[00:00:03] Speaker 01:
All right, we will take our first case, number 241209, National Association for Gun Rights versus Polis.

[00:00:17] Speaker 03:
Good morning.

[00:00:17] Speaker 03:
I would like to reserve three minutes at the end for rebuttal.

[00:00:23] Speaker 03:
May it please the court, my name is Barry Errington.

[00:00:26] Speaker 03:
I represent the appellants today.

[00:00:28] Speaker 03:
This challenge statute has two

[00:00:31] Speaker 03:
separate and analytically distinct components, the manufacturing band and the serialization requirement.

[00:00:40] Speaker 03:
The manufacturing band prohibits flat out the manufacturing of frames and receivers whether or not they have serial numbers.

[00:00:49] Speaker 03:
The serialization requirement applies in two separate and distinct situations.

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It prohibits the sale

[00:00:57] Speaker 03:
of unfinished frames and receivers, finished frames and receivers, and firearms unless they have serial numbers.

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And it prohibits the possession of unfinished frames and receivers, frames and receivers, and firearms unless they have serial numbers.

[00:01:14] Speaker 03:
The district court held that these plaintiffs do not have standing to challenge the manufacturing ban because it does not apply to prohibit completing

[00:01:28] Speaker 03:
firearm receivers and frames that are purchased online from companies like Polymer 80.

[00:01:36] Speaker 03:
The problem with that is, from the face of the statute, it plainly does prohibit such activities.

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And not only is it plain from the face of the statute, if you look to the legislative history, that was indeed the primary purpose of the statute.

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So the district court aired when it held

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that the statute did not prohibit that which it was primarily passed to prohibit.

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The district court upheld the serialization requirement as a regulation of commercial sales.

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As applied to these plaintiffs, the evidence was they made these firearms for their personal use.

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They did not contemplate a sale, nor did they ever sell such firearms.

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So it was an error to uphold the statute as a regulation of commercial sales because there were no sales.

[00:02:30] Speaker 03:
It seems that a sale either contemplated or actual would be the sin qua non of a regulation of commercial sales.

[00:02:39] Speaker 02:
The district court... Is a party to party sale a commercial sale?

[00:02:44] Speaker 03:
A party to party sale, a commercial sale.

[00:02:47] Speaker 03:
So there is a

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interesting debate going on actually in the ATF about what a commercial sale is with respect to regulating sales of these sorts of things.

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How many sales does it require to be a commercial sale?

[00:03:08] Speaker 03:
The ATF has taken the position that it could be just one sale.

[00:03:13] Speaker 02:
Depending on other factors.

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There's another lawsuit brewing about

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that.

[00:03:20] Speaker 02:
That's correct.

[00:03:21] Speaker 03:
The gun show idea and all that stuff.

[00:03:23] Speaker 02:
That's correct.

[00:03:25] Speaker 03:
That does not apply to this case because there was no sales either made or contemplated.

[00:03:29] Speaker 02:
So we don't care if they were commercial or non-commercial because there were no sales.

[00:03:33] Speaker 02:
Correct, Your Honor.

[00:03:35] Speaker 03:
The district court did not effectively analyze whether the serialization requirement or the manufacturing ban

[00:03:44] Speaker 03:
was consistent with the nation's history and tradition of firearms regulation, as required by Bruin, had it done so, it would have determined that they are plainly not consistent with that history and tradition.

[00:03:59] Speaker 03:
And with that, I will open up to questions that the court may have.

[00:04:06] Speaker 01:
What in your view, perhaps, you could start there, what in your view should the district court have done?

[00:04:11] Speaker 03:
The district court should have

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held that the manufacturing ban is unconstitutional on its face because it's a flat out prohibition of an activity that has roots dating back to before the revolution.

[00:04:27] Speaker 03:
The district court should have enjoined the serialization requirement as applied to these plaintiffs.

[00:04:33] Speaker 03:
The plaintiffs take no position about whether serialization is a valid regulation of commercial sales.

[00:04:41] Speaker 03:
But as applied to them, where there is no sales, it can't be.

[00:04:45] Speaker 01:
Well, the district court pretty much thought the Second Amendment didn't apply here.

[00:04:50] Speaker 01:
Can you address that?

[00:04:52] Speaker 03:
The district court addressed this at the textual level.

