[00:00:00] Speaker 02:
We have six cases on our agenda today, but only five set for oral argument.

[00:00:05] Speaker 02:
We'll take a brief recess at some time, probably after the third or fourth case.

[00:00:14] Speaker 02:
We'll start with Springer versus Grisham, 23-2192.

[00:00:17] Speaker 02:
Ms.

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

[00:00:37] Speaker 02:
I meant to say that I hope all of the attorneys are getting double pay for coming to Denver in this weather.

[00:00:46] Speaker 02:
We get paid double, as you might expect.

[00:00:51] Speaker 00:
Good morning, and may it please the court, Janet Carter, and I represent defendants.

[00:00:55] Speaker 00:
I'd like to reserve five minutes for rebuttal.

[00:00:59] Speaker 00:
This case should be dismissed for lack of jurisdiction, but if the court disagrees and reaches the merits, it should hold that Mr. Springer is not likely to succeed on his Second Amendment challenges.

[00:01:12] Speaker 00:
On jurisdiction, this case is just like we the patriots.

[00:01:16] Speaker 00:
and the decision there establishes that Mr. Springer lacks standing.

[00:01:21] Speaker 00:
It applied long standing and familiar principles of redressability to hold that any injury from the public health order is not redressable when a separate unchallenged law prohibits the proposed conduct.

[00:01:35] Speaker 00:
It also confirmed that it's the plaintiff's burden to identify specifically the parks or playgrounds where he wants to carry.

[00:01:44] Speaker 00:
Here, Mr. Springer has not identified any specific park or playground.

[00:01:50] Speaker 00:
Even if this court were to draw a very generous inference from his declaration, the only park he conceivably might refer to is one expressly covered by Albuquerque's administrative instruction.

[00:02:03] Speaker 00:
Therefore, unto we the patriots, this court cannot provide any effective relief, and he lacks standing.

[00:02:08] Speaker 00:
Now, in his supplemental brief,

[00:02:11] Speaker 00:
Plaintiff's only argument for distinguishing we the patriots was that he claimed he had evidence that the separate overlapping laws were not being enforced.

[00:02:22] Speaker 00:
But then the only evidence that he came forward with to try to prove up that claim was completely irrelevant.

[00:02:30] Speaker 00:
All he pointed to were two news articles in which the county sheriff said that he wouldn't enforce the public health order, the law that Mr. Springer is challenging in this case.

[00:02:41] Speaker 00:
Neither article said anything about enforcement of the separate overlapping laws.

[00:02:46] Speaker 02:
Did he explain why?

[00:02:47] Speaker 02:
Did he say why he wasn't going to enforce it?

[00:02:52] Speaker 00:
Well, the first statement that he made was before Judge Urias ruled in the district court.

[00:02:59] Speaker 00:
So I think at that point, he thought that there was uncertainty around it.

[00:03:04] Speaker 02:
Well, go ahead.

[00:03:06] Speaker 00:
The second reason was?

[00:03:07] Speaker 00:
Well, the second statement that the news organization reported came after Jaduria's opinion.

[00:03:15] Speaker 00:
And I think he said something like, we're focused on other issues.

[00:03:19] Speaker 00:
But of course, I think the most important point is that the state police were enforcing the public health order.

[00:03:26] Speaker 00:
So there was already an authority that was responsible for enforcing it.

[00:03:31] Speaker 00:
So the fact that he said, my office is focused on other things, I think is very different from suggesting that when he's the only authority responsible for enforcement, as is the case with respect to the Bernalillo County ordinances.

[00:03:45] Speaker 02:
Maybe I'm getting the articles confused, but I thought he said that he didn't think we should enforce these against law-abiding citizens.

[00:03:56] Speaker 02:
Did he say that?

[00:03:57] Speaker 00:
Well, he said that he did express some criticism about the public health order.

[00:04:06] Speaker 00:
But again, he didn't say anything about the Bernalillo County ordinance.

[00:04:11] Speaker 02:
No, no.

[00:04:11] Speaker 02:
But if the reason he wasn't going to enforce

[00:04:14] Speaker 02:
the state order was because he didn't think he should be enforcing that type of law against law-abiding citizens, then that reasoning would apply to the county ordinances also, would it not?

