[00:00:00] Speaker 02:
Next this morning is United States versus Morgan, 24-31-41.

[00:00:08] Speaker 02:
Council?

[00:00:10] Speaker 01:
May it please the Court, William Blaser for the United States.

[00:00:12] Speaker 01:
I'll do my best to reserve three minutes for rebuttal.

[00:00:15] Speaker 01:
The District Court erred in this case by striking down Section 922-0's prohibition on possession of machine guns, and this Court should reverse.

[00:00:24] Speaker 01:
Argument here this morning is pretty straightforward based on the Supreme Court's decision in Heller, which said that the Second Amendment protects only those firearms that are typically possessed by law-abiding citizens for lawful purposes, such as self-defense.

[00:00:39] Speaker 01:
Before the Supreme Court's decision in Bruin, all of the circuits to consider the question

[00:00:44] Speaker 03:
Yeah, I hate to interrupt you so early, but you're saying Heller said that?

[00:00:48] Speaker 01:
Heller said that, yes, Your Honor.

[00:00:49] Speaker 03:
Well, on page 625, I don't think that's exactly the word self-defense isn't in the excerpt in 625, and I don't think it's in the excerpt in 627 that you were relying on.

[00:00:59] Speaker 01:
Your Honor, I believe, and I've...

[00:01:01] Speaker 01:
I apologize if I can't point to the exact page number.

[00:01:03] Speaker 01:
I believe it was, it's earlier, it's perhaps 624.

[00:01:07] Speaker 01:
It was when, in Heller's discussion about the types of firearms that were in common use and that were brought by militia members, there it referred to self-defense.

[00:01:16] Speaker 01:
And so I agree that subsequently when it said those typically possessed by law abiding citizens for lawful purposes, it didn't add self-defense, but Heller also elsewhere explained that those lawful purposes are self-defense, hunting, and militia service.

[00:01:30] Speaker 01:
So before Bruin, the courts of appeals were in agreement that that part of Heller decided the question and that machine guns could be constitutionally regulated under the Second Amendment.

[00:01:43] Speaker 01:
So really the only question is whether Bruin and subsequently Rahimi changed anything in that analysis and whether Bruin requires, as the defense and the district court suggest, that this court look for sort of a one-to-one analog of an exact historical

[00:01:59] Speaker 01:
regulation that's similar to a regulation on machine guns.

[00:02:03] Speaker 02:
Well, let me ask you, is the common use issue a Bruin step one question or a Bruin step two question?

[00:02:14] Speaker 01:
So Your Honor, this court's decision in the Rocky Mountain Gun Owners versus Polis case indicates that it's a step one question.

[00:02:20] Speaker 01:
But we don't think that this court needs to sort of get into those kind of questions.

[00:02:24] Speaker 01:
Because whether you can treat it as step one, step two, text, history, tradition, everything indicates that that rule exists.

[00:02:33] Speaker 01:
The Supreme Court has said it exists.

[00:02:36] Speaker 05:
Doesn't it go to the definition of arm, which would be in step one?

[00:02:41] Speaker 01:
Your Honor, yes, it does to a certain extent.

[00:02:44] Speaker 01:
Although, to be clear, the government is not arguing that machine guns are not arms in the sense of bearable weapons.

[00:02:49] Speaker 01:
They're clearly bearable weapons.

[00:02:51] Speaker 01:
But it does go to the types of arms that are protected by the Second Amendment, which depends on the historical understanding of the term arms, or perhaps the right of the people to keep and bear arms.

[00:03:01] Speaker 01:
Again, I don't think that the court needs to sort of get hung up on the step one.

[00:03:07] Speaker 05:
It might matter if it affects who has the burden of proof.

[00:03:10] Speaker 01:
Your Honor, let's say we have the burden of proof.

[00:03:12] Speaker 01:
Let's say it's an entirely a step two question.

[00:03:15] Speaker 01:
We're still happy to bear that burden.

[00:03:17] Speaker 01:
But I think that the reason that you don't need to decide those questions is that the Supreme Court has already decided.

[00:03:23] Speaker 02:
No, we wouldn't be happy to bear the burden if we don't think you had met it on step two.

[00:03:28] Speaker 01:
Well, I suppose we wouldn't be, Your Honor.

[00:03:31] Speaker 01:
We wouldn't qualify.

[00:03:32] Speaker 01:
Right.

[00:03:32] Speaker 01:
But just to explain, the Supreme Court said that the common use limitation

[00:03:36] Speaker 01:
accords with history.

[00:03:37] Speaker 01:
So it said this twice in Heller.

[00:03:38] Speaker 01:
The court said, the Second Amendment does not protect those weapons not typically possessed by law abiding citizens for lawful purposes, such as short barreled shotguns.

[00:03:47] Speaker 01:
That accords with the historical understanding of the scope of the right.

[00:03:51] Speaker 01:
And then a few paragraphs later, again, Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time.

[00:04:00] Speaker 01:
We think that limitation is fairly supported by the historical tradition

[00:04:03] Speaker 01:
prohibiting the carrying of dangerous and unusual weapons and Heller went on to cite 12 historical sources.

[00:04:09] Speaker 01:
So whether this is a textual question, whether it's text plus history and tradition, we think Heller has already decided the question and therefore this court needn't re-examine whether or not that common use limitation accords with history.