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And there is a debate about whether the commercial sale regulation applies at the textual level or at the history and tradition level of the Bruin test, as this court

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contemplated in a previous case that came out just a couple months ago.

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But this court held that it didn't apply even at the textual level because it was apparently commercial sales are not textually covered by the Second Amendment.

[00:05:31] Speaker 01:
But you think, so which stage would you think Berlin applies?

[00:05:38] Speaker 03:
So I think Bruin applies at both stages.

[00:05:41] Speaker 03:
At the first stage, they want to make firearms.

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And acquiring firearms is clearly implied as a right under the text of the Second Amendment.

[00:05:53] Speaker 01:
Well, how can you help me with the clearly implied?

[00:05:57] Speaker 03:
OK.

[00:05:57] Speaker 03:
So the Second Amendment says that people have the right to keep and bear arms.

[00:06:06] Speaker 01:
Well, doesn't that?

[00:06:08] Speaker 01:
I'm just anticipating what your opponent's argument is going to be, but doesn't that presume that the firearm is a firearm at that point?

[00:06:18] Speaker 01:
Even bare arms, it has to be in arms.

[00:06:22] Speaker 03:
Exactly.

[00:06:23] Speaker 03:
And so there are two ways to keep them.

[00:06:26] Speaker 03:
Well, you have to acquire arms in order to keep and bear them.

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And there are various ways of acquiring arms.

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You can go out and you can seal one.

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You can have one given to you.

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You can purchase one.

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Or in this country, there's a centuries old tradition of making them that goes back prior to the revolution.

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And in this case,

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this statute prohibits acquiring arms by making them, and that's why the text applies.

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The text having applied, you go on to the next step, and that is the history and tradition.

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There was quite a bit of testimony at the hearing about the history and tradition of making guns at the time of the founding.

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And the state's own witness, and as you saw, I quoted the state's own witness extensively in my briefs, more or less gave away the store.

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Because the state's witness, expert witness, admitted that there was a tradition of making firearms at the time of the founding.

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And not only was it not regulated, it was encouraged.

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The Continental Congress actually paid private people to make firearms.

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And so we have this tradition of going back to the founding of privately made firearms.

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And we have the founders knew about that activity.

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In fact, they encouraged it.

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They did not regulate it, much less prohibit it, as the state of Colorado has done.

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As it applies to the serialization requirement, going back to the founding, was there any serialization requirement?

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And the state, to its credit, hunted and hunted and hunted and found a couple of statutes that said, well, we have to stamp these arms

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as part of the proving process.

[00:08:28] Speaker 03:
Well, that is not, Bruins, is that analogous to what's going on here?

[00:08:33] Speaker 03:
Bruins says that everything is analogous to everything at a high enough level of generality.

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You have to go to the

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to the how and why of the statute.

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The how of that statute was you had a single number stamped on every barrel that was proved.

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It was not for identification purposes, it was for indicating that it was proved.

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The why was as I said indicating that it was proved

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It had nothing to do with the why in this case, which is identifying these in the course of criminal investigations.

[00:09:09] Speaker 03:
So there was no history at the time of the founding of the serialization of Carmen.

[00:09:14] Speaker 01:
And I appreciate you distinguishing between general and specific.

[00:09:21] Speaker 01:
But how specific do you have to be?

[00:09:23] Speaker 01:
Here, you're asking, you've got to be very specific.

[00:09:28] Speaker 01:
I mean, you have to.

[00:09:30] Speaker 01:
not have the very analogous regulation for the same purpose of the current regulation.

[00:09:42] Speaker 01:
That's very specific.

[00:09:45] Speaker 03:
So the Supreme Court addressed this very issue earlier this year.

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And the court said that, as Your Honor has indicated, we can't get too far into the weeds.

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You have to look at the purpose, and you can go from a higher level of generality if there's a general purpose that is applied.

[00:10:08] Speaker 03:
In that case, the court said that dangerous people were around at the founding, and there were certain regulations that regulated dangerous people.

[00:10:20] Speaker 03:
This is good enough to uphold that statute.

[00:10:23] Speaker 03:
In this, if you look at the stamping requirement

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that applied at the time of the founding, it had absolutely nothing to do at any level of generality with what the state is trying to accomplish in this situation.