[00:04:30] Speaker 00:
I think if it was a constitutional concern, then Judge Urias's decision, as well as the wide range of decisions across the country now that have upheld prohibitions in parks and playgrounds, would have allayed that concern.

[00:04:43] Speaker 00:
And again, I think a big piece of that was a concern about it not being necessary for him to do so when there was already an authority responsible for enforcing it.

[00:04:56] Speaker 00:
But another piece of this is that Mr. Springer has never suggested and never named any park or playground in Bernalillo County where he wanted to carry a firearm.

[00:05:09] Speaker 00:
Under the clear terms of we the patriots, that was his obligation.

[00:05:12] Speaker 00:
And particularly if he wanted to take advantage of this suggestion, which I submit is purely speculative, that there's some inference that can be drawn from the position about the public health order to the position about the separate Bernalillo County ordinance.

[00:05:29] Speaker 00:
In order to take advantage of that, he would have to have established that he wanted to carry in a Bernalillo County park.

[00:05:36] Speaker 00:
He didn't do that.

[00:05:38] Speaker 04:
Council, the redressability question is informed, of course, by what looks to me to be sort of a layer of other ordinances that prohibit the same conduct.

[00:05:47] Speaker 04:
But my understanding from the briefing and the record is that there's a lot of litigation over maybe some of these lower ordinances as well.

[00:05:53] Speaker 04:
Has the status of that litigation changed at all in any way that informs the case that's before us?

[00:05:59] Speaker 00:
The status has not changed.

[00:06:01] Speaker 00:
So there's a challenge in

[00:06:04] Speaker 00:
New Mexico State Court, the Supreme Court to the governor's authority to declare the emergency in the first place.

[00:06:12] Speaker 00:
That was briefed.

[00:06:13] Speaker 00:
I think it was argued in the beginning of last year or perhaps even earlier, and no decision has issued.

[00:06:24] Speaker 00:
And then there's a challenge to the Albuquerque administrative instruction and its clarification of how state law applies in the city of Albuquerque.

[00:06:35] Speaker 00:
And that case has been staged pending the resolution of these cases.

[00:06:39] Speaker 00:
So no development in either one of those decisions.

[00:06:44] Speaker 01:
Council, could you help me understand?

[00:06:46] Speaker 01:
Are you making two alternate arguments?

[00:06:52] Speaker 01:
I mean, could you prevail under either one that you're making, either that no specific park named and overlapping laws?

[00:07:03] Speaker 01:
Would either of those work in your view?

[00:07:07] Speaker 00:
Is one preferable to the other?

[00:07:10] Speaker 00:
So the argument, they're connected is the answer.

[00:07:16] Speaker 00:
The reason that this court said in We the Patriots that a plaintiff has to identify a specific park where they want to carry, excuse me, that was part of its reusability analysis.

[00:07:29] Speaker 00:
So the reason that it said that

[00:07:31] Speaker 00:
was in order to determine whether there was an overlapping ordinance applicable in the places.

[00:07:38] Speaker 00:
Because if there are overlapping ordinances, then regressibility fails and the plaintiff has not established standing.

[00:07:45] Speaker 00:
I'm not here arguing that the failure to identify a specific park defeats injury in fact, although I think the court could also reach that conclusion.

[00:07:54] Speaker 00:
But again, I think my argument is based in with the Patriots.

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And I believe that when the court said in that case very specifically, we think that it is plaintiff's burden to identify a specific playground that they plan to visit.

[00:08:11] Speaker 00:
When the court said that, it was part of its redressability analysis.

[00:08:14] Speaker 00:
Does that answer your question?

[00:08:15] Speaker 01:
Well, I guess so.

[00:08:16] Speaker 01:
I mean, you said you're not here to argue that the lack of specificity

[00:08:24] Speaker 01:
dooms the case.

[00:08:26] Speaker 01:
Why are you not arguing that?

[00:08:28] Speaker 00:
Sorry, I do think it dooms the case, but I think it dooms it under the redressability prong of standing rather than under the injury in fact prong of standing.

[00:08:37] Speaker 01:
Okay, thank you.

[00:08:40] Speaker 00:
I'm happy to continue answering questions, but I'm also happy to sit down and answer any further questions on

[00:08:46] Speaker 04:
Council, I read your brief to say that if we were to agree with you that Mr. Springer lacks standing, that that defeats all of his claims for relief.

