[00:00:09] Speaker 02:
Next we have United States versus De Borba.

[00:00:34] Speaker 03:
Good morning.

[00:00:36] Speaker 03:
My name is Rebecca Fish, and I represent Joan de Borba, the appellant in this case.

[00:00:41] Speaker 03:
I would like to reserve three minutes for rebuttal.

[00:00:44] Speaker 03:
I understand that the court does not want to hear argument on the 922G5 disarmament of many non-citizens issue, but I am happy to answer any questions the court has.

[00:00:55] Speaker 03:
As to the remaining issues, the court should reverse Mr. de Borba's conviction for possession of an unregistered silencer because no historic tradition of regulation supports the statute of conviction.

[00:01:08] Speaker 03:
The court should reverse Mr. de Borba's convictions under 922G8 because the facts of his case differ in ways that matter from Rahimi and Van Dyke, each of which were decided as applied.

[00:01:21] Speaker 03:
Finally, the court should reverse the false statement-related convictions because the government did not prove that the statements at issue were material.

[00:01:29] Speaker 02:
On the facial challenge, you have a heavy burden to bear.

[00:01:36] Speaker 02:
So if it's constitutional in some of its applications, how can you succeed on your facial challenge?

[00:01:43] Speaker 03:
Are you speaking as to the silencer?

[00:01:44] Speaker 03:
Yes.

[00:01:45] Speaker 03:
Yes, Your Honor.

[00:01:46] Speaker 03:
I don't believe that the NFA's restriction on silencer is constitutional in any application.

[00:01:52] Speaker 03:
I agree that we did present a facial challenge here.

[00:01:55] Speaker 03:
And specifically focusing on the Second Amendment challenge, I would note that the parties agree that the Second Amendment protects silencers.

[00:02:04] Speaker 03:
So the only remaining issue is whether a historic tradition of regulation justifies the restriction here.

[00:02:09] Speaker 01:
Well, let's just stop there because simply because the parties might agree and the government might have changed its position over time doesn't mean that that's what the court would decide.

[00:02:22] Speaker 01:
So my question to you on that is I think when the case first started out perhaps there wasn't the benefit of the Duncan v. Bonta case where

[00:02:35] Speaker 01:
suggest that a silencer would be an accoutrement and not an arm.

[00:02:41] Speaker 01:
What is your response to that?

[00:02:42] Speaker 03:
Your Honor, I believe that sentence in Duncan is not reason dicta.

[00:02:47] Speaker 03:
Duncan finds that extended magazines are accoutrement, not accessories necessary to the ordinary use, and in a list of accoutrement cite silencers.

[00:02:57] Speaker 03:
But it gives no meaningful reasoning for that sentence.

[00:03:00] Speaker 03:
So I don't believe that controls this court.

[00:03:03] Speaker 02:
I would note... Ruling that accoutrements are not protected, it does control us, correct?

[00:03:08] Speaker 02:
Correct.

[00:03:08] Speaker 02:
So you'd have to persuade us that a silencer is not an accoutrement, is that right?

[00:03:14] Speaker 03:
Precisely, Your Honor.

[00:03:15] Speaker 03:
And the rule emerging from Duncan, or I shouldn't say emerging from, articulated clearly in Duncan, is that what are protected are accessories and components necessary for the ordinary usage of a firearm.

[00:03:28] Speaker 01:
So your position is that a silencer, although there are some

[00:03:33] Speaker 01:
Language dispute about whether you should not call it a silencer because it doesn't completely silence the shot your position is That is essential to the arm.

[00:03:46] Speaker 01:
Yes, your honor and how how can that be?

[00:03:48] Speaker 01:
What is your best position or best citation for that your honor um I?

[00:03:53] Speaker 03:
Explaining kind of what is necessary for the ordinary usage there are several situations by both the parties that ordinary usage includes essentially possessing carrying storing Practicing using in a safe manner and self-defense with a firearm in Duncan the court found that extended magic Magazines were not necessary for ordinary usage because they were not necessary for those activities I don't believe that definition is limited to ordinary

[00:04:18] Speaker 03:
the mere mechanical firing of a firearm, because that would limit components and accessories to essentially a bullet, gunpowder, and some sort of flint, which obviously triggers receivers, barrels must be included because they're necessary for those ordinary activities.

[00:04:34] Speaker 03:
Here, a silencer is necessary for those ordinary activities to be done safely.

[00:04:41] Speaker 03:
As detailed in our briefing, it reduces the

[00:04:45] Speaker 03:
the report, essentially, the sound that a gun produces when fired, when produced when fired.

[00:04:50] Speaker 01:
Well, that goes down to, you know, it might be interesting, it might be helpful, but is it necessary?

[00:04:56] Speaker 01:
And it seems to me that that's where kind of the rubber meets the road here for your case.

[00:05:01] Speaker 03:
Certainly, Your Honor.

[00:05:02] Speaker 03:
And if I may use an analogy, I would compare a silencer more to a safety than to an extended magazine or tactical scope.

