[00:00:00] Speaker 03:
I'll call case number 246257, United States versus DuPremieres.

[00:00:31] Speaker 04:
Good morning, Your Honors.

[00:00:33] Speaker 04:
Laura Deskin on behalf of Mr. Duque Ramirez.

[00:00:38] Speaker 04:
This question is a Bruin case about the constitutionality of 922G5.

[00:00:43] Speaker 04:
And it presents two big questions.

[00:00:49] Speaker 04:
First, we have to decide does the plain text of the Second Amendment cover Mr. Duque Ramirez's contacts, the big conduct.

[00:00:58] Speaker 04:
The big question here is,

[00:01:00] Speaker 04:
Is he a member of the people?

[00:01:03] Speaker 04:
We submit that he is.

[00:01:04] Speaker 04:
He has been here since he was six years old.

[00:01:08] Speaker 04:
He's now 35.

[00:01:09] Speaker 04:
He went to public schools.

[00:01:11] Speaker 04:
He's married to a US citizen.

[00:01:12] Speaker 04:
He has US citizen children.

[00:01:14] Speaker 04:
Now he is undocumented.

[00:01:16] Speaker 04:
He is here without permission.

[00:01:18] Speaker 04:
That is true.

[00:01:19] Speaker 04:
So the question becomes, is he nevertheless a member of the people?

[00:01:26] Speaker 04:
And we submit that he is due to the substantial ties

[00:01:30] Speaker 04:
that he created to this country through his lifetime.

[00:01:34] Speaker 02:
Can I, before you move on, what is the nature of the challenge you're bringing here?

[00:01:39] Speaker 02:
It's an as applied challenge, right?

[00:01:41] Speaker 02:
Yes.

[00:01:42] Speaker 02:
What does that mean for purposes of your case challenging G5?

[00:01:47] Speaker 02:
I mean, I guess to just be more specific, zooming way, way, way out, even before we engage with the specific arguments on step one and step two.

[00:01:56] Speaker 02:
I don't see a lot of daylight between a facial challenge and an as-applied challenge in your case.

[00:02:04] Speaker 02:
We see that the district court resolved a facial challenge.

[00:02:07] Speaker 02:
Then you brought a different motion on an as-applied basis.

[00:02:09] Speaker 02:
The district court incorporated by reference its reasoning from the facial challenge.

[00:02:13] Speaker 02:
So can you help me understand, confirm that this is an as-applied challenge, and then explain precisely what does that mean for purposes of your challenge to G5?

[00:02:22] Speaker 04:
Yes.

[00:02:24] Speaker 04:
We are not asking this court to find that it is unconstitutional for the legislature to disarm an undocumented, somebody who has just crossed the border, for example.

[00:02:39] Speaker 04:
I do not think that that means that that person has become a member of the people.

[00:02:45] Speaker 04:
So we're looking back as to as applied to somebody who has created substantial ties to the country.

[00:02:53] Speaker 04:
I think that enough substantial ties to the country.

[00:02:56] Speaker 04:
I think that this court first needs to find that that is so in this case.

[00:03:00] Speaker 04:
And if that is the case, then he is a member of the people for terms of having this Second Amendment right.

[00:03:12] Speaker 04:
What about for step two?

[00:03:13] Speaker 04:
So for step two, we have to determine whether somebody

[00:03:21] Speaker 04:
Duque, who has substantial ties to the country, has been here since childhood.

[00:03:28] Speaker 04:
Is it then in accord with our historical tradition, with the principles that underpin our historical firearm regulatory tradition,

[00:03:48] Speaker 04:
Does it make sense to, is there a historical analog then that would permit him, Mr. GK Ramirez, or people similarly situated to then disarm them?

[00:04:02] Speaker 02:
OK, so here's where I'm confused.

[00:04:05] Speaker 02:
And it goes back to the nature of the challenge here.

[00:04:09] Speaker 02:
In the district court, you seemed to tether your as applied challenge to the need for an individualized assessment of dangerousness for your client.

[00:04:18] Speaker 02:
and argued for that.

[00:04:20] Speaker 02:
The district court rejected that argument.

[00:04:23] Speaker 02:
And that argument, whether availing or not, made sense to me.

[00:04:26] Speaker 02:
It was a sensible way to understand your as applied challenge.

