[00:00:02] Speaker 02: Case number 12-5305, Stephen Durf at L Appellants versus Eric H. Holder, Jr. [00:00:09] Speaker 02: Mr. Gura for the appellants, Mr. Tenney for the appellee. [00:00:15] Speaker 02: Mr. Gura, we meet again. [00:00:18] Speaker 01: Good morning, Your Honors. [00:00:19] Speaker 01: May it please the Court, Alan Gura for the appellant. [00:00:22] Speaker 01: The Court's first question, if I may start with the Court's order of December 22nd, the Court's first question from that order suggests that there may be a possible ambiguity in the text of the complaint with respect to whether or not there is an as-applied or a facial challenge or both types of challenges to Section 922A9. [00:00:42] Speaker 01: Now, under this Court's precedent, ambiguities in the text are interpreted liberally in the light most favorable to the plaintiff. [00:00:49] Speaker 01: And while we would contend that it's really not all that ambiguous after all, it certainly cannot be said on this record that the text excludes an as-applied challenge or excludes a facial challenge when the district judge below, now circuit judge Wilkins, [00:01:04] Speaker 01: with the government's strenuous argument that the complaint alleged only an as-applied challenge to Section 922A-9. [00:01:12] Speaker 01: In any event, it's the text of the complaint here that governs, and if I could just review it very quickly in the light, in the time it's available to us to cover all these many issues, the challenges to Section 922A-9 [00:01:25] Speaker 01: Don't claim that the section violates the Constitution generally or that it's simply unconstitutional. [00:01:31] Speaker 01: Paragraphs 26 and 30 especially complain that this section limits otherwise qualified American citizens and that therefore violates the plaintiff's individual rights. [00:01:41] Speaker 04: So you are bringing the facial challenge to A9, right? [00:01:45] Speaker 04: That's correct. [00:01:46] Speaker 04: Let me ask you some questions about that. [00:01:48] Speaker 04: Let's imagine that Mr. Dirth had a cache of 100 firearms that was at his parents' house in Ohio. [00:01:58] Speaker 04: He had bought them before he expatriated, leased them to his parents' house in Ohio. [00:02:03] Speaker 04: When he comes back to Ohio, he can use those. [00:02:05] Speaker 04: How is A9 or B3 a burden on him under those facts? [00:02:11] Speaker 01: Under those facts, well, as this court held in Parker and later the Supreme Court affirmed in Heller, the ability to access one firearm does not mean that you lose all your rights to access... He's got a hundred to his parents' house in Ohio. [00:02:27] Speaker 04: Why should he be able to...? [00:02:29] Speaker 04: Is it some sort of burden on him to not be able to get them? [00:02:33] Speaker 01: Sure, if he had a hundred books and the government prevented him from purchasing the one hundred and first book. [00:02:38] Speaker 01: If he wished to worship a hundred different gods and the government took away his idols after a certain moment. [00:02:43] Speaker 04: Okay, what about under D4 if he had purchased guns in the United States before moving to Canada? [00:02:52] Speaker 04: He could bring them with him, right? [00:02:54] Speaker 01: That's right. [00:02:54] Speaker 04: If he had purchased guns, he did not, however... So under that, under that... No, no, I'm talking hypothetically. [00:02:59] Speaker 04: We're talking, I mean, I mean, your facial challenge, right? [00:03:01] Speaker 04: So we're looking for some circumstances where the law may be valid. [00:03:05] Speaker 04: Wouldn't it be valid in that case? [00:03:06] Speaker 04: He had bought guns before, took them with him to Canada. [00:03:09] Speaker 04: Why can't he bring them back with him? [00:03:11] Speaker 04: He can bring them back under D4. [00:03:13] Speaker 04: There's no, no problem. [00:03:14] Speaker 01: D4 would allow him to bring back those guns that he had purchased prior to expatriating. [00:03:19] Speaker 01: However, the law would still bar him from acquiring any firearms. [00:03:23] Speaker 04: So same answer. [00:03:24] Speaker 04: Your re-answer is he needs to get more. [00:03:26] Speaker 04: He had bought, instead of the 100 guns being stored at his parents' house, he had taken them to Canada and could bring them back under D4. [00:03:36] Speaker 04: Your point is he ought to be able to... Absolutely. [00:03:39] Speaker 04: People buy firearms... If he brought all 100 back with him on that trip, [00:03:44] Speaker 04: And the statute forbids him from getting another one? [00:03:47] Speaker 01: The question is not, Your Honor, the question is not whether he can move back and forth the hundred that he had purchased. [00:03:55] Speaker 01: The question is whether or not he has an interest in acquiring a firearm. [00:03:59] Speaker 04: Okay, let's try another one. [00:04:01] Speaker 04: How about a non-resident [00:04:03] Speaker 04: alien without a visa. [00:04:06] Speaker 04: Non-residents alien without a visa. [00:04:09] Speaker 04: My cousin from Italy, who's coming over for the weekend to attend my daughter's marriage, going to be here two days or so, under the statute, he can't purchase a gun because he's not a resident of the state. [00:04:23] Speaker 04: Is that burdening a constitutional right? [00:04:25] Speaker 04: Does he have a constitutional right to buy a gun for self-defense for those two days that he's here? [00:04:32] Speaker 01: The courts have split about the Second Amendment rights of aliens. [00:04:36] Speaker 01: We have opinions about non-legal aliens. [00:04:42] Speaker 01: There's really not much case law about that. [00:04:44] Speaker 01: Our contention is that, again, if you are amongst the people of the United States, and by the way, [00:04:50] Speaker 01: Once you're in the American borders, you are entitled to the protection of all the various fundamental constitutional rights that are attached to individuals general. [00:05:00] Speaker 01: The government can't prevent your cousin from worshipping, from speaking to the same extent in most cases as American citizens are allowed to within our nation. [00:05:10] Speaker 01: And so it would be hard to imagine why the government would deign to allow your cousin to have a firearm for sporting purposes, but not for purposes of self-defense. [00:05:23] Speaker 01: It seems that the ability of aliens to defend their lives should be- Well, the question is whether he has constitution. [00:05:30] Speaker 04: I'm not so certain your description of the extent of the constitution goes quite that far. [00:05:36] Speaker 04: So you'd say two days here, he gets the right to defend himself? [00:05:40] Speaker 04: by buying a gun. [00:05:43] Speaker 01: We would bring that claim, but we did not. [00:05:45] Speaker 01: We're exploring your facial challenge. [00:05:46] Speaker 04: I'm exploring your facial challenge. [00:05:48] Speaker 04: That's right. [00:05:50] Speaker 04: OK, thanks. [00:05:51] Speaker 05: Pete, we know very little about Mr. Dirth other than from the caption on his complaint that Lissa's address is Winnipeg and Manitoba. [00:06:05] Speaker 05: We don't know, I don't know how old [00:06:14] Speaker 05: I don't know what type of gun he tried to purchase. [00:06:16] Speaker 05: I don't know where he tried to make the allegations of two purchases. [00:06:26] Speaker 05: I don't know whether he pays state income taxes. [00:06:30] Speaker 05: I don't know whether he votes in federal elections, and if he does vote in federal elections, I don't know what state he has taken and what district he's voting in. [00:06:42] Speaker 05: I don't know whether he pays state taxes. [00:06:44] Speaker 05: I don't know whether he votes in state elections. [00:06:47] Speaker 05: Now all of those factors it seems to me bear an as applied challenge in this case. [00:06:54] Speaker 05: And yet I don't have any information about any of that. [00:06:59] Speaker 01: Your Honor, the as-applied challenge is based upon the fact that Mr. Dirth is, and there is a record on this, he did declare, and the government did not challenge at all, the fact that he is fully qualified, he's not prohibited from possessing guns in the United States for any lawful purpose. [00:07:18] Speaker 01: And in fact, the government... And the other thing I don't know [00:07:21] Speaker 05: is how often he travels to the United States and where he goes when he travels to the United States. [00:07:28] Speaker 05: At least in your complaint that was filed in Ohio originally, there was an allegation that he tried to make a purchase in Minnesota. [00:07:36] Speaker 05: There's no such allegation here. [00:07:40] Speaker 05: And that troubles me because even if we agreed with you and struck down both of these provisions in 922, he still couldn't buy a gun. [00:07:52] Speaker 05: He couldn't buy a gun in Minnesota, and he couldn't buy a handgun in Ohio either, because that requires either residence in Ohio or Minnesota, or in a contiguous state. [00:08:07] Speaker 05: So we're in a purely academic exercise if the states in which he travels, in which he tried to buy a gun, as