[00:00:33] Speaker 02:
All right, our third case this morning is Ortega versus Grisham, 24-2121, Mr. Rowan.

[00:00:40] Speaker 04:
Good morning, Your Honors.

[00:00:41] Speaker 04:
May it please the Court, Matthew Rowan.

[00:00:43] Speaker 04:
For the plaintiff's appellants, I'm going to endeavor to reserve three minutes for rebuttal.

[00:00:48] Speaker 04:
The lesson of the Supreme Court's Second Amendment case law is straightforward.

[00:00:52] Speaker 04:
Laws that broadly restrict arms use by the public generally face a daunting burden.

[00:00:57] Speaker 04:
According to New Mexico... Could you put the mic a little closer to you?

[00:01:00] Speaker 04:
According to New Mexico, however, it faces no burden here at all.

[00:01:04] Speaker 04:
But the state cannot so easily evade its historical scrutiny because HB 129, its recently enacted seven-day cooling-off period, is not a condition or qualification on the commercial sale of arms, and at the very least, it is a law put to abuse of ends because it does not serve

[00:01:21] Speaker 04:
in the language of Bruin Footnote 9 and this court's Rocky Mountain opinion, to ensure only that those who keep and bear arms in the state are in fact law abiding responsible persons.

[00:01:32] Speaker 04:
And without that get out of history free card, HB 129 is plainly unconstitutional.

[00:01:38] Speaker 04:
While historically a handful of jurisdictions in the early 20th century required individuals to wait before they could take possession of a new firearm, while licensing authorities conducted a background check, which at the time

[00:01:51] Speaker 04:
took far longer than it does today.

[00:01:52] Speaker 04:
It was not until the 1990s that states began forcing people to cool off, even after, as is true of the plaintiffs here, they've already passed a background check and therefore demonstrated that they are, in fact, law-abiding, responsible citizens.

[00:02:06] Speaker 02:
In Rocky Mountain gun owners, I think we classified the 18 to 21-year-old limit as a condition or qualification of sale.

[00:02:16] Speaker 02:
Why is that rule not applicable here?

[00:02:20] Speaker 02:
Sure.

[00:02:20] Speaker 02:
So how's it different?

[00:02:21] Speaker 04:
So three responses.

[00:02:23] Speaker 04:
So the first is that the argument there wasn't made that something that just requires you to wait is not a condition.

[00:02:31] Speaker 04:
We cited Black's Law Dictionary in our opening brief.

[00:02:33] Speaker 04:
It says the condition excludes something other than a lapse of time.

[00:02:38] Speaker 04:
And we think that makes sense because what Heller was talking about and McDonald and Bruin later and Rahimi

[00:02:43] Speaker 04:
when they're talking about conditions and there's things that demonstrate that an individual on an individualized basis is someone who is law abiding and responsible.

[00:02:54] Speaker 04:
Whereas a waiting period, there's no way to satisfy that on an individualized basis.

[00:02:59] Speaker 04:
You just sit there.

[00:03:01] Speaker 02:
That seems true for an 18-year-old.

[00:03:02] Speaker 04:
So the reason that it is true that in terms of they have to wait, but it's different because if you look at Rahimi, what Rahimi said is that the majority opinion made clear that they weren't casting doubt on legislature's authority to determine that certain subsets of the population should be subject to certain conditions.

[00:03:23] Speaker 04:
And there's a fundamental difference between saying that

[00:03:26] Speaker 04:
felons or the mentally ill or 18 to 20 year olds are going to be subject to certain conditions and saying everyone is going to be subject to a restriction on their ability to possess.

[00:03:39] Speaker 04:
So I think that's the first answer that I would give.

[00:03:41] Speaker 04:
The second answer is the way this law... So it's like over inclusive.

[00:03:44] Speaker 04:
Yes.

[00:03:45] Speaker 04:
And then the second answer that I'd give is the way this law actually works, if it's a condition on anything, it's a condition on one's ability to take possession.

[00:03:53] Speaker 04:
And I'd point the court to Appendix 46 and Appendix 55, which is Mr. Ortega's declaration and the declaration from Mr. Pohl, who was the employee at the FFL that sold him the firearm.

[00:04:05] Speaker 04:
And what they declare happened is that Mr. Ortega picked out the handgun that he wanted.

[00:04:10] Speaker 04:
He gave it to the clerk.

[00:04:12] Speaker 04:
He paid for it, including the sales tax.

[00:04:15] Speaker 04:
And at that point, he wanted to take possession of the firearm that he had just almost completed a purchase.

[00:04:22] Speaker 04:
And the FFL said, well, I can't let you take possession of it.

[00:04:26] Speaker 04:
That's not a condition and qualification of sale qua sale.

[00:04:30] Speaker 04:
It's a condition on one's ability to take possession.

[00:04:33] Speaker 02:
But that doesn't happen when you're required to wait for the background check to be completed and to some extent to go and obtain a license for certain possessions.

[00:04:48] Speaker 02:
perhaps take some training before you can possess?

[00:04:50] Speaker 04:
Absolutely.

[00:04:51] Speaker 04:
But I think it's important to look, even Rocky Mountain and the footnote discussing what conditions are, it's talking about things that someone can satisfy.

[00:05:00] Speaker 04:
And I think that's important because if you look at Bruin Footnote 9 when it's talking about permissible conditions on the ability to acquire a concealed carry license, they're talking about things that

[00:05:12] Speaker 04:
are individualized that you can demonstrate, but then they go on to explain even those can be put to abusive ends.