[00:05:10] Speaker 03:
A safety is something that is built into many firearms.

[00:05:14] Speaker 03:
But some firearms are built without safeties, and people can purchase accessories like a trigger safety or trigger lock that function as a safety on their firearm.

[00:05:23] Speaker 03:
A safety makes it substantially safer for a person to store, carry, practice with, or use a firearm when needed in self-defense.

[00:05:31] Speaker 03:
And if the government were to restrict a person's ability to obtain a safety that would significantly deter that person from exercising their right to arm self-defense because they would have to trade their constitutional right for their safety.

[00:05:44] Speaker 03:
So to hear silencers make

[00:05:47] Speaker 03:
all of those activities of ordinary usage safer by reducing the hearing damage to the user, as cited in my briefing.

[00:05:55] Speaker 03:
Here, the item in question, as tested by the ATF, reduced the report of the firearm by 10 decibels from a level that would damage a person's hearing to a level that was close to that which would not.

[00:06:07] Speaker 03:
That is the primary function of a safety.

[00:06:10] Speaker 03:
It's not to silence or conceal, it is to essentially

[00:06:13] Speaker 03:
it functions to limit hearing damage.

[00:06:16] Speaker 03:
So I believe a silencer is closer to that of a safety in terms of how it functions with a firearm.

[00:06:21] Speaker 03:
By contrast, something like an extended magazine or a scope that enhances perhaps the effectiveness or ability to aim of a firearm are not necessary for this ordinary usage of possessing, storing, carrying, practicing, and firing in self-defense.

[00:06:38] Speaker 03:
So I would ask this court to conclude that silencers are accessories or components necessary to the ordinary usage of a firearm, much like a safety would be, but unlike an extended magazine.

[00:06:50] Speaker 01:
But if we didn't need to go that far, we could go the route of the Fifth Circuit and just assume, correct?

[00:06:57] Speaker 01:
Correct, Your Honor.

[00:06:57] Speaker 01:
So I would appreciate if you could then address the Fifth Circuit Peterson ruling

[00:07:05] Speaker 01:
and why, in your view, we should create a circuit split.

[00:07:09] Speaker 03:
Your Honor, I think there's a couple of reasons.

[00:07:11] Speaker 03:
Peterson did indeed assume without deciding that silencers were firearms protected or were accessories protected by the Second Amendment.

[00:07:23] Speaker 03:
But Peterson relied largely on

[00:07:27] Speaker 03:
a kind of a legal presumption that the Fifth Circuit has read into the Supreme Court's case law that in Heller and Bruin, the kind of notes that those decisions did not disturb presumptive shell issue licensing schemes.

[00:07:41] Speaker 01:
It's a famous footnote nine that everybody keeps referring to, right?

[00:07:45] Speaker 03:
Yes, that those kind of

[00:07:48] Speaker 03:
presumed that some sort of registration scheme was lawful as long as it was a shall issue scheme.

[00:07:54] Speaker 03:
And Peterson noted that the litigant, Mr. Peterson, did apparently a poor job of preserving the issue before the Fifth Circuit and was not clear on which argument he was presenting.

[00:08:05] Speaker 03:
And Peterson at page 654 noted that we do not foreclose the possibility that another litigant may successfully challenge the NFA's requirements.

[00:08:15] Speaker 03:
So I think this court is not so much creating a circuit split as just dealing with a case where the issue is better preserved than in Peterson.

[00:08:22] Speaker 03:
Additionally, this circuit has not adopted the same view of that presumptively lawful shell issue scheme that the Fifth Circuit has from that language in Supreme Court statutes.

[00:08:32] Speaker 03:
In both Duncan and more recently in Road v. Bonta, this court did not kind of hold the defendant to a burden of disproving a presumptively lawful scheme, but rather applied Bruin faithfully and said.

[00:08:46] Speaker 01:
Well, we didn't not do it either, right?

[00:08:49] Speaker 01:
I mean, we didn't suggest that there is no shell issue requirement.

[00:08:55] Speaker 01:
You're just saying that we decided it differently in those cases.

[00:08:59] Speaker 03:
Correct, Your Honor.

[00:09:00] Speaker 03:
And so in both of those cases, in Duncan, the court held extended magazines were not arms.

[00:09:05] Speaker 03:
But in reason dicta, so that would influence this court, went on to still do the historical analysis required by Bruin at step two.

[00:09:12] Speaker 03:
In Rode, there was seemingly no meaningful dispute that regular ammunition was covered by the Second Amendment.

[00:09:18] Speaker 03:
So the court engaged in Bruin step two without any kind of presumption that a shell issue scheme

[00:09:24] Speaker 03:
is lawful absent the defendant proving otherwise.

[00:09:28] Speaker 03:
Those cases kind of coalesced around a couple of regulatory traditions.