[00:04:30] Speaker 02:
You don't argue for that anymore on appeal.

[00:04:32] Speaker 02:
You don't say anything about the need for an individualized assessment.

[00:04:35] Speaker 02:
Have you?

[00:04:36] Speaker 04:
You know, that was not purposeful.

[00:04:39] Speaker 04:
I believe that we were just continuing on with an as applied challenge.

[00:04:44] Speaker 02:
OK, so your position is still, even though it's not, I don't see it in your briefing on appeal, you contend the district court erred in concluding that no individualized assessment

[00:04:57] Speaker 02:
attends to a G5 as applied challenge here.

[00:05:01] Speaker 02:
That's correct.

[00:05:02] Speaker 02:
You didn't argue that though.

[00:05:07] Speaker 04:
So the government has the burden of showing what is the correct historical regulation.

[00:05:14] Speaker 04:
What is the analog?

[00:05:17] Speaker 04:
They said loyalty, loyalists.

[00:05:21] Speaker 04:
The district court agreed with that assessment so that the fact that

[00:05:26] Speaker 04:
that whether or not somebody took an oath was the historical analog.

[00:05:33] Speaker 04:
We disagree with that and continue disagreeing with that on appeal.

[00:05:37] Speaker 04:
And I do think, so you have to think about what is the, that has to have a similar how and a why behind it.

[00:05:45] Speaker 04:
And really, so what was the oath taking about what were loyalists

[00:05:52] Speaker 04:
Why did they have those laws?

[00:05:56] Speaker 04:
And that's because they viewed people who refused to take an oath as dangerous.

[00:06:02] Speaker 04:
That's a good argument.

[00:06:02] Speaker 04:
You didn't make it.

[00:06:04] Speaker 04:
Well, I didn't mean to not make it.

[00:06:08] Speaker 04:
I was arguing that the court got it wrong.

[00:06:12] Speaker 04:
Like loyalty, oath-taking, and I believe I did argue on appeal that the oath-taking was not the

[00:06:22] Speaker 02:
You did argue that.

[00:06:24] Speaker 02:
And I don't mean to sort of nickel and dime your presentation.

[00:06:29] Speaker 02:
It's just the way in which you understand the as applied challenge and present it to us, I think, has deep significance for how we are to adjudicate this case.

[00:06:38] Speaker 02:
Because if your view is you need to do an individualized assessment for my client to determine whether it's constitutional as to him, and that's because

[00:06:50] Speaker 02:
the principle we're extracting from the historical record is one that supports disarmament based on dangerousness.

[00:06:59] Speaker 02:
Yes.

[00:07:00] Speaker 02:
But you don't connect those dots.

[00:07:03] Speaker 02:
And so I'm not sure what's left of your as applied challenge here if you're not insisting that an individualized assessment is required for G5 in your case.

[00:07:14] Speaker 04:
I am asking that an individualized assessment be required.

[00:07:18] Speaker 04:
That's what we mean by an as applied challenge.

[00:07:20] Speaker 04:
So you have two stages.

[00:07:23] Speaker 04:
Number one, is he a member of the people?

[00:07:25] Speaker 04:
And then if he is a member of the people, which I ask this court to find based on his substantial ties, then is disarming him nevertheless in accord with our historical tradition?

[00:07:36] Speaker 04:
The district court and the government insists that that is because

[00:07:42] Speaker 04:
The correct analog is loyalist laws, and that is the incorrect analog.

[00:07:50] Speaker 04:
It's the why that is the problem here.

[00:07:54] Speaker 04:
And it's because, as I said before, that the reason why they were disarmed, people who refuse to swear an oath, is the legislature determined, or the founders determined, that

[00:08:07] Speaker 04:
there is something suspect about them.

[00:08:10] Speaker 03:
So let's talk about the refusal.

[00:08:13] Speaker 03:
Well, I'm just going to say on the why, isn't it more accurate to say that historically the why was about the fact that loyalty equated with a level of trustworthiness as opposed to not being dangerous, but simply a mark of trustworthiness.

[00:08:33] Speaker 03:
And in that case, isn't that similar here?

[00:08:37] Speaker 04:
I think that it was about more than simple trustworthiness or not.

[00:08:40] Speaker 04:
It was about whether you were somebody who may be an insurrectionist, maybe a threat to the actual nation here.

