[00:00:11] Speaker 04:
Morning, Your Honors.

[00:00:11] Speaker 04:
May it please the Court, Pete Patterson for the Appellant, Gary Sanchez.

[00:00:14] Speaker 04:
I'd like to reserve four minutes, if I could, for rebuttal.

[00:00:18] Speaker 04:
This Court should reverse because California's law banning firearm suppressors implicates the Second Amendment for two independent reasons under this Court's precedence.

[00:00:28] Speaker 04:
First, under B&L Productions, banning suppressors meaningfully constrains the exercise of Second Amendment rights.

[00:00:36] Speaker 04:
Second, under Duncan, suppressors

[00:00:39] Speaker 04:
are necessary to the operation of suppressed firearms, which would be viewed as an integrated whole.

[00:00:45] Speaker 04:
That's enough to reverse, but this court can and should go further, because there is no historical tradition that would allow California to ban a particularly safe method of using firearms.

[00:00:58] Speaker 04:
Starting with B&L productions, that is this court's precedent that establishes when an ancillary restriction implicates the plain text of the Second Amendment.

[00:01:08] Speaker 04:
and California suppressor ban does here.

[00:01:10] Speaker 04:
It meaningfully constrains the exercise of Second Amendment rights to make individuals choose between using firearms and experiencing and their health, the health of their hearing.

[00:01:22] Speaker 04:
The CDC has said that suppressors are the only potentially effective noise control method to reduce noise exposure to firearms.

[00:01:31] Speaker 00:
Council, can't someone who's shooting a gun use protective things to block the hearing?

[00:01:41] Speaker 00:
I mean, I don't know that that's absolutely correct.

[00:01:45] Speaker 04:
Well, that is a direct quote from the CDC.

[00:01:48] Speaker 04:
Your honor, somebody can use those to also protect their hearing.

[00:01:52] Speaker 04:
But what the evidence that we've cited shows is that that is not always as effective.

[00:01:57] Speaker 04:
It does not.

[00:01:59] Speaker 04:
The protection does not exceed to the potential laboratory conditions.

[00:02:04] Speaker 04:
As we know from the experience in Covid, for example, the difference between a source control and personal protective equipment, it relies on people using that

[00:02:13] Speaker 04:
equipment properly, which is not always the case, and the suppressor also protects individuals other than the shooter, and it preserves the ability of the shooter to communicate with others around them and to hear other things happening in their environment.

[00:02:26] Speaker 04:
In any event, under Heller, it's no answer to say that there's some other method individuals can use when the government says, okay, we're going to ban this method that you potentially could use.

[00:02:40] Speaker 00:
Are there any firearms that can't be properly discharged without a suppressor?

[00:02:46] Speaker 04:
There are some firearms that have integrated suppressors.

[00:02:49] Speaker 04:
Yes, your honor.

[00:02:50] Speaker 04:
And this gets to the alternative under Duncan.

[00:02:51] Speaker 04:
So one argument we have is under BNL production and meaningful impairment.

[00:02:55] Speaker 04:
The other argument we get under Duncan is that a suppressor is necessary to the use of a suppressed firearm.

[00:03:02] Speaker 04:
And while that may appear a bit tautological, that is the sort of analysis Duncan says that we take.

[00:03:08] Speaker 04:
Because in Duncan, there's no necessity that a person use a magazine-fed firearm.

[00:03:14] Speaker 04:
There are revolvers, for example, that don't use magazines.

[00:03:16] Speaker 04:
And yet Duncan said, we're going to look

[00:03:18] Speaker 04:
at the magazine and the firearm is an integrated hole and a standard magazine we're going to hold is protected because that's necessary to the operation of a magazine-fed firearm.

[00:03:30] Speaker 04:
And similarly here, a suppressor is necessary to the operation of a suppressed

[00:03:35] Speaker 04:
An analogy to Duncan would be if someone invented some sort of super suppressor that really did silence a firearm or something like that and California sought to ban that then under the reasoning of Duncan perhaps somebody could say okay that super suppressor is not protected but the standard suppressor is and so that's the same as in Duncan equivalent with a magazine situation where the court said the large capacity magazine is not covered but a standard

[00:03:59] Speaker 04:
magazine is covered.

[00:04:01] Speaker 04:
And we can see even the federal government itself defines a suppressor as a firearm, and so we're not saying that that changes the meaning of the Constitution.