apply. [00:08:18] Speaker 05: were Ohio and Minnesota. [00:08:20] Speaker 05: Because no matter what we do, he still can't buy them. [00:08:24] Speaker 01: Your Honor, I'm not sure the record is quite as the question describes. [00:08:28] Speaker 01: First of all, Mr. Dirth states that he would purchase a firearm in the United States. [00:08:32] Speaker 01: There are many states where he does not need to be a state resident in order to purchase. [00:08:37] Speaker 01: Such as? [00:08:38] Speaker 01: Texas is one of them. [00:08:39] Speaker 01: We just had a nice lawsuit in Mance versus Holder, where... Yeah, but that's fine. [00:08:44] Speaker 05: But you won an ass of pride. [00:08:46] Speaker 05: That's right. [00:08:46] Speaker 05: We don't know how many times Mr. Dirk has been in Texas. [00:08:51] Speaker 05: We don't know whether he's ever been in Texas, and we don't know whether he travels to Texas or has plans to. [00:08:57] Speaker 05: All that goes to an as-applied challenge, and none of it is on the record here. [00:09:02] Speaker 01: The Joint Appendix, page 29, states that Mr. Dirth regularly travels to the United States on business in the United States of America. [00:09:09] Speaker 05: That's another question I have, and I mentioned it. [00:09:12] Speaker 05: I don't know what his occupation is. [00:09:14] Speaker 05: Let's suppose that he owns a corporation, and the corporation is registered in Delaware. [00:09:20] Speaker 05: The corporation could buy it then. [00:09:23] Speaker 01: Your Honor. [00:09:28] Speaker 01: Your Honor, one does not need to have a corporation in Delaware in order to purchase a firearm in the United States. [00:09:34] Speaker 01: One needs to be a non-prohibited person under federal and state law. [00:09:37] Speaker 01: And Mr. Dirth, he's challenging a federal law. [00:09:39] Speaker 01: There is no federal prohibition on his possession or acquisition of firearms. [00:09:43] Speaker 01: Aside from those particular items... Could he buy it in Ohio? [00:09:48] Speaker 04: Could he buy, under state law in Ohio, on his next visit to his grandparents? [00:09:52] Speaker 04: If we agree with you on A9 and B3, next visit to Ohio, would he be able to buy a firearm? [00:10:00] Speaker 01: I would have to look that up. [00:10:01] Speaker 05: I don't have that. [00:10:01] Speaker 04: That's kind of fundamental, isn't it? [00:10:03] Speaker 05: The government's got a long foot in the original brief. [00:10:07] Speaker 05: And I've looked at Ohio law and the answer is no, he could not buy. [00:10:11] Speaker 05: I don't know what kind of gun he tried to buy, but let's assume it's a handgun, which Heller tells us is the weapon of choice for home protection, right? [00:10:22] Speaker 05: He couldn't do it. [00:10:23] Speaker 05: He couldn't buy one in Ohio and he couldn't buy one in Minnesota. [00:10:28] Speaker 01: There are many states in which he could, we have alleged, that he would go to the United States. [00:10:31] Speaker 01: What he's interested in doing is having a gun available to him in the United States. [00:10:35] Speaker 01: There's nothing that prevents him from buying a gun in a state and then having that gun stored at his parents' home in Ohio, which is what the complaint in the declaration states that he would do. [00:10:45] Speaker 01: There's no federal law and there's no state law in Ohio that I believe would prevent him. [00:10:49] Speaker 01: Ohio, I don't believe, I'm fairly, on this much I'm willing to hold, that states generally don't forbid the transportation of firearms into their borders. [00:11:02] Speaker 01: There are very few states that require registration of firearms. [00:11:06] Speaker 01: Ohio's not among those. [00:11:07] Speaker 01: And I'm not aware of any law that he'd be violating if he were to purchase a gun in some other state and bring it into Ohio, just like the government does not challenge at all. [00:11:16] Speaker 01: In fact, the government welcomes Mr. Dirth to purchase a gun in Canada and bring it to the United States. [00:11:21] Speaker 05: Suppose the evidence shows that when he comes to the United States for business, he goes and has for years only gone to Minnesota and Ohio, that he's never been in Texas and he's never been in Louisiana. [00:11:37] Speaker 01: Mr. Dirth has stated on the record that he would acquire a firearm in the United States. [00:11:41] Speaker 01: If the law were to allow him to do that, he would go ahead and do that. [00:11:47] Speaker 01: And the fact of the matter is that... How does he drive? [00:11:49] Speaker 05: We don't even know how he travels to the United States. [00:11:51] Speaker 01: Usually he drives. [00:11:53] Speaker 05: Well, I don't know that. [00:11:54] Speaker 05: Is there any obligation to that? [00:11:56] Speaker 01: It is not required to, Your Honor, if I may. [00:12:01] Speaker 01: None of these questions, while they're certainly interesting to some degree, they don't bear on the ability to purchase a firearm. [00:12:09] Speaker 05: But they do bear on whether you have a supply challenge to A9. [00:12:14] Speaker 05: They are questions that deal with Mr. Thurst's particular circumstances that bear on the issue that we have before us with respect to the constitutionality of day nine. [00:12:27] Speaker 05: And if it turns out that the only place he ever goes, for example, is Ohio. [00:12:31] Speaker 05: Well, let's suppose he only goes to Maryland. [00:12:34] Speaker 05: Maryland, you have to be a resident of the state of Maryland. [00:12:38] Speaker 05: I'm a resident of the state of Maryland, and I know this. [00:12:40] Speaker 05: And then you have to go through a training course that consumes weeks and weeks before you can go to, even if you are a resident, before you can go purchase a handgun. [00:12:52] Speaker 05: That may be constitutional, may not be, but certainly he couldn't walk into a gun shop in Maryland assuming the federal law was overturned and get a handgun, couldn't do it. [00:13:05] Speaker 01: Your Honor, the as-applied challenge asks whether or not the government can carry its burden. [00:13:14] Speaker 01: The government does have a burden here of applying these laws, whether it can meet the burden of showing that applying these laws to Mr. Dirth is consistent with his constitutional rights. [00:13:24] Speaker 04: Where has he said that he would buy a gun anywhere in the United States that was available? [00:13:28] Speaker 01: Well, he said that... [00:13:36] Speaker 01: This is a statement of undisputed and true facts and references the declaration paragraph 3, Dirth intends to purchase firearms within the United States. [00:13:44] Speaker 01: which you would store securely at Delphi's home around Vernon, Ohio, and which you would access for lawful sporting purposes as well as for other purposes, including self-defense, while visiting the United States. [00:13:54] Speaker 01: That's in the record. [00:13:54] Speaker 01: That's in this Declaration of Paragraph 3. [00:13:56] Speaker 01: And it's in the separate statement. [00:13:57] Speaker 01: And I don't believe that the government objected to that or contested that at all. [00:14:01] Speaker 01: In any event. [00:14:02] Speaker 05: Would you read that sentence again to me? [00:14:04] Speaker 01: Sure. [00:14:05] Speaker 01: Dirth intends to purchase firearms within the United States. [00:14:08] Speaker 05: For sporting purposes? [00:14:11] Speaker 01: which he would access for lawful sporting purposes as well as for other purposes. [00:14:15] Speaker 05: See, even that is ambiguous. [00:14:17] Speaker 05: I don't know whether what he's saying there is, I'm going to buy a .30-06 rifle because I want to go deer hunting. [00:14:28] Speaker 05: And by the way, I'm going to use it for self-defense too. [00:14:32] Speaker 05: And as I understand the government's position, he could do that. [00:14:39] Speaker 01: A .30-06 for deer hunting is not going to be a firearm that's suitable for personal self-defense in just about most circumstances. [00:14:48] Speaker 01: Mr. Dirth also declares that he... What evidence do we have on that? [00:14:55] Speaker 01: Well, I think it's something that would be within judicial notice almost. [00:14:59] Speaker 01: I recall that Justice Scalia was talking during the Heller argument about different guns being suitable for turkey hunting and other practices, and everyone got a great big laugh out of that. [00:15:08] Speaker 01: I think it's fairly obvious that a large hunting rifle is not something that people would ordinarily carry with them. [00:15:13] Speaker 01: We can't get around quarters within your house, nevertheless. [00:15:18] Speaker 01: People generally don't carry those in American tradition and practice for personal self-defense when they're out and about in public. [00:15:27] Speaker 05: We don't see that. [00:15:33] Speaker 05: What do we assume? [00:15:36] Speaker 05: That he wants to buy a rifle or get a rifle for sporting purposes and then he wants to get a handgun for other lawful purposes? [00:15:45] Speaker 01: Some guns are useful for some purposes and others are useful for other purposes, but the fact is