[00:10:40] Speaker 01:
So what are you asking us to do?

[00:10:46] Speaker 01:
I mean, you want us to correct, I guess, the district courts.

[00:10:50] Speaker 01:
What you see is an error in the initial interpretation.

[00:10:54] Speaker 03:
Yes.

[00:10:55] Speaker 01:
And should we go beyond that?

[00:10:57] Speaker 03:
So I would recommend, Your Honor, that there be a reversal and a remand.

[00:11:02] Speaker 03:
At the very least, the district court's interpretation of the statute can't stand.

[00:11:06] Speaker 03:
I mean, it's just, that would, in my view, clear error.

[00:11:12] Speaker 03:
And I would ask the court to reverse remand for further proceedings.

[00:11:17] Speaker 03:
I think that the court has enough in front of it.

[00:11:19] Speaker 03:
to hold that the statute is unconstitutional on its face with respect to the manufacturing ban and unconstitutional as applied to these plaintiffs with respect to the

[00:11:33] Speaker 03:
the serialization requirement for just the possession, not the sale.

[00:11:37] Speaker 03:
Although the district court didn't really go into the various factors, so I think they would need to go into the various factors to get to the second part.

[00:11:45] Speaker 02:
So in your view, the district court didn't do a proper Bruin analysis, and so you'd like it to go back for the district court to do a Bruin analysis that's in line with your position?

[00:11:59] Speaker 03:
Correct, Your Honor.

[00:12:01] Speaker 03:
I'm not asking the court to say that we win.

[00:12:07] Speaker 03:
We need a proper analysis at the district court.

[00:12:11] Speaker 03:
And if that analysis, we're confident that if the analysis is done, then we'll win.

[00:12:16] Speaker 02:
So what is your position on why the newer ATF rule wouldn't preclude you from obtaining relief, even if you won at the district court?

[00:12:29] Speaker 03:
So the 22-2 rule requires Polymer 80 to stamp serial numbers on its unfinished friends and receivers.

[00:12:39] Speaker 03:
It can do that and send them up here, and my clients still can't make guns.

[00:12:45] Speaker 03:
Because again, the manufacturing ban prohibits the manufacturing of guns whether or not they're stamped with a serial number.

[00:12:54] Speaker 03:
So that rule has nothing to do with my clients.

[00:12:58] Speaker 03:
I will reserve the rest of my time.

[00:12:59] Speaker 03:
Thank you, Your Honor.

[00:13:04] Speaker 00:
May it please the Court.

[00:13:05] Speaker 00:
I'm Shannon Stevenson, Solicitor General on behalf of Governor Polis.

[00:13:09] Speaker 00:
Your Honors, under Colorado law, the plaintiffs here can bear, keep, acquire, possess, use, own the exact firearms that they want to have for the exact purposes that they want to have them.

[00:13:26] Speaker 00:
And they can acquire the parts kits that they want to acquire and they can assemble those firearms in the exact way that they want to.

[00:13:34] Speaker 00:
The only point of contention here between the two sides is whether they have to have a background check and have a serial number on those arms.

[00:13:43] Speaker 00:
But that contention, that point of contention doesn't implicate any of the text of the Second Amendment or any of the core interests of self-defense that the Second Amendment is designed to protect.

[00:13:55] Speaker 00:
I want to go first because this is, I think, resolves a lot of issues in the case to plaintiff's interpretation of the manufacturing ban in subsection five.

[00:14:06] Speaker 00:
Manufacturing ban does not prevent the plaintiffs in this case from acquiring a serialized parts kit with an unfinished frame or receiver.

[00:14:16] Speaker 02:
Okay, but that cobbles together both sections because you say it doesn't prevent them from manufacturing a serialized

[00:14:25] Speaker 00:
correct right so you're necessarily you have to put them both together in your view to analyze it as I understand the position that plaintiffs got to in their reply brief what they're saying is I can't get an unfinished serialized frame and finish it and then build a weapon from that under the manufacturing ban and that is incorrect they are permitted to do that as long as it has a serial number on it and I hope that

[00:14:55] Speaker 00:
sort of puts to bed that question, but I'm happy to entertain any questions about that interpretation.

[00:15:00] Speaker 02:
Do they have to also have a background check to get it?