[00:04:11] Speaker 04:
But it just goes to show the degree to which the suppressor affects the functional operation of a firearm such that this should be viewed as a separate class of firearms goes to the fact that the federal government defines these as firearms.

[00:04:26] Speaker 01:
If your argument is correct, then wouldn't a way around Duncan simply be to integrate a large capacity magazine into the gun?

[00:04:34] Speaker 04:
No, because what Duncan said is that the extra capacity of the magazine

[00:04:40] Speaker 04:
is not affecting the functionality of the magazine.

[00:04:43] Speaker 04:
What the magazine does, the functional operation it has, is to feed a round into the chamber.

[00:04:48] Speaker 04:
But that extra capacity doesn't, yes.

[00:04:52] Speaker 01:
The problem that you pointed out is that it does feel tautological.

[00:04:56] Speaker 01:
Correct.

[00:04:56] Speaker 01:
And I think that you made an interesting point about Duncan.

[00:05:01] Speaker 01:
But the point that you made about Duncan seems to be the cure for Duncan.

[00:05:04] Speaker 01:
That is, if you simply integrate a large capacity magazine,

[00:05:07] Speaker 01:
You now, the firearm cannot be fired.

[00:05:09] Speaker 01:
A large capacity magazine firearm cannot be fired.

[00:05:14] Speaker 04:
Right.

[00:05:15] Speaker 04:
And I think what Duncan said is that the reason a magazine is protected is because the magazine, when it feeds that round into the chamber, it affects the operation of the firearm.

[00:05:25] Speaker 04:
What it said with respect to a large capacity magazine, and of course, accepting Duncan as binding precedent, what it said is that extra capacity of the magazine

[00:05:35] Speaker 04:
doesn't affect the functional operation of a firearm.

[00:05:38] Speaker 04:
So I don't think the argument I'm making here would be subject to the same sort of response.

[00:05:44] Speaker 04:
I'm not saying it's only permanently affixed suppressors that are protected.

[00:05:47] Speaker 04:
I'm saying every suppressor.

[00:05:49] Speaker 04:
affects the functional operation of the firearm by managing the dissipation of gases to both reduce the noise and to reduce recoil on firearms and this is essential for many uses of firearms for training which itself facilitates self-defense that you know people are now able to do that and what the CDC says is the safest way if they're able to use suppressors for self-defense itself the suppressor reduces the disorientation

[00:06:16] Speaker 04:
that's caused by firing a firearm as well as managing recoil and also for hunting.

[00:06:20] Speaker 04:
It allows hunters to hunt without exposing themselves to potential permanent hearing damage, which the CDC again says permanent hearing damage can be experienced from a single exposure to an unsuppressed firearm without otherwise having hearing.

[00:06:37] Speaker 00:
Does the suppressor make it more dangerous, though, for other folks?

[00:06:40] Speaker 00:
Not the ones using the gun, but let's say there's a shooting into a mass crowd.

[00:06:47] Speaker 00:
You can't hear where it's coming from, or you don't hear it, or you're not sure that what you heard is a gunshot, so you don't take the appropriate cover.

[00:06:54] Speaker 00:
Does that matter?

[00:06:56] Speaker 04:
I don't think so.

[00:06:57] Speaker 04:
First, under this would be to a historical tradition sort of argument.

[00:07:02] Speaker 04:
And what Heller and Bruin say is that firearms that are in common use simply

[00:07:06] Speaker 04:
can't be banned.

[00:07:07] Speaker 04:
But here also, even this, even if it just looks sort of a danger analysis, the suppressor makes firearms safer for those around them because their hearing too could be impaired.

[00:07:17] Speaker 04:
And in terms of a shooting, the suppressed firearms are still the sound equivalent of a rock concert or an ambulance siren.

[00:07:24] Speaker 04:
So, it's not like they are quiet.

[00:07:27] Speaker 04:
They are still very loud.

[00:07:29] Speaker 04:
It's just that they are below the threshold that the CDC would say would cause permanent hearing damage.

[00:07:35] Speaker 04:
And California doesn't have a single example, concrete example of where something like what your honor suggested has occurred.

[00:07:42] Speaker 04:
And this shows why they can't meet any of the tests

[00:07:45] Speaker 04:
that either Heller or Bruin we submit apply, or that Duncan applied.

[00:07:50] Speaker 04:
So under Heller and Bruin, we would say only dangerous and unusual firearms can be banned.