[00:09:36] Speaker 03:
Specifically, Duncan found a regulatory tradition of restricting especially dangerous uses of weapons once they had been put to criminal misuse.

[00:09:49] Speaker 03:
It relied on some of the regulations that the government cited here to support the NFAs restrictions on firearms.

[00:09:57] Speaker 03:
And in Duncan, this court found that that was sufficient for California to ban extended magazines because those were used in mass shootings and had especially dangerous use.

[00:10:09] Speaker 03:
And essentially, the court reasoned that

[00:10:13] Speaker 03:
The item in question was the ammunition, and the extended magazine was an especially dangerous use of that ammunition.

[00:10:20] Speaker 03:
Here, that is not the case.

[00:10:21] Speaker 03:
And in Roe v. Bonta, the court emphasized that Bruin did not say that all shall issue schemes are entitled to a presumption.

[00:10:30] Speaker 03:
Well, that decision has been vacated.

[00:10:34] Speaker 01:
Yes.

[00:10:35] Speaker 01:
So it's kind of hard for us to argue about it.

[00:10:37] Speaker 01:
At this point, it's actually been vacant.

[00:10:40] Speaker 03:
But I would note just in the differences that Duncan really focuses on the dangerous uses of weapons that were put to criminal misuse.

[00:10:49] Speaker 03:
And here, the NFA does not limit itself to dangerous uses of silencers.

[00:10:54] Speaker 03:
It significantly impedes the use of silencers in basically any application.

[00:11:04] Speaker 03:
That is so because it does include both the taxation that was designed to be prohibitive and punitive.

[00:11:12] Speaker 03:
And as noted in our briefing, the evidence of actually punitive taxation schemes is pretty limited to about three states or three colonies.

[00:11:22] Speaker 03:
Historically, that is similar to that which the Supreme Court rejected in Bruin as sufficient to justify concealed carry regulations.

[00:11:31] Speaker 03:
And it is enforced with very punitive criminal penalties for noncompliance as opposed to mere forfeiture or a fine for noncompliance.

[00:11:40] Speaker 03:
All of those factors, I believe, demonstrate that the government has not met its burden under Bruin step two to justify the NFA's restrictions on silencers.

[00:11:53] Speaker 03:
Turning to the 922 G8 convictions, essentially both Rahimi and Van Dyke were decided as applied as applied challenges and were limited to the facts of those cases.

[00:12:07] Speaker 03:
Certainly their reasoning is informative, but neither said that the statutes and its two prongs are

[00:12:15] Speaker 03:
constitutional in all of its applications.

[00:12:17] Speaker 03:
And here, the facts of this case differ in ways that matter from the facts of those cases.

[00:12:23] Speaker 03:
I will focus on Van Dyke because Rahimi was addressed further in our briefing.

[00:12:27] Speaker 03:
Van Dyke came out later.

[00:12:29] Speaker 03:
But Van Dyke, essentially, this court made a factual finding.

[00:12:33] Speaker 03:
So rather than holding the court thought about

[00:12:37] Speaker 03:
applying the Duarte rule that the legislature, you know, consistent with historic regulations could disarm a group of people that it viewed as dangerous, but didn't actually apply that in Van Dyke precisely for two reasons.

[00:12:51] Speaker 03:
One, the court made a factual finding that

[00:12:54] Speaker 03:
the state court in Van Dyke had actually made an individualized determination of dangerous based on the facts known to it at the time and based on an Idaho law in the Idaho Supreme Court's interpretation of the statute that said courts must issue protection orders in order to protect victims of domestic violence.

[00:13:13] Speaker 03:
This court relied on that to draw the inference that in fact an individualized determination of dangerous of Mr. Van Dyke had been made.

[00:13:21] Speaker 03:
Second, the court declined to find that 922G82 was supported under Duarte's kind of legislative finding of dangerousness of a group because it said we don't need to reach that.

[00:13:36] Speaker 03:
Mr. Van Dyke at the time was subject to a felony indictment and as such was subject to a different ground of disarmament.

[00:13:43] Speaker 01:
But we have forms here that basically, check, check, the finding of dangerous is made, correct?

[00:13:49] Speaker 03:
In one count, yes.

[00:13:51] Speaker 03:
In one count, no.

[00:13:51] Speaker 03:
So the protection orders underlying count two contain a kind of form check finding.

[00:13:59] Speaker 03:
The protection orders underlying count one contain no such finding.

[00:14:05] Speaker 03:
They simply satisfy the second prong of 922G8 that they restrain the person from contacting, et cetera, another person.

[00:14:14] Speaker 03:
What differs here among other things from Van Dyke is the Washington law background.

[00:14:20] Speaker 03:
As cited in our opening brief, the relevant Washington law for protection orders pre-trial states that courts may issue protection orders to protect victims of domestic violence.

[00:14:32] Speaker 03:
And the post-conviction law states essentially that courts may issue protection orders but does not contain mandatory language.

[00:14:43] Speaker 02:
And it's not mandatory in the court chose to impose one after a conviction on domestic violence charges.