[00:08:53] Speaker 04:
Can you help me understand, you know, looking at the complaint and the different grab bag of relief that he's requesting, how none of those survive?

[00:09:01] Speaker 00:
Sure.

[00:09:01] Speaker 00:
So with respect to permanent injunctive relief, I think that the analysis is just the same as preliminary injunctive relief.

[00:09:10] Speaker 00:
He wants to carry in these parks and playgrounds and the overlapping laws prevent him from doing so.

[00:09:17] Speaker 00:
With respect to damages, I think this is an instance where causation is sort of the flip side of redressability.

[00:09:24] Speaker 00:
His injury is not being caused by

[00:09:27] Speaker 00:
the public health order when it's completely, when he is completely prevented from doing the thing that he wants to do.

[00:09:34] Speaker 00:
And I would point the court to Judge Ide's opinion in Valdez, the second Valdez opinion, which did dismiss all the claims for relief that the plaintiff in that case sought because of overlapping obligations that prevented them from engaging in the conduct that they wished to engage in.

[00:09:54] Speaker 00:
I'll reserve the rest of my time for rebuttal.

[00:09:56] Speaker 00:
Thank you very much.

[00:09:59] Speaker 03:
May it please the Court, Opposing Council.

[00:10:18] Speaker 03:
I'm Blair Dunn and I'm here on behalf of Mr. James Springer, the appellee cross appellant in this matter.

[00:10:23] Speaker 03:
I'm joined at council table by Mr. Zach Cook.

[00:10:27] Speaker 03:
And I'd like to begin by first addressing some points of clarification.

[00:10:30] Speaker 03:
And the first one that I'll address is, of course, the court's questions over the We the Patriots case and the supplemental briefing we did on that case.

[00:10:40] Speaker 03:
I think it is important to clarify that Judge Hartz, you just asked about the rest of the statements that Sheriff John Allen, the Bernalillo County Sheriff, made.

[00:10:46] Speaker 03:
And he did say, essentially, that it was not going to be enforced at all.

[00:10:53] Speaker 03:
And his reasoning was, as the court acknowledged,

[00:10:57] Speaker 03:
that there was no common sense to it and it would do nothing to further the goals of public safety.

[00:11:02] Speaker 03:
And that does apply to the Bernalillo County Ordinance.

[00:11:04] Speaker 03:
There's cross jurisdiction as well in Albuquerque between Bernalillo County sheriffs, and they do respond to things within the city.

[00:11:10] Speaker 03:
So there is that as well.

[00:11:12] Speaker 03:
So his office at least wasn't going to enforce any of these orders, is what the very clear statement was.

[00:11:17] Speaker 03:
And that had been the statement from before.

[00:11:19] Speaker 03:
Chief Medina, when the first public health order before the Urias decision came out, said that the city of Albuquerque wasn't going to enforce it at all either.

[00:11:28] Speaker 03:
After Judge Urias's decision, there was the amendment that we're here today about,

[00:11:32] Speaker 03:
And then he made the statement that we've included in our supplemental brief that he was not going to enforce it himself.

[00:11:39] Speaker 03:
They would just report it to the state police.

[00:11:41] Speaker 03:
So you have another statement of non-enforceability by the chief of police at that point or that he won't be enforcing it, maybe not non-enforceability.

[00:11:49] Speaker 04:
Council, why does that matter?

[00:11:50] Speaker 04:
Why does any of this matter at all?

[00:11:54] Speaker 04:
Supplemental brief that you submitted, I mean, I read it to say, essentially, we the Patriots was wrongly decided, and its analysis was, I think, in your words, quote, too shallow.

[00:12:03] Speaker 04:
And then you presented these two articles.

[00:12:05] Speaker 04:
But we are to presume that these state and local ordinances are lawful and constitutional.

[00:12:10] Speaker 04:
We're also to presume that people are going to follow them.

[00:12:13] Speaker 04:
So why does it matter what the sheriff tells the local media?

[00:12:17] Speaker 03:
I understand.

[00:12:17] Speaker 03:
And I think we acknowledged in our brief, supplemental brief, that this court must acknowledge their presumptive constitutionality

[00:12:24] Speaker 03:
As the court may notice, I have the case in the state district court that's addressing the Albuquerque instruction, and that is state pending a decision here.