that... If I can shift gears. [00:15:51] Speaker 05: Sure. [00:15:54] Speaker 05: If your challenge was only to be three, it wouldn't do you any good, right? [00:16:00] Speaker 01: No, I think it would still do us some good, because even if, at the very least then, Mr. Dirk would be able to receive a firearm for a sporting purpose. [00:16:12] Speaker 01: He could go buy that 30-odd-6, which is a plainly... No, I make this too obscure, and I apologize. [00:16:20] Speaker 05: As long as A-minus [00:16:24] Speaker 05: A win on B3 doesn't do you any good, because you still can't buy a purchase of a firearm, right? [00:16:33] Speaker 01: Well, if A9 is on the books, A9 doesn't talk about purchase. [00:16:37] Speaker 01: It talks about receiving, and you have to receive it only for a lawful sporting purpose. [00:16:43] Speaker 01: And so A9 would not appear to impact the purchase of a firearm for a sporting purpose. [00:16:51] Speaker 01: So it's entirely possible to win on B3 even without challenging A9. [00:16:58] Speaker 05: How can you receive a firearm under A9 even if B3 is unconstitutional? [00:17:10] Speaker 01: Well, if B3 is unconstitutional, [00:17:13] Speaker 01: then a person can go ahead and Mr. Dirth, another expatriate American, could purchase a firearm and receive it for a sporting purpose. [00:17:22] Speaker 01: The government says that it's okay to take those firearms received for a sporting purpose and use them in self-defense. [00:17:28] Speaker 01: We don't agree with their line of argument, but that's the government's argument. [00:17:31] Speaker 04: What if he says, I have no interest in sporting purposes? [00:17:36] Speaker 04: I don't want to go to target practice. [00:17:38] Speaker 04: I don't want to hunt. [00:17:39] Speaker 04: I just want this gun to defend myself. [00:17:42] Speaker 01: Well, in that case, then he couldn't do it. [00:17:44] Speaker 04: However, if he doesn't... Right, right. [00:17:46] Speaker 04: Then striking B3 doesn't get you all you want. [00:17:49] Speaker 01: If he disavowed completely a sporting purpose. [00:17:52] Speaker 01: But he is interested also in sporting purposes. [00:17:56] Speaker 04: There are some firearms that the government would... No, the hypothetical I'm giving you is that he's not interested in sporting. [00:18:01] Speaker 04: He just wants to defend himself. [00:18:02] Speaker 01: If he just wants to defend himself, and he wants a gun, and the purpose of obtaining that gun is to be able to defend himself, then A9 is an impediment. [00:18:12] Speaker 01: But B3 does not talk about purposes for which one would purchase a firearm. [00:18:18] Speaker 01: And if I may be honest, even if we are, I know time is obviously limited to 15 minutes and many, many questions, but if I may be honest, even if we are talking about a facial challenge, [00:18:31] Speaker 01: I'm not sure exactly how far that advances the government's fall, because we're talking here about the fact that the second question the court asked is about soleno, right? [00:18:40] Speaker 01: And how would this court go about applying soleno? [00:18:42] Speaker 01: Well, as the Ninth Circuit identified in the Jackson case, first of all, there's a question of whether to apply a facial threshold test in any event, because this is not a very complicated law. [00:18:55] Speaker 01: It does not turn upon the manner in which it's enforced by the government. [00:18:58] Speaker 01: And at least that appellate court said, we don't even look to one of these threshold facial challenge tests because it doesn't raise the concerns that normally concern courts when one is dealing with a facial challenge. [00:19:09] Speaker 01: If we were to get through that examination and we're going to apply some kind of a facial threshold challenge, then the question becomes, OK, which challenge would it be? [00:19:20] Speaker 01: Would it be, I mean, which test would it be? [00:19:22] Speaker 01: Would it be the Salerno no-sit-of-circumstances test? [00:19:26] Speaker 01: Or perhaps the test that's used in the First Circuit, the Second Circuit, the Ninth Circuit, and just last month in Mann's, which also, which references the plainly legitimate sweep test. [00:19:38] Speaker 05: That's a, that, I don't understand that. [00:19:40] Speaker 05: That language is from Justice Stevens. [00:19:43] Speaker 05: separate opinion joined only by Justice Stevens in Gluksburg. [00:19:47] Speaker 05: And Justice Thomas, when Justice Thomas mentioned it, he just simply said at a minimum all justices agree because he wanted Stevens' vote in whatever that, you know, fairly more recent case was. [00:20:00] Speaker 05: But Salerno is there and the Supreme Court has never departed from it and this plainly legitimate sweep business has commanded the vote of one justice. [00:20:11] Speaker 05: That's not [00:20:12] Speaker 05: We're not here. [00:20:14] Speaker 05: There's a case called Rodriguez versus SEC you're probably familiar with that says that if the Supreme Court wants to overrule or change its law, then it's up to them to do it, not for a lower court. [00:20:26] Speaker 01: Well, Your Honor, there was definitely more than one justice who voted in the abortion cases, and there were several of them that went with the large fraction test, which is really the same thing as playing the legitimate sweep. [00:20:35] Speaker 05: And we had, we know that- The question cases I grant you are, the First Amendment overbreath doctrine is totally the opposite of the Salerno test. [00:20:47] Speaker 05: But the, and I think there's been a lot of commentary about this, and I think the other area of the law [00:20:55] Speaker 05: that's kind of grown up with a sort of an over-breadth doctrine are the abortion cases. [00:21:02] Speaker 05: I think you're right. [00:21:02] Speaker 05: But beyond that, the Supreme Court has never applied the over-breadth doctrine. [00:21:08] Speaker 01: Well, Your Honors, the fact of the matter is that three circuits have gone ahead and applied the plain, legitimate sweet test. [00:21:16] Speaker 01: They've referenced that test. [00:21:17] Speaker 01: Courts are applying it. [00:21:18] Speaker 04: But we haven't, Greg. [00:21:18] Speaker 01: We haven't. [00:21:19] Speaker 01: And it would be... That's not a test. [00:21:25] Speaker 01: Well, it is a test. [00:21:27] Speaker 01: It asks to see whether or not the applications are such that there's a plainly legitimate sweep to the statute. [00:21:33] Speaker 01: And the fact of the matter is, Your Honors, is that what we don't have in this country is a hierarchy of rights. [00:21:39] Speaker 01: We can't say that First Amendment concerns are somehow more important than the Second Amendment, that abortion rights are more important than the Second Amendment. [00:21:47] Speaker 05: It's not a question, though. [00:21:48] Speaker 05: The theory behind the overbreath doctrine in the First Amendment is that [00:21:53] Speaker 05: that people will be chilled and they say you would never get the person who's be subjected to the restriction to bring a case. [00:22:03] Speaker 05: So what they do is they allow other people to bring a case that deals with other people's rights. [00:22:12] Speaker 05: would occur in the second amendment. [00:22:15] Speaker 05: You went to a store, tried to buy a gun, and did it again. [00:22:19] Speaker 01: There's no attempt here to necessarily raise the rights of other people while our own rights are not implicated. [00:22:26] Speaker 01: If we look to see, for example, in Heller and Parker before then in this court, [00:22:30] Speaker 01: There was no Salerno test applied to those cases and we know absolutely that there are many violent felons and mentally ill people and dangerous individuals who have no business possessing handguns and nobody would ever claim that those individuals should have handguns. [00:22:45] Speaker 01: Yet those laws were struck down as a facial matter and the only way that we can reconcile Salerno [00:22:50] Speaker 01: with the plain language of not just the Supreme Court in Heller, but this court in Parker, which those were facial challenges, and there was no as applied question at all in those cases. [00:23:00] Speaker 01: The only way we can reconcile those is to either go the Ninth Circuit route, which says that Salerno's inquiry doesn't apply unless those concerns are triggered, [00:23:12] Speaker 01: Or, as the Seventh Circuit, for example, did nizel, to start by carving out all the exceptions before we go ahead and apply the no set of circumstances, which is sort of an odd way of doing that. [00:23:23] Speaker 01: That's what they did in nizel. [00:23:24] Speaker 01: They started by saying no set of circumstances, but then focused only on the fact that law-abiding responsible citizens were impacted, which is exactly the situation here. [00:23:34] Speaker 05: I grant you there is tension between Heller [00:23:39] Speaker 05: and Salerno. [00:23:40] Speaker 05: But the author of Heller, Justice Scalia, also wrote a case called Reno versus Flores, which invoked the Salerno. [00:23:52] Speaker 05: He read the back and forth between Justice Scalia