[00:14:51] Speaker 02:
Why doesn't that imply a finding of dangerous?

[00:14:54] Speaker 03:
Well, one other factor that I think is relevant here, your honor, is that is the purpose of the Washington state law.

[00:15:02] Speaker 03:
The preface to that chapter states that the law is really focused on

[00:15:06] Speaker 03:
making sure law enforcement and prosecutors enforce existing laws rather than telling judges what findings they should make.

[00:15:13] Speaker 03:
So a court may find it appropriate to have a no-contact order to prevent witness tampering, to prevent a victim in a domestic violence case from recanting or changing their story,

[00:15:25] Speaker 03:
simply diffuse a situation without necessarily finding that the individual poses a credible threat to another person.

[00:15:33] Speaker 03:
So I do believe that difference in the facts in this case versus Van Dyck indicate a different result here.

[00:15:39] Speaker 03:
This is because Rahimi and in turn Van Dyck relied so heavily on the fact that surety laws and the going armed laws depended on an individualized prior finding of dangerousness.

[00:15:51] Speaker 03:
And I don't think that the same inference can be drawn from the facts here that was drawn in Van Dyck.

[00:15:57] Speaker 03:
Finally, turning to the false statement counts, essentially, Mr. De Borba was convicted of, under two different statutes, one, 922A6, which prohibits false statement in the purchase of a firearm, and another, section 911, which prohibits a false claim to U.S.

[00:16:17] Speaker 03:
citizenship.

[00:16:18] Speaker 03:
Each of those statutes has a specific materiality element, and the Supreme Court in Abramski

[00:16:25] Speaker 03:
made clear that element for 922A6 is whether the sale could have proceeded had the true information been shared.

[00:16:34] Speaker 01:
We aren't, of course, going to discuss the 922G5, but if your challenge there failed, can your materiality challenges still prevail and succeed?

[00:16:50] Speaker 03:
No, Your Honor.

[00:16:51] Speaker 01:
So they rise and fall together?

[00:16:52] Speaker 03:
Correct, Your Honor.

[00:16:53] Speaker 03:
All right.

[00:16:54] Speaker 03:
And I would note that many of the, you know, we discussed in briefing why the cases relied upon by the government are not controlling here.

[00:17:04] Speaker 03:
Those cases pertain to other elements of the general federal false statement statute 1001, which for example, you know, one of those cases essentially said that even though

[00:17:18] Speaker 03:
the statute that caused the government to ask a question about a person's political affiliation was later struck down on First Amendment issues, the question was still within the jurisdiction of the United States, which is the jurisdictional rather than materiality element of that statute.

[00:17:32] Speaker 03:
I would note that more recently this court in United States v. DeFrance, albeit in a footnote, noted that there where the court decided that Mr. DeFrance's domestic violence misdemeanor convictions

[00:17:48] Speaker 03:
were not actually a categorical match for that prong of Section 922G, that the conclusion that DeFranc's conviction under Section 45 to et cetera of the state code does not qualify as a misdemeanor crime of domestic violence may call into question his convictions under Section 922A6.

[00:18:09] Speaker 03:
The issue is not presented there, but this court has been open that if basically a lie on a gun purchase form could not have presented

[00:18:19] Speaker 03:
prevented the sale, that lie would be immaterial.

[00:18:23] Speaker 03:
In Abramsky, even though the true purchaser was a eligible possessor, the court relied on the fact that 922 also requires in-person purchase, and I see I'm going into my rebuttal time.

[00:18:38] Speaker 02:
Just before one question, and I'll make sure you get your two minutes on rebuttal, I just want to confirm for your vagueness challenge,

[00:18:46] Speaker 02:
on the definition of silencer, that's a facial challenge, is that correct?

[00:18:50] Speaker 03:
Correct.

[00:18:51] Speaker 00:
May it please the court, William Glasser for the United States.

[00:19:04] Speaker 00:
Starting with the NFA's restriction on possession of unregistered silencers,

[00:19:11] Speaker 00:
The parties have come to some agreement, as noted after our supplemental briefing, with regard to whether the Second Amendment analysis ought to apply to the possession of silencers.

[00:19:22] Speaker 00:
I understand Judge McEwen's concern about the court's en banc decision in Duncan.

[00:19:29] Speaker 00:
And I think it's fair to say that Duncan indicates that non-essential components of weapons

[00:19:38] Speaker 00:
are not protected by the Second Amendment.

[00:19:39] Speaker 00:
The United States does not agree with that position, but to the extent this court finds that silencers are non-essential firearm components, that would likely control.

[00:19:49] Speaker 02:
Would you argue that silencers are essential, or you just disagree with the actual legal holding of?

[00:19:57] Speaker 00:
We disagree with the legal holding, Your Honor.

[00:19:58] Speaker 00:
We do not think that silencers are essential to the use of weapons.

[00:20:02] Speaker 00:
And again, I don't want to fight too hard on something that would give us the win.