[00:15:04] Speaker 02:
Yes.

[00:15:04] Speaker 02:
Okay.

[00:15:04] Speaker 02:
Yes.

[00:15:05] Speaker 02:
So they can get an unfinished Polymer 80 with a serial number and a background check.

[00:15:16] Speaker 00:
Correct.

[00:15:16] Speaker 02:
Okay.

[00:15:17] Speaker 00:
And then they can finish that unfinished frame, assemble their weapon, and none of that is precluded by subsection five of the act.

[00:15:24] Speaker 00:
And I just want to point to, as quoted at the district court's order at page 13, one of the plaintiffs himself confirmed that that was his understanding of the statute as well.

[00:15:34] Speaker 00:
So this is not anomalous or strange.

[00:15:36] Speaker 00:
And just to tie a bow on that, I mean, it would make no sense to say you're prohibited from finishing a serialized frame, but we're allowing you to have a serialized frame under subsection one because there would be no point in having a serialized frame unless you were going to finish it and build a weapon out of it.

[00:15:54] Speaker 00:
So it would be inconsistent with all of the purposes of the statute if that were the, if plaintiff's interpretation were correct.

[00:16:02] Speaker 00:
Let me go then to the plain text argument, because we think that the conduct at issue here is not within the plain text of the Second Amendment.

[00:16:11] Speaker 00:
Second Amendment clearly applies to keeping and bearing, and Heller, the court described that as the individual right to possess and carry weapons in case of confrontation.

[00:16:20] Speaker 00:
And clearly nothing about having a background check or a serial number

[00:16:24] Speaker 00:
implicates that right.

[00:16:26] Speaker 00:
And the plaintiffs admit as much.

[00:16:28] Speaker 00:
They confirm throughout their testimony that their rights to have the weapon that they want, the operation of that weapon, the use of that weapon, none of that is impacted by these requirements.

[00:16:40] Speaker 00:
Their annoyance with that is completely separate from what their rights or their interests in the Second Amendment are.

[00:16:47] Speaker 00:
And I would direct the court to the Fifth Circuit's decision in McCrory

[00:16:52] Speaker 00:
On this point, I think it does a really good job of explaining the absence of implied rights.

[00:17:00] Speaker 00:
But I want to be clear by saying that there aren't implied rights under the Second Amendment.

[00:17:06] Speaker 00:
We're not saying that any regulation that didn't directly go to keep and bear might not actually impact those rights.

[00:17:14] Speaker 00:
It could.

[00:17:15] Speaker 00:
You could have a regulation on acquisition that was so burdensome that it actually affected your ability to keep or bear a weapon.

[00:17:22] Speaker 00:
and that would be fair game to be within the plain text of the Second Amendment.

[00:17:26] Speaker 00:
That's not the situation we have here.

[00:17:28] Speaker 00:
The plaintiffs have not claimed any type of burden on their rights like that.

[00:17:32] Speaker 02:
So what does your Heller position do to person-to-person transfers without consideration?

[00:17:39] Speaker 00:
So, and Your Honor, if we're going to the commercial sales aspect of this, I don't think, the Supreme Court hasn't defined exactly what it meant when it has repeatedly said the conditions and qualifications on commercial sales

[00:17:52] Speaker 00:
are presumptively lawful.

[00:17:54] Speaker 00:
We don't have them diving into that.

[00:17:56] Speaker 00:
But I don't think it's implicated by this case.

[00:17:59] Speaker 00:
Here, the weapons that are at issue, we know, were acquired in commercial sales from Polymer 80.

[00:18:05] Speaker 00:
So, you know, there's just no dispute about that here.

[00:18:07] Speaker 02:
Those are pre-act.

[00:18:09] Speaker 02:
Some of those are pre-act, though.

[00:18:11] Speaker 02:
That's true, Your Honor.

[00:18:12] Speaker 02:
And they had about... Are you trying to sweep in pre-act purchases?

[00:18:16] Speaker 00:
I think that's fair to do when you look at the purpose of the statute, which is to close this loophole in acquisition of weapons and people avoiding background checks.

[00:18:24] Speaker 00:
And here, we specifically know- Hold on just a second.

