and engage in the conduct because the risk of prosecution is low.

[00:25:57] Speaker 03:
It's that

[00:25:59] Speaker 03:
where everybody's assuming that you're actually not going to engage in the conduct, the conduct that you would like to engage in, but you're not going to engage in it.

[00:26:07] Speaker 03:
But still, you haven't shown the degree of entry that's required to be able to vindicate your right to engage in the conduct.

[00:26:16] Speaker 04:
Correct.

[00:26:16] Speaker 04:
I think that is what those cases are saying.

[00:26:18] Speaker 04:
And they're saying you do need to be uniquely targeted or singled out in order to challenge the law.

[00:26:22] Speaker 04:
And that requires something more than just pure chill based on the law you believe to be unconstitutional being on the books.

[00:26:28] Speaker 04:
And, you know, I mean, even the Supreme Court has sort of reflected that principle, but hasn't obviously addressed it specifically.

[00:26:34] Speaker 04:
But this court, I think, has clearly addressed that in those decisions.

[00:26:37] Speaker 04:
And they've done it in the context of a few different laws.

[00:26:40] Speaker 04:
I mean, the trigger lock law in both Seegers and Parker, I think, is very similar to the situation here.

[00:26:46] Speaker 04:
There was no administrative remedy in that situation.

[00:26:48] Speaker 04:
And nonetheless, the court said that you couldn't bring a pre-enforcement challenge to it, even though it clearly was affecting their conduct.

[00:26:55] Speaker 03:
So if that's the assumption that we operate under, then

[00:26:58] Speaker 03:
If you if the plaintiffs invoke something like a pocketbook injury is the way you're conceptualizing that that.

[00:27:05] Speaker 03:
Look, there's there's all kinds of particularized injuries that could follow from the fact that you're not going to engage in the conduct that you'd like to engage in.

[00:27:14] Speaker 03:
But any of those kinds of particularized things you could point to are all derivative of.

[00:27:19] Speaker 03:
the fact that you're not going to engage in the conduct to begin with.

[00:27:22] Speaker 03:
And once we know that that's not enough to give you standing, which we know from Navigar and Seeger, then it doesn't matter what the particular things may be that follow from that.

[00:27:31] Speaker 03:
We could talk about pocketing injuries, which definitely have been recognized in the cases as sufficient.

[00:27:36] Speaker 03:
But the lesson you're drawing from those decisions is that's just one specific example of a derivative injury that follows from the primary conduct that you're not going to engage in, which is you're not going to engage in the conduct that the law brings within its compass.

[00:27:51] Speaker 03:
That's correct.

[00:27:53] Speaker 04:
And I think the point I was trying to make was that if the pocketbook injury is premised on the same chill that you were asserting in terms of seeking declaratory and injunctive relief, you can't sort of manufacture injury just by acting in a way that responds to that same chill.

[00:28:09] Speaker 04:
So it's not it's sort of a redux of the same argument is how I read the case law.

[00:28:14] Speaker 04:
I don't want to suggest obviously that, you know,

[00:28:16] Speaker 04:
that this court articulated the point that I just made and you just made in its decisions.

[00:28:22] Speaker 03:
But I do read that as... Because it wasn't made.

[00:28:24] Speaker 03:
I mean, there was no discussion of that.

[00:28:26] Speaker 04:
Right.

[00:28:26] Speaker 04:
But I do think that that sort of flows from other... That's how you're theorizing it, at least.

[00:28:30] Speaker 04:
That's certainly how I'm theorizing it.

[00:28:31] Speaker 04:
And I see that in other decisions.

[00:28:33] Speaker 04:
I mean, I do see that in Clapper.

[00:28:34] Speaker 04:
And I understand, Judge Millett, that there is a long series of speculative chain in that case.

[00:28:40] Speaker 04:
But I take the court as saying that as addressing the speculative chain argument first and then saying, oh, by the way, you also can't manufacture injury by suggesting that there's some pocketbook harm that comes from that same speculative chain.

[00:28:55] Speaker 04:
So I think I'm trying to make a similar point here, which is that you can't kind of have a redux of the same argument via economic harm.

[00:29:05] Speaker 03:
Make sure there's no additional questions.

[00:29:08] Speaker 03:
OK, thank you.

[00:29:13] Speaker 03:
Mr. Lyon will give you the two minutes that you asked for.

[00:29:15] Speaker 01:
Thank you, sir.

[00:29:17] Speaker 01:
With respect to the last point that council made regarding a speculative chill, this court has already addressed the question of what type of chill is sufficient to confer standing and

[00:29:31] Speaker 01:
I would contrast Clapper and similar cases such as Laird v Tatum with cases where this court has said the if the statute is regulatory prohibited or compulsory.

[00:29:47] Speaker 01:
And this certainly falls within that that area.

[00:29:51] Speaker 01:
Council suggested that Whole Women's Health suggests a higher bar for standing.

[00:29:57] Speaker 01:
I think that that is simply not possible to discern from that case.

[00:30:07] Speaker 01:
And going back to the question of what is the standard, I would quote from Babbitt that a credible threat of prosecution exists when fear of criminal prosecution under allegedly unconstitutional statute is not imaginary or wholly speculative.

[00:30:26] Speaker 01:
And I certainly don't think that my client's concern with arrest is imaginary or wholly speculative here.

[00:30:36] Speaker 01:
We certainly do agree with Judge Millett's point that we've incurred financial costs to comply with this statute and that that would constitute injury for standing as well.

[00:30:53] Speaker 01:
And lastly, we

[00:30:57] Speaker 01:
seriously question whether there is or should be a carve out for First Amendment cases.

[00:31:06] Speaker 01:
The Supreme Court has made clear that the exception for standing in First Amendment cases is only for overbreath cases and that that is quote strong medicine.

[00:31:18] Speaker 01:
And there has never been a rationale either by the Supreme Court or this court to suggest that on other areas of standing that there should be a First Amendment exception.

[00:31:31] Speaker 01:
And I think that Bruin and McDonald and Whole Women's Health would certainly argue against such a point.

[00:31:41] Speaker 03:
Thank you, counsel.

[00:31:43] Speaker 03:
Thank you, your honors.

[00:31:44] Speaker 03:
Thank you to both counsel.

[00:31:45] Speaker 03:
We'll take the states under submission.