[00:20:06] Speaker 00:
But just to be clear about the government's position here.

[00:20:09] Speaker 01:
Well, and of course, we can't really rely on an agreement between the parties as to the meaning of this.

[00:20:15] Speaker 01:
There was dispute between the parties before, right?

[00:20:19] Speaker 00:
That's correct, Your Honor.

[00:20:20] Speaker 01:
And now the government has altered its position.

[00:20:22] Speaker 01:
So I understand that.

[00:20:23] Speaker 00:
That's correct, Your Honor.

[00:20:24] Speaker 01:
And now on that point, you're in agreement with the defense.

[00:20:28] Speaker 00:
That's correct.

[00:20:30] Speaker 00:
So just to briefly explain the government's position and then explain our preferred approach, we recognize you might disagree with us on that preferred approach.

[00:20:38] Speaker 00:
To briefly explain the government's position, our view is that courts should not be drawing lines between necessary components of firearms or necessary accessories of firearms and those which are merely useful.

[00:20:49] Speaker 00:
Because we do not think that the Second Amendment protects only the least useful configuration of a weapon.

[00:20:56] Speaker 00:
So you can imagine all kinds of firearm accessories that are very useful to the safety and the functioning of the firearm.

[00:21:03] Speaker 00:
opposing counsel referenced a safety, a fire actual firearm safety.

[00:21:07] Speaker 02:
I'm sorry, Councilman, just because, yep, but as a three-judge panel, we're bound by a Duncan race.

[00:21:12] Speaker 02:
So we can't actually agree with your argument here, rule on that basis.

[00:21:17] Speaker 02:
So assuming that we are drawing that line, you are not arguing that silencers are necessary and essential.

[00:21:27] Speaker 00:
That's correct, Your Honor.

[00:21:28] Speaker 02:
We do not think we think that if if this court we were to reverse somehow Duncan, then we could consider your argument.

[00:21:36] Speaker 00:
That's correct.

[00:21:37] Speaker 00:
But, Your Honor, to be clear, I think this court, while bound by Duncan, can still can still resolve this case in a way that doesn't simply say silencers are completely fall outside

[00:21:49] Speaker 00:
the Second Amendment's protections, because Duncan didn't actually address silencers specifically.

[00:21:54] Speaker 00:
And this court could do, as Your Honor mentioned, do what the Fifth Circuit did in Peterson and say that let's assume, we're controlled by Duncan, let's assume that, pardon me, not that we're controlled by Duncan, but let's assume that we don't have to extend Duncan to this situation.

[00:22:13] Speaker 00:
And they are protected.

[00:22:14] Speaker 00:
In the government's view, it's the constitution.

[00:22:15] Speaker 02:
But we would have to find that silencers are essential.

[00:22:18] Speaker 02:
Like, we'd have to apply Duncan to silencers, right?

[00:22:22] Speaker 02:
And then find silencers are essential.

[00:22:24] Speaker 02:
But you're not arguing that.

[00:22:26] Speaker 02:
Well, I thought you were.

[00:22:27] Speaker 01:
I thought you were arguing that they are necessary.

[00:22:30] Speaker 00:
Not that they're necessary, Your Honor, to the functioning of firearm.

[00:22:32] Speaker 00:
No, but that they're useful.

[00:22:34] Speaker 00:
And so we think the second amendment analysis should apply.

[00:22:36] Speaker 00:
They're useful.

[00:22:38] Speaker 01:
OK.

[00:22:38] Speaker 01:
So it's not necessary, but it's useful.

[00:22:40] Speaker 00:
Exactly, Your Honor.

[00:22:42] Speaker 01:
if this court believe it be useful for example to have certain kind of paint on a firearm because it might provide camouflage in a certain situation with that it wouldn't be necessary but would that be useful your honor I think it I think it very well maybe and again we don't think

[00:23:05] Speaker 00:
recognizing this court is bound by Duncan.

[00:23:07] Speaker 01:
No, no, but I'm just trying to understand what useful means.

[00:23:10] Speaker 00:
Sure.

[00:23:11] Speaker 00:
Your Honor, we don't think that, we think that the appropriate analysis is that anything that applies to a firearm or a firearm accessory falls within the sort of Second Amendment analysis.

[00:23:23] Speaker 00:
Not that restrictions on those things are unconstitutional.

[00:23:26] Speaker 00:
We're certainly defending the NFAs registration and taxation requirement on silencers, but we're just saying that the court ought to do a Second Amendment analysis

[00:23:34] Speaker 00:
and not simply say, oh, that falls outside the Second Amendment because of line drawing problems.

[00:23:38] Speaker 00:
Now, again, recognizing this court is bound by Duncan, the Supreme Court, I would note, is considering the cert petition in Duncan this Friday.

[00:23:45] Speaker 00:
So perhaps if the Supreme Court were to grant certiorari in Duncan, that would certainly shed some light on this case.