[00:08:51] Speaker 04:
To pull it out so far as to say it's just about trustworthiness, then you would have to say, well, then is somebody who's been here in the country in an as-applied challenge

[00:09:06] Speaker 04:
since they were a child, without any evidence of dangerousness, then why can the legislature simply disarm them based on a hunch or feeling that they are not trustworthy?

[00:09:24] Speaker 04:
They never have a chance to prove otherwise.

[00:09:27] Speaker 04:
And somebody like Mr. Duque Ramirez has repeatedly

[00:09:30] Speaker 04:
wanted to swear an oath to this country.

[00:09:33] Speaker 04:
He's just been not permitted to.

[00:09:35] Speaker 02:
So the relevant historical laws that are the loyalty laws that are at issue in this case say failing or refusing.

[00:09:46] Speaker 02:
Is that an important distinction?

[00:09:48] Speaker 02:
Because refusing certainly feels like what your client is, according to your position, is not doing.

[00:09:55] Speaker 02:
It's not refusing.

[00:09:56] Speaker 02:
But descriptively, he has failed.

[00:10:00] Speaker 02:
to take the oath, right?

[00:10:01] Speaker 02:
So if the loyalty laws that are in our record have that or, failing or refusing, how should we be thinking about that?

[00:10:10] Speaker 04:
Well, the loyalty laws each permitted a chance to swear the oath.

[00:10:15] Speaker 04:
And so I think it really is about refusal.

[00:10:19] Speaker 04:
When we don't have that here, he has no opportunity to be able to swear an oath that's denied by the government.

[00:10:29] Speaker 04:
the loyalty laws each provided an opportunity to be able to prove and swear that you were loyal to this country.

[00:10:36] Speaker 04:
I think that the principle that underpins all of this is, is this person a danger to this country?

[00:10:47] Speaker 04:
Is that why we should be?

[00:10:48] Speaker 04:
Or do they have, as in Harrison, do they present a

[00:10:56] Speaker 04:
future danger to this country.

[00:10:59] Speaker 01:
Well, you can see that if a person is a recent illegal, that they are not part of the people.

[00:11:07] Speaker 01:
Yes.

[00:11:08] Speaker 01:
Now, if those people are nice people and they're not breaking any laws, why do you say that they are not part of the people?

[00:11:17] Speaker 04:
I think because they have not had an opportunity to show that they have substantial ties and connections to this country.

[00:11:25] Speaker 04:
Somebody who's been here

[00:11:27] Speaker 04:
Mr. Duque Ramirez is now 35 years old.

[00:11:29] Speaker 04:
He's been here since he was six.

[00:11:31] Speaker 04:
He's had years of opportunity to create these ties.

[00:11:36] Speaker 04:
He has them, US citizen wife, US citizen children, et cetera.

[00:11:39] Speaker 04:
Somebody who's just walked into the country has not demonstrated those ties.

[00:11:46] Speaker 04:
And I think that they're therefore out at step one and not a member of the people.

[00:11:56] Speaker 04:
I am going to reserve the rest of my time for rebuttal.

[00:11:59] Speaker 03:
Thank you.

[00:12:10] Speaker 00:
May it please the court, Stephen Krueger on behalf of the United States.

[00:12:14] Speaker 00:
The district court properly denied Mr. Duque Ramirez's motion to dismiss and found that 18 U.S.C.

[00:12:20] Speaker 00:
section 922 G5 is constitutional as applied to Mr. Duque Ramirez.

[00:12:26] Speaker 00:
In Bruin, as this court explained in Rocky Mountain Gun Owners, the Second Amendment provides a two-step balance-shifting inquiry.

[00:12:36] Speaker 00:
At the first step, Mr. Duque Ramirez, as the challenger, is tasked with establishing that the Second Amendment's text, as informed by history, encompasses the conduct he seeks to engage in.

[00:12:48] Speaker 01:
I'm sorry.

[00:12:48] Speaker 01:
You put the microphone.

[00:12:50] Speaker 00:
I apologize.

[00:12:51] Speaker 00:
Slow down a little.

[00:12:52] Speaker 00:
Yes, Your Honor.

[00:12:53] Speaker 00:
What I was saying is in Rocky Mountain Gun Owners v. Polis, this court explained that at the first step, Mr. Duque Ramirez, as the challenger, bears the burden of showing that the conduct he at this point has engaged in is consistent with the text as informed by history.