and Justice Stevens, who's no longer on the court. [00:23:58] Speaker 05: But they were going at it for years, back and forth, back and forth, back and forth. [00:24:06] Speaker 05: But I go back to Rodriguez, I think it's versus SEC. [00:24:12] Speaker 05: But there it is. [00:24:14] Speaker 05: That's what Slerna says, and we've got to follow. [00:24:18] Speaker 01: Well, Salerno was 1987 case. [00:24:20] Speaker 01: The Second Amendment was not on anybody's radar. [00:24:24] Speaker 01: It was a long ways away from being discussed. [00:24:27] Speaker 01: And when the Supreme Court had the chance to discuss the Second Amendment in depth, it told us what I think everybody agrees on, which is to say that this is a right that is not going to be enjoyed by everyone, that there are going to be dangerous people who are not going to be able to make these claims. [00:24:42] Speaker 01: That doesn't mean you don't have facial challenges under the Second Amendment. [00:24:44] Speaker 01: The court was aware of Salerno, I am certain, in Heller. [00:24:49] Speaker 01: The justices didn't forget about that case. [00:24:51] Speaker 01: They were as aware of it as this court wasn't suggesting the question in its order. [00:24:54] Speaker 01: But the fact of the matter is that Salerno's construct is not compatible with the Second Amendment. [00:25:00] Speaker 01: And maybe that's why circuit court after circuit court is going ahead with the plain, legitimate sweep test. [00:25:06] Speaker 01: But even if we're going to apply Salerno, Judge Randolph, even if we're going to have Salerno govern this case, [00:25:12] Speaker 01: The question then becomes, are there any circumstances where it would be lawful to tell people that they can't acquire a gun for the purpose of self-defense, excluding, of course, people who are prohibited or mentally ill or dangerous for some reason that takes them outside of hell or outside of the Second Amendment? [00:25:29] Speaker 01: And the answer here, I would submit, is no. [00:25:31] Speaker 01: Or what about aliens? [00:25:33] Speaker 05: Yeah, just game talk. [00:25:34] Speaker 01: That's right. [00:25:36] Speaker 01: Well, the courts usually deal with illegal aliens by saying that they're not part of the American community. [00:25:41] Speaker 01: They're not the people who are entitled to second man of rights. [00:25:43] Speaker 04: But my cousin coming for two days over the weekend is, that's not going to fly. [00:25:47] Speaker 04: That's not going to fly. [00:25:48] Speaker 04: You know that's not going to fly. [00:25:49] Speaker 01: Well, what I would submit is, let's talk about not your cousin, but let's talk about the hypothetical smuggler who is supposed to be targeted by the scheme, right? [00:25:55] Speaker 01: The government says, this is designed to make sure that if Judge Griffith's cousin comes to the United States and acquires a firearm, he doesn't go ahead and put that in his luggage and take it back to America. [00:26:06] Speaker 01: Even the period of smuggler would have the ability to use that firearm. [00:26:15] Speaker 01: for self-defense, should be able to defend his life if he's attacked by some criminal, right? [00:26:22] Speaker 04: Forty percent of the visitors to the United States in the year 2012 came in for less than 90 days without a visa. [00:26:30] Speaker 04: So it's a large population, and I think it's a stretch to say that they're entitled to buy a gun to defend themselves. [00:26:39] Speaker 04: And so clearly, A9 is valid in respect to them. [00:26:48] Speaker 04: The government has a legitimate interest in saying, these folks who are not part of the community, they're here temporarily, we're not going to let them buy guns. [00:26:56] Speaker 01: Well, A9 doesn't talk about buying guns. [00:26:58] Speaker 01: A9 only talks about receiving guns. [00:27:02] Speaker 01: Obviously with the purchase of a firearm, you may have additional issues that may not impact, say, a loan or some sort of more contemporary aspect, which is another topic the government discusses. [00:27:14] Speaker 01: But the fact of the matter is, if the government has determined that someone should be able to acquire a firearm legally, [00:27:20] Speaker 01: the people who are covered by A9. [00:27:22] Speaker 01: A9 doesn't talk about people who are outside the American community. [00:27:25] Speaker 04: If you have people who should be able to... Where do you get that from, A9? [00:27:30] Speaker 04: I mean, there is a statute that talks about folks who have visas, right? [00:27:35] Speaker 04: That's right. [00:27:35] Speaker 04: You have a visa, then you have this restriction. [00:27:37] Speaker 04: A9 clearly applies to those who are here without visa, and that's 40% of the folks. [00:27:42] Speaker 01: Yes, it does apply. [00:27:44] Speaker 04: It's a large group. [00:27:45] Speaker 01: I misspoke. [00:27:45] Speaker 01: I'm talking about the Second Amendment interest that people may have. [00:27:50] Speaker 04: How is it that the government can say to somebody... To follow that argument, you'd have to get us to say that these folks have a Second Amendment interest. [00:27:56] Speaker 04: That would be an extension of law, and I think it would probably run afoul of Verdugo. [00:28:04] Speaker 04: At least on my hypothetical it did. [00:28:08] Speaker 04: Somebody here for two days. [00:28:09] Speaker 04: It's hard to make my cousin part of We the People. [00:28:13] Speaker 01: Well, Your Honor, the fact of the matter is that if we look to the government's burden here, if we're going to apply, if we're going to go by their standards, if we're going to make this a means-ends inquiry, if we're going to make this some kind of a balancing test, and if we're going to apply intermediate scrutiny even, which is their preferred test if we go that route. [00:28:32] Speaker 01: Where exactly, what's the fit, what is the relationship between smuggling and self-defense or residents and smuggling? [00:28:43] Speaker 01: There's not a single shred of evidence in the record anywhere to support these assertions, which are sort of half-baked, really. [00:28:51] Speaker 01: I mean, there's no attempt made, really, in the record. [00:28:55] Speaker 04: Well, your strongest argument, it seems to me, is to try to make this distinction between rental and possession. [00:28:59] Speaker 04: If someone's going to be allowed to rent the gun for sporting purposes, why can't they rent a gun for self-defense? [00:29:06] Speaker 04: And we'll hear from them on that. [00:29:07] Speaker 04: But I think you've got some problems on your facial challenge. [00:29:11] Speaker 04: I think you've got some serious problems in there. [00:29:13] Speaker 04: As applied challenge, you've got some bleeding problems, perhaps. [00:29:17] Speaker 01: If we have no Second Amendment [00:29:19] Speaker 01: claim then, in terms of that aspect, then we still have, then we're down to a rational basis. [00:29:30] Speaker 01: We submit it's not even rational. [00:29:32] Speaker 01: There is no rational basis to deprive people of the ability to defend themselves if we're going to give them guns and say, here's a gun, just don't defend yourself with it. [00:29:39] Speaker 01: Go out and go engage in hunting or target shooting. [00:29:42] Speaker 01: I mean, if we're down to rational basis land, this is still a law that doesn't exist. [00:29:46] Speaker 04: These statutes were passed before Heller, right? [00:29:49] Speaker 04: That's right. [00:29:49] Speaker 04: I'm not one to care a great deal about legislative history, but the floor debates here all talk about a different era before Heller, so it wasn't thought of in those terms. [00:29:59] Speaker 01: And Your Honor, and let's not forget, we also have a right to travel challenge, which we haven't talked about too much. [00:30:03] Speaker 01: But that's a right that is not a right enjoyed by your cousin in Italy. [00:30:07] Speaker 01: That's the Fifth Amendment can't be dulled right that American citizens have. [00:30:11] Speaker 04: A rational basis review for that, right? [00:30:13] Speaker 01: No, actually, Lind v. Russ, the circuit, said it's strict to scrutinize. [00:30:17] Speaker 01: The right to travel is a strict scrutiny right, and we have briefing on that. [00:30:21] Speaker 01: The fact of the matter is that we briefed it. [00:30:27] Speaker 01: There's no point in rereading the briefs into the record here, but that is a fundamental right, as the Supreme Court has told us many times. [00:30:34] Speaker 01: Under SABERI, it's a right that the overbreath doctrine applies to. [00:30:37] Speaker 01: Literally, they've said that. [00:30:39] Speaker 01: A majority of the Supreme Court has applied overbreath to the right to travel. [00:30:43] Speaker 05: Before I sit down, I have one question about the allegation that Mr. Durk holds a concealed carry permit from the state of Utah. [00:30:53] Speaker 05: Do you know whether, as many states do, do you know whether Utah requires that to be renewed periodically? [00:31:00] Speaker 05: Some states serve three years, some states serve two years. [00:31:05] Speaker 05: And if you