[00:07:55] Speaker 04:
And here, these are both in common use, and they're particularly safe uses of firearms.

[00:07:59] Speaker 04:
So that tradition could not be met.

[00:08:01] Speaker 04:
Under Duncan, there were

[00:08:03] Speaker 04:
uses of components that could cause infrequent but devastating harm.

[00:08:08] Speaker 04:
Here, the more apt law, if we were going to look at that tradition which dealt with firearm gunpowder storage laws, the founding would be to require people to use suppressors in certain circumstances such as when training because the suppressor is what protects individuals around someone using a firearm from harm.

[00:08:25] Speaker 04:
And then there was the unusually dangerous uses of weapons after they have proved particularly harmful.

[00:08:32] Speaker 04:
And here, suppressors both aren't unusually dangerous, and they haven't proved particularly harmful.

[00:08:36] Speaker 04:
There are millions of them in the United States.

[00:08:39] Speaker 04:
The Clark study that we cited said out of the thousands of federal gun control or gun prosecutions a year, 30 per year are for suppressors.

[00:08:49] Speaker 04:
The vast majority of those are victimless crimes such as mere possessory offenses.

[00:08:55] Speaker 04:
And actually, unsuppressed firearms are more likely to be used to harm or injure a victim in a crime

[00:09:01] Speaker 04:
than a suppressed firearm.

[00:09:03] Speaker 04:
So there just is no way that California can say that suppressors have proved to be particularly harmful.

[00:09:10] Speaker 04:
So there is no plausible tradition of regulation that California could point to to support this ban.

[00:09:17] Speaker 03:
If we can go back to the Duncan-Onbunk decision, as you probably know, it was on the panel opinion.

[00:09:24] Speaker 03:
But it is what it is.

[00:09:24] Speaker 03:
The Onbunk opinion is binding.

[00:09:26] Speaker 03:
And I accept your argument.

[00:09:30] Speaker 03:
Kind of taut logic under the reasoning of Duncan, your argument kind of makes sense.

[00:09:35] Speaker 03:
On the other hand, there is that dicta where they mention suppressors.

[00:09:39] Speaker 03:
What do we do with that dicta?

[00:09:41] Speaker 04:
Yeah, well what that dicta said is that a, like a high powered scope, a sling or suppressor, even though it's attached to the firearm, is not necessarily protected by the Second Amendment, and we're not saying it's covered by the Second Amendment, we're not saying it's covered

[00:09:57] Speaker 04:
because it's attached to the firearm.

[00:09:59] Speaker 04:
We're saying it's because it affects the functional operation, the way the firearm actually fires, such that just as with a magazine, it should be looked at as an integrated whole.

[00:10:08] Speaker 04:
The same reasoning would not necessarily apply to the sling or the scope in that same sentence.

[00:10:15] Speaker 04:
So I think what Duncan was answering there was saying, okay, just because something is attached to a firearm.

[00:10:20] Speaker 04:
That doesn't make a regulation of that covered by the Second Amendment.

[00:10:25] Speaker 04:
And we're not relying on just the mere fact that it's attached.

[00:10:28] Speaker 04:
And so I think when that statement is looked at in context, and Duncan's reasoning with magazines shows that actually the better reading of Duncan would be that suppressors would be covered.

[00:10:38] Speaker 04:
Because that sentence one is dicta two, it's not making a definitive conclusion.

[00:10:43] Speaker 04:
It's just saying it wouldn't necessarily be protected because it's covered.

[00:10:46] Speaker 04:
But then we also have

[00:10:47] Speaker 04:
BnL productions which again is a separate path to protection to say that anything that meaningfully constrains the exercise of Second Amendment rights Implicates the plain text of the Second Amendment and again if someone has to choose between their hearing and using a firearm that is a meaningful constraint on the exercise of Second Amendment rights and

[00:11:14] Speaker 01:
Of course, the core of the Second Amendment seems to be self-defense.

[00:11:19] Speaker 01:
So if one is forced to defend oneself, one may or may not have time to attach a suppressor if it's not already there.

[00:11:26] Speaker 01:
One may have chosen not to put the suppressor on because it makes the gun more cumbersome, more difficult to get out of wherever it's been holstered or sequestered.

[00:11:37] Speaker 01:
So I'm not sure how B&L, that's a very, very high level of abstraction.

[00:11:42] Speaker 01:
because it doesn't meaningfully constrain the core right of the Second Amendment to self-defense.