[00:18:26] Speaker 02:
Because first, I want to tackle, you had people who purchased un-serialized polymer 80s, we'll use that as a generic term, when it was not against the law.

[00:18:38] Speaker 02:
That's correct.

[00:18:39] Speaker 02:
And so you're not attacking the purchase of those

[00:18:43] Speaker 02:
Correct.

[00:18:44] Speaker 02:
And then you have, but now it's illegal to possess them.

[00:18:47] Speaker 02:
That's right.

[00:18:49] Speaker 02:
All right.

[00:18:49] Speaker 02:
And it's also, it would be illegal for a person to person transfer of those.

[00:18:54] Speaker 02:
Correct.

[00:18:55] Speaker 02:
All right.

[00:18:55] Speaker 02:
And your position is, yes, we can go ahead and sweep.

[00:18:58] Speaker 02:
I mean, at some point, for purposes of this analysis, don't we have to give some credence to the idea that maybe the plaintiff has made an argument that has to be addressed, and we

[00:19:12] Speaker 02:
under a Heller, not Heller, but a Bruin analysis, and we can't just sweep it out with Heller.

[00:19:19] Speaker 00:
Well, let me talk about the reasons why we think this law, and in particular as it applies to these past purchases, is presumptively lawful.

[00:19:27] Speaker 00:
First, there is the commercial sales aspect of it, and we think because these were obtained in commercial sales, no dispute, the plaintiffs had months to get them serialized under the law, that that is within the scope of commercial sales.

[00:19:41] Speaker 00:
and including when you look at the purpose of the statute as a whole, which is simply to close this commercial sales loophole.

[00:19:47] Speaker 00:
Second, the plaintiffs here were clear that their view of privately made firearms is that they are not transferred in private sales or gifted or anything else.

[00:19:56] Speaker 00:
And so I think they've sort of foreclosed this notion that there would be private sales going on that wouldn't be subject to that commercial sales or conditions and qualifications on commercial sales.

[00:20:06] Speaker 02:
Right, but you're saying they can't even get them in the first instance

[00:20:11] Speaker 02:
through a transfer, a private transfer with no consideration.

[00:20:15] Speaker 00:
According to their own testimony, these weapons are not used, they're not exchanged privately through any kind of transfer.

[00:20:22] Speaker 02:
No, they're saying that they don't do it.

[00:20:23] Speaker 00:
Right, and that's all the evidence.

[00:20:25] Speaker 02:
But they're also saying that they want to get them.

[00:20:28] Speaker 00:
Through commercial sales.

[00:20:29] Speaker 00:
All of their testimony is that they would like to purchase these from companies like Polymer 80.

[00:20:34] Speaker 00:
But let me take one step back from that too, because I don't think that the conditions and qualifications on commercial sales

[00:20:40] Speaker 00:
are the only reason these are presumptively lawful.

[00:20:42] Speaker 00:
The other reason is that the entire point of this statute is to make sure that these weapons don't get into the hands of people who aren't supposed to have them.

[00:20:50] Speaker 00:
And prohibitions on felons and other unfit people are another category that's recognized as a presumptively lawful regulation on these weapons.

[00:21:00] Speaker 00:
And so I think when you look at the purpose of this statute, it also falls within that presumptively lawful category.

[00:21:06] Speaker 00:
And I would again direct the court to the McRory case, which I think

[00:21:09] Speaker 00:
walk through this with respect to the expanded background checks at issue there.

[00:21:14] Speaker 02:
Does Colorado have its own felon in possession laws?

[00:21:18] Speaker 00:
Your Honor, I don't know the answer to that.

[00:21:20] Speaker 00:
I assume so, but I don't know.

[00:21:21] Speaker 02:
Because presumably some of these might not involve interstate commerce if it's a homemade type weapon.

[00:21:30] Speaker 00:
I haven't heard that argument made in this case.

[00:21:32] Speaker 00:
I haven't either.

[00:21:33] Speaker 00:
I'm just throwing it out to you.

[00:21:35] Speaker 00:
Yeah, I do think that certainly under Colorado law we would be

[00:21:39] Speaker 00:
enforcing federal law as well to prevent felons being in possession of firearms as well as other dangerous people and children and other people who are not fit to have firearms.