[00:12:34] Speaker 03:
But the important point is that while this court may presume that constitutionality, for purposes of Mr. Springer's declaration, he does not.

[00:12:42] Speaker 03:
In fact, he relied on those statements of public officials, and he relied on the fact that there is no enforcement of that, or there was no enforcement of that, that we could find or that he knew of prior to his declaration.

[00:12:53] Speaker 02:
Does he say that he would violate those ordinances, even if they haven't been found to be unlawful?

[00:13:05] Speaker 02:
I saw that as a fatal gap in the standing argument.

[00:13:11] Speaker 03:
I don't think that's what he said.

[00:13:13] Speaker 02:
I think that that's... And there's... But he doesn't have to say that I would violate a law that is presumed to be constitutional before he has standing.

[00:13:27] Speaker 02:
And that's irrespective of whether some law enforcement officer would enforce it.

[00:13:32] Speaker 03:
And I apologize.

[00:13:33] Speaker 03:
What I was saying is I think that's exactly what his declaration says.

[00:13:36] Speaker 03:
Maybe not as clearly as it could.

[00:13:38] Speaker 03:
It says what?

[00:13:39] Speaker 03:
It says that he attended parks and playgrounds in Bernalillo County, and it doesn't distinguish between the two, and that the only thing that prevented him from carrying while he was there was the state's ordinance.

[00:13:56] Speaker 03:
He says nothing about those other ordinances.

[00:13:58] Speaker 03:
He was aware of those.

[00:14:00] Speaker 03:
He says, I would have gone anyways, and I had been going anyways armed, but I'm no longer going because only of this.

[00:14:07] Speaker 02:
He said he was aware of those ordinances?

[00:14:09] Speaker 03:
He doesn't say that, but he was.

[00:14:10] Speaker 03:
That's part of why I say that the analysis is shallow, and when we get to this point of further factual development would probably help with this case.

[00:14:18] Speaker 03:
But here at the preliminary injunction stage, we've gotten enough to maintain the district court's preliminary injunction, is my point.

[00:14:24] Speaker 03:
As this case goes on, his testimony would be, yes, he actually did carry on.

[00:14:28] Speaker 03:
And I know that's a profference that's not really before the court, but he would.

[00:14:32] Speaker 02:
I don't think we, that's not the way we do business.

[00:14:36] Speaker 02:
It's got to be in the record or at the time that standing is challenged or

[00:14:44] Speaker 02:
We can't rely on it, and we can't rely on it if it's not in the record.

[00:14:48] Speaker 02:
I think you're agreeing with me though, it's not in the record that he had ever knowingly violated the ordinances, or that he would violate them.

[00:15:02] Speaker 03:
It's not explicitly in the record.

[00:15:03] Speaker 03:
It is inferred in the record, I think, from his statement.

[00:15:06] Speaker 03:
And let me give another example.

[00:15:08] Speaker 03:
So the appellants here like to say that he didn't specify any specific park.

[00:15:14] Speaker 03:
And this gets to one of our other arguments about the playground stuff.

[00:15:17] Speaker 03:
And the court will note that Civic Plaza across from your office has a playground in it.

[00:15:22] Speaker 03:
So that's important to note for later.

[00:15:24] Speaker 03:
But specifically, he said he would go to Specific Plaza, which is considered by the city of Albuquerque one of its parks or recreation areas.

[00:15:31] Speaker 03:
and he would go there and organize a protest in support of his Second Amendment rights.

[00:15:34] Speaker 03:
So he did identify specifically a park that he was prohibited from going to, and before that he emphasized that he was going to parks armed and then no longer was able to carry them armed because he was worried about this particular order.

[00:15:48] Speaker 03:
It's inferred in there, though it's not explicit.

[00:15:51] Speaker 03:
He was already carrying in violation of those orders for many years

[00:15:56] Speaker 03:
that those ordinances have been in effect.

[00:15:57] Speaker 02:
Apparently, a lot of people didn't know about it.

[00:15:59] Speaker 02:
I'm not sure why the governor issued this executive order, or had it issued, if she knew that it was already unlawful.

[00:16:10] Speaker 02:
So his ignorance would not be remarkable.

[00:16:14] Speaker 03:
Except it's not his ignorance.