[00:11:49] Speaker 01:
It doesn't impair the shooting of the gun.

[00:11:53] Speaker 04:
Well, Your Honor, I'll respond in a few ways, Your Honor.

[00:11:57] Speaker 04:
First, the Second Amendment protects all lawful uses.

[00:12:00] Speaker 04:
That's what Heller says.

[00:12:01] Speaker 04:
That's what Bruin says, whether things are in common use for lawful purposes.

[00:12:05] Speaker 04:
Heller specifically mentions hunting.

[00:12:06] Speaker 04:
It talks about training.

[00:12:07] Speaker 04:
So those are clearly covered.

[00:12:10] Speaker 04:
But even if we're going to look just at self-defense,

[00:12:12] Speaker 04:
Training itself facilitates self-defense.

[00:12:15] Speaker 04:
California requires people to train to get carry licenses.

[00:12:18] Speaker 04:
It's obviously something that is beneficial.

[00:12:21] Speaker 04:
And again, the CDC, this was in a NIOSH report about students and trainers at training facilities, said that the only potentially effective noise control method for reducing students and trainers' exposure

[00:12:35] Speaker 04:
to noise from firearms is suppressors.

[00:12:39] Speaker 04:
So the banning of suppressors meaningfully constrains training.

[00:12:43] Speaker 04:
And training, I think everyone would agree, is a protected activity that itself facilitates self-defense.

[00:12:50] Speaker 04:
And then with respect to self-defense itself, banning suppressors does meaningfully constrain that.

[00:12:57] Speaker 04:
Your Honor mentioned you may not have time to put on a suppressor, but you can store your firearm with a suppressor

[00:13:04] Speaker 04:
And you almost certainly are not going to have time to put on earmuffs or earplugs.

[00:13:08] Speaker 04:
And you probably wouldn't want to, because you still would want to be able to communicate with people around you and hear what is happening.

[00:13:17] Speaker 04:
And so banning suppressors meaningfully constrains the act of self-defense itself.

[00:13:24] Speaker 04:
And again, a gunshot is very loud, unsuppressed.

[00:13:27] Speaker 04:
It's equivalent to about a jet engine.

[00:13:29] Speaker 04:
It can cause disorientation for someone, particularly that's

[00:13:33] Speaker 04:
Frequently doing it and so putting a suppressor on actually affects and helps a person to be More effective and a self-defense scenario and also as I mentioned hunting is a protected activity Heller specifically said people valued the right To keep and bear arms for hunting at the founding and banning suppressors also meaningfully constrains hunting so I don't think this is Implausible or any way a stretch to say that banning a suppressor

[00:14:01] Speaker 04:
meaningfully constrains the Second Amendment, whether you're looking at self-defense or all the various purposes that the Second Amendment protects.

[00:14:08] Speaker 04:
And it's important that we're talking about a possession ban here.

[00:14:12] Speaker 04:
And so that's why all lawful purposes are particularly important.

[00:14:17] Speaker 04:
Because a possession ban means that people can't use this item for any of the purposes protected by the Second Amendment.

[00:14:23] Speaker 04:
Maybe if we were just looking at a carry restriction or something like that, then you would focus more specifically on self-defense if that's what the carrying was for.

[00:14:32] Speaker 04:
But here, California is banning people from using suppressors in any and all circumstances.

[00:14:42] Speaker 04:
If there are no further questions, I'll save the remainder of my time.

[00:14:44] Speaker 04:
Thank you.

[00:14:56] Speaker 02:
Good morning, Your Honors, and may it please the Court, Kevin Quave for California Attorney General Rob Bonta.

[00:15:02] Speaker 02:
Your Honors, I think the answer to the question presented in this case is a simple one.

[00:15:06] Speaker 02:
Under the analytical framework articulated in Bruin in this Court's en banc decision in Duncan, firearm silencers are not presumptively protected at the threshold Bruin analysis under the plain language of the Second Amendment.

[00:15:22] Speaker 02:
They are not themselves arms under the Second Amendment because they're not weapons.

[00:15:27] Speaker 02:
They cannot be used to cast out in an offensive or defensive manner to strike someone.

[00:15:31] Speaker 02:
And they don't fit within the corollary right that this court has recognized with respect to components that are integral to firing of a weapon, to the operation of a weapon, to armed self-defense.

[00:15:43] Speaker 02:
This ends the constitutional inquiry.