[00:21:50] Speaker 00:
I want to talk about the fact that, and again, we think these laws are presumptively lawful under both the conditions and qualifications on commercial sale and the fact that they're designed to prohibit inappropriate people from having weapons.

[00:22:04] Speaker 00:
But of course, a presumptively lawful law, that's not the end of the inquiry.

[00:22:07] Speaker 00:
You could disprove that.

[00:22:09] Speaker 00:
And especially in light of this court's opinion in the RMGO case, I want to talk about the reasons why this particular law is not abusive in any way.

[00:22:17] Speaker 00:
You know, the plaintiff had suggested that they would have to get manufacturing license in order to assemble these parts kits.

[00:22:25] Speaker 00:
Going back to the interpretation of the statute, that's just not correct.

[00:22:28] Speaker 00:
They just have to have a regular background check, like everybody else who's buying a weapon.

[00:22:34] Speaker 00:
This law is not discretionary.

[00:22:35] Speaker 00:
It applies to anybody who's doing this.

[00:22:38] Speaker 00:
It doesn't disarm any law-abiding citizens.

[00:22:42] Speaker 00:
The whole point of it was to close a loophole in what's otherwise been a longstanding program under federal law for almost 100 years of requiring background checks and requiring serialization of firearms.

[00:22:56] Speaker 00:
And we have abundant evidence in the record of the problem that this law is designed to address, which is a new problem that was driven by

[00:23:06] Speaker 00:
significant technological changes and how people are able to manufacture these weapons very easily at home with very little skill and not even really specialized tools.

[00:23:18] Speaker 00:
And given all of that, I think, and again, the burden on the plaintiffs in this case to comply is minimal and certainly tolerated in many other instances.

[00:23:30] Speaker 00:
And I think it's worth noting that the Supreme Court in every one of its recent decisions on the Second Amendment

[00:23:37] Speaker 00:
has stated over and over again these, whether you call it presumptively lawful, presumptively constitutional, these regulations that it seems to suggest are not within the scope of the Second Amendment.

[00:23:51] Speaker 00:
And I would specifically point to Bruin footnote nine, where Justice Thomas says, this opinion shouldn't suggest in any way that shall issue permitting regimes that require background checks and training

[00:24:05] Speaker 00:
fingerprinting, things like that, that there's any concern about their constitutionality.

[00:24:11] Speaker 00:
And I think given that, the law that we have here is right in line with those types of laws.

[00:24:19] Speaker 00:
And in fact, probably even, those might even be more directly impactful because they go straight to whether or not you're even allowed to carry a weapon.

[00:24:29] Speaker 01:
Counsel, could I get you to respond to your opposing counsel's argument that under the second step in Bruin, there really is not a historical tradition supporting your position?

[00:24:45] Speaker 00:
Here would be my case on that.

[00:24:47] Speaker 00:
And I agree with my opposing counsel that I do think the court should remand if it thinks that the Bruin step two analysis needs to be done because the district court really didn't touch those facts.

[00:24:58] Speaker 00:
Under Bruin, I think we're clearly in that third bucket where we're talking about unprecedented societal change and dramatic technological changes that make the situation far, far different from anything we can compare it to at the founding.

[00:25:14] Speaker 00:
And Bruin says there, we need to bring a nuanced approach.

[00:25:17] Speaker 00:
And Chief Justice Roberts and Rahimi says, we're not trapped in amber.

[00:25:22] Speaker 00:
We have to have some flexibility in how we can regulate guns.

[00:25:28] Speaker 00:
We're then looking to the why and the how.

[00:25:30] Speaker 00:
And here, the why of this law is to keep firearms out of the hands of dangerous people.

[00:25:37] Speaker 00:
And I think under Rahimi, the court concluded that that was something that was consistent, that that why is consistent with the approach at the founding.

[00:25:48] Speaker 00:
The same things apply to keep weapons out of the hands of dangerous people.

[00:25:54] Speaker 00:
Now with respect to the how, and particularly background checks,

[00:25:58] Speaker 00:
and serialization, clearly those were not methods that were used or even possible at the time of the founding.

[00:26:07] Speaker 00:
So those are different.

[00:26:10] Speaker 00:
But what I would point to, and if you look at Dr. Spitzer's report, he goes through a litany of laws that existed at the founding and around that time.