[00:05:20] Speaker 04:
And I think it's important.

[00:05:22] Speaker 04:
The state focuses much on, oh, it's just seven days.

[00:05:24] Speaker 04:
That's not that big of a deal.

[00:05:25] Speaker 04:
But Bruin didn't say abusive means.

[00:05:28] Speaker 04:
It said abusive ends.

[00:05:29] Speaker 04:
It said that if a particular kind of

[00:05:35] Speaker 04:
background check for a specialized permit costs the state $250 to run, and they charge you $250 for it, plaintiff's going to have a really hard time winning a second amendment challenge.

[00:05:44] Speaker 04:
Now, if the state charges $250 for the regular permit that costs them $10 to run, it's the same how, but the why is different.

[00:05:53] Speaker 04:
That's what abusive ends mean, and it's the same for a waiting period.

[00:05:57] Speaker 04:
And it's also why, at the end of the day, whether this court wants to say that this is a condition on sale or not, I think the sort of more doctrinally straightforward way to analyze this is this is a lot put to abusive ends for two reasons.

[00:06:11] Speaker 01:
Can I just, maybe you were referring to this in your previous comments, but let me ask you directly.

[00:06:20] Speaker 01:
What do you think Bruin meant in footnote nine when it referred to, and this is the phrase, lengthy wait times in processing license applications?

[00:06:31] Speaker 01:
What do you think it was getting at?

[00:06:32] Speaker 04:
So I think what it was getting at was wait times that are not tied to the time it takes to run a background check.

[00:06:38] Speaker 04:
And I think that's why it said abusive ends and not abusive means.

[00:06:42] Speaker 04:
Because the wait time itself, if it goes to how long it takes to run the background check,

[00:06:49] Speaker 04:
Now, if it takes five years, there's going to be problems.

[00:06:51] Speaker 04:
But it's talking about abusive ends, not the means.

[00:06:54] Speaker 04:
The means are how long it takes.

[00:06:56] Speaker 04:
That's the how.

[00:06:57] Speaker 04:
And so what it's talking about, and I think it's important that Justice Thomas' opinion focuses on the analog to First Amendment jurisprudence.

[00:07:02] Speaker 04:
And if you think about First Amendment licensing laws, if in the First Amendment context, the state just doesn't set up its system so that it can give parades.

[00:07:12] Speaker 04:
It says, oh, yeah, we have a spreadsheet, but we have enough to edit in 10 years.

[00:07:16] Speaker 04:
The fact that they have a parade permitting system is not abusive.

[00:07:20] Speaker 04:
The fact that they have essentially allowed it to flounder, that's what makes it abusive.

[00:07:25] Speaker 04:
And I do think that Rocky Mountain is entirely consistent with this.

[00:07:28] Speaker 04:
So at page 122 of this court's opinion in Rocky Mountain, it says, quote, the permissibility of these conditions or qualifications on concealed carry derives from the fact that they, one, are designed to ensure

[00:07:42] Speaker 04:
only that those bearing arms in the jurisdiction are in fact law-abiding responsible citizens, which is not true here, and I'll get back to why.

[00:07:48] Speaker 04:
And two, they contain only narrow, objective, and definite standards guiding licensing officials.

[00:07:54] Speaker 04:
And neither one of those things is true here.

[00:07:57] Speaker 04:
So I think it's important to note that after you go in and you either pay for it or you're deterred from paying for the handgun that you want, nothing happens.

[00:08:05] Speaker 04:
There is no independent investigation.

[00:08:07] Speaker 04:
The state does nothing.

[00:08:08] Speaker 04:
Someone could have any manner of misfortune befall them.

[00:08:12] Speaker 04:
in the seven day period that could cause them to suffer acute mental distress.

[00:08:16] Speaker 04:
None of that would get captured.

[00:08:18] Speaker 04:
This is not a law.

[00:08:19] Speaker 04:
You know, the state says in their briefs that, oh, well, no, this law serves to ensure that only people are law abiding.

[00:08:26] Speaker 04:
And respectfully, you don't have to take the state's word for it.

[00:08:29] Speaker 04:
Even in something like intermediate scrutiny, you do a fit between, does this actually serve the ends?

[00:08:35] Speaker 04:
And I think that is, Judge Matheson, exactly what Justice Thomas was getting at in footnote nine.

[00:08:40] Speaker 04:
And this court said in Rocky Mountain that the 18 to 20-year-old restriction does serve that end.

[00:08:44] Speaker 04:
It cited historical sources.

[00:08:46] Speaker 04:
It cited scientific sources.

[00:08:47] Speaker 02:
Would a three-day waiting period satisfy Bruin here?

[00:08:52] Speaker 02:
Not seven, but three days?

[00:08:53] Speaker 04:
Respectfully, no.

[00:08:54] Speaker 04:
And I think, again, that goes to?

[00:08:57] Speaker 02:
No waiting period would be acceptable under your theory.

[00:09:00] Speaker 04:
So I think a waiting period that is entirely untethered to individualized concerns and that elevates the possibility that there will be some non-law-abiding people turns the Second Amendment on its head.

[00:09:13] Speaker 04:
I mean, Heller itself made very clear that the enshrinement of the right in the Constitution elevates the rights of the law-abiding.

[00:09:20] Speaker 04:
above the non-law abiding.

[00:09:22] Speaker 04:
And I think it's important here that we're only talking about people who have passed a background check.