[00:16:15] Speaker 03:
And I think that that's the issue, is that the people that did know about it didn't pay it any mind, because the New Mexico Constitution explicitly prohibits local regulation of firearms.

[00:16:26] Speaker 03:
Our Constitution says they couldn't have passed those ordinances.

[00:16:29] Speaker 03:
They're facially unconstitutional right there.

[00:16:30] Speaker 03:
And the court should look at the New Mexico Constitution and see, even though you're supposed to assume their lawfulness, you can't ignore the basic, obvious point that a local regulation is prohibited by our state constitution.

[00:16:42] Speaker 02:
So you may end up having a very good lawsuit you can bring.

[00:16:46] Speaker 02:
But you've got to start, again, at this point in this case,

[00:16:52] Speaker 02:
following the circuit precedent, which we have to do.

[00:16:55] Speaker 02:
I happen to have agreed with that opinion, as you know.

[00:16:59] Speaker 02:
But given our precedent and the status of this case, you've got to start over.

[00:17:07] Speaker 02:
And you may have very interesting Second Amendment issues here, but I don't think we can address them.

[00:17:15] Speaker 03:
But I guess that's part of my issue is the start over part of this.

[00:17:20] Speaker 03:
Ultimately, that is something that this was presented to the district court.

[00:17:24] Speaker 03:
These administrative orders are part of the record.

[00:17:26] Speaker 03:
They were briefed in front of the district court.

[00:17:28] Speaker 03:
She got to consider these.

[00:17:29] Speaker 03:
So that issue is there.

[00:17:31] Speaker 03:
And their presumptive lawfulness aside, because they weren't presumptively lawful to the sheriff or to, for instance, Mr. Springer, I think that we should be able to at least go back and complete that record and have the court look at that analysis and

[00:17:46] Speaker 03:
and deal with that.

[00:17:47] Speaker 03:
That's something that could be briefed below.

[00:17:49] Speaker 03:
And since we're here arguing whether or not the injunction was correct, the injunction, as this court, I think, noted, and certainly as the We The Patriots Court noted, is moot because the public health orders have been rescinded.

[00:18:03] Speaker 03:
So we're here on- We said it wasn't moot.

[00:18:05] Speaker 03:
Well, it's no longer in force.

[00:18:08] Speaker 02:
Yes, OK.

[00:18:09] Speaker 03:
OK, so it is not moot because we need an answer on this for the next time it comes around.

[00:18:14] Speaker 03:
But it is, as far as Mr. Springer's concerned, no longer causing him injury.

[00:18:19] Speaker 03:
And I think it's important to note, his declaration doesn't talk about just planned injury in the future, right?

[00:18:25] Speaker 03:
Something in perspective.

[00:18:27] Speaker 03:
It actually talks about he was deprived.

[00:18:30] Speaker 03:
That's concrete and particularized.

[00:18:31] Speaker 03:
It says that he was.

[00:18:32] Speaker 03:
It may not specify which parks he was no longer able to carry in, but it does say that he went to the parks.

[00:18:38] Speaker 03:
So this idea of standing, I think we should be able to move past.

[00:18:43] Speaker 03:
Turning a little bit more to the merits, if we could just briefly, as I noted, we have, of course, the cross appeal.

[00:18:50] Speaker 03:
And we're asking for the court to look at what the district court did with regard to playgrounds.

[00:18:54] Speaker 03:
And as the court can note, probably judicially, across from your office, there is a playground inside of a park.

[00:19:01] Speaker 03:
And there's this weird, and I'd like to give an example.

[00:19:04] Speaker 03:
So Mr. Springer goes to a park to watch his kids play on one side, scholastic sports, as he declares he would do, and then his younger child plays in the playground equipment.

[00:19:13] Speaker 03:
He goes armed because in Albuquerque he thinks that's prudent to defend himself and his children.

[00:19:18] Speaker 03:
And one of his younger child falls on the playground and scrapes her knee on the equipment or something.

[00:19:24] Speaker 03:
He's carrying his firearm.

[00:19:26] Speaker 03:
The way that the ordinance reads, even though he's lawfully carrying inside of the park, to step across the line wherever that might be in a playground, maybe onto the wood chips, to go help his kid, he would now be acting unlawfully just to do that.