[00:26:19] Speaker 00:
And what they show is when firearms presented a public safety hazard,

[00:26:25] Speaker 00:
States regulated them to reduce that hazard.

[00:26:28] Speaker 02:
What was the hazard?

[00:26:30] Speaker 02:
I mean, what hazards were they regulating?

[00:26:32] Speaker 00:
Well, the examples that Dr. Spitzer goes through are trap guns, for instance, which are like a spring-loaded shotgun that could inadvertently kill somebody, punt guns that were decimating wildlife, storage of gunpowder that could cause fires, all those kinds of things.

[00:26:49] Speaker 00:
To your point, I think spring-loaded shotguns, I think that is a sort of interpersonal violence thing.

[00:26:54] Speaker 00:
but most of them were not interpersonal violence in the way, except with respect to bowing knives.

[00:26:59] Speaker 00:
Those were weapons that were perceived to be very dangerous and that were regulated abundantly by the states.

[00:27:07] Speaker 00:
So agreed, that's a high level of generality, but we're in a point of change in time that is where things are quite different from the founding and we're trying to deal with a very specific problem, which there is a lot of evidence.

[00:27:21] Speaker 00:
You can see it in the headlines, of course.

[00:27:23] Speaker 02:
What do you think about, I mean, your statute seems to take particular aim at 3D printed guns.

[00:27:34] Speaker 02:
But it seems to sweep in a lot of other homemade guns as well.

[00:27:41] Speaker 02:
Do you see a distinction between, I mean, when you have a general prohibition, I'm sorry,

[00:27:48] Speaker 02:
This is going to take her over.

[00:27:50] Speaker 02:
Do you see a distinction with taking aim specifically at a 3D printed gun, a very highly technical situation there, as opposed to basically every other kind of homemade gun?

[00:28:08] Speaker 02:
I mean, go ahead.

[00:28:12] Speaker 00:
Your Honor, may I answer your question?

[00:28:14] Speaker 00:
My time is up.

[00:28:17] Speaker 00:
I guess a couple of responses.

[00:28:19] Speaker 00:
With respect to the manufacturing ban, which calls out 3D printing, the other types of manufacturing that would be included there, I think, would also be sort of sophisticated, newer technology types of manufacturing.

[00:28:33] Speaker 02:
But the text is not so limited, is it?

[00:28:37] Speaker 00:
Well, and again, I think this comes back to how do you define manufacturing?

[00:28:40] Speaker 00:
And our position is it is defined separately in the statute from assembly, which would relate to these parts kits.

[00:28:47] Speaker 00:
And really, I'm not aware of other common ways that anyone is making a gun either besides other than 3D printing or assembling a parts kit in an amateur-type situation that's not a firearms manufacturer.

[00:29:05] Speaker 00:
So I'm not sure if there's an example that you're thinking of, but I'm not aware of anybody with an iron forge in their backyard.

[00:29:11] Speaker 02:
I don't know anyone who's making guns myself, but presumably somebody with a

[00:29:16] Speaker 02:
Sufficient machinist skills could take a block of steel and turn it into a gun Presume that maybe I don't know it's not in the record.

[00:29:26] Speaker 00:
I think that would fall within the manufacturing ban, okay?

[00:29:30] Speaker 01:
Okay, before you leave judge Kelly.

[00:29:33] Speaker 01:
Do you have anything further?

[00:29:34] Speaker 01:
Thank you.

[00:29:38] Speaker 01:
Thank you.

[00:29:39] Speaker 01:
Could we add a minute and a half?

[00:29:42] Speaker 03:
Yes, sir

[00:29:49] Speaker 03:
Thank you, Your Honor.

[00:29:51] Speaker 03:
Council slipped up and more or less admitted that the point of this statute is to prevent people from easily making firearms.

[00:30:01] Speaker 03:
It was kind of in the middle of her argument.

[00:30:04] Speaker 03:
It clearly is designed.

[00:30:06] Speaker 03:
The whole point of the statute that screams from the legislative history that addressing the firearms kits from Polymer 80 was the whole point of the statute.

[00:30:16] Speaker 02:
I think she also said that if you could make one out of a block of steel, that you wouldn't be able to do that, too.

[00:30:22] Speaker 03:
Correct.