[00:23:54] Speaker 00:
But the right approach, we think, is essentially the approach taken by the Fifth Circuit and Peterson, which is to say, let's assume that the Second Amendment applies to and protects silencers as firearm accessories.

[00:24:06] Speaker 00:
The NFA is still constitutional as applied to silencers because the modest burden imposed does not conflict with the Second Amendment, and it's consistent with historical restrictions on the possession of certain firearms, particularly those firearms that, like silencers,

[00:24:23] Speaker 00:
or those firearm accessories like silencers, those types of weapons that have the potential to be used for criminal purposes beyond sort of the ordinary use of firearms.

[00:24:36] Speaker 00:
So all firearms can be used for criminal purposes, no dispute on that.

[00:24:40] Speaker 00:
But certain weapons are more susceptible to criminal misuse.

[00:24:43] Speaker 00:
As we explained in our supplemental brief, silencers do make firearm reports harder to detect

[00:24:49] Speaker 00:
And therefore, although the vast majority of uses are legal, there is a heightened concern about improper and illegal uses of silencers.

[00:25:01] Speaker 00:
And there is a history and tradition in this country of regulating firearms that are not just dangerous and unusual, but also those that can be used for unlawful purposes, such as bowie knives.

[00:25:15] Speaker 00:
To be clear, it's not the United States' position that silencers are themselves dangerous and unusual weapons that can completely be banned, but we do think that the dangerous and unusual weapon analysis is helpful in the sense that if dangerous and unusual weapons, those that aren't in common use for lawful purposes can be banned entirely,

[00:25:40] Speaker 00:
weapons or even accessories like silencers that at least present some heightened concern about unlawful use can at least be subject to a modest taxation and registration requirement such as the National Firearms Act and that's consistent again with the Fifth Circuit's decision in Peterson and we would ask this court not to create a circuit split with the Fifth Circuit but to simply say that

[00:26:05] Speaker 00:
Even assuming that Duncan extends to silencers, the National Firearms Act is not unconstitutional as applied to silencers.

[00:26:14] Speaker 02:
Can you address the argument that the criminal penalties and the high rate of the tax cause this to be essentially a ban?

[00:26:25] Speaker 00:
Your Honor, it's certainly not a ban today.

[00:26:27] Speaker 00:
There are millions of lawfully registered silencers on the national firearm record.

[00:26:35] Speaker 00:
That number is going up dramatically just because ATF has expedited the processing and as silencers have become more popular among sportsmen.

[00:26:44] Speaker 00:
I will also note that as of January 1st, so a month from now, that tax is going to go to zero.

[00:26:50] Speaker 00:
So certainly going forward, it's not going to be prohibitive.

[00:26:54] Speaker 00:
But even now, a $200 tax on a silencer is not prohibitive.

[00:26:58] Speaker 00:
That tax is not significantly higher than

[00:27:03] Speaker 00:
the fees that are charged, for example, for a concealed carry permit in various jurisdictions.

[00:27:09] Speaker 00:
So although perhaps at the time that the National Firearms Act was passed in 1934, it was prohibitive, effectively prohibitive, inflation has changed things.

[00:27:22] Speaker 00:
And just as this court can consider inflation, for example, in the context of the excessive fines clause, it can also consider inflation in determining whether or not

[00:27:31] Speaker 00:
The burden imposed by the National Firearms Act is an unconstitutionally high burden.

[00:27:38] Speaker 00:
Again, referring to Brew and Footnote 9, there the court said that perhaps I think it set up exorbitant fees might be unconstitutional and this is not an exorbitant taxation requirement.

[00:27:51] Speaker 01:
But you could end up with a custodial penalty, correct?

[00:27:56] Speaker 00:
I'm sorry, Your Honor.

[00:27:57] Speaker 01:
I mean, that you end up with a criminal violation that can net you a custodial penalty.

[00:28:04] Speaker 00:
Oh, sure.

[00:28:05] Speaker 01:
And you didn't have that in the historical regime of the $200 fee of the past.

[00:28:18] Speaker 01:
Your Honor, ever since... I think you had forfeiture, but I don't know if you had custodial.

[00:28:22] Speaker 01:
That's my question.

[00:28:23] Speaker 00:
OK, so I hope I'm understanding the question correctly, Your Honor.

[00:28:27] Speaker 00:
So ever since the National Firearms Act was passed in 1934, there has been this sort of backup of a criminal penalty.

[00:28:33] Speaker 00:
So you can go to jail if you don't register your silencer.

[00:28:37] Speaker 01:
Right.

[00:28:37] Speaker 01:
But before that, we didn't have custodial penalties as a historical tradition, or did we?

[00:28:44] Speaker 00:
So, Your Honor, traditionally the penalties for the failure to pay a tax, for example, on bowie knives was traditionally a fine, similarly for possessing these sort of weapons where possession or carry was prohibited were also fines and not a custodial sentence.