[00:09:26] Speaker 01:
Could I just, on individualized concerns, where are the individualized concerns on the age restriction?

[00:09:35] Speaker 04:
So what Rahimi said is, essentially, legislatures are allowed to determine that certain groups, that if you're a member of that group, that that's allowed to be a heuristic for individualized concerns.

[00:09:48] Speaker 04:
But that's different from arms use by the public generally, which Rahimi, in two sentences later, made clear is something that legislatures cannot do.

[00:09:56] Speaker 04:
They cannot broadly restrict arms use by the public generally.

[00:10:00] Speaker 04:
So look, we think Rocky Mountain is wrongly decided.

[00:10:03] Speaker 01:
I understand that, but we're bound by it.

[00:10:06] Speaker 04:
I understand.

[00:10:07] Speaker 04:
But that's why, if you look at what Rahimi says, it sets up a dichotomy.

[00:10:10] Speaker 04:
It says, laws that broadly restrict arms use by the public generally are inconsistent with this nation's historical tradition.

[00:10:18] Speaker 01:
Wasn't Rohingya an historical tradition case, not a step one case?

[00:10:25] Speaker 04:
Yes, although I think the way this court in Rocky Mountain did the abusive ends analysis, it looked to history.

[00:10:33] Speaker 04:
It also looked to whether this actually serves to ensure only that those bearing arms in the state are in fact law-abiding responsible.

[00:10:41] Speaker 04:
And this law does not serve that end.

[00:10:44] Speaker 01:
That actually prompts another thing I wanted to ask you.

[00:10:46] Speaker 01:
Tell me if I'm reading it wrong, but it seemed to me that Rocky Mountain said that the Heller

[00:10:55] Speaker 01:
presumptively constitutional conditions and qualifications are part of Bruin's step one.

[00:11:02] Speaker 04:
Yes, so Rocky Mountain says that, and then it says the way that- And we're bound by that.

[00:11:06] Speaker 01:
Yes, of course, and Rocky Mountain- But then it builds in this abusive ends discussion, and the concurrence thinks that that should flip over to step two, but the majority didn't.

[00:11:19] Speaker 04:
Yes, so in full candor, and this shouldn't come as a surprise, we think Rocky Mountain is wrong.

[00:11:23] Speaker 04:
We also think it's methodologically unsound.

[00:11:26] Speaker 04:
So we think the presumptively lawful dicta has been jettisoned.

[00:11:32] Speaker 04:
So I think the concurrence has it somewhat better, because there's always a presumption of lawfulness.

[00:11:39] Speaker 04:
The plaintiff is coming in and challenging the statute on constitutional grounds.

[00:11:43] Speaker 04:
It's always presumptively lawful.

[00:11:44] Speaker 04:
It doesn't matter if it's a second amendment or anything else.

[00:11:47] Speaker 04:
So to graft it onto the first step,

[00:11:49] Speaker 04:
I don't think it makes a ton of sense.

[00:11:52] Speaker 04:
So if this court thinks that the better course of valor is to call for en banc,

[00:11:55] Speaker 04:
Or if you think you're bound to write an opinion that makes clear to the Supreme Court that sort of the trains left the station.

[00:12:02] Speaker 04:
But I think in this case, you can stay squarely within the four corners of Rocky Mountain and recognize that this is a law that broadly restricts arms use by the public generally.

[00:12:13] Speaker 04:
It imposes no mechanisms to ensure that someone is not and is law abiding or not.

[00:12:19] Speaker 04:
And I think the state makes this broad point about, oh, well, this is a facial challenge.

[00:12:23] Speaker 04:
And therefore, we have to show that individuals

[00:12:26] Speaker 04:
who haven't passed a background check come in.

[00:12:28] Speaker 04:
And respectfully, that's just not true.

[00:12:30] Speaker 04:
If you look at paragraph 28 of our complaint, we ask that it be struck down on its face and as applied.

[00:12:37] Speaker 04:
If you look at the end of our preliminary injunction brief, we make the point that this seven-day waiting period has no applicability to someone who hasn't passed a background check.

[00:12:45] Speaker 01:
Well, can I just jump in because I wanted to ask you about this point too.

[00:12:49] Speaker 01:
Because you also say in your reply brief that you're only challenging this with respect to its application to those who have passed a background check.

[00:12:58] Speaker 01:
Correct.

[00:12:58] Speaker 01:
I've got that right?

[00:12:59] Speaker 04:
Yes.

[00:13:00] Speaker 01:
But that's still a facial challenge.

[00:13:04] Speaker 01:
Yes.

[00:13:05] Speaker 04:
So I think that's right.

[00:13:08] Speaker 04:
Chief Justice Ndovi Reed makes the point that the nomenclature of facial and as applied can sometimes mean different things.

[00:13:16] Speaker 04:
And so it's a facial challenge with respect to people who have passed a background check.

[00:13:21] Speaker 04:
So the Chief Justice, in that opinion, cites to a Dick Fallon article saying it's a limited purpose facial challenge.

[00:13:27] Speaker 04:
But however you want to call it, this is a very different type of facial challenge, if you think it's a facial challenge, from Rahimi.

[00:13:33] Speaker 04:
Because there, he was someone who had been adjudicated dangerous.

[00:13:36] Speaker 04:
Whereas the plaintiffs here, Ms.

[00:13:38] Speaker 04:
Scott and Mr. Ortega, they've passed a background check.