[00:04:23] Speaker 01:
and need only consider the question of whether machine guns are those types of weapons that are in common use or typically possessed by law-dividing citizens for lawful purposes.

[00:04:35] Speaker 03:
No, I'm sorry.

[00:04:37] Speaker 03:
That's not what you just said a couple of minutes ago.

[00:04:39] Speaker 03:
Lawful purpose, i.e.

[00:04:41] Speaker 03:
self-defense.

[00:04:42] Speaker 01:
Yes.

[00:04:43] Speaker 03:
And so, do you mind if I ask one question?

[00:04:47] Speaker 03:
Yeah.

[00:04:49] Speaker 03:
How do the three of us do this empirical analysis to see, OK, well, there's 170,000 registered owners of machine guns.

[00:04:58] Speaker 03:
And let's say 25% of those are members of a Crips gang.

[00:05:05] Speaker 03:
30% are collectors, which, as you just said, that is not a protected purpose, only for self-defense.

[00:05:15] Speaker 03:
So how many of those?

[00:05:19] Speaker 03:
170,000 registered owners of machine guns, or 740,000, whatever you call it, use machine guns for self-defense?

[00:05:31] Speaker 03:
Or is that empirical question belonged to a district court that are better equipped to decide factual empirical questions than I am?

[00:05:43] Speaker 01:
So, Your Honor, we think this court is well equipped to decide the question because the sort of top line question is the constitutional question.

[00:05:51] Speaker 01:
And the statistical evidence that we've cited is sort of one component of that, but it's certainly not just a numerical question.

[00:05:59] Speaker 01:
And I don't think that the court should focus sort of myopically on the number of machine guns that are possessed in the United States by particular groups of people, because the common... I'm not worried about that.

[00:06:09] Speaker 03:
I'm worried about the qualifier that you pointed out earlier.

[00:06:16] Speaker 03:
Forget if it's a million or 100,000 or 200,000, how many of those owners of machine guns use it for self-defense?

[00:06:24] Speaker 01:
Your Honor, I would say a very, very small number, but the government's position is not necessarily that the Constitution wouldn't protect the use of machine guns by those who, I think those who have complied with the National Firearms Act prior to 1986 and who have registered machine guns, we're not disputing that they possess those firearms for lawful purposes.

[00:06:46] Speaker 01:
Our contention is that machine guns are not the kind of weapons that are typically possessed by law-abiding Americans in general for lawful purposes such as self-defense, hunting, et cetera.

[00:06:58] Speaker 01:
Again, this is why I don't think it's purely a numbers inquiry.

[00:07:00] Speaker 01:
This court can look at whether machine guns are well adapted to lawful purposes such as self-defense.

[00:07:07] Speaker 01:
They're not.

[00:07:08] Speaker 01:
They spray bullets at a very high rate and are very difficult to control.

[00:07:12] Speaker 01:
This court can look at how legislatures have responded to machine guns over time.

[00:07:17] Speaker 01:
And as we point out in our brief, very soon after the advent of machine guns becoming available to the public in the 1920s,

[00:07:24] Speaker 01:
States began responding with restrictions, and the federal government did within the first decade.

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This court can simply look at common sense.

[00:07:33] Speaker 01:
This court can look at how legislatures, even today, have considered the question.

[00:07:37] Speaker 01:
And I think all of these factors together indicate, as again, prior to Bruin, the other circuits had unanimously concluded, machine guns are not the kind of firearms that are in common use for lawful purposes.

[00:07:51] Speaker 02:
Let me ask you,

[00:07:53] Speaker 02:
about an argument that Mr. Morgan is making.

[00:07:58] Speaker 02:
Why isn't Mr. Morgan correct that machine gun use is not more common today because Congress banned possession in 1986?

[00:08:07] Speaker 01:
Sure.

[00:08:08] Speaker 01:
Your Honor, I understand the concern that the common use inquiry, in a way, feels circular.

[00:08:13] Speaker 01:
But I think there's a few answers to that.

[00:08:16] Speaker 01:
First of all, it's not just Section 922-0 that has led to there being very few firearms, very few machine guns possessed today, especially for lawful purposes.

[00:08:27] Speaker 01:
that there's a whole host of reasons for that, going back to the state laws that I mentioned that were adopted in the 1920s and 30s, and the National Firearms Act, which Congress adopted in 1934, which at the time, the $200 registration requirement under the National Firearms Act was effectively a prohibition.

[00:08:43] Speaker 01:
So although there wasn't a true prohibition in place until 1986, the National Firearms Act

[00:08:49] Speaker 01:
dramatically limited the number of machine guns.

[00:08:52] Speaker 01:
But I don't think it should be a concern, the sort of circularity of the common use test, because the common use test is just one way of getting at whether or not the, whether or not legislatures have traditionally, throughout our country's history, regulated a particular type of firearm.

[00:09:10] Speaker 01:
And so it's true, we don't have founding era legislative enactments here, because machine guns didn't exist at the founding era,

[00:09:18] Speaker 01:
But as we've demonstrated in our brief, there is a through line of regulation of dangerous and unusual weapons such as upon their advent machine guns.

[00:09:29] Speaker 01:
And the common use inquiry is one way of getting at whether these are the kinds of weapons that have gone essentially unregulated since their existence or whether instead they are those that traditionally have been regulated by legislatures.

[00:09:42] Speaker 05:
The Supreme Court has over the years provided some dicta that indicates that machine guns could be banned lawfully despite the Second Amendment.