[00:15:46] Speaker 02:
There's a uniform consensus of nearly a dozen federal courts that have addressed this issue and all found that firearm silencers do not fit within the Constitution's protection.

[00:15:57] Speaker 03:
Do you agree with your friend on the other side that suppressors can be useful for self-defense purposes?

[00:16:04] Speaker 02:
I think they can be useful.

[00:16:05] Speaker 02:
I think under the Duncan decision though that that court, that panel explained

[00:16:10] Speaker 02:
that mere heightening, mere benefit in a self-defense scenario is not enough to convey constitutional protection.

[00:16:19] Speaker 02:
And it stands to reason.

[00:16:20] Speaker 02:
A large capacity magazine having more bullets might also be beneficial in the case of an armed confrontation.

[00:16:27] Speaker 02:
But benefit isn't what confers protection under the Second Amendment.

[00:16:31] Speaker 02:
It is whether it is an arm or integral to use of the weapon in a self-defense scenario.

[00:16:38] Speaker 03:
Is there any indication that suppressors are actually used for criminal purposes or enhances criminal purposes?

[00:16:45] Speaker 02:
I think there are there are It is rare to be sure there are instances where suppressors have been used in criminal situations But again, I don't think that's the relevant analysis because I think the same thing could have been said about large capacity magazines which were

[00:17:02] Speaker 02:
Widely owned and yet rarely used for mass shooting criminal purposes, so they're not arms the analytical framework would just be what just rational basis Yeah, I think that's I think that's right Yeah, if they're if they're not arms or that they fit into this court's corollary right under FIOC and and Jackson could California ban Recoil pads you know pants they use for shooting rifles, so there's less recoil recoil.

[00:17:29] Speaker 03:
You don't get injured and You have more accurate shooting

[00:17:35] Speaker 02:
I think the analysis would would would turn well that obviously wouldn't be a weapon it would be beneficial.

[00:17:41] Speaker 02:
And I think the analysis would turn in that case whether there was evidence that it was integral to the operation of a gun and as I'm sitting here working through that I don't think it would be so.

[00:17:52] Speaker 02:
things like arm braces, and federal courts have found that shoulder braces, things of that manner, that aid in the use of a firearm are not subject to the Second Amendment's constitutional protection.

[00:18:04] Speaker 03:
That's a pretty sweeping power for the state to ban things that are used for lawful purposes and probably pose no danger.

[00:18:12] Speaker 03:
But under your reading of Duncan, it seems like California can ban anything that actually is helpful to gun owners, actually makes it

[00:18:23] Speaker 03:
more safe to use.

[00:18:25] Speaker 02:
Yeah, I mean, I'm applying the Second Amendment analysis articulated by this court and articulated by the Supreme Court in Bruin.

[00:18:32] Speaker 02:
California has not, to my knowledge, banned those, and there is a danger that is at the heart of our ban on firearm silencers that may not be at issue with certain other types of aid devices.

[00:18:47] Speaker 02:
But I think as a constitutional matter,

[00:18:50] Speaker 02:
If an item is not itself a weapon or does not fit into the corollary right that this court has recognized then at step one of Bruin it is not entitled to presumptive constitutional protection and that ends the constitutional inquiry.

[00:19:05] Speaker 02:
That's what the district court found in this case and that's what this court need go no further than making that particular finding.

[00:19:12] Speaker 03:
It seems like the state could justify taking and banning virtually anything related to guns

[00:19:17] Speaker 03:
Because on the theoretical notion that a criminal can also use this and may help the criminal even if there's almost no instances of it then the state can ban it You know I'm not I'm not rational basis.

[00:19:31] Speaker 03:
I mean that that state can basically do that doesn't matter You know if there's no virtually no empirical evidence or almost defies common sense, but you know it's quote-unquote rational basis They can just ban it.

[00:19:43] Speaker 03:
I mean because again

[00:19:44] Speaker 02:
I don't see how recoil pads really pose any danger and actually they're very helpful to lawful gun owners But I think under your logic they can ban those well sure and I don't claim to be an expert on that particular item I I Think the constitutional question there is a clear analytical framework that this court must work through in terms of determining if a particular item

[00:20:09] Speaker 02:
is within the plain text of the Constitution.

[00:20:13] Speaker 02:
Now, there may be all sorts of policy reasons that a state may choose to allow a particular device or ban a particular device.