[00:13:42] Speaker 01:
So in other words, if the plaintiff

[00:13:45] Speaker 01:
If there is a reverse, goes back, in fashioning the preliminary injunction, it would be to that category.

[00:13:56] Speaker 01:
That is, those who have passed a background check.

[00:13:58] Speaker 04:
Yes.

[00:13:59] Speaker 04:
So all we have asked this court to hold is that we are likely to succeed on our own.

[00:14:04] Speaker 04:
And if the other preliminary injunction factors are satisfied with that, we're likely to succeed that as applied to those who have passed a background check, this cooling off period

[00:14:14] Speaker 04:
is unconstitutional.

[00:14:15] Speaker 01:
Could I just ask you, you mentioned early on, maybe the question was put this way, but that this is overbroad, that the waiting period is overbroad.

[00:14:31] Speaker 01:
Wasn't the age restriction overbroad as well?

[00:14:33] Speaker 04:
So it's not just that it's overbroad.

[00:14:35] Speaker 04:
The problem is it is

[00:14:37] Speaker 04:
It applies to everyone.

[00:14:39] Speaker 04:
And that is a horse of a different constitutional code.

[00:14:42] Speaker 01:
It applies to everyone in a group.

[00:14:51] Speaker 04:
who wants to exercise a fundamental constitutional right.

[00:14:54] Speaker 01:
But who passed a background check, which shrinks the size of the target population significantly.

[00:15:03] Speaker 04:
Well, that can't make it better that if you're going to fashion it.

[00:15:06] Speaker 01:
Is there anything in the record that tells us?

[00:15:08] Speaker 01:
I mean, there was an evidentiary hearing, right?

[00:15:12] Speaker 01:
There's all this talk of groups and over-broad and everything else, but do we have any numbers from the record?

[00:15:16] Speaker 04:
So, I mean, I just want to make sure that I'm sort of focusing my answer because the over-breath is not the problem.

[00:15:22] Speaker 04:
The problem is that the trigger for this cooling-off period is the stated and desired and expressed intent to exercise a fundamental constitutional right.

[00:15:31] Speaker 04:
And Rahimi makes very clear, it's the same paragraph.

[00:15:35] Speaker 04:
It says, while we do not cast doubt on the ability of states to pass laws that determine certain groups,

[00:15:43] Speaker 04:
to be allowed to have conditions imposed on their ability to keep and bear arms.

[00:15:48] Speaker 04:
Laws that restrict arms use by the public generally are horses of a different color.

[00:15:53] Speaker 04:
And I see I'm... I think I'll give you some rebuttal, but go ahead and finish your point, and then... And I mean, I think that's why this is a law put to abusive ends, and it's also why this law is consistent with historical tradition, which we can talk about more on rebuttal.

[00:16:07] Speaker 02:
Thank you.

[00:16:07] Speaker 02:
All right, let's hear from New Mexico.

[00:16:09] Speaker 02:
I will give you some rebuttal.

[00:16:15] Speaker 03:
May it please the court.

[00:16:16] Speaker 03:
Kyle Duffy on behalf of Apeliz.

[00:16:19] Speaker 03:
Plaintiffs act as if the state of New Mexico is attempting to ban the sale of all firearms ever.

[00:16:24] Speaker 03:
But nothing could be further from the truth.

[00:16:27] Speaker 03:
Rather, the state is imposing a brief waiting period on the subset of the population who are not federally licensed firearm dealers, law enforcement, or concealed carry permit holders in order to help ensure that they are in fact law abiding responsible citizens.

[00:16:44] Speaker 03:
Plaintiff's request for a facial disfavored preliminary injunction fails for three reasons.

[00:16:50] Speaker 03:
First, plaintiffs fail to show that the plain text of the Second Amendment extends to purchasing or acquiring firearms, and they cannot show that a brief seven-day waiting period that is objectively applied rises to the level of a meaningful constraint or de facto prohibition on their right to keep or bear arms.

[00:17:11] Speaker 03:
Likewise,

[00:17:12] Speaker 03:
The waiting period is a presumptively constitutional commercial regulation, just like the law at issue in Rocky Mountain gun owners, and plaintiffs cannot show that it is abusive given its objective nature and the substantial evidence in the record demonstrating its benefits.

[00:17:30] Speaker 03:
But even if plaintiffs could meet their burden under BRUIN Step 1, they would lose under BRUIN Step 2 because the waiting period is consistent with the principles underpinning our nation's history and tradition of firearm regulation, as demonstrated by intoxication laws, licensing regimes, and group-based sales restrictions.

[00:17:48] Speaker 03:
Now, first turning to BRUIN Step 1, to the plain text.

[00:17:52] Speaker 03:
Several circuits have already observed that the Second Amendment's plain text says nothing about purchase or acquisition.

[00:17:59] Speaker 03:
And that is the only thing that is regulated here under the waiting period.

[00:18:04] Speaker 02:
That really seems illogical that the right, the self-defense right, can be the possession of a defensive weapon.

[00:18:18] Speaker 02:
The access to that possession could be impeded.

[00:18:20] Speaker 02:
It has to be a burden on the right, doesn't it?

[00:18:27] Speaker 02:
You're not arguing that there's no burden here.

[00:18:29] Speaker 03:
But we're arguing that it doesn't rise to the level of a meaningful constraint on what is textually protected, the right to keep or bear arms.