[00:29:03] Speaker 00:
But I don't think that the penalty is the important

[00:29:07] Speaker 00:
But we're certainly not the most important consideration under Bruin when we're looking at how and why it burdens the use the penalty the historical penalty doesn't have to line up exactly I mean so in the felon possession context you know we have historical penalty of death doesn't line up perfectly with punishable by more than a year in prison.

[00:29:25] Speaker 00:
And yet, this court in Duarte concluded that the historical penalty could support the modern-day penalty.

[00:29:32] Speaker 02:
That's a case where the penalty was much lighter.

[00:29:35] Speaker 02:
Sure.

[00:29:36] Speaker 02:
Do you have a case where the penalty is greater and we've said it's good enough?

[00:29:42] Speaker 00:
Your Honor, I think the 922G8 context, kind of sort of getting to the next point, is one example.

[00:29:50] Speaker 00:
So historically, the violation of the surety laws

[00:29:56] Speaker 00:
It was, you know, there, I guess it depends on how you look at it.

[00:30:00] Speaker 00:
The person could be restrained, but they weren't necessarily deprived of their firearms.

[00:30:04] Speaker 00:
I'm not sure I have a perfect example of that, although it might just be a lack of memory on my part.

[00:30:08] Speaker 01:
I wanted to just make sure I understood your position on footnote nine, if you could elaborate.

[00:30:14] Speaker 00:
Sure.

[00:30:15] Speaker 00:
So our view of footnote nine of Bruin is that footnote nine says that certain

[00:30:22] Speaker 00:
restrictions on the public carry of firearms such as shall issue licensing schemes, background checks, training requirements are sort of presumptively constitutional as long as they don't have excessively long wait times or require exorbitant fees.

[00:30:37] Speaker 00:
And we think that the NFAs registration and taxation requirement for silencers is exactly that sort of regime.

[00:30:44] Speaker 01:
So it would meet that presumption and that presumption wouldn't be undone by the details of the scheme?

[00:30:51] Speaker 00:
That's correct, Your Honor.

[00:30:52] Speaker 00:
Again, I don't think the court necessarily needs to rely on some sort of presumption.

[00:30:55] Speaker 00:
I think you can apply Bruin's how and why analysis and reach the same conclusion.

[00:31:01] Speaker 00:
If I may then turn to the 922 G8 challenge.

[00:31:09] Speaker 00:
Mr. de Borba seeks to find daylight between his case and Rahimi and Van Dyck based on the fact that there were slightly different facts in those cases.

[00:31:19] Speaker 00:
With respect to

[00:31:21] Speaker 00:
the charge in count two, which was premised on the actual finding that he posed a credible threat, that challenge is simply foreclosed by Rahimi.

[00:31:33] Speaker 00:
Rahimi did not say it was limiting itself to only people who have engaged in a particular kind of violence.

[00:31:42] Speaker 00:
Rahimi said that where the court has found a credible threat presented by the defendant, that is enough.

[00:31:48] Speaker 00:
doesn't have to be a specific type of violence such as firearm violence that would make no sense to say that someone who threatened his domestic partner with a knife could not constitutionally be deprived of a firearm.

[00:32:01] Speaker 00:
And it's simply not what the Supreme Court said in Rahimi with respect to count one.

[00:32:06] Speaker 00:
In the government's view, count one here, which was premised on two protection orders, neither of which included a credible threat assessment, but both satisfied 922G8C2.

[00:32:21] Speaker 00:
In the government's view, that

[00:32:24] Speaker 00:
that count can satisfy both C1 and C2.

[00:32:29] Speaker 00:
It can satisfy C1 because those orders were imposed subsequent to the initial credible threat finding.

[00:32:38] Speaker 00:
But we also think that under Van Dyke, it satisfies, certainly satisfies C2 and C2 is constitutional because the courts in both of those, entering both of those protection orders

[00:32:52] Speaker 00:
entered them and specifically prohibited him from using violence against his intimate partner and family members.

[00:32:59] Speaker 00:
And again, all that Mr. de Borba can do is say, well, the facts in this case are a little bit different than in Van Dyke.

[00:33:05] Speaker 00:
But in Van Dyke, the Idaho scheme said that in order to protect people from domestic violence, you should enter an order prohibiting them from engaging in violence

[00:33:19] Speaker 00:
And that's effectively what the Washington regime does as well.

[00:33:23] Speaker 00:
As de Borbis' counsel noted, the Washington regime doesn't require the imposition of a protective order.

[00:33:31] Speaker 00:
It's discretionary.

[00:33:33] Speaker 00:
And if you sort of look at the complicated procedural history here, the orders that underlie count one

[00:33:42] Speaker 00:
Followed on the initial charges in which the credible threat assessment was made paragraph 59 of the PSR explains that the initial charges in which the credible threat finding was made were later dismissed and reincorporated in a subsequent state case and that subsequent state case was one of the one of one of those was the

[00:34:06] Speaker 00:
was one of the orders underlying count one.