[00:09:59] Speaker 05:
The District Court basically said that that's dicta and I'm not going to follow it.

[00:10:06] Speaker 05:
what you think we should do?

[00:10:08] Speaker 01:
Your Honor, well, you certainly shouldn't do what the district court did.

[00:10:11] Speaker 01:
I think that this court should weigh that dicta very seriously.

[00:10:14] Speaker 01:
I don't think that you need to just decide this case purely on that dicta, though, because there's actually part of, I think, more of a core part of Heller that we're relying on here, the common use inquiry.

[00:10:24] Speaker 01:
And so Heller's suggestion in dicta that it would be a startling result that a prohibition on machine guns

[00:10:31] Speaker 01:
A regulation on machine guns would be unconstitutional.

[00:10:34] Speaker 01:
I think this court should weigh that heavily.

[00:10:36] Speaker 01:
This court is bound by Supreme Court dicta.

[00:10:40] Speaker 01:
But we think that there's more than just that.

[00:10:42] Speaker 01:
And so we wouldn't ask the court to rely solely on that.

[00:10:45] Speaker 05:
What about the statement in Heller that

[00:10:49] Speaker 05:
M16 rifles and the like may be banned.

[00:10:54] Speaker 05:
Is a machine gun like an M16 rifle?

[00:10:58] Speaker 01:
Yes, Your Honor, it is.

[00:10:59] Speaker 01:
So an M16 is a machine gun that can be, ordinarily it's selective fire, but it can be fired either semi-automatically or automatically.

[00:11:08] Speaker 01:
And I think that seems to be what the Supreme Court was referring to when it mentioned M16 rifles and the like.

[00:11:13] Speaker 01:
But one of the guns I would mention here

[00:11:15] Speaker 01:
is effectively an AR-15 that's been converted to fire automatically and that's, it's virtually indistinguishable from an M16 other than the fact that it doesn't have that selective fire mechanism.

[00:11:27] Speaker 01:
So for all the reasons that we've laid out in our brief and that we've mentioned here, we think that the district court got this wrong.

[00:11:34] Speaker 01:
I'm happy to address any questions about preservation if the court has them.

[00:11:38] Speaker 01:
But as we explain in our reply brief, the district court understood us to be arguing that machine guns are not in common use today and not be the argument that the defense has suggested we made.

[00:11:49] Speaker 01:
So the argument is directly before this court

[00:11:53] Speaker 01:
We don't think, Judge Baccarat, that there's any reason for the district court to conduct any additional inquiry into the exact numbers of firearms that are possessed by particular groups.

[00:12:03] Speaker 01:
And instead, this court can conclude as more than three dozen district courts have done since Bruin, and as all the circuits did prior to Bruin, that the Second Amendment does not protect the right to possess machine guns.

[00:12:15] Speaker 05:
Do you agree with the district court's definition of arms, that it's anything that can be carried in the hand?

[00:12:21] Speaker 01:
Your honor, that definition was one of the definitions from Heller.

[00:12:26] Speaker 01:
And so again, we're not disputing that in one sense a machine gun is of course an arm, right?

[00:12:30] Speaker 01:
It's an offensive or defensive weapon.

[00:12:33] Speaker 01:
What we argue is that it's not the type of arm that's protected by the Second Amendment.

[00:12:39] Speaker 05:
Well, the first step is to decide whether it's protected by the Second Amendment.

[00:12:43] Speaker 01:
Correct.

[00:12:44] Speaker 01:
Yes, Your Honor, but Heller specifically said that there are types of weapons that are, and weapons effectively are arms, there are types of weapons that are not protected by the Second Amendment.

[00:12:53] Speaker 05:
Right.

[00:12:54] Speaker 05:
So I guess I'm still struggling.

[00:12:55] Speaker 05:
I'm kind of a, you know, I've got a formula.

[00:12:59] Speaker 01:
Sure.

[00:12:59] Speaker 05:
I can plug it in.

[00:13:00] Speaker 05:
It seems like we're under step one here.

[00:13:03] Speaker 01:
Your Honor, and I think that would be consistent with this court's decision in Rocky Mountain Gunner versus Polis.

[00:13:09] Speaker 05:
Which we're bound by, right?

[00:13:10] Speaker 01:
That's correct, Your Honor.

[00:13:11] Speaker 01:
And that would be consistent with that.

[00:13:12] Speaker 01:
And the government's view, whether it's step one, step two, text, history, tradition, all of them point in the same direction.

[00:13:18] Speaker 01:
And this court can, I think, rely on Heller without sort of drilling down into exactly the right way to analyze it under a particular step of government.

[00:13:26] Speaker 05:
Well, if we go to step two and if we follow

[00:13:30] Speaker 05:
the Rocky Mountain case and say that we are bound by party presentation, government didn't present much of anything.

[00:13:40] Speaker 01:
Your Honor, that's true that we did not below.

[00:13:41] Speaker 01:
But again, as we explained in our brief, this Court has said that the government can introduce new authority on appeal.

[00:13:48] Speaker 01:
And the historical inquiry here isn't a factual inquiry, it's a legal inquiry.

[00:13:52] Speaker 01:
And the reason that we didn't introduce a long

[00:13:56] Speaker 01:
list of historical authority in the district court is we understood this to be already decided by Heller.

[00:14:02] Speaker 01:
Heller did the historical work.