[00:18:39] Speaker 03:
And this is in line with the analysis that the Fifth Circuit applied in McRory and the Ninth Circuit in B&L.

[00:18:45] Speaker 03:
There they held that, of course, even though this is not textually protected, people as a general matter, yes, they need to have some way to buy weapons.

[00:18:56] Speaker 03:
At the same time, they recognize that Bruin said that these regulations on purchasing presumptively are constitutional and therefore presumptively do not impact the plain text.

[00:19:09] Speaker 03:
So in wrestling with that, that's how they came upon this meaningful constraint.

[00:19:13] Speaker 02:
Is that a line drawing exercise?

[00:19:15] Speaker 02:
In other words, seven days is not a meaningful restraint, but 10, 14, 23 months.

[00:19:22] Speaker 02:
I mean, is that where the court, where we're stuck, is evaluating at some temporal limit to a waiting period?

[00:19:33] Speaker 03:
I do think it depends on the facts of each case, exactly what the restriction is, the evidence supporting the restriction.

[00:19:43] Speaker 03:
I think this court could issue a ruling similar to the Fifth Circuit's in McRory where they say there may come a time when this becomes so lengthy as to become abusive, but 10 days is not it.

[00:19:54] Speaker 03:
Here we're at seven days.

[00:19:57] Speaker 03:
So I don't think this court needs to broadly say, okay, here's the cutoff.

[00:20:02] Speaker 03:
The court can just narrowly rule here.

[00:20:04] Speaker 02:
Would we tolerate a global ban on

[00:20:09] Speaker 02:
the exercise of other constitutional rights is there something about the second amendment that's different than the first first amendment say like you can't get you can't buy ink for seven days or You can't post a social media Argument for seven days because you might be impulsive and that seems pretty pretty well pretty obvious so so

[00:20:32] Speaker 03:
First point is that this is not a global ban.

[00:20:35] Speaker 03:
People can avoid the waiting period entirely by going through the shall issue licensing process.

[00:20:41] Speaker 03:
But this is also not anomalous to Second Amendment cases.

[00:20:44] Speaker 03:
As Chief Judge Thomas in the Ninth Circuit and Sylvester V. Harris observed,

[00:20:49] Speaker 03:
We also have waiting periods for the exercise of other fundamental rights, like obtaining a marriage license or organizing a protest or parade.

[00:20:59] Speaker 03:
So just by allowing a brief waiting period here does not render the Second Amendment necessarily a second class right.

[00:21:06] Speaker 03:
Going back to the plain text here, Heller made this clear in its detailed textual analysis and the founding era dictionaries that it cited that the right to keep

[00:21:17] Speaker 03:
is defined as most relevantly to retain, not to lose.

[00:21:21] Speaker 03:
And this makes sense given the founders' concerns about their arms being taken away.

[00:21:27] Speaker 03:
But of course, as we recognized, you have to have some way to protect the right to purchase in order to effectuate your right to keep or bear arms.

[00:21:36] Speaker 03:
But plaintiffs here cannot show that a short seven-day waiting period rises to the level of a meaningful constraint on the right to bear arms.

[00:21:44] Speaker 03:
Is that the same as the abusive ends notion?

[00:21:48] Speaker 03:
It does seem very similar.

[00:21:50] Speaker 03:
There's a lot of overlap, I would say, between the two.

[00:21:56] Speaker 03:
The way the district court here analyzed the two issues, which was before Rocky Mountain Gun Owners was issued, he had a separate analysis for the plain text and then a separate analysis for the commercial regulations.

[00:22:09] Speaker 03:
And then he looked at the abusive ends there.

[00:22:11] Speaker 01:
What do you think Rocky Mountain tells us in answer to that question?

[00:22:16] Speaker 01:
Not so much the district court, but Rocky Mountain.

[00:22:18] Speaker 03:
Rocky Mountain offers a clearer path, I think, through the abusive ends analysis.

[00:22:25] Speaker 03:
I mean, especially since it is, as you recognize, binding on this panel.

[00:22:29] Speaker 01:
Who has the burden on showing abusive ends or the lack of abusive ends?

[00:22:35] Speaker 03:
Given that it's plaintiff's burden under Bruin step one, it should be plaintiff's burden to show this, because we are at step one of the Bruin analysis.

[00:22:45] Speaker 01:
What about the reference in Heller to long-standing commercial restrictions?

[00:22:55] Speaker 01:
These waiting periods are not necessarily long-standing, are they?

[00:23:02] Speaker 03:
Yes, so this was something that was argued before the district court.

[00:23:06] Speaker 03:
However, as the waiting periods here are as long standing as felon dispossession laws or other laws that came about for the first time in the 20th century as Judge Timkovich, as you observed in your concurrence back in United States versus McCain.

[00:23:23] Speaker 03:
The fact that our waiting period serves an additional purpose, it serves dual purposes.

[00:23:29] Speaker 03:
One is to make sure there's adequate time to perform a background check.

[00:23:33] Speaker 03:
Second is also to provide this cooling off period.

[00:23:36] Speaker 03:
So plaintiffs claim that these previous waiting periods back in the day, they're not analogous because they only served one purpose, supposedly, which was to allow for the background check.

[00:23:47] Speaker 03:
But that's akin to requiring a dead ringer, which was an argument that was emphatically rejected in Rahimi.

[00:23:54] Speaker 03:
Regardless, the majority in Rocky Mountain gun owners, they did away with that.