[00:34:09] Speaker 00:
It's a little bit complicated, but I think if you look at the factual history here, you see that the orders underlying count one satisfy both G8C1 and G8C2.

[00:34:22] Speaker 00:
If I may then briefly touch on the issue of materiality, the Supreme Court in Abramsky said that

[00:34:32] Speaker 00:
A statement is material if the sale could not have proceeded under the law if a truthful statement had been made.

[00:34:40] Speaker 00:
The materiality claim that Mr. de Borba is raising hinges entirely on his G5 and G8 claims, but even if he were to prevail on both of those claims, which we don't think he can, he would still not have a constitutional right to lie on the federal firearms purchase forms.

[00:34:58] Speaker 00:
We have cited a number of Supreme Court cases,

[00:35:01] Speaker 00:
I think this court's recent decision in Manny simply foreclosed the argument that it is not material it's not a material misstatement if for some reason it turns out later that the requirement of a truthful answer is part of an unconstitutional regime so.

[00:35:19] Speaker 00:
The Supreme Court has considered it in the context of lying about your Communist Party membership under the First Amendment.

[00:35:26] Speaker 00:
So that was the Dennis and Bryson cases.

[00:35:29] Speaker 00:
And the Supreme Court said, look, even if it turns out that that violates the First Amendment, you can't lie about the fact that you're a Communist Party member.

[00:35:37] Speaker 00:
I think the same analysis applies here.

[00:35:39] Speaker 00:
Even if it turns out that you cannot be prohibited from possessing a firearm because you are an unlawfully present alien,

[00:35:47] Speaker 00:
or because you are subject to a domestic violence restraining order, you cannot lie about the fact that you're disqualified under law, under statutory law, from purchasing a firearm.

[00:35:58] Speaker 00:
So that claim is also foreclosed by Supreme Court precedent and this court's precedent.

[00:36:06] Speaker 00:
If the court has no further questions, we're happy to rest on the briefs and ask the court to affirm.

[00:36:12] Speaker 02:
Thank you.

[00:36:16] Speaker 02:
You can give her two minutes for rebuttal, please.

[00:36:19] Speaker 03:
Thank you, Your Honor.

[00:36:21] Speaker 03:
I'll reply briefly.

[00:36:22] Speaker 03:
First, in addressing the court's question about the differences in the how of the NFA's restriction on silencers versus the historic regulations, the court is correct that those historic regulations, violation of the taxation and registration requirements, was punished only by fine or, on occasion, I think, forfeiture of the gun or gunpowder in question.

[00:36:41] Speaker 03:
The Supreme Court has squarely addressed this question.

[00:36:44] Speaker 03:
In Bruin, at page 57, the court held that historic regulations providing for fines or bonds as penalties were not relevantly similar to the concealed carry law that could be punished by imprisonment or jail time.

[00:36:58] Speaker 03:
In Heller, at 633 to 34, the court held that historic regulations that punish violations, and I quote, with a small fine and forfeiture of the weapon, not with significant criminal penalties, end quote,

[00:37:11] Speaker 03:
were not equivalent to a modern law punishing violation with jail or prison time.

[00:37:16] Speaker 03:
On that basis, I believe it is clear from the Supreme Court that contrary to Duarte, where the disarmament is a lesser penalty than the historic regulations, when it is a far greater penalty, that difference matters in the Bruin analysis.

[00:37:32] Speaker 03:
Additionally, briefly, just addressing the government's arguments on the materiality and the false statement, I think government counsel may have accidentally misspoke.

[00:37:42] Speaker 03:
Our claim does not depend on the outcome of the G8 challenge, only the G5 challenge.

[00:37:46] Speaker 03:
the statements related only to citizenship and immigration status and I would make clear that I don't think Manny this court's holding and Manny controls this court's decision in this case at all.

[00:37:58] Speaker 03:
Manny was a straw purchaser case and Abramsky is clear that under

[00:38:03] Speaker 03:
Section 922, it's required that the purchases be made in person by the true purchaser.

[00:38:08] Speaker 01:
So just to be clear, the materiality claims do rise and fall with G5.

[00:38:14] Speaker 03:
Yes.

[00:38:14] Speaker 01:
G8 doesn't have anything to do with it.

[00:38:16] Speaker 03:
Correct.

[00:38:16] Speaker 03:
OK.

[00:38:16] Speaker 03:
Thank you.

[00:38:17] Speaker 03:
Just wanted to clarify that.

[00:38:19] Speaker 03:
The change in the true purchaser requirement has not been challenged and was not challenged in Manny.

[00:38:24] Speaker 03:
Here we are contending that G5 is unconstitutional on its face.

[00:38:28] Speaker 03:
As such, any statements pertaining to that ground would be material.

[00:38:36] Speaker 02:
Thank you, Council.

[00:38:37] Speaker 02:
I believe this matter is submitted and we are adjourned for the day.

[00:38:45] Speaker 01:
All rise.