[00:14:04] Speaker 01:
It cited 12 historical sources.

[00:14:06] Speaker 01:
To support the principle, and principles are important, especially after Rahimi, support the principle that weapons that are dangerous and unusual and are not in common use can be regulated.

[00:14:18] Speaker 02:
Counsel, we're on an as-applied challenge.

[00:14:21] Speaker 02:
Yes, Your Honor.

[00:14:24] Speaker 02:
It seems like a lot of the arguments we've been hearing sound more like arguments in response to a facial challenge.

[00:14:32] Speaker 02:
But Mr. Morgan had particular types of machine guns.

[00:14:37] Speaker 02:
And shouldn't the discussion be at that level of specificity if it's an as-applied challenge?

[00:14:42] Speaker 01:
Your Honor, certainly this Court, I think, can look at the types of weapons that he had.

[00:14:46] Speaker 01:
But we think all of our arguments that support machine gun bans in general

[00:14:50] Speaker 01:
would support the application of the statute to the particular weapons that he had in this case, a Glock conversion switch that was possessed in connection with a Glock and the converted AR-15 firearm.

[00:15:01] Speaker 01:
So for all these reasons, we'd ask the court to reverse the district court's decision.

[00:15:12] Speaker 04:
Thank you.

[00:15:13] Speaker 04:
All right.

[00:15:13] Speaker 04:
May it please the courts.

[00:15:15] Speaker 04:
Dan Hansmeyer on behalf of Mr. Morgan.

[00:15:19] Speaker 04:
So I guess I will start with this discussion of Heller's dicta, because Judge McHugh, you seem to be convinced that maybe it's a problem for me.

[00:15:28] Speaker 05:
Well, I think, let me just be clear, I think the problem is the district court just dismissed it, and we have authority that tells us that we're bound as much by the dicta as by the holding, and so I find some difficulty in the analysis of the district court to just tee it up for you.

[00:15:48] Speaker 04:
OK, so I think what the district court was saying was a few things, maybe not as clear as we would like.

[00:15:55] Speaker 04:
But one is that the discussion in Heller about machine guns was, I mean, the bulk of the discussion comes from a discussion of Miller, which is about the National Firearms Act, which is not a prohibition on the possession of machine guns.

[00:16:11] Speaker 04:
So I think that dicta,

[00:16:14] Speaker 04:
about the National Firearms Act doesn't do much work here because we're not talking about the National Firearms Act.

[00:16:21] Speaker 04:
We're talking about 922.

[00:16:22] Speaker 05:
But Heller didn't limit it to licensing and regulation.

[00:16:28] Speaker 05:
Heller said it can be banned.

[00:16:30] Speaker 04:
So that's where I was going next.

[00:16:32] Speaker 04:
So what they say is M16s and the like.

[00:16:35] Speaker 04:
So just to be clear as an as applied challenge, this is not an M16 rifle.

[00:16:41] Speaker 04:
These are

[00:16:42] Speaker 04:
this is essentially a semi-automatic rifle that can shoot automatically and a handgun that can shoot automatically.

[00:16:49] Speaker 04:
Now those things are different.

[00:16:51] Speaker 04:
The M16 rifle, that's the military-style rifle that just feeds bullets in.

[00:16:55] Speaker 04:
You can shoot with a semi-automatic rifle.

[00:16:58] Speaker 04:
There's a limit to how many bullets are gonna come out because you don't have an unlimited clip, especially with a handgun.

[00:17:04] Speaker 04:
You're gonna have less bullets coming out of the clip than you are those 500 round,

[00:17:11] Speaker 04:
things that are attached to machine guns.

[00:17:15] Speaker 04:
So if this were an M16, I agree, I'd have a problem.

[00:17:19] Speaker 04:
Now the and the like, I don't know what that means.

[00:17:23] Speaker 04:
So it could mean the cannon, machine guns attached to airplanes.

[00:17:30] Speaker 04:
Does it mean a converted semi-automatic assault weapon?

[00:17:35] Speaker 04:
I don't know if it does.

[00:17:36] Speaker 05:
Well, Heller says a sold off shotgun can be banned, right?

[00:17:40] Speaker 04:
Well, that's true, but that's an entirely different thing, I think.

[00:17:45] Speaker 05:
I mean, you know, they're getting at something there, and they talk about that there are arms in common use for lawful purposes like self-defense, right, in order to be an arm protected by the Second Amendment.

[00:18:01] Speaker 04:
So the sawed-off shotgun aspect of this really comes from Miller.

[00:18:06] Speaker 04:
And Miller essentially holds that sawed-off shotguns were not, they could be regulated under the National Firearms Act because at the time of the founding, you wouldn't use a sawed-off shotgun.

[00:18:18] Speaker 04:
A militia person wouldn't bring a sawed-off shotgun to militia service.

[00:18:24] Speaker 04:
And I think the implication there is that because the gun itself has been altered,

[00:18:30] Speaker 04:
it is not something, it can be considered dangerous and unusual.

[00:18:34] Speaker 05:
Where do you, I mean, first of all, there's nothing in Heller that limits that to Miller.

[00:18:44] Speaker 05:
It's a broad statement, it's 625, that you can ban sawed-off shotguns.

[00:18:51] Speaker 05:
And it has no discussion in the fact that it's altered, nor does it say anything about the M16s and the like being altered.