[00:13:16] Speaker 00:
which is something that Mr. Duque-Ramirez has completely washed over.

[00:13:20] Speaker 00:
He's addressed nothing about how history has viewed the people in the context of the Second Amendment.

[00:13:27] Speaker 00:
He relies almost exclusively on the Supreme Court's decision in Verdugo Urquidez.

[00:13:33] Speaker 00:
But whenever the Supreme Court in Heller was looking at Verdugo Urquidez, it made a couple of changes.

[00:13:40] Speaker 00:
First, Verdugo Urquidez

[00:13:45] Speaker 00:
Talked about the national community and people who had formed substantial ties to make one part of the national community.

[00:13:55] Speaker 00:
When Heller addressed Verdugo Urquaytas, it summarized it as talking about the political community and said nothing about forming substantial ties.

[00:14:05] Speaker 00:
As this court recognized in Huertan Gizar, right after Heller was decided, it acknowledged that

[00:14:14] Speaker 00:
The Supreme Court wasn't writing between, or it didn't require reading between the lines, given the number of times that the Supreme Court addressed citizenship and tied the arms bearing right to citizenship.

[00:14:28] Speaker 00:
I'm not asking this court to go as far as to say that the people's limited to citizens, Radugo were quite as probably, forecloses that.

[00:14:36] Speaker 00:
But I would submit that an alien who is illegally unlawfully present,

[00:14:42] Speaker 00:
is far appealed of what either political community means.

[00:14:46] Speaker 01:
So it's your position that no matter how long a person has been in the country, as long as they're illegal, they're not part of the people.

[00:14:55] Speaker 01:
Yes, Your Honor.

[00:14:57] Speaker 01:
Period.

[00:14:57] Speaker 01:
There's no trustworthiness test.

[00:15:01] Speaker 01:
There's no any type of test to see if they're loyal.

[00:15:06] Speaker 00:
Correct, Your Honor.

[00:15:07] Speaker 00:
And that's consistent both with precedent and with history.

[00:15:11] Speaker 00:
Well, it's consistent, but is it fair?

[00:15:14] Speaker 00:
Your Honor, the question for this court isn't to determine whether the second amendment is fair or not.

[00:15:22] Speaker 01:
The question for this court is- We're talking about whether a person becomes part of the people first.

[00:15:29] Speaker 00:
Well, the question for this court is whether Mr. Dickey-Ramirez has shown, has met his burden of showing that he is part of the people.

[00:15:38] Speaker 00:
And in doing so, determining what the scope of the second amendment is.

[00:15:43] Speaker 00:
And as Rocky Mountain Gunners, the polls explained, that's an inquiry that's both based on text and history.

[00:15:50] Speaker 02:
So is it the government's position that the people, the phrase the people does not mean the same thing across amendments?

[00:15:59] Speaker 00:
My position and our position

[00:16:01] Speaker 00:
First would be that, at least based on the way the precedents have developed for the second amendment, the court must hew very closely to history.

[00:16:11] Speaker 00:
And so while another amendment may look at reasonableness, for example, in the fourth amendment, and may look less at history, the Supreme Court has tied us very closely to history.

[00:16:21] Speaker 02:
That being said- I thought that step one of Bruin was mostly textual, no?

[00:16:27] Speaker 00:
Your Honor, Rocky Mountain Gunner says, text as informed by history.

[00:16:31] Speaker 02:
Okay.

[00:16:32] Speaker 02:
So then it also says that we give the two, the, the, the, the phrase, the people, the same meaning across amendments.

[00:16:40] Speaker 00:
And at the end of the day, across amendments and across the entire constitution, I would note that I believe it's article one, section two says that the representatives shall be chosen by the people.

[00:16:51] Speaker 00:
Yet Congress for a long period of time, time has held that, uh, people who were illegally unlawfully present aren't allowed to vote for members of the house of representatives.

[00:17:03] Speaker 03:
And so, well, I still struggle with why you don't, why, what's your argument that Verdugo or Kittas is not, is not really the controlling language here.

[00:17:16] Speaker 03:
Why, why the language as far as the fourth amendment doesn't apply to the eighth.

[00:17:21] Speaker 03:
And the only thing I heard you say was that in Heller, which did not involve this issue, they made a comment or a straight comment about summarizing Verdugo.