[00:24:00] Speaker 03:
The concurrence would have wanted the challenger or the government to prove that was longstanding, but the majority said that it's unclear what was meant between longstanding versus consistent with history and tradition.

[00:24:13] Speaker 02:
Well, you don't need a dead ringer, but you need a ringer.

[00:24:16] Speaker 02:
What's your best ringer here?

[00:24:19] Speaker 03:
Well, I mean, I would say, so we pointed to two categories of laws below broadly, intoxication laws and licensing regimes.

[00:24:29] Speaker 03:
And I think taken together

[00:24:30] Speaker 03:
Those are our best cases.

[00:24:32] Speaker 03:
They stand for the principle that the government may impose a brief delay on someone's ability to keep or use a firearm in order to help ensure that it was not misused.

[00:24:42] Speaker 02:
The plaintiff's rebuttal is that that guarantees or facilitates to ensure that law-abiding citizens are

[00:24:50] Speaker 02:
are obtaining the gun, just react and rebut that argument for me.

[00:24:56] Speaker 03:
So that argument, it rests on a fundamentally flawed and false premise that background checks are a perfect means of determining whether someone is in fact a law-abiding responsible citizen.

[00:25:09] Speaker 03:
Background checks look at past behavior.

[00:25:12] Speaker 03:
Waiting periods are looking at future behavior.

[00:25:15] Speaker 03:
The simple and sad fact is somebody can go into a gun store

[00:25:19] Speaker 03:
Pass a background check in a matter of 20 minutes, take that gun out, and shoot themselves or shoot somebody else.

[00:25:25] Speaker 03:
That's what happened exactly in Uvalde, Texas, and that's what the waiting period is designed to avoid.

[00:25:31] Speaker 03:
So you can't just say that this

[00:25:33] Speaker 03:
doesn't have any impact.

[00:25:36] Speaker 03:
In fact, we submitted significant evidence in the record, declarations, peer-reviewed studies showing that these waiting periods do have a substantial impact upon lessening impulsive gun suicide and homicide.

[00:25:50] Speaker 01:
I was interested in that point.

[00:25:54] Speaker 01:
Where does that evidence

[00:25:57] Speaker 01:
that's in the record, fit in the analytical framework that we're working with here.

[00:26:03] Speaker 01:
We've got Heller and we've got Ruin and we've got Rocky Mountain and then you've got this evidence.

[00:26:10] Speaker 01:
Where does the evidence fit?

[00:26:13] Speaker 03:
So taking our lead from Rocky Mountain gun owners, which wrestled with this issue, they admitted that this evidence is, they were a little uneasy with considering it, given Bruin's discouraging of the means and, or I mean, overruling of the means and analysis.

[00:26:31] Speaker 03:
But they said nonetheless,

[00:26:33] Speaker 03:
The Supreme Court said that these laws are presumptively lawful unless you can show that it's abusive.

[00:26:39] Speaker 03:
And it's hard to determine if a law is truly abusive as opposed to legitimate without at least somewhat considering the evidence supporting why the law does in fact help with preventing law or with ensuring that law-abiding responsible citizens have weapons.

[00:26:57] Speaker 03:
where this fits.

[00:26:58] Speaker 03:
It also fits at the preliminary injunction stage under the balance of the equities and the public interest.

[00:27:06] Speaker 03:
Since Bruin wasn't dealing with the preliminary injunction there, it was not saying that you could not consider this when deciding these equitable cases.

[00:27:15] Speaker 03:
Plaintiffs, they claim that they can overcome this presumption of constitutionality by showing that's abusive because they say it applies broadly

[00:27:26] Speaker 03:
But the same could be said of the shall issue licensing regimes that were approved of at Bruin, which require fees, background checks, fingerprints, universally, regardless of individual circumstances.

[00:27:39] Speaker 03:
So we know that can't be.

[00:27:41] Speaker 03:
They also claim that it's abusive to the extent that it applies after a background check comes back.

[00:27:46] Speaker 03:
But as I said, background checks are not perfect.

[00:27:51] Speaker 01:
And in terms of- What would you say is the scope of coverage, though?

[00:27:56] Speaker 01:
of this waiting period in New Mexico.

[00:28:00] Speaker 01:
How many New Mexico persons does it cover?

[00:28:06] Speaker 03:
I don't believe we have anything in the record that was not fleshed out below.

[00:28:13] Speaker 03:
But there are several fairly big categories of people who are exempted, which are federally licensed firearm dealers, law enforcement, and the biggest bucket of people are those who have concealed carry permits.

[00:28:28] Speaker 03:
And I'm not exactly sure how many there are.

[00:28:31] Speaker 03:
I'm happy to find that out, but it was not in the record below.

[00:28:34] Speaker 03:
But that's something anybody can go out

[00:28:37] Speaker 03:
and apply for, and you take a firearm safety course, you pay a minimal fee, submit for a background check, then you don't have to wait at all.

[00:28:46] Speaker 02:
Why wouldn't those exceptions be equally conducive to impulsive or suicidal?

[00:28:55] Speaker 02:
Could you say that again?

[00:28:56] Speaker 02:
The exceptions you just mentioned.

[00:28:58] Speaker 02:
You know, that class of gun owner is equally susceptible under New Mexico's theory as anybody else to impulsive criminal activity or suicidal.

[00:29:09] Speaker 03:
Well, so for federally licensed firearm dealers, they have to go through that check with the ATF.

[00:29:14] Speaker 03:
So there is some background check process there.