[00:19:00] Speaker 05:
So where do you pull that it's okay if it's not altered?

[00:19:04] Speaker 05:
I don't find that analysis anywhere in the Supreme Court cases.

[00:19:10] Speaker 04:
Well, it's in Miller.

[00:19:12] Speaker 04:
That's where it's at.

[00:19:13] Speaker 04:
Miller talks about how there were regulations at the founding that instructed members of the militia to not bring shortened guns with them.

[00:19:24] Speaker 04:
That's where it comes from.

[00:19:25] Speaker 04:
I agree that the discussion in Heller is not well-developed.

[00:19:31] Speaker 04:
I can't do anything about it.

[00:19:34] Speaker 04:
I don't know why they said what they said and they didn't say what they didn't say.

[00:19:40] Speaker 04:
But I think this is the problem with polling from dicta, is that it's dicta.

[00:19:44] Speaker 04:
It wasn't considered.

[00:19:46] Speaker 05:
We know that the Second Amendment has limits, because the Supreme Court has told us so.

[00:19:52] Speaker 05:
So we're trying to figure out what are those limits.

[00:19:56] Speaker 05:
You know, the district court said it's an arm if you could carry it.

[00:20:00] Speaker 05:
I mean, if I had a surface-to-air missile that I can carry, is that protected by the Second Amendment?

[00:20:06] Speaker 05:
Would you think so?

[00:20:07] Speaker 05:
A surface-to-air missile that you could carry?

[00:20:10] Speaker 05:
They're shoulder-launched.

[00:20:12] Speaker 04:
Yeah.

[00:20:14] Speaker 05:
Is that okay?

[00:20:15] Speaker 04:
I don't know.

[00:20:18] Speaker 05:
What about a hand-held nuclear weapon?

[00:20:23] Speaker 04:
I mean, I think by hand-held, with respect to firearms, what Bruin envisioned was something that looked like a firearm.

[00:20:36] Speaker 04:
That's how I interpret that language.

[00:20:37] Speaker 04:
So I don't interpret Bruin or Heller as talking about the cannon.

[00:20:42] Speaker 04:
That's not how I read the language.

[00:20:46] Speaker 04:
I guess somebody could.

[00:20:47] Speaker 04:
That seems a little

[00:20:49] Speaker 04:
I don't know.

[00:20:51] Speaker 04:
I don't think the Supreme Court's going to say that.

[00:20:53] Speaker 05:
So it has to look like a firearm?

[00:20:56] Speaker 04:
Well, it has to be handheld in the sense that you can hold it in the hand and use it.

[00:21:02] Speaker 05:
Hand grenade?

[00:21:04] Speaker 05:
Fine.

[00:21:05] Speaker 04:
Well, that's not a firearm.

[00:21:07] Speaker 04:
It's still an arm.

[00:21:08] Speaker 05:
An arm.

[00:21:09] Speaker 05:
It's an arm.

[00:21:09] Speaker 04:
So I mean, I guess one way to think about it is, yes, that's protected by the Second Amendment because it is an arm.

[00:21:15] Speaker 04:
But it can be regulated.

[00:21:17] Speaker 04:
And a complete prohibition would be fine.

[00:21:19] Speaker 05:
And why can it be regulated?

[00:21:22] Speaker 04:
A grenade?

[00:21:23] Speaker 05:
Yeah.

[00:21:24] Speaker 05:
What is the principle that we take and apply to other cases to know what can be banned and what can't?

[00:21:32] Speaker 04:
So the principle would, well,

[00:21:35] Speaker 04:
It's a great question.

[00:21:36] Speaker 04:
The grenade would not be covered because it cannot be.

[00:21:41] Speaker 04:
I mean, that is something that you can't feasibly use in self-defense.

[00:21:45] Speaker 05:
Why not?

[00:21:46] Speaker 05:
Somebody's attacking my home.

[00:21:48] Speaker 05:
I throw a grenade at them.

[00:21:51] Speaker 04:
You know, blow up your home.

[00:21:51] Speaker 05:
Well, just like a machine gun.

[00:21:52] Speaker 05:
They're attacking my home.

[00:21:54] Speaker 05:
I mow them down with a machine gun.

[00:21:55] Speaker 05:
I mean, I can use it for self-defense.

[00:21:58] Speaker 04:
Well, I think that the machine gun that you have to envision is the gun here that is not the M16 rifle that's just going to mow them down.

[00:22:09] Speaker 04:
I mean, this is essentially an AR-15.

[00:22:14] Speaker 05:
Well, there's no dispute it's a machine gun, right?

[00:22:16] Speaker 04:
It fires automatically, correct.

[00:22:18] Speaker 04:
OK.

[00:22:20] Speaker 04:
But it's not a gun.

[00:22:22] Speaker 04:
It's not a military-style gun.

[00:22:27] Speaker 04:
like the M16 is my point.

[00:22:30] Speaker 03:
Is your point to Judge McHugh that a grenade, it can be used, as she points out, in self-defense, but it's not commonly used in this day and age for self-defense?

[00:22:42] Speaker 03:
Is that your point?

[00:22:42] Speaker 04:
Right.

[00:22:43] Speaker 04:
And you wouldn't use it, I don't think.

[00:22:47] Speaker 03:
Well, you might not, I might not, but you know, I don't know that you or I are qualified to opine on what the population of the United States would do.

[00:22:58] Speaker 03:
But anyway, so how does it, so to take a follow up on Benjamin Q's question.