[00:19:39] Speaker 03:
It's a nonsensical,

[00:19:41] Speaker 03:
distinction and I think the Bonite case, if I'm saying that right, actually in Judge Timkovich's concurring opinion, which is relied heavily on in the Kuhn's case, really explains that subcategory of property within a property, like a parking lot to a post office.

[00:19:55] Speaker 03:
We don't have that issue of the sensitive place inside of the post or outside of the post office in the parking lot that you do inside of the post office.

[00:20:04] Speaker 03:
And so to declare the sensitive place inside of the nonsensitive place when they're really a sub-feature of each other, I think, caused the problems.

[00:20:12] Speaker 03:
And that's why we were actually asking the court to address that in Judge Riggs's order.

[00:20:19] Speaker 03:
Which brings me more to the merits.

[00:20:21] Speaker 03:
I think it's important to note that in the third brief from the appellants, they talk about the Rahimi case and that Judge Riggs relied on a historical twin.

[00:20:34] Speaker 03:
At the appendix at 95, we may note this in our fourth brief, the district court specifically disclaimed against that she was deciding this on the basis of a historical twin and relied instead upon just a historical analog.

[00:20:51] Speaker 03:
And we think that she reached the correct decision.

[00:20:53] Speaker 03:
And that, of course, gets to the argument back and forth about what is the correct historical analog.

[00:20:59] Speaker 03:
And again, I think that Judge Timkovich's concurring opinion in Vanity actually, I don't know.

[00:21:10] Speaker 03:
I think that that actually gets to that point of explaining why in this circuit, Judge Riggs is more, her decision is more in line with precedent from this decision, from the Vanity decision, which was precedent and still in line with Bruin, to not decide that every place that has children in it

[00:21:29] Speaker 03:
which is essentially what the appellants are asking for, is a sensitive place that can be regulated without question.

[00:21:36] Speaker 04:
Counsel, can you help me with a vexing question regarding what has been referred to as the safe harbor, the presumptively lawful regulations that arises in Heller, and then as, of course, repeated in the Supreme Court's three follow-on decisions?

[00:21:51] Speaker 04:
And particularly after Bruin, figuring out where the presumptively lawful regulations fit within the Bruin framework

[00:21:59] Speaker 04:
What's your view on, I'm assuming from what I just heard you say, that this would be analyzed under Bruin Step 2, because Mr. Springer gets through the first step.

[00:22:10] Speaker 04:
And so if we're at Bruin Step 2, how do we factor in the fact that the court has said that these types of sensitive places regulations are presumptively lawful into the Bruin framework?

[00:22:22] Speaker 03:
I think that's exactly the point that we have to get to that's the larger issue in this case is what is the correct historical analog in that second step.

[00:22:30] Speaker 03:
I think it's important to note that the district court with the evidence in front of her when she issued the injunction, and there was a bunch of later supplement of additional historical references and sites and explanations from articles and whatnot, at that point she was correct.

[00:22:45] Speaker 03:
And that's the point where she made the decision that you're at today.

[00:22:48] Speaker 03:
The later add-on of all these other arguments about the

[00:22:51] Speaker 03:
tallying, I'll call it, of the different parks and playgrounds in history, I think is too little too late.

[00:22:59] Speaker 03:
But more importantly, I think it's still incorrect.

[00:23:02] Speaker 03:
And to answer your question, I think that the correct place to look is before ratification and immediately after ratification.

[00:23:08] Speaker 03:
I'm not saying you don't give way, like they say we do, but you don't give way to that reconstruction era stuff.

[00:23:14] Speaker 03:
But let's look at when that reconstruction era type of information that they've supplied the court really comes in.

[00:23:18] Speaker 03:
You're talking about stuff that's perhaps two decades after reconstruction versus stuff that's right before the ratification of the Second Amendment and right after.

[00:23:28] Speaker 03:
And I think that the court should consider all of it.

[00:23:31] Speaker 03:
But the district court, I think, got it right in her analysis that focusing on that area first is where she should look.

[00:23:38] Speaker 03:
If there was no answer, and I think there was an answer in the framers' time,

[00:23:43] Speaker 03:
Then you look back to that later time for some sort of example of where the country is.

[00:23:47] Speaker 03:
But at the time of the ratification, that's where I think you look.