don't, we know that it's no longer valid. [00:31:08] Speaker 05: Do you know? [00:31:10] Speaker 05: Off the top of my head, no, but I'd be happy to. [00:31:11] Speaker 05: Well, we'll look at it. [00:31:13] Speaker 05: I just wanted to make sure. [00:31:14] Speaker 04: Let's have a third round of supplemental briefing. [00:31:19] Speaker 02: Any more questions? [00:31:21] Speaker 01: Thank you. [00:31:22] Speaker 01: Thank you so much. [00:31:23] Speaker 01: Mr. Tenney? [00:31:31] Speaker 00: May it please the court? [00:31:32] Speaker 00: Excuse me. [00:31:33] Speaker 00: The provisions that are issued here regulate the purchase of firearms and the receipt of firearms. [00:31:40] Speaker 00: They do not regulate the possession of firearms. [00:31:43] Speaker 00: And as came out in the questioning, we don't know from the record here. [00:31:49] Speaker 00: And I just want to make clear, although we've been talking about the complaint, this case is on summary judgment. [00:31:54] Speaker 00: So we can also look at Mr. Doerr's declaration. [00:31:57] Speaker 00: And that's the only evidence that we have of his actual circumstances. [00:32:00] Speaker 00: That doesn't say anything different [00:32:01] Speaker 00: No, it doesn't. [00:32:02] Speaker 00: But my point is simply that if you're talking about his burden, it's not a matter of construing his pleadings liberally. [00:32:08] Speaker 00: He actually has a burden of coming forward with evidence. [00:32:11] Speaker 00: And so reading between the lines of the complaint wouldn't even take you so far. [00:32:16] Speaker 00: But in any event, [00:32:19] Speaker 00: We don't know whether Mr. Dirth has access to guns. [00:32:24] Speaker 00: There was a hypothetical pose. [00:32:25] Speaker 00: Does he have a lot of firearms that he has access to while he's in the United States? [00:32:29] Speaker 00: He hasn't alleged that that's not the case. [00:32:31] Speaker 00: He hasn't alleged that he doesn't have an ability to possess firearms for purposes of self-defense in the United States. [00:32:37] Speaker 00: So I think that is a big problem, whether you conceive of his case as a facial challenge or as an as applied challenge. [00:32:44] Speaker 00: for his argument here. [00:32:46] Speaker 00: And his argument essentially is that no matter how many guns he has, no matter how much access he has to gun, the Second Amendment confers on him a right to acquire additional guns. [00:32:55] Speaker 00: And another point I just wanted to clarify about what he's alleging here is what he's talking about is purchasing additional guns. [00:33:02] Speaker 00: That's what he says he wants to do. [00:33:03] Speaker 00: He's not claiming he wants to rent a firearm. [00:33:06] Speaker 00: He's not claiming he wants to buy a firearm and that he's prohibited from doing that. [00:33:10] Speaker 04: But the statute doesn't make a distinction. [00:33:11] Speaker 04: It talks about terms of receipt, right? [00:33:13] Speaker 00: Well, there's two statutes. [00:33:14] Speaker 00: A-9 talks in terms of receipt. [00:33:16] Speaker 00: My point is that if he's saying, now, on appeal, my problem is that A-9 is unfair because it limits it to sporting purposes and it doesn't allow it for self-defense. [00:33:26] Speaker 00: First of all, to the extent that he's saying, all right, I give up. [00:33:29] Speaker 00: I don't get to purchase a gun. [00:33:30] Speaker 00: I just want to rent a gun. [00:33:32] Speaker 00: That's not the complaint that he's brought. [00:33:34] Speaker 00: That's not the claim that he's made. [00:33:35] Speaker 00: The claim he's made is he wanted to purchase a gun. [00:33:38] Speaker 00: The other problem, of course, that he has is that he does want to use it for sporting purposes. [00:33:41] Speaker 00: He says so. [00:33:42] Speaker 00: That's one of the few things he does say in his declaration on page 32. [00:33:46] Speaker 00: And so he could, and I wouldn't be an impediment to him in that regard. [00:33:50] Speaker 00: So, you know, I mean, we. [00:33:52] Speaker 05: I've forgotten that. [00:33:53] Speaker 05: Does that declaration talk in terms of firearms singular or firearms plural? [00:34:02] Speaker 05: In other words, is it the same firearm, he wants to purchase a firearm for sporting purposes and other lawful purposes? [00:34:09] Speaker 05: In other words, it can be construed as the same firearm? [00:34:15] Speaker 00: I mean, what he says is, I intend to purchase firearms within the United States, which I would store securely at my, I'm on 32 of the Joint Appendix, which I would store securely at my relative's home in Mount Vernon, Ohio. [00:34:27] Speaker 05: So it's plural. [00:34:27] Speaker 00: And which I would access, and he doesn't distinguish among them, for lawful sporting purposes as well as for other purposes, including self-defense. [00:34:34] Speaker 05: Is there anything in federal law that would prohibit him from storing [00:34:38] Speaker 05: The firearms, if he were able to purchase them at his relative's home. [00:34:43] Speaker 00: Not that I'm aware of. [00:34:46] Speaker 00: It's not a legal transfer. [00:34:49] Speaker 00: I mean, I think you would need to know more, and we don't know a lot on this record about how they were stored and whether. [00:34:56] Speaker 00: If he sort of gave them to someone else and then got them back, then his receipts when he returned might be a problem. [00:35:05] Speaker 05: But I don't think that that's... As we're talking about his travel, what restrictions, if any, are there on putting a firearm in your luggage for an overseas trip? [00:35:18] Speaker 00: I mean, there are rules about how you do that. [00:35:23] Speaker 00: It's not prohibited. [00:35:26] Speaker 00: He hasn't alleged it. [00:35:27] Speaker 00: It's those rules that are causing him a problem. [00:35:29] Speaker 00: And I can't speak exhaustively to what you do and don't have to do. [00:35:32] Speaker 05: You have to make some sort of declaration to the carrier. [00:35:36] Speaker 00: I think that's correct. [00:35:37] Speaker 00: And obviously, you need to do... That's only for common carrier. [00:35:42] Speaker 05: I mean, if he's driving and we don't know how he gets to the United States, [00:35:45] Speaker 00: Correct, Your Honor. [00:35:46] Speaker 00: And you also obviously have to deal with TSA. [00:35:51] Speaker 00: If you're going on a plane, you can't just sort of stick a firearm in your luggage and not tell anybody, unsurprisingly. [00:36:02] Speaker 00: I mean, we think that the case can just be resolved on this basis alone, that his allegations really is, and we heard it from the podium too, that his allegations really is, I have a right to purchase additional firearms regardless of my circumstances, whether I have access to guns or I don't. [00:36:19] Speaker 00: And we just don't think that that is correct as a matter of second amendment law and that's his claim and that's the only evidence that he's put forward. [00:36:28] Speaker 05: With respect to B3, as I recall, the allegations and the request for relief [00:36:36] Speaker 05: are to strike down B3 as applied to all law-abiding United States citizens who have a residence outside of the territorial jurisdiction of the United States, right? [00:36:52] Speaker 00: That's more or less the terms in which I understand. [00:36:54] Speaker 05: Why isn't that a class action? [00:36:56] Speaker 05: And then, if it's all similarly situated, and he's excluding aliens and mentally ill and felons and so on and so forth, [00:37:04] Speaker 05: Doesn't that have to be certified as a class action before that can be adjudicated? [00:37:10] Speaker 00: In order for him to obtain that relief, that would have to be a class action. [00:37:15] Speaker 00: If he wants to bring an as-applied challenge on behalf of himself, and he says, and this is actually what he's done, he says, the only facts that I'm giving you about myself is that I'm a law-abiding citizen who lives overseas. [00:37:29] Speaker 00: I may have guns. [00:37:30] Speaker 00: I may not. [00:37:31] Speaker 00: I may bring them in. [00:37:32] Speaker 00: I may not. [00:37:33] Speaker 00: rent them, I may not. [00:37:35] Speaker 00: I'm not telling you any of that. [00:37:36] Speaker 00: I think that those circumstances and those circumstances alone entitle me under the Second Amendment to purchase a gun while I'm in the United States. [00:37:44] Speaker 00: If a court were to agree with that, we don't agree with that, obviously. [00:37:47] Speaker 00: If a court were to agree with that, [00:37:49] Speaker 00: then he could prevail on that claim. [00:37:50] Speaker 00: He wouldn't get the relief he's asking for in the complaint. [00:37:53] Speaker 00: He would get an injunction that the relevant statutes couldn't be applied to him in the circumstances that he's described. [00:38:02] Speaker 00: For reasons that I can go into, some of which I've already discussed, we don't think that that states a good Second Amendment claim. [00:38:09] Speaker 00: And I just want to touch on, we've talked a lot about the limitations of his right and his claims. [00:38:15] Speaker 