[00:20:20] Speaker 02:
Sounds like if a device is purely beneficial and poses no harm, the policy might be that a state would want to allow that.

[00:20:27] Speaker 02:
It's not my decision to make, obviously.

[00:20:31] Speaker 02:
But for constitutional purposes,

[00:20:34] Speaker 02:
The silencers at issue here the device that California bans that that issue in this case is Not a weapon and is not integral to the operation If I can I want to touch on my friend's argument about integrated silencers and firearms And I think judge by be you touched on it that time

[00:20:54] Speaker 02:
that essentially that would allow firearms manufacturers to engineer devices in a way that render devices that are banned by statute and not covered by the Second Amendment to engineer them into the scope of the Second Amendment.

[00:21:08] Speaker 02:
And there's no court that's found that that is permissible.

[00:21:12] Speaker 02:
But I think there's another reason why that

[00:21:15] Speaker 02:
Example really isn't relevant here, and that's that my friend on the other side is bringing a facial challenge seeking to invalidate California's silencer ban in all its applications And there's no allegations here There's no as applied challenge that mr.. Sanchez wants an integrated firearm the record here shows that he would like to 3d print a firearm at home for use with an AR style assault weapon not an integrated one of these few Firearms that have been manufactured with a silencer affixed to it

[00:21:45] Speaker 02:
So I just don't think under this case, and there might be arguments even in and as applied challenge we would certainly make for why that type of weapon was also permissibly banned, but that's not the case the court has before it here.

[00:22:06] Speaker 02:
I'll just note a few things.

[00:22:09] Speaker 02:
My colleague on the other side noted that even with a suppressor being used, that a firearm discharge can be the decibel level of a rock concert or other loud noise.

[00:22:23] Speaker 02:
And that's certainly true.

[00:22:24] Speaker 02:
But I think there are real dangers associated with use of a firearm, even though it still produces a noise, a muffled noise.

[00:22:34] Speaker 02:
There have been instances where

[00:22:36] Speaker 02:
in shooting scenarios, witnesses and potential victims mistook the sound for nail guns, for instance, that precious seconds in which potential victims were not aware of what was happening, the circumstances that were happening that allowed them to flee the danger, to take cover, to prepare to fight.

[00:22:55] Speaker 02:
Those seconds are lost when a muffled firearm sound basically deprives potential victims of an awareness of what is going on.

[00:23:05] Speaker 02:
and and Really that this gets me back to Duncan I mean that was really a heart of the dangerousness of large capacity magazines that the legislature in that case in the court credited that the pauses between for reloading that allowed potential victims to run away to prepare to fight were integral to the dangerousness of that particular firearm accessory we see the dangerousness of silencers as quite similar in that way and

[00:23:34] Speaker 00:
Counsel though your friend on the other side went to great lengths to explain to us statistically though It's not a really relevant point in that A lot of times these crimes are not committed with silencers the people who are doing these mass shootings or or anything I get they're not using silencers So what does that do to your argument?

[00:23:54] Speaker 02:
I think it doesn't change the argument about the dangerousness, that just like the large capacity magazines in Duncan, which were thankfully in the court recognized, not used with high frequency, but when they were used, added tremendous amount of danger to potential victims.

[00:24:12] Speaker 02:
I think silencers do the same thing here.

[00:24:16] Speaker 02:
Yes, it is true that silencers are not used in many crimes, but when they are used, they present the type of super added danger that California can ban, that allows California to ban use of that particular device based on that extraordinary danger.

[00:24:38] Speaker 02:
I'm happy to answer any other questions the court has but if not We're prepared to submit and ask that the district courts dismissal be affirmed Thank you.

[00:24:49] Speaker 04:
Thank you so much Just a few points your honor first with respect to suppressors and the firearm being viewed as an integrated hole I'm not saying that's just for

[00:25:05] Speaker 04:
Suppressors that are permanently affixed as a firearm saying that under dunks and reasoning with respect to magazines even detachable suppressors Should be viewed as an integrated hole with the firearm such that they're necessary for the operation of a suppressed firearm with respect to suppressors potentially making some sort of shooting worse California has not pointed to a single concrete example of

[00:25:27] Speaker 04:
where that has happened.

[00:25:29] Speaker 04:
And that speculation clearly can't be enough.

[00:25:31] Speaker 04:
What Duncan said in accepting this tradition under Duncan, which that part of Duncan was dicta since the court had held that large capacity magazines weren't protected in any event.