[00:23:50] Speaker 04:
In terms of the weight of the evidence that New Mexico would have to bring forward, does the fact that the Supreme Court has declared these types of regulations presumptively lawful lessen their burden in any way?

[00:24:08] Speaker 03:
I don't think so.

[00:24:10] Speaker 03:
I think that Bruin still stands for what it stands for and the court should strive to get as close to what Bruin says.

[00:24:19] Speaker 03:
Even the Rahimi case, I don't know, really lessens that burden for the state.

[00:24:22] Speaker 03:
I think it remains what it was at the end of Bruin.

[00:24:26] Speaker 04:
Yeah, we're of course trying to faithfully apply all of what the Supreme Court opinions say and trying to figure out the presumably lawful regulations and how they fit into the Bruin two-step framework is a challenge.

[00:24:37] Speaker 04:
And so I appreciate your guidance.

[00:24:39] Speaker 03:
That is the question today.

[00:24:40] Speaker 03:
And of course, Bruin comes after Heller.

[00:24:42] Speaker 03:
We have Heller.

[00:24:43] Speaker 03:
And I don't know, maybe this means that we also need some further clarification from the Supreme Court about what the Bruin test actually says.

[00:24:49] Speaker 03:
I think that the litigation around the country and from the different circuits the court can see is

[00:24:54] Speaker 03:
is not in line or completely in line with each other.

[00:24:57] Speaker 03:
And for that reason, I don't know that this court should follow along behind some of the Antioch cases or some of the others that have been decided.

[00:25:04] Speaker 03:
I think that there's enough of a distinction here.

[00:25:06] Speaker 03:
I think there's a distinction between Mr. Springer's declaration and his decision to carry and, for instance, the We the Patriots to Clarence.

[00:25:16] Speaker 03:
I think there is a distinction between the two, and this court should evaluate that.

[00:25:20] Speaker 03:
But that's all my time, and I appreciate it.

[00:25:22] Speaker 02:
Thank you.

[00:25:22] Speaker 02:
Ms.

[00:25:22] Speaker 02:
Carter, do you wish to?

[00:25:30] Speaker 02:
I'm going to limit you to five minutes, but I'm not sure you'd want to spend all that time.

[00:25:35] Speaker 00:
OK, thank you.

[00:25:56] Speaker 00:
I'd like to speak first to the issue of Mr. Springer's declaration.

[00:26:00] Speaker 00:
It's extremely short.

[00:26:01] Speaker 00:
I don't think there is anything in there to support the suggestions that we heard here today that Mr. Springer was aware of and intended to violate these separate laws.

[00:26:14] Speaker 00:
And to the contrary, and with the Springer,

[00:26:16] Speaker 00:
What this court said was that Mr. Smith and Mr. Donk, the plaintiffs there, would presumably obey the city and county laws and cited O'Shea versus Littleton for the proposition that courts generally assume that parties will obey laws.

[00:26:33] Speaker 00:
With respect to Civic Plaza, he did say that he was planning to, and I'm gonna quote here, organize and attend a rally in support of the Second Amendment to exercise my First Amendment rights

[00:26:47] Speaker 00:
by engaging in the expressive conduct of openly carrying a firearm in Civic Plaza, but have been prohibited from doing so by the public health order.

[00:26:57] Speaker 00:
So he didn't say anything about going to the playground in Civic Plaza.

[00:27:01] Speaker 00:
To the contrary, he said that he wanted to organize and attend a rally there.

[00:27:06] Speaker 00:
The public health order did not prohibit him from doing that.

[00:27:10] Speaker 00:
It is not a park.

[00:27:11] Speaker 00:
He couldn't go into the playground because of the public health order.

[00:27:14] Speaker 00:
But he didn't say he wanted to do that.

[00:27:16] Speaker 00:
He said he wanted to organize and attend a rally.

[00:27:19] Speaker 00:
The administrative instruction made clear that Albuquerque was interpreting state law to prohibit that, a different state law, not the public health order.

[00:27:28] Speaker 00:
So Civic Plaza is completely irrelevant, and it remains the case that he has identified no place where he wants to carry a firearm that is covered by the public health order.

[00:27:40] Speaker 00:
With respect to the remand question, it seems

[00:27:45] Speaker 00:
from the arguments today that he once another bite at the apple.