[00:23:04] Speaker 03:
So your point is, well, machine guns are a different kettle of fish.

[00:23:09] Speaker 03:
Machine guns are and commonly are used in self-defense in this day and age.

[00:23:17] Speaker 03:
How do you know that?

[00:23:22] Speaker 03:
Let me put it this way, because you're a really smart guy.

[00:23:27] Speaker 03:
What in the record can we draw upon to say machine guns are commonly used in self-defense in this day and age?

[00:23:38] Speaker 04:
Well, I'm not sure if there's statistics on that, to be honest with you.

[00:23:43] Speaker 04:
And I don't know what Heller cited to say that handguns are commonly used for self-defense.

[00:23:53] Speaker 04:
I guess the way I look at it is more that there are over 170,000 of these things.

[00:23:59] Speaker 04:
As far as I'm aware, people with registered machine guns aren't committing crimes.

[00:24:03] Speaker 04:
And therefore, the implication is that- Yeah, maybe they're using it for collection.

[00:24:08] Speaker 03:
Right?

[00:24:08] Speaker 03:
But collection's not a right of the militia to bear arms.

[00:24:13] Speaker 03:
You don't have a Second Amendment right to collect nuclear weapons, do you?

[00:24:17] Speaker 03:
I mean...

[00:24:18] Speaker 04:
I mean, the collection thing is out, and the government, we haven't talked about that in the briefs.

[00:24:22] Speaker 04:
I would have to think about that.

[00:24:23] Speaker 04:
I don't know how that plays into that.

[00:24:25] Speaker 03:
Well, I guess the only way that I think it factors in is exactly what your adversary said, is if we're talking about, you know, what did hell remain on page 627 when it adopted, at least in that part,

[00:24:39] Speaker 03:
Miller's interpretation of the Second Amendment to say, okay, well, machine guns are or not, to translate into this case, are commonly used in self-defense.

[00:24:52] Speaker 03:
Do you agree that the Second Amendment only protects the right to firearms for a specific lawful purpose of self-defense?

[00:25:01] Speaker 03:
I mean, there are a lot of cases to say it.

[00:25:04] Speaker 04:
Yeah, well, there are, I forget, aren't there three things the Supreme Court reiterates, self-defense?

[00:25:11] Speaker 04:
I feel like there's a few other things.

[00:25:13] Speaker 04:
But yeah, I mean, it's mainly self-defense.

[00:25:15] Speaker 03:
I mean, that's what we're talking about here.

[00:25:17] Speaker 03:
My only question is really, how can we affirm?

[00:25:19] Speaker 03:
I mean, you make really good arguments, as you always do.

[00:25:23] Speaker 03:
But how in the world could we say that,

[00:25:27] Speaker 03:
Okay, well we can look at this record and we can affirm based on this record because we can determine that it is reasonable for a district court to infer from the record that the hundred seventy thousand people that are registered fire owners of machine guns.

[00:25:43] Speaker 03:
are not members of the Crips.

[00:25:45] Speaker 03:
They're not collectors.

[00:25:46] Speaker 03:
They're not people that are YouTubers that go around boasting about their ability to use these automatic weapons.

[00:26:01] Speaker 03:
These are people like you are inferring that are people like you and I that are trying to protect ourselves against intruders.

[00:26:10] Speaker 03:
And I don't know how in the world I can infer that.

[00:26:13] Speaker 03:
And I'm just being honest about my struggle with how to affirm.

[00:26:19] Speaker 04:
Well, I guess if you think this case turns on that, that you would need some sort of factual finding.

[00:26:27] Speaker 03:
And we don't have that.

[00:26:28] Speaker 03:
Do you think I'm wrong to look at it that way?

[00:26:31] Speaker 04:
I think I do think you're wrong.

[00:26:34] Speaker 04:
Well, I don't think you should, I don't think the in common use today test helps in this particular circumstance because of 922-0 itself.

[00:26:49] Speaker 04:
It just seems very odd to me that you would ask whether a gun that is prohibited from being possessed is in common use today.

[00:26:56] Speaker 04:
That doesn't make sense to me.

[00:26:59] Speaker 03:
How do you square that with 627 of Hiller?

[00:27:03] Speaker 03:
I mean, surely Heller wouldn't, in the 21st century, wouldn't say,

[00:27:09] Speaker 03:
you know, that we're going to, in fact, he said this in the brief, that we're not going to, you know, no Supreme Court, no judge would say, okay, we're not going to protect machine guns because in 1791, you know, machine guns were not in common years.

[00:27:27] Speaker 03:
So how do you interpret 627 otherwise?

[00:27:31] Speaker 03:
To talk about, I mean, I thought that was your whole point on presentation.

[00:27:36] Speaker 04:
I mean, it's dicta.

[00:27:37] Speaker 04:
It's unreasoned.

[00:27:38] Speaker 04:
I don't exactly know what it means when it's applied to these guns.

[00:27:43] Speaker 04:
I mean, that's my basic point, is with respect to the two firearms at issue here, I don't know what that dicta means.

[00:27:52] Speaker 04:
I don't think it addresses it.

[00:27:53] Speaker 02:
That takes me back to something we were talking about earlier, to bring the Bruin framework back into the picture.

[00:28:04] Speaker 02:
This court in Rocky Mountain said that at Bruin step one, a court must determine whether the item at issue is an arm that is in common use for self-defense.