[00:30:23] Speaker 03:
Now, Your Honor, she also talked about dangerous and unusual arms.

[00:30:29] Speaker 03:
The evidence was these were glocks, glock handguns, but not dangerous and unusual arms.

[00:30:35] Speaker 03:
As a matter of fact, protected under Heller.

[00:30:38] Speaker 03:
This statute prohibits that my clients from making firearms that are protected under Heller, period.

[00:30:44] Speaker 03:
Second,

[00:30:46] Speaker 03:
Actually, I guess I'm third.

[00:30:51] Speaker 03:
Council said that only a normal little background check is required.

[00:30:55] Speaker 03:
That's just not true.

[00:30:58] Speaker 03:
Just look at the statute.

[00:31:00] Speaker 03:
It says a person shall not manufacture or cause be manufactured a framer-receiver, little ellipse there, period, flat, end of story.

[00:31:12] Speaker 03:
That's a flat-out prohibition.

[00:31:15] Speaker 03:
This subsection does not apply to a federally licensed firearm manufacturer.

[00:31:20] Speaker 03:
That's the only exception.

[00:31:22] Speaker 03:
There's no background check involved here, except to the extent that a background check is required to become a federally licensed firearm manufacturer.

[00:31:32] Speaker 03:
So the Colorado statute requires a single person making a single firearm to get the exact same federal firearms license that Smith & Wesson has to go out and get.

[00:31:46] Speaker 03:
Could the state of Colorado have said, well, if you want to make a firearm, you've got to get a background check?

[00:31:52] Speaker 03:
That's a separate question.

[00:31:54] Speaker 03:
And we know from the Department of Public Safety's website that the average background check takes about 40 minutes.

[00:32:05] Speaker 03:
When I go and get a firearm, you get it while you're waiting.

[00:32:09] Speaker 03:
This requires months and months, costs hundreds of dollars.

[00:32:14] Speaker 03:
You have to submit fingerprints.

[00:32:16] Speaker 03:
You have to go get an interview.

[00:32:17] Speaker 03:
There is discretionary.

[00:32:19] Speaker 03:
I assume it's discretionary.

[00:32:20] Speaker 03:
Otherwise, why is there an interview?

[00:32:23] Speaker 03:
And then you have to wait for the federal government to eventually issue a license before you can make a single FIR.

[00:32:31] Speaker 03:
This falls squarely into Bruin footnote 9, as it's not a background check requirement.

[00:32:37] Speaker 03:
It's a licensing requirement.

[00:32:39] Speaker 03:
And it's an abusive licensing requirement, as applied to my clients.

[00:32:48] Speaker 02:
Do you agree with counsel's statement that your clients on the record stated that they weren't intending to sell, that there weren't going to be any commercial transactions regarding these?

[00:33:02] Speaker 03:
My clients make these firearms for their personal use.

[00:33:05] Speaker 03:
They do not intend to sell these firearms.

[00:33:09] Speaker 03:
And therefore, the court was correct that

[00:33:14] Speaker 03:
It is the part of the statute that prohibits the possession of these that my clients are affected by.

[00:33:27] Speaker 03:
Now, the court asked, well, what if you get a serialized frame and receiver from Polymer 80?

[00:33:38] Speaker 03:
And could you go ahead and make the firearm?

[00:33:40] Speaker 03:
The counsel said, well, sure.

[00:33:42] Speaker 03:
All you have to do is get a background check.

[00:33:44] Speaker 03:
Well, that's not accurate.

[00:33:47] Speaker 03:
You have to do much more than get a background check.

[00:33:50] Speaker 03:
You have to apply for a federal license to make even a single firearm.

[00:33:57] Speaker 03:
And so it is not a background check requirement.

[00:34:00] Speaker 03:
It is a licensing requirement under this statute.

[00:34:03] Speaker 01:
OK, counsel, I'm going to stop you there.

[00:34:05] Speaker 01:
Your time is up.

[00:34:06] Speaker 01:
But before you leave, I just want to turn to Judge Kelly to see if you have anything.

[00:34:12] Speaker 01:
Oh, thank you.

[00:34:13] Speaker 01:
Thank you so much.

[00:34:15] Speaker 01:
Well, thank you, counsel, for your arguments.

[00:34:18] Speaker 01:
You're excused.