00: I just want to talk [00:38:16] Speaker 00: also about the interests served by the government's restriction here. [00:38:19] Speaker 00: These have been discussed in the briefing, but just to make sure we're clear that the government has strong interests here. [00:38:25] Speaker 00: What we're talking about here is people in the case of B3, people who may reside in a different state, in the case of A9, people who don't have a residence, in the United States. [00:38:38] Speaker 00: So we're talking about people who are not where they normally live. [00:38:43] Speaker 00: acquiring firearms. [00:38:44] Speaker 00: And the allegation of this complaint is that he wants to do so permanently. [00:38:48] Speaker 00: And the federal government has an interest in making sure that somebody who is either visiting somewhere or who is transient, who doesn't have a current home or whose home is not in the United States, that they can't just go to whichever state they choose that has the most permissive firearms laws, purchase a gun, and then take it to wherever they're actually going. [00:39:09] Speaker 00: And in the case of residents, that's [00:39:12] Speaker 00: of the United States, that's accomplished. [00:39:14] Speaker 04: But the statute's determined that in case of rental for sporting purposes, that the government's interest is largely net, more so net than it is in case of purchase, because the owner has an interest in following it, right? [00:39:26] Speaker 04: It's less likely to disappear into the smuggler's hand, right? [00:39:30] Speaker 00: Right. [00:39:30] Speaker 04: So what is the possible distinction, then, between allowing someone to rent a gun so that they can go target shooting but not allow them to rent again since they defend themselves? [00:39:43] Speaker 04: A core right of the Second Amendment. [00:39:46] Speaker 04: What's the possible distinction? [00:39:47] Speaker 00: Well, I can tell you the reasons that the statute was written the way that it was and then explain why we think it's perfectly consistent with the Second Amendment. [00:39:54] Speaker 04: Well, what Congress was dealing with- The statute was written at a time before Haller, right? [00:39:58] Speaker 04: Right, but- And you're saying that those who were writing the statute did so, having in mind that the core right of the Second Amendment is the protection of individual ability to defend oneself? [00:40:10] Speaker 00: No, we're not claiming that at all. [00:40:11] Speaker 00: What I'm saying is, we're not asking this Court to defer to Congress's judgments about what the Second Amendment did and didn't require. [00:40:18] Speaker 00: We wouldn't be asking this Court to do that even if the statute was passed yesterday. [00:40:21] Speaker 00: Well, the point is that Congress made certain determinations about what was likely to happen, predictive judgments, what was appropriate subject for legislation. [00:40:30] Speaker 00: And if I could just explain those and then explain how that now fits with the Second Amendment. [00:40:35] Speaker 00: So Congress enacted these restrictions. [00:40:38] Speaker 00: And then the problem that Congress was trying to address was that there was a significant [00:40:43] Speaker 00: interest in people who want to engage in sporting activity with firearms in places other than where they live, and that includes both people who live in the United States and then want to travel somewhere else within the United States and engage in sporting activity, whatever that may be, or which could include target shooting, which might be more likely to be handguns, or could include hunting, which maybe in some circumstances would be more likely to be long guns, but either one would be covered. [00:41:11] Speaker 00: There are also people who travel here from overseas and who either the only or express purpose of their travel is sporting activity or one of the things that they want to do while they're here. [00:41:21] Speaker 00: And Congress had this significant number of people that they expected to do this, that had long done this, and they didn't want to make that a federal crime. [00:41:29] Speaker 00: And so they enacted a statute and they said, if that's what you're doing, because there's a lot of people who do that, and we don't want to make it a federal crime. [00:41:34] Speaker 00: that's okay and you can get a gun and you can rent it or you can borrow it and we're not going to criminalize that. [00:41:42] Speaker 00: Now that's the reason Congress enacted the statute they did. [00:41:44] Speaker 00: I'm not aware of evidence then or now that there are a lot of people who said I do want to travel briefly in the United States and what I really need to do is I don't want to do sporting purposes, I don't even want to do target shooting in order to practice using the gun that I've just borrowed in order to [00:42:00] Speaker 04: But it's not hard to imagine a situation where someone arrives and they find out they're in an area that's a little more dangerous than they thought. [00:42:09] Speaker 04: And you're going to allow them to rent it to go to the target practice. [00:42:13] Speaker 04: Why don't you allow them, why doesn't this actually allow them to rent it to protect themselves? [00:42:18] Speaker 00: I mean, we don't have such a person in this case, and I don't know of any evidence that [00:42:24] Speaker 00: I mean, Mr. Dirth says he wants to use it for sporting purposes, just to be clear. [00:42:27] Speaker 04: And self-defense, I thought he also said. [00:42:29] Speaker 00: Right, but you're hypothesizing a person who has no interest in self-defense, I mean, in sporting purposes. [00:42:34] Speaker 00: Now, the question on the Second Amendment question, if we had such a person before the court, then the court would have to entertain that question. [00:42:41] Speaker 00: You don't hear. [00:42:42] Speaker 00: But if you did have such a person before the court, the question would be on intermediate scrutiny if that was what was thought to be applied. [00:42:48] Speaker 05: I'm not sure I followed it. [00:42:52] Speaker 05: It's such a person. [00:42:54] Speaker 00: The person is... This is a hypothetical person who does not want to engage in sporting purposes at all, and they want to borrow, in my understanding of the hypothetical, they want to borrow a firearm just for use for self-defense while they're visiting the United States. [00:43:09] Speaker 05: Isn't Mr. Dirth's allegation that that is exactly the situation he's in? [00:43:15] Speaker 00: No, because he says he wants to use it for sporting purposes. [00:43:18] Speaker 05: and for other lawful purposes. [00:43:20] Speaker 05: And one way of reading that allegation, and this is a problem that I have that's so fuzzy, is I want to buy a Browning over and under shotgun for sporting purposes, and I also want to buy a handgun for other lawful purposes, namely self-defense. [00:43:39] Speaker 00: uh... well me that's right that's not what he said that's a fair reading his declaration i mean i don't think that that's inconsistent with the text of his declaration i think on summary judgment if his prop if his problem was that he thought that the gun that he wanted for sporting purposes and the gun that he wanted for self-defense were two different guns and that he didn't want to purchase he just wanted to rent or borrow [00:44:08] Speaker 00: We submit that he would have to put in a much different declaration from the one that he's written. [00:44:12] Speaker 05: But again, I'm taking... Why are you mentioning that? [00:44:15] Speaker 05: The government moved for summary judgment as well as Mr. Girth and the Second Amendment Foundation. [00:44:22] Speaker 05: They were cross motions, correct? [00:44:24] Speaker 05: That's correct. [00:44:24] Speaker 05: The law is that a district court, and I assume some of it rubs off to us, has discretion, even though the case is right for summary judgment, to not accept either motion and force the case to evidentiary hearing. [00:44:40] Speaker 05: Isn't that correct? [00:44:41] Speaker 00: Yes, that's correct. [00:44:44] Speaker 00: In circumstances where there's a genuine issue of material fact. [00:44:47] Speaker 00: Even if there's not. [00:44:49] Speaker 05: Even if there's not, district courts have discretion to say, look, you know, I've got this case, I'm going to force it to an evidentiary hearing. [00:44:59] Speaker 05: Even though both sides agree that there are no material issues, I want absolute proof. [00:45:04] Speaker 05: I don't want declarations. [00:45:06] Speaker 05: I want live witnesses. [00:45:08] Speaker 00: I think a district court could do that. [00:45:11] Speaker 00: I think if a district court concluded on the record that as a matter of law, one party or the other was entitled to prevail, if this court agreed with it, then the right outcome would be... I think the law is that even if the district court thinks there are no material issues, the district court still has discretion to force the case to trial. [00:45:29] Speaker 00: Right. [00:45:29] Speaker 00: My point here is simply that that's not what the district court