[00:25:42] Speaker 04:
But what it said was that the government could address unusually dangerous uses of weapons after they had proved

[00:25:50] Speaker 04:
to be particularly harmful.

[00:25:52] Speaker 04:
Here, California speculates about how suppressors possibly could be used to make a crime worse, but there is no concrete evidence that they've offered of that, and it's not very plausible given, again, that suppressed firearms are still very loud.

[00:26:09] Speaker 04:
It's remarkable that California admits that suppressors can be useful in self-defense, and that they're almost never used in crime, and somehow this does not even implicate

[00:26:18] Speaker 04:
the plain text of the Second Amendment.

[00:26:20] Speaker 04:
And I would say if that truly is correct, then we are making the Second Amendment a second amendment, a second class right.

[00:26:27] Speaker 04:
For example, in the First Amendment context, the Supreme Court has said that laws restricting noise amplification devices implicate the First Amendment.

[00:26:37] Speaker 04:
There was the case Ward versus Rockingham's racism, which the court held that that case

[00:26:44] Speaker 04:
The restriction passed First Amendment muster.

[00:26:47] Speaker 04:
This was about a city controlling volume from a ban shell.

[00:26:53] Speaker 01:
So what if California had a time, place, and manner restriction here and said, well, you can use it in training, because we think that training and this would protect ears and having both the head coverings or the ear coverings plus a suppressor would be a very safe way to do that.

[00:27:08] Speaker 01:
But for a variety of reasons that the state has articulated, once we get to the context of out on the street

[00:27:14] Speaker 01:
Self-defense where self-defense is likely to be sort of a one-off situation Then they're going to be banned now.

[00:27:21] Speaker 01:
Would you accept that?

[00:27:23] Speaker 04:
I would not well first I would accept the premise of that question seems to be that it implicates the plain text so yes That's the point.

[00:27:30] Speaker 04:
I'm making the First Amendment analogy to even the yes, and you're saying it breaks down because now you've got this is a time place and manner restriction well time place and manner restriction is a speech restriction it implicates the First Amendment it has to pass the time place and manner of

[00:27:44] Speaker 04:
scrutiny.

[00:27:45] Speaker 04:
And so the Second Amendment analysis is very similar to the First Amendment in the sense that, OK, there are lots of laws that implicate the Second Amendment or implicate the First Amendment.

[00:27:56] Speaker 04:
And then there are exceptions from history that come in.

[00:27:59] Speaker 04:
In the First Amendment, there are things like fraud, fighting words, things of that nature.

[00:28:04] Speaker 04:
But that doesn't mean that they're not literally speech, that they don't implicate the First Amendment.

[00:28:08] Speaker 04:
That means that there's a tradition of regulation into which those laws fit, and similar with the time, place,

[00:28:14] Speaker 04:
and manner restrictions.

[00:28:15] Speaker 04:
So if California were to say, okay, we are going to allow suppressors, but only for training, that would implicate the Second Amendment.

[00:28:24] Speaker 04:
The question would be whether there's a historical tradition that would allow that.

[00:28:28] Speaker 04:
Our response would be no, since suppressors are not dangerous and unusual.

[00:28:33] Speaker 04:
They are in common use for lawful purposes.

[00:28:37] Speaker 04:
And there's no basis, again, to ban a particularly safe method of using a firearm.

[00:28:42] Speaker 04:
But even if, Your Honor, were to disagree with me on that, that would not save California's law here, because their law is a flat ban on suppressors.

[00:28:50] Speaker 04:
They can't be used in any circumstance.

[00:28:53] Speaker 04:
So that law is unconstitutional.

[00:28:56] Speaker 04:
California could come back and try something else we perhaps would challenge that too but for purposes of this case all the court has to decide is that a Banning suppressors implicates the plain text of the second amendment which again we submit does both under Duncan and under BNL productions which I didn't hear California address much as a meaningful constraint and then be there's no tradition of regulation that would allow a flat ban of

[00:29:23] Speaker 04:
of a particularly safe method of using firearms.

[00:29:26] Speaker 04:
If there are no further questions.

[00:29:29] Speaker 03:
Thank you.

[00:29:29] Speaker 03:
Thank you both for the excellent oral arguments.

[00:29:34] Speaker 03:
Case is submitted and we are recessed for the day.

[00:29:55] Speaker 03:
or she'll stand.