[00:17:32] Speaker 03:
uh, saying that, uh, Verdugo involved a political community.

[00:17:38] Speaker 03:
But I guess I'm, if that, is that all you have as to why Verdugo doesn't apply?

[00:17:43] Speaker 03:
And if so, what is the meaning of that?

[00:17:45] Speaker 03:
And it seems like a red herring.

[00:17:47] Speaker 03:
Heller, the issue wasn't being considered.

[00:17:50] Speaker 00:
Well, so to start with, Verdugo or Cuaidas didn't address this particular situation.

[00:17:55] Speaker 03:
Well, certainly, but it certainly has some very specific language in connection with the Fourth Amendment that would seem to be applicable here.

[00:18:04] Speaker 00:
So a couple of things that I would push forth beyond Heller, but also in relation to Heller.

[00:18:11] Speaker 00:
So Heller talks about the political community.

[00:18:14] Speaker 00:
In Kirkshank, the Supreme Court explained that citizens are members of the political community.

[00:18:19] Speaker 00:
The Supreme Court had cited Kirk, Schenck, and Heller as well.

[00:18:23] Speaker 00:
But even when we get, let me raise one more Supreme Court case, Kuang Hai Chu, where this court explained that an alien's identity with our society begins with mere lawful presence, and an alien starts being invested with the rights guaranteed by the Constitution when they lawfully enter and reside in the country.

[00:18:45] Speaker 00:
Beyond that, there's also United States ex rel Turner v. Williams, which, going just to Verdugo or quiet as, talks about in the First Amendment how an individual, if you'll give me just one second so I don't slaughter the quote, that an excludable alien is not entitled to First Amendment rights because he does not become one of the people to whom those things are secured by our constitution by an attempt to enter forbidden by the law.

[00:19:13] Speaker 00:
And so when you add all of these together, it, I think, paints a very clear picture.

[00:19:20] Speaker 00:
But even beyond what the Supreme Court has said, if we look at history, you have the English Bill of Rights, you have Blackstone, you have Holdsworth, that all say that the right to bear arms is a right of the subject.

[00:19:34] Speaker 00:
You have Amir de Vattel, who the Supreme Court has repeatedly relied on as enunciating principles of law that were applicable at the founding, who says that aliens do not participate in the rights of all citizens.

[00:19:50] Speaker 00:
I think perhaps the most persuasive is you have the states of Alabama, Arkansas, Connecticut, Kentucky, Maine, Mississippi, Pennsylvania, Tennessee, and Texas, all prior to the ratification of the 14th Amendment,

[00:20:04] Speaker 00:
that had Second Amendment equivalents, but used citizen rather than people.

[00:20:13] Speaker 00:
And I think especially Pennsylvania is perhaps the most enlightening because in 1776, in their Declaration of Rights, they used the term the people.

[00:20:21] Speaker 00:
But when they ratified their state constitution in 1790, two years before the Second Amendment was ratified, they used the term the citizens.

[00:20:33] Speaker 02:
Council, how should we be thinking about our decision in Hutron-Gazar in resolving this appeal?

[00:20:42] Speaker 02:
Is it the government's position that that case was abrogated by Bruin?

[00:20:50] Speaker 00:
For the most part, yes, that case was abrogated.

[00:20:52] Speaker 02:
Can you tell me exactly how?

[00:20:55] Speaker 00:
The first part of the Second Amendment analysis in where Don Geyser simply said, we're going to assume that the plain text applies.

[00:21:04] Speaker 00:
It explained that the parties didn't brief the issue and that it was a large and complicated question.

[00:21:10] Speaker 00:
concluded that the easier path to take would have been to go to the second prong that was prevailing at the time and concluded that 922 G5A was constitutional under intermediate scrutiny.

[00:21:23] Speaker 00:
That second, the holding, that second part was abrogated by Bruin.

[00:21:27] Speaker 02:
I think I agree with that.

[00:21:29] Speaker 02:
The first part was not though, right?

[00:21:31] Speaker 00:
The first part was an assumption and it was an explanation that it wasn't briefed by the parties and so

[00:21:36] Speaker 02:
Right, but Bruin, what we know from the Supreme Court, what we've learned since Butron-Gazar, does not disturb that panel's analysis of Bruin's step one, correct?