[00:27:49] Speaker 00:
But I think if this court looks at the Utah versus Babbitt decision, that was one that was here on an appeal from a grant of a preliminary injunction.

[00:28:01] Speaker 00:
The court determined that there wasn't standing and it dismissed seven out of the, it dismissed all of the claims, seven out of the eight claims.

[00:28:09] Speaker 00:
as to which that standing was absent.

[00:28:11] Speaker 00:
So the fact that this case is here on a preliminary injunction is no barrier to that being the disposition.

[00:28:21] Speaker 00:
Now, my friend spoke a lot about Bonnerty.

[00:28:26] Speaker 00:
First point is that he relies on Judge Timkovich's partial concurrence, partial dissent, not on the majority opinion.

[00:28:35] Speaker 00:
And that's particularly important because

[00:28:38] Speaker 00:
The majority in Bonnerty said that that language from the Supreme Court's Heller opinion that prohibitions on guns in sensitive places like schools and government buildings was conclusive.

[00:28:55] Speaker 00:
as to a prohibition on guns in government buildings.

[00:28:58] Speaker 00:
That was a case about carrying guns in a post office.

[00:29:02] Speaker 00:
And Judge Timkovic's opinion, footnote seven of his concurring and dissenting opinion says, I part ways with the majority on this point.

[00:29:12] Speaker 00:
I think it's just a presumption.

[00:29:14] Speaker 00:
They think it's conclusive.

[00:29:16] Speaker 00:
And I don't think there's any way to distinguish the government buildings part of Heller's sentence from the schools part.

[00:29:23] Speaker 00:
We obviously rely on the fact that parks and playgrounds are analogous to schools.

[00:29:29] Speaker 00:
The constitutionality of prohibitions in schools is clearly established not only in the Supreme Court's jurisprudence, but also in a way that binds this court in vanity.

[00:29:40] Speaker 04:
But remind me, didn't Vanity predate Bruin?

[00:29:43] Speaker 00:
It did predate Bruin, but that part of its analysis rested solely on that language from Heller, which the Supreme Court then reiterated.

[00:29:51] Speaker 00:
First, it repeated it at McDonald.

[00:29:54] Speaker 00:
Then it repeated it in Bruin.

[00:29:56] Speaker 00:
And then, of course, Justice Kavanaugh set it out verbatim in an opinion joined by the Chief Justice.

[00:30:03] Speaker 04:
Yeah, sure.

[00:30:03] Speaker 04:
But isn't a fair reading of Bruin to say that it was looking at how the law was developing after Heller and saying, well, you and the lower courts are getting this wrong.

[00:30:11] Speaker 04:
And when we say two steps, we mean two steps.

[00:30:13] Speaker 04:
And here's the analysis you have to apply.

[00:30:15] Speaker 04:
In other words, what we're talking about is the challenge of whether there's a shortcut, so to speak, with the presumptively lawful regulations and how now that fits in the Bruin two-step framework.

[00:30:24] Speaker 00:
The Bonity opinion was very clear that it was not using the two-step.

[00:30:29] Speaker 00:
That now does favor two-step analysis.

[00:30:32] Speaker 00:
to approve the prohibition in government buildings.

[00:30:36] Speaker 00:
It was doing that solely on the basis of that controlling language from Heller.

[00:30:41] Speaker 00:
So I agree with you.

[00:30:42] Speaker 00:
Other opinions that relied on the two-step means and scrutiny, those are no longer good law.

[00:30:50] Speaker 00:
But that is not the case with Bonody and, of course, in the circuit.

[00:30:57] Speaker 00:
cases have to clearly and lucidly overrule prior president in order for them no longer to be binding.

[00:31:04] Speaker 00:
So that's why this court has continued to look to pre-Bruin decisions with respect to, for example, the felony prohibitor.

[00:31:14] Speaker 00:
My friend said that there were decisions... Your time is up.

[00:31:20] Speaker 02:
It started at 5.55, so you didn't drop it to five, but I was just going to give you what you requested for rebuttal.

[00:31:26] Speaker 00:
Okay, well, thank you for the court's time.

[00:31:38] Speaker 02:
Thank you, counsel.

[00:31:38] Speaker 02:
The case is submitted and counsel are excused.