[00:29:18] Speaker 03:
Same with concealed carry permit holders.

[00:29:20] Speaker 03:
They have to go through the process of obtaining this, going through this gun safety course, getting a background check.

[00:29:27] Speaker 03:
There's nothing as impulsive about planning all of this out, getting your license.

[00:29:32] Speaker 03:
And then law enforcement officers already have access to firearms.

[00:29:37] Speaker 03:
They're trained in that.

[00:29:37] Speaker 03:
They also have background checks presumably run on them.

[00:29:41] Speaker 03:
Now, I want to address plaintiff's argument that Rocky Mountain Gun Owners does not control because nobody made the specific argument that a law requiring someone to wait is not a true condition or qualification.

[00:29:55] Speaker 03:
This is incorrect.

[00:29:56] Speaker 03:
I listened to the oral argument there, and they made that exact argument.

[00:30:00] Speaker 03:
But even if they didn't, this court said in United States versus Baker, 49, F4 at 1348, that a prior panel's holding, quote, is the law of the circuit

[00:30:10] Speaker 03:
Regardless of what might have happened had other arguments been made to the panel that decided the issue first."

[00:30:18] Speaker 03:
So Rocky Mountain squarely controls here.

[00:30:20] Speaker 01:
Well, could I ask a Rocky Mountain question?

[00:30:23] Speaker 01:
At one point the panel said the necessity of some minimum age requirement is widely accepted.

[00:30:39] Speaker 01:
I guess every state has some minimum requirement, right?

[00:30:42] Speaker 01:
1821, whatever it happens to be.

[00:30:46] Speaker 01:
Is the necessity of a waiting period equally widely accepted?

[00:30:52] Speaker 03:
So as of today, I believe there's 13 other states in the District of Columbia which have a waiting period, which is similar, although not as much to the laws identified in Rocky Mountain.

[00:31:02] Speaker 03:
They said there is about 20 other states, I believe, that had set it at 21.

[00:31:07] Speaker 03:
So we are in that space.

[00:31:10] Speaker 01:
Don't all states have some age limit?

[00:31:14] Speaker 01:
Yes, yes, they do.

[00:31:17] Speaker 03:
But I would also note that that seemed more of a gilding of the lily for their analysis there.

[00:31:23] Speaker 03:
If the analysis depends on whether enough states have passed this law, then no state could pass a new law, because they would be the first state in that.

[00:31:31] Speaker 03:
I think that was more of just the emphasize that this law and Rocky Mountain gun owners was not abusive and had a legitimate purpose.

[00:31:39] Speaker 03:
One final note on the facial challenge plaintiffs below in their motion for a preliminary injunction.

[00:31:47] Speaker 03:
requested an unqualified preliminary injunction.

[00:31:51] Speaker 03:
And when this was pointed out in our response below, they doubled down at page 524 of the appendix in their reply brief.

[00:31:59] Speaker 03:
They cannot now narrow their request for the first time on appeal in their reply brief in a footnote.

[00:32:05] Speaker 03:
But regardless of whatever standard this court applies, the result is the same.

[00:32:09] Speaker 03:
The waiting period is constitutional.

[00:32:11] Speaker 01:
But they would still have their as applied challenge anyway, wouldn't they?

[00:32:15] Speaker 03:
I don't believe they preserve that.

[00:32:17] Speaker 03:
They would have it for later on, but at this juncture.

[00:32:19] Speaker 01:
Mr. Ortega and Ms.

[00:32:20] Speaker 01:
Scott, I mean, the name plaintiffs?

[00:32:23] Speaker 03:
They would, as applied to their circumstances, perhaps, but they did not develop this.

[00:32:30] Speaker 03:
I see I'm out of time.

[00:32:31] Speaker 00:
So could you clarify for me, at your initial presentation, you referred to group-based analogs.

[00:32:40] Speaker 00:
Are you still relying on those, specifically the ban on Native American ownership?

[00:32:46] Speaker 00:
Are you relying on those analogs that the district court plainly relied on?

[00:32:52] Speaker 03:
So we believe those are also sufficient to uphold this law under Bruin step two.

[00:32:58] Speaker 03:
They're more of a subcategory of the licensing laws.

[00:33:01] Speaker 03:
These were mentioned in Professor Spitzer's declaration.

[00:33:05] Speaker 03:
Also, all but two or three of those laws were contained either in his declaration or in secondary sources or case law cited by the parties.

[00:33:15] Speaker 03:
And while they are indeed odious and racist and have no place in today's society as a district court,

[00:33:21] Speaker 03:
Observed rejecting them on this basis would result in an inversion of the Bruin analysis.

[00:33:27] Speaker 03:
History's complex, it's messy, but we do have to undertake this historical analysis that Bruin commands.

[00:33:35] Speaker 00:
Okay, but so the answer to my question is yes, you are relying on the ODES classification.

[00:33:41] Speaker 03:
Yes, in addition to the laws that we cited, which we feel are better comparators.

[00:33:45] Speaker 00:
Okay, thank you.

[00:33:46] Speaker 02:
Thank you, counsel.

[00:33:47] Speaker 02:
Thank you.

[00:33:47] Speaker 02:
Appreciate the argument.

[00:33:48] Speaker 02:
Could you give Mr. Rohn three minutes, please?

[00:33:53] Speaker 04:
I appreciate that.

[00:33:54] Speaker 04:
Just a few quick points.