[00:21:52] Speaker 00:
The reason I'm hesitant to fully agree with you is because I don't think there was ever an actual holding as to the first part.

[00:22:01] Speaker 03:
You're saying it was an assumption, and so it wasn't necessarily a holding.

[00:22:06] Speaker 00:
Correct.

[00:22:06] Speaker 00:
It wasn't a holding, and therefore there was nothing to abrogate.

[00:22:10] Speaker 00:
Ultimately, this is the way the Fifth and the Eighth Circuits have viewed it on the first prompt.

[00:22:18] Speaker 00:
Additionally, the Fourth and the Eleventh Circuits, while not saying that individuals are not part of the people, excuse me, have not said that illegal or unlawful aliens are not part of the people, specifically said that they fall outside of the scope of the Second Amendment.

[00:22:34] Speaker 02:
So could you, and I'm sure this is in your briefing, but could you articulate precisely what the government contends the rule should be?

[00:22:43] Speaker 02:
You said it's not citizenship.

[00:22:45] Speaker 02:
So what is the definition that we should take with the text informed by history of the people for purposes of the Second Amendment?

[00:22:55] Speaker 00:
So, Your Honor, I'm not sure I'm allowed to.

[00:22:56] Speaker 00:
I have authorization to concede a specific hard line.

[00:23:00] Speaker 00:
If you in this case, in this case, or more specifically in future cases, I would submit if the court wants me to speculate without holding the government, I'm happy to offer my personal opinion, but I don't want to know how you would like us to write this in your favor on the first prong or the first step of brewing.

[00:23:19] Speaker 02:
What is the, what is the holding?

[00:23:21] Speaker 00:
So the holding would be that Mr. Duque Ramirez has failed to show or failed to satisfy his burden of showing that he or illegal alien or illegally or unlawfully present aliens are part of the people based on text as informed by history.

[00:23:38] Speaker 00:
This court, similar to what it did in Harrison, can simply say it doesn't need to go any further than that.

[00:23:44] Speaker 00:
It doesn't need to address lawfully present aliens.

[00:23:47] Speaker 00:
It doesn't need to address lawful permanent residents.

[00:23:49] Speaker 00:
It doesn't need to address people who are here on immigrant visas rather than non-immigrant visas.

[00:23:57] Speaker 00:
These are questions that either simply don't have an issue before this court

[00:24:04] Speaker 00:
or involve statutes that aren't at issue before this court.

[00:24:07] Speaker 00:
For example, 922 G5B, which deals with lawfully present aliens who are here on non-immigrant reasons.

[00:24:15] Speaker 02:
You're almost out of time, and I have some more questions for you.

[00:24:18] Speaker 02:
That's all right.

[00:24:20] Speaker 02:
Turning to the second step, what is the principle or the why that you draw from the historical loyalty laws?

[00:24:29] Speaker 02:
And specifically, is it one that sounds in

[00:24:34] Speaker 02:
dangerousness or allegiance?

[00:24:39] Speaker 00:
So let me answer, give you the most direct answer I can, then try and flesh it out a little bit.

[00:24:44] Speaker 00:
As far as the principle, I would point the court to the principle that the 11th circuit drew out in Hymenes Shalom, where the 11th circuit said that an individual's undivided allegiance to the sovereign, his membership in the political community, is a precondition of the right to keep and bear arms.

[00:25:01] Speaker 00:
So to

[00:25:02] Speaker 00:
I think more fully flesh that out.

[00:25:05] Speaker 00:
What history has taught us, what history has told us is that a person owes allegiance to their, their native country here for Mr. Dukes Ramirez, Mexico.

[00:25:16] Speaker 00:
And that when a person enters into a foreign country, they continue to have that presumed allegiance and that creates a sufficient risk of dangerousness.

[00:25:29] Speaker 02:
Okay.

[00:25:30] Speaker 02:
So I was wondering where this was going.

[00:25:33] Speaker 02:
If it's allegiance and it's sort of categorical, understood categorically, not related to dangerousness, I could see how the loyalty laws here, which say fail or refuse, would support no individualized assessment of dangerousness.

[00:25:53] Speaker 02:
Because that's not needed if the principle that we're looking at does not sound in dangerousness.