[00:28:18] Speaker 02:
Why doesn't that foreclose an argument that common use is at Bruin step two inquiry?

[00:28:35] Speaker 04:
So that is the discussion of Bruin talking about Heller?

[00:28:41] Speaker 02:
Well, it's Rocky Mountain talking about Bruin.

[00:28:45] Speaker 02:
Oh, Rocky Mountain.

[00:28:46] Speaker 04:
Oh, correct.

[00:28:47] Speaker 04:
Yeah.

[00:28:49] Speaker 04:
That's tough.

[00:28:49] Speaker 04:
I mean, I don't disagree that one way to read Rocky Mountain is that it's putting the in common use test under step one.

[00:29:00] Speaker 04:
I don't disagree with that.

[00:29:01] Speaker 04:
I don't know that I agree that it should have done that, but I think it maybe did that.

[00:29:07] Speaker 04:
Now, I sort of agree with the government.

[00:29:09] Speaker 04:
I'm not entirely sure.

[00:29:10] Speaker 04:
I'm convinced why it matters what step we're in.

[00:29:13] Speaker 02:
Well, doesn't it matter because step two, the burden is on government.

[00:29:19] Speaker 02:
Step one, the burden is on you.

[00:29:21] Speaker 04:
Well, so I guess the way I've said this in the brief is that because the In Common Use Today test is still framed in historical terms to some extent, the burden would be on the government.

[00:29:36] Speaker 04:
I mean, in my mind, the burden for the plaintiff or the challenger to the defendant, the person challenging the law,

[00:29:43] Speaker 04:
to show that their conduct falls within the Second Amendment is simple.

[00:29:50] Speaker 04:
It's the textual part of it.

[00:29:51] Speaker 04:
I mean, this is a bearable arm.

[00:29:54] Speaker 04:
Therefore, it's protected by the Second Amendment.

[00:29:56] Speaker 04:
Government go, justify the regulation.

[00:29:59] Speaker 04:
That's how it seems to work to me.

[00:30:01] Speaker 03:
Under Bruin?

[00:30:03] Speaker 04:
Yes, I think that's what Bruin says.

[00:30:08] Speaker 04:
Now whether Rocky Mountain Gun owner says that or not, I don't know.

[00:30:11] Speaker 04:
I will tell you Jackson, this case that was published a couple months ago on Section 922G9, it does frame the first step inquiry as a textual inquiry.

[00:30:30] Speaker 03:
Do you think Heller's step one is the same as Bruin's step one?

[00:30:36] Speaker 03:
Because Judge Brooms and you seem to be framing step one as a pure textual inquiry.

[00:30:43] Speaker 03:
And that, you tell me if I'm wrong, but I don't think Heller suggests that at all.

[00:30:51] Speaker 03:
Heller is pretty clear, I think, in saying, well, step one of the Heller test is text as informed by history.

[00:31:00] Speaker 03:
And I don't think that's academic, because I think the reason we're all here is Judge Brooms just looked at step one and saying, OK, well, if you can hold it in your hand, it's a bearable arm.

[00:31:15] Speaker 03:
OK, now we're at step two.

[00:31:18] Speaker 03:
Well, your adversary doesn't.

[00:31:21] Speaker 03:
think that's right.

[00:31:22] Speaker 03:
And I don't even think you think that that's right.

[00:31:25] Speaker 03:
We do have to look at more than whether or not you can hold, like Judge McHugh says, a nuclear weapon in your hand and say, OK, well, that's a step one, because it's a bearable arm.

[00:31:37] Speaker 03:
So that's a long question.

[00:31:39] Speaker 03:
Actually, the rambling was long, but the question is short.

[00:31:42] Speaker 03:
Is Heller step one the same as Bruin step one?

[00:31:44] Speaker 03:
I don't think they are.

[00:31:46] Speaker 03:
Do you think they are?

[00:31:47] Speaker 04:
I don't know that there are steps in Heller.

[00:31:49] Speaker 04:
I believe the step aspect of Bruin was an interpretation of.

[00:31:54] Speaker 04:
and a rejection of means and scrutiny somehow.

[00:31:59] Speaker 04:
I do want to know on Judge Brooms' analysis, I do think he's right in this case with respect to these guns.

[00:32:04] Speaker 04:
I do think he is right to say these particular guns are bearable on us under the Second Amendment government justify regulation.

[00:32:12] Speaker 04:
In this context, I do think he's right about that.

[00:32:15] Speaker 04:
Maybe not in some other context, maybe not in the canon context, but as an as applied challenge in this context, I don't see a problem.

[00:32:23] Speaker 04:
Okay.

[00:32:23] Speaker 04:
I'm way over time.

[00:32:24] Speaker 04:
Sorry.

[00:32:25] Speaker 05:
Well, if it's banning machine guns as a category, all of them, why does it matter if it's on its face or as applied?

[00:32:36] Speaker 04:
Because there are different types of machine guns that would affect.

[00:32:39] Speaker 05:
And if they're all, I mean, as I understand it, they're all illegal.

[00:32:43] Speaker 05:
If it's a machine gun, it's prohibited under 922-0.

[00:32:47] Speaker 04:
Correct.

[00:32:48] Speaker 04:
So the as applied challenge would focus on the type of machine gun.