[00:33:55] Speaker 04:
So first, the state acts as if the how is all that matters, but Bruin and Rahimi could not be clear that you have to look at both the how and the why, and that they have to match up.

[00:34:06] Speaker 04:
That's what abusive ends means.

[00:34:09] Speaker 04:
And when the state cited the two purposes that this law serves, it notably did not say that this law serves,

[00:34:14] Speaker 04:
only to ensure that the only people who are keeping and bearing arms in the jurisdiction are in fact law-abiding responsible citizens, which Bruin Footnote 9, Rahimi, and Rocky Mountain all make clear is what distinguishes a condition from an abusive one that shifts the burden to historical tradition.

[00:34:30] Speaker 04:
And on historical tradition,

[00:34:31] Speaker 04:
Respectfully, I don't think this is a close case.

[00:34:34] Speaker 04:
So they cite three categories of laws.

[00:34:36] Speaker 04:
Again, licensing laws, again, they completely ignore the why.

[00:34:40] Speaker 04:
The purpose of a licensing law is to distinguish the law abiding from the non-law abiding.

[00:34:44] Speaker 04:
That is a permissible purpose.

[00:34:46] Speaker 04:
But as they've made clear, this law applies after someone has demonstrated their law abiding character.

[00:34:51] Speaker 04:
The only reason that they applied this law is because, as they said, well, background checks aren't perfect.

[00:34:56] Speaker 04:
And, of course, that's true, but nothing is perfect.

[00:34:59] Speaker 04:
And if that were enough, then Heller would have come out the other way, because, of course, criminals use handguns.

[00:35:05] Speaker 04:
Then Brune would have come out the other way, of course, because people misuse firearms when they carry.

[00:35:11] Speaker 04:
The fact that prophylaxis level one and prophylaxis level two are insufficient to make sure that there are no crimes cannot justify the imposition of a blunderbuss restriction on the constitutional rights of the law abiding.

[00:35:25] Speaker 04:
With respect to intoxication laws, those are fundamentally individualized.

[00:35:29] Speaker 04:
An individual proves themselves to be temporarily irresponsible and can therefore on an individualized basis be temporarily disarmed.

[00:35:39] Speaker 04:
Without those two, all they have are a handful of licensing laws or waiting period laws from the early 20th century.

[00:35:46] Speaker 04:
I think it's again important that they use the phrase waiting period without ever acknowledging that this is a cooling off law.

[00:35:54] Speaker 04:
Waiting period laws historically were tied to the time it took to determine whether an individual was in fact a law abiding responsible citizen.

[00:36:02] Speaker 02:
Is the fact that these waiting periods came around the early

[00:36:06] Speaker 02:
Does it automatically flunk the long-standing analysis?

[00:36:14] Speaker 04:
So I have two different answers to that, and I'll try to do it in the time I have.

[00:36:18] Speaker 04:
So the first is, under Rocky Mountain, I don't think that matters.

[00:36:22] Speaker 04:
Rocky Mountain seems pretty clearly to reject that long-standing has any role in this analysis.

[00:36:27] Speaker 04:
I think that's a little bit incoherent.

[00:36:29] Speaker 04:
If you look at the rest of Rocky Mountain, it seems to recognize that long-standing was

[00:36:33] Speaker 04:
modifier that applied to each of the categories at pages 627 of Heller.

[00:36:38] Speaker 04:
But even putting that aside, I don't think that's the quite right way to think about the analysis.

[00:36:45] Speaker 04:
I think what Rahimi makes clear in Bruin 2 is when you have circumstances that would have been unimaginable at the founding, which certainly the ability to instantly run a background check using computers today is, that's when you apply analogical reasoning.

[00:37:02] Speaker 04:
In looking at analogical reasoning, you look at how and why the law burdens the right to self-defense.

[00:37:09] Speaker 04:
And the reason that this law burdens the right to self-defense is not in order to determine that someone is in fact law-abiding.

[00:37:17] Speaker 04:
It's because, as the state themselves admit, their other prophylaxis isn't perfect.

[00:37:22] Speaker 04:
But if the enshrinement of a constitutional right means anything, it means two things.

[00:37:27] Speaker 04:
One, you can't just say that, well, there are other things we could do, but we're just going to say that everybody who wants to exercise this right, we don't know who it is, but we're just going to make all of you frustrate your exercise.

[00:37:40] Speaker 04:
You can't do that.

[00:37:41] Speaker 04:
And the second thing is you can't rely on these sort of odious laws.

[00:37:46] Speaker 04:
And while I'm tempted to say at some level the less said about those laws the better, I actually think there's an instructive point here to Judge Matheson's question that you and I were having earlier.

[00:37:55] Speaker 04:
At least those are subsets of the population that the legislature determined are not responsible.

[00:38:03] Speaker 04:
This is everyone.

[00:38:04] Speaker 04:
And the one thing Rahimi makes crystal clear is that that is a horse of a constitutionally different color.

[00:38:10] Speaker 04:
And again, this is a law put to abusive ends.

[00:38:13] Speaker 04:
It is fundamentally inconsistent with historical tradition to simply say everyone has to cool off just because they want to exercise a fundamental constitutional right.

[00:38:23] Speaker 02:
Thank you.

[00:38:23] Speaker 02:
Thank you, counsel.

[00:38:23] Speaker 02:
Thank you.

[00:38:24] Speaker 02:
We appreciate the arguments and very excellent briefing.

[00:38:28] Speaker 02:
Counsel's excuse in the case shall be submitted.