[00:26:00] Speaker 02:
But if it does, and it seems to me that you connect allegiance and dangerousness as the principle that we're extracting from the historical record, then why shouldn't Mr. Duque Ramirez have an opportunity on remand to show, and as applied challenge, that he is not dangerous?

[00:26:23] Speaker 00:
If I can push back a little bit on the premise of your question, I think

[00:26:28] Speaker 00:
Dangerousness is the next step.

[00:26:30] Speaker 00:
That is one of the reasons why one could be disarmed.

[00:26:36] Speaker 00:
And as this court explained in Harrison, that is a principle that can be drawn from loyalty laws or the loyalist laws in addition to other laws.

[00:26:46] Speaker 00:
But the narrower principle

[00:26:49] Speaker 00:
has to do specifically with loyalty and allegiance.

[00:26:53] Speaker 00:
That's something that every circuit to address this has, or excuse me, the, specifically the fourth, Your Honor, I see that I'm out of time, can I finish this up?

[00:27:02] Speaker 03:
Yes, please.

[00:27:03] Speaker 00:
The, specifically the fourth, seventh, and eleventh circuits have specifically addressed saying that this is an allegiance issue and that individualization is not required.

[00:27:13] Speaker 02:
Because it has more of a categorical understanding in that, if you look at the principle that we're extracting as allegiance, it's more categorical and not individualized, right?

[00:27:24] Speaker 00:
Yes, Your Honor.

[00:27:25] Speaker 00:
If I may make one more statement.

[00:27:29] Speaker 00:
Just one.

[00:27:30] Speaker 03:
Certainly.

[00:27:31] Speaker 03:
Finish up.

[00:27:31] Speaker 00:
Thank you.

[00:27:33] Speaker 00:
I just wanted to push back on one thing that Mr. Duque Ramirez has argued, which is that he's never had the opportunity, as we've argued in our brief, Mr. Duque Ramirez could do what the law requires, which is go through the immigration process like everyone else.

[00:27:48] Speaker 00:
Thank you.

[00:27:51] Speaker 03:
Thank you.

[00:27:51] Speaker 03:
Rebuttal?

[00:27:59] Speaker 04:
Well, I think

[00:28:01] Speaker 04:
Two things.

[00:28:01] Speaker 04:
So if allegiance is the broad-based category and we're only basing disarmament on whether or not you have sworn an oath, that implicates many things.

[00:28:18] Speaker 04:
You have legal permanent residents who are not naturalized.

[00:28:22] Speaker 04:
They have never sworn an oath or they have not sworn allegiance to this country.

[00:28:26] Speaker 04:
And so that would mean that they

[00:28:28] Speaker 04:
could be disarmed, don't have second amendment rights.

[00:28:31] Speaker 04:
People who are citizens, I have never sworn an oath beyond my federal public defender, swearing to uphold the constitution.

[00:28:41] Speaker 04:
But as a citizen, we do not necessarily swear oath.

[00:28:45] Speaker 04:
Mr. Duque Ramirez himself, however, grew up in Oklahoma City public schools where he no doubt pledged allegiance many, many times.

[00:28:54] Speaker 04:
That is a tradition that is still ongoing.

[00:28:57] Speaker 04:
So I think that to make it such a straight line category, there's no individualized, you either swear an oath or you're not, is much, much too narrow for this assessment.

[00:29:12] Speaker 04:
And I think that when you, so our job is to look at history and the justifications behind the laws that existed at that time for disarming people.

[00:29:27] Speaker 04:
And in this case, the loyalty oaths, they serve, the reason behind them again was dangerousness.

[00:29:37] Speaker 04:
They thought that those people were a threat to the country.

[00:29:41] Speaker 04:
I believe that Mr. Duque Ramirez has proven through his life that he is not that kind of a danger and that he should be able to make that as applied challenge.

[00:29:52] Speaker 04:
We have other as applied challenges available to us

[00:29:56] Speaker 04:
So far, in other 922 cases, and there is not reason for this one to be different.

[00:30:05] Speaker 03:
With that, I will leave it.

[00:30:07] Speaker 03:
Thank you, counsel.

[00:30:08] Speaker 03:
Thank you.

[00:30:09] Speaker 03:
The case will be submitted.

[00:30:12] Speaker 03:
Counselors excused.

[00:30:15] Speaker 03:
Thank you very much for your helpful presentations.