[00:32:52] Speaker 05:
Right, but if we were to say that 922-0 is constitutional in banning the entire category of all machine guns and your gun is a machine gun, does it really make any practical differences for purposes of analysis whether we're looking at it as applied or on its face?

[00:33:17] Speaker 04:
Well, when you put it like that, no, but I think that puts the cart before the horse.

[00:33:21] Speaker 04:
I think in an as applied challenge, you have to look at the type of machine gun because that's the challenge.

[00:33:26] Speaker 04:
Does that make sense?

[00:33:27] Speaker 05:
Well, I think you only have to look at if it makes a difference.

[00:33:30] Speaker 05:
Well, I mean, if you just think all... If there are some that are legal and some that are illegal, then we got to decide whether this one is which category it falls in.

[00:33:40] Speaker 05:
But if they're all illegal and they're constitutionally illegal,

[00:33:46] Speaker 05:
then it seems to me that they collapse.

[00:33:49] Speaker 04:
I mean, I don't disagree with that, but I just don't agree with the premise that they're all illegal.

[00:33:55] Speaker 04:
Does that make sense?

[00:33:56] Speaker 04:
But you're right.

[00:33:57] Speaker 04:
I mean, if you decide that every machine gun is not covered by the Second Amendment, I'm going to lose.

[00:34:04] Speaker 03:
Well, nobody said we don't care about it.

[00:34:09] Speaker 04:
Are we done here?

[00:34:10] Speaker 04:
I think so.

[00:34:15] Speaker 02:
Well, to be fair, Mr. Kassar, why don't you take at least a couple more minutes, which I'm sure we'll turn into a couple more.

[00:34:25] Speaker 01:
Thank you, Judge Mattson.

[00:34:27] Speaker 01:
I'll try to be brief.

[00:34:30] Speaker 01:
I have a clarification and a couple of points.

[00:34:31] Speaker 01:
Going back to Judge Backrock's first question about self-defense, the very last line, Judge Backrock on page 624 of Heller, talks about the traditional militia being formed by the pool of men bringing arms in common use at the time for lawful purposes like self-defense.

[00:34:48] Speaker 01:
And then if you go back to page 599 in Heller, the court mentioned the militia purpose and said that probably at the founding, people cared more about self-defense and hunting.

[00:34:59] Speaker 01:
So the government's view here is not that any lawful purpose aside from self-defense is we can take someone's guns away because they're not using it for self-defense.

[00:35:10] Speaker 01:
Rather, our point is that if you sort of look at the universe of lawful purposes, machine guns are not well adapted to those uses, whether it's self-defense, hunting.

[00:35:19] Speaker 01:
And I'm talking here about lawful uses by individual citizens, not obviously by the military.

[00:35:24] Speaker 01:
And I think this goes to another point, is that courts have understood the in-common-use inquiry essentially to be

[00:35:32] Speaker 01:
a flip side of the coin of the dangerous and unusual inquiry.

[00:35:36] Speaker 01:
Unusual itself seems to include a common use inquiry.

[00:35:40] Speaker 01:
And it's just essentially undisputed that machine guns are highly dangerous and not the kind of weapons the one ordinarily uses.

[00:35:48] Speaker 01:
Again, ordinary is important.

[00:35:50] Speaker 01:
We could all

[00:35:50] Speaker 01:
think of examples of using a machine gun, a hand grenade for purposes like self-defense, but they're not typically possessed for those purposes.

[00:35:58] Speaker 01:
And that's why, again, the courts have unanimously concluded that they're not protected by the Second Amendment.

[00:36:04] Speaker 01:
And then if I could, just going back to the as-applied challenge and the particular types of firearms here, I think there's just a factual dispute between Mr. Hansmeier and myself regarding

[00:36:16] Speaker 01:
the weapon that's involved here.

[00:36:18] Speaker 01:
It's an AR-15 that's been converted to fire automatically all the time.

[00:36:22] Speaker 01:
An M16, which Heller referred to, is effectively the AR-15 platform with a selective fire mechanism that allows it to fire semi-automatically part of the time and fully automatically the rest of the time.

[00:36:35] Speaker 01:
We don't think that there's any reason to carve out the particular type of automatic firearms here in this case and conclude that they are protected while machine guns and M16s more generally are not protected.

[00:36:47] Speaker 02:
By the way, is there a good description in the record of what you just said?

[00:36:53] Speaker 01:
Your Honor, the district court held an evidentiary hearing to try to get an idea regarding the type of firearm here, but that

[00:37:00] Speaker 01:
Evidence hearing, unfortunately, isn't particularly illuminating.

[00:37:03] Speaker 01:
The defense did include in their brief a picture of the firearm, and some of this testimony came out, but there wasn't an extended discussion.

[00:37:13] Speaker 01:
I admit I'm relying more on just sort of general knowledge regarding firearms, and I think that was what the Supreme Court was doing as well when it mentioned NIP-16s.

[00:37:22] Speaker 05:
In Bianche, they have a pretty good discussion of the machine guns and AR.

[00:37:28] Speaker 05:
That's correct.

[00:37:29] Speaker 05:
And the M16s.

[00:37:30] Speaker 01:
Yes, so the Fourth Circuit and the Seventh Circuit have gone into this in some depth in their cases involving Air 15 vans.

[00:37:38] Speaker 01:
Thank you.

[00:37:39] Speaker 01:
Thank you.

[00:37:40] Speaker 02:
The case will be submitted.