did here. [00:45:32] Speaker 00: We don't think the district court abused its discretion in doing that. [00:45:35] Speaker 04: And your suggestion that it would be inappropriate for us to do that? [00:45:40] Speaker 00: Well, I'm saying the district didn't abuse its discretion and reach the correct outcomes of the appropriate thing we do. [00:45:45] Speaker 04: So back to your statutory argument. [00:45:47] Speaker 04: So it seems to me that you're making the case for why Congress gave this benefit to the folks who are going to visit here and go hunting. [00:45:57] Speaker 04: I understand that. [00:45:58] Speaker 04: But you also have to make the argument for why Congress excluded self-defense from [00:46:04] Speaker 04: their reasoning, because they don't allow you, and under the statute you can't come to, when you're here, you can't get it just for self-defense. [00:46:12] Speaker 04: Now tell me why it is you think that Congress [00:46:16] Speaker 04: excluded self-defense. [00:46:17] Speaker 00: Well, they didn't expressly exclude it, but they didn't include it in the... It works as an exclusion, right? [00:46:23] Speaker 00: It does work that way, but I guess the reason I'm drawing that distinction is that Congress was, as I mentioned, Congress was trying to address a circumstance that was coming up, which was people want to do this for self-defense. [00:46:35] Speaker 04: And they did it before Heller. [00:46:36] Speaker 04: They did it before Heller. [00:46:37] Speaker 00: They certainly did it before Heller, but even after Heller, [00:46:40] Speaker 00: If we're on intermediate scrutiny, which we think is at most what we're on here, then the question is whether Congress had to [00:46:50] Speaker 00: account for particular circumstances and whether the statute is insufficiently tailored because they didn't account for people who want to visit the United States, obtain a gun. [00:46:59] Speaker 00: I understand the hypothetical would be temporarily, which is different from Mr. Dirth. [00:47:03] Speaker 00: Don't want to use it for sporting purposes. [00:47:05] Speaker 00: Again, different from Mr. Dirth. [00:47:07] Speaker 00: And whether the failure to account, even if you accept that such people have [00:47:13] Speaker 00: would have a sufficient Second Amendment interest in doing that, that this is something Congress might have been thought to want to account for, whether the failure to do that fails as a matter of intermediate scrutiny. [00:47:27] Speaker 00: And intermediate scrutiny is about a reasonable fit. [00:47:30] Speaker 00: And so if Congress accounts for the run of circumstances that it's going to encounter, many of which have already been discussed, aliens, people who are here for a very short amount of time, people who already have firearms for self-defense, [00:47:42] Speaker 00: and significantly the large category of people who want to use the firearms for sporting purposes, if Congress accounts for those large categories, and then there's this other category that, again, the plaintiff in this case is not in. [00:47:54] Speaker 00: We're not aware of anybody who's come forward either before Congress or in court who is in that circumstance. [00:47:59] Speaker 00: And then if we had that case, we would say, OK, it's reasonable for Congress not to have accounted for this particular narrow set of hypothetical facts. [00:48:09] Speaker 05: Did I hear you correctly earlier? [00:48:12] Speaker 05: On the face of it, these provisions in the federal law do not make a distinction between long guns and handguns. [00:48:20] Speaker 00: Although many state laws do. [00:48:22] Speaker 00: But I think that's true of A9. [00:48:25] Speaker 00: Well, B3 does. [00:48:28] Speaker 00: Not a distinction that's relevant to Mr. Dirth's circumstances. [00:48:33] Speaker 00: But under B3, you can, in some circumstances, purchase a long gun in a state where you're not a resident, as long as the purchase would comply with the laws of both states. [00:48:45] Speaker 00: For handguns, it works differently. [00:48:47] Speaker 05: So there is a distinction in that sense. [00:48:50] Speaker 05: If A9 and B3 don't make a distinction between long guns and handguns, then that means that a handgun can be used for sporting purposes? [00:49:02] Speaker 00: Yes, because target shooting has been recognized as a sporting purpose, and that was in the legislative history. [00:49:10] Speaker 05: for target practice? [00:49:13] Speaker 00: Well, in the case of a person who's visiting the United States, that makes perfect sense. [00:49:17] Speaker 00: Because one of the core reasons to have the residency requirement for people who are buying guns relates to where those guns are going to end up, and also if something happens with the gun, the ability to trace the gun by going to the residence of the purchaser and figure out what's happened to this gun. [00:49:34] Speaker 00: It makes perfect sense. [00:49:35] Speaker 00: If you're talking about someone who's visiting the United States temporarily and doesn't have a residence here, to distinguish between letting those people borrow those guns and then give them back before they go back to wherever they're going, as opposed to allowing them to buy the guns, it makes eminent sense to do it that way. [00:49:51] Speaker 05: Yeah, but it raises a question in my mind that Judge Griffith has asked you, and I don't know that I haven't heard the answer. [00:50:00] Speaker 05: Doesn't that mean that sporting purposes are more important than self-defense? [00:50:06] Speaker 05: And if so, what's the rationale behind that? [00:50:09] Speaker 05: Why can't you rent a handgun for self-defense when you can rent a handgun to shoot at a paper target? [00:50:20] Speaker 00: I don't think it means that one is more important than the other. [00:50:23] Speaker 00: I mean, I think that the reason that the language is in the statute is that one is much more prevalent than the other and that Congress was addressing the circumstances that had arisen that they were aware of and that they wanted to make sure, you know, if Congress criminalized... How many expatriates are there? [00:50:39] Speaker 05: I don't know the numbers. [00:50:41] Speaker 05: I'm sorry. [00:50:42] Speaker 05: The number 26 million sticks in my mind. [00:50:44] Speaker 05: I don't know. [00:50:45] Speaker 05: I may be wrong about that. [00:50:47] Speaker 05: Maybe Mr. Guren is. [00:50:49] Speaker 05: But out of those 26 million, if only a small percentage want to use it just for self-defense, it's still a significant number of people, isn't it? [00:50:59] Speaker 00: Say it's 5%. [00:51:02] Speaker 00: It could be. [00:51:02] Speaker 00: I mean, obviously we would be speculating. [00:51:06] Speaker 00: I wouldn't be surprised. [00:51:08] Speaker 00: I think that the scenario in which you visit a place where that is not your home... Well, again, this reminds me of something Justice Scalia just said last week. [00:51:17] Speaker 04: Maybe it's not what Congress intended. [00:51:18] Speaker 04: It's what they did. [00:51:19] Speaker 04: They created this statute that has this effect, that if you are a citizen of the United States, [00:51:25] Speaker 04: and you're coming back to visit, you can rent a gun to shoot at a target practice, but you can't rent a gun to defend yourself? [00:51:36] Speaker 04: What could be the possible rationale for that? [00:51:39] Speaker 00: Well, I mean, I've explained why it evolved the way it did. [00:51:42] Speaker 00: I mean, the other point, obviously, we're talking about how this has ended up. [00:51:49] Speaker 00: You're arguing that this is why Congress did it the way it did. [00:51:51] Speaker 00: As I think came up in an earlier colloquy, in some circumstances, there are prerequisites to acquiring a gun, including that you go through training or other proficiency. [00:52:02] Speaker 00: If you have people, and this much is in the legislative history, that if you have people who are doing sporting purposes, who are learning how to handle their gun, [00:52:09] Speaker 00: you know, that is likely to be a safer population than people who just say, I can understand why Congress would be troubled if someone... But that's regulated by state law, isn't it? [00:52:20] Speaker 00: In some circumstances it is. [00:52:26] Speaker 00: My only point was, if you're asking me to explain, and again I'm not saying this is what Congress had in mind, but if you're asking why it would be legitimate to say someone who's going to take a gun and go to a range and use it for target practice, [00:52:41] Speaker 00: And what are our safety concerns there versus somebody who's going to take a gun, disavows any intention to engage in any target practice, any intention to operate the gun in any circumstances other than an emergency when they think they're in trouble, one could reasonably expect that Congress would want to distinguish those scenarios. [00:53:01] Speaker 05: Target practice is a sporting practice? [00:53:04] Speaker 00: It has long been recognized as one, yes, Your Honor. [00:53:06] Speaker 05: So in other words, let's suppose that Max Baker comes [00:53:15] Speaker 05: And the state has a requirement, which it doesn't, but it certainly does, that you have to have certain training before you rent a gun. [00:53:26] Speaker 05: And the training consists, as it usually does, of shooting at targets. [00:53:30] Speaker 05: So that's the sporting purpose, the training that the state requires. [00:53:38] Speaker 00: I believe it has been read that way and I recognize that that's a broad reading but that only underscores the limited scope of the provision. [00:53:51] Speaker 00: Thank you, Your Honor. [00:53:55] Speaker 02: Why don't you take two minutes. [00:54:01] Speaker 01: Fantastic. [00:54:02] Speaker 01: Thank you very much. [00:54:03] Speaker 01: First of all, sporting purpose, Your Honors, has been given a very narrow purpose. [00:54:06] Speaker 01: It excludes typically casual, generic, plinking, and practical shooting. [00:54:11] Speaker 01: We have cases that we've cited on that, page 31 of our opening brief. [00:54:16] Speaker 05: Is that in the regulations? [00:54:18] Speaker 01: I don't believe that the regulations define it, but that's how this Court affirmed the district court here in Springfield v. Buffles, 116 FSUP, 2nd, 8590, which took a very, very [00:54:31] Speaker 01: narrow view of sporting purposes, and I believe the site here is 292 F3rd at 818, and that term is construed very narrowly, as the Court would see the opinion. [00:54:45] Speaker 01: Your Honor, Judge Randolph, in response to your questions, first of all, review here is de novo, so whatever a district court might do, I'm sorry, Judge, our motions can be done here as well, and we submit that the [00:54:57] Speaker 01: the possibility of a remand to clarify some of the issues perhaps would be the correct way to approach it. [00:55:03] Speaker 05: That's a good point. [00:55:04] Speaker 05: By the way, a handgun doesn't do you any good unless you have ammunition. [00:55:15] Speaker 05: And there's no allegation here that restrictions on acquiring ammunition are unconstitutional. [00:55:24] Speaker 01: I don't believe there's a restriction on ammunition that we're challenging. [00:55:27] Speaker 01: I don't believe that Mr. Geurth is prohibited from buying ammunition. [00:55:31] Speaker 01: The prohibition on A9 talks about receiving a firearm, and B3 talks about purchasing firearms, but I don't believe... Do you know if that includes ammunition? [00:55:42] Speaker 01: I, there's never a need to fill out a form 4473, we're purchasing ammunition. [00:55:49] Speaker 01: I don't believe that there are restrictions on ammunition that are relevant. [00:55:52] Speaker 01: That's all state control. [00:55:56] Speaker 01: That's correct, Your Honor. [00:55:57] Speaker 01: There might be federal laws dealing with ammunition, but actually the Federal Gun Control Act typically deals with firearms. [00:56:02] Speaker 01: There are some forms of ammunition that are regulated and prohibited, but that's not really an issue here. [00:56:07] Speaker 01: And you're right, Judge Randolph, there is no it here. [00:56:11] Speaker 01: The complaint does speak, plurality, of guns. [00:56:17] Speaker 01: The government does a great job of telling us how the statute evolved, but it didn't present any evidence that actually justifies it under even intermediate scrutiny. [00:56:26] Speaker 01: There's no evidence that shows that there is a reasonable fit to some kind of a perceived problem. [00:56:31] Speaker 01: The only thing we're told in terms of evidence [00:56:33] Speaker 01: is that in a 10-year period, they convicted 143 people, which is not that great a number, over a 10-year period of, I believe, violating 922G5, which is the illegal export provision. [00:56:44] Speaker 01: But that's a very small drop in the bucket compared to the total pool of people who are impacted by this law. [00:56:51] Speaker 05: And so... If you're a licensed dealer and your residence is in Italy, [00:56:59] Speaker 05: You can receive a firearm, right? [00:57:02] Speaker 05: If you're licensed by the federal government, forget about state law, and you're a resident of Italy, you come into the United States, it's perfectly proper for you to receive a firearm, right? [00:57:14] Speaker 01: I believe that would be the case. [00:57:16] Speaker 01: Even though you have no state residents. [00:57:18] Speaker 01: I believe that would be correct because the law, I believe, would be 3 and A9. [00:57:23] Speaker 05: I'm thinking about A9. [00:57:25] Speaker 05: It says any person except a licensed collector or dealer. [00:57:31] Speaker 05: But it doesn't say anything about whether the licensed person resides in any state. [00:57:37] Speaker 05: As a matter of fact, the assumption that it seems to be on A9 is that this individual does not reside in any state. [00:57:44] Speaker 05: Otherwise, there's no need for the exception. [00:57:46] Speaker 01: That's correct, Your Honor. [00:57:47] Speaker 01: I believe licensees are required to have some place of business the ATF can come visit, but as far as the residence is concerned, I'm not sure that they have a requirement to be American residents in order to hold and maintain a license. [00:57:56] Speaker 05: So what if Mr. Dirth is a licensed gun dealer in Canada? [00:58:01] Speaker 05: We don't know what his occupation is. [00:58:05] Speaker 01: He has an internet business that he runs, a hosting business and a few other related things. [00:58:10] Speaker 01: And we can get to that on remand if we do wind up going that route here. [00:58:13] Speaker 04: That surprised me, Mr. Guru, that early on in your argument you were resisting the notion of remand and saying that there's a sufficient record here that we can reach the issues. [00:58:23] Speaker 04: But now you seem to be changing a different tack. [00:58:26] Speaker 04: Do you think a remand is appropriate here? [00:58:28] Speaker 01: remand as possible. [00:58:29] Speaker 01: We'd rather have a remand than a loss. [00:58:31] Speaker 01: If the court is unclear about things. [00:58:35] Speaker 01: Now let's go back to, I mean, look, Judge Wilkins, obviously a bright man has a chemistry degree, I believe, right? [00:58:41] Speaker 01: He thought this was an as-applied challenge. [00:58:43] Speaker 01: The government was very strongly jumping up and down about being an as-applied challenge. [00:58:47] Speaker 01: Now this court might see it differently. [00:58:50] Speaker 01: Perhaps some of these things can be cleared up. [00:58:52] Speaker 01: I just want to address really quickly, if I may, Judge Randolph's question about the access issue. [00:58:57] Speaker 01: This actually happens oftentimes if you have a spouse who is a prohibited person and the other spouse is not a prohibited person. [00:59:03] Speaker 01: Can the non-prohibited spouse maintain a firearm? [00:59:06] Speaker 01: The answer is yes. [00:59:07] Speaker 01: The only limitation there is that the prohibited spouse [00:59:11] Speaker 01: can't have access to the gun. [00:59:13] Speaker 01: There's an interesting third circuit case on this called U.S. [00:59:16] Speaker 01: v. Hewitt, H-U-E-T, that talks about the evidence needed to show that actually the gun was not made available to the prohibited person and therefore there was no enabling violation committed by the non-prohibited spouse. [00:59:29] Speaker 05: So if Mr. Durst's relatives in Ohio were, say, husband and wife, and they were both convicted felons, [00:59:37] Speaker 05: And there's no allegation about them at all. [00:59:43] Speaker 05: And he stores the firearms with them after winning this case that there would be nothing illegal in there. [00:59:50] Speaker 01: If it was locked up in a safe and they didn't have any way of accessing it, it just simply happens to be located on the property? [00:59:56] Speaker 01: If those two people own self-storage? [00:59:58] Speaker 05: Suppose it was just put in a closet. [01:00:01] Speaker 01: Again, that would be a factual question, but, you know, if felons owned a self-storage business and somebody wanted to store firearms in a locker that way, I don't believe that that would be any violation of federal law. [01:00:16] Speaker 01: I've not seen cases that would suggest that. [01:00:18] Speaker 01: But in any event, what we do have in filing honors, I know we're over time, it's the fifth question, which is really the most interesting, the five questions that this court asked here, because the government tells us not to worry about 478, [01:00:31] Speaker 01: Not to worry about 924D1. [01:00:36] Speaker 01: in 478.115, because if the regulations were read in that manner, in that fashion, the fashion that they obviously are written, and the government elected to pursue an enforcement action, there would be no criminal penalties, and there would be no perpetrator unless they actually demonstrated, I think, convincing evidence that a willful violation had occurred. [01:00:56] Speaker 01: Well, that's not very reassuring. [01:00:57] Speaker 04: I mean, they basically... But it's also wrong. [01:00:59] Speaker 04: They overlooked the regulations. [01:01:01] Speaker 04: 478.111 says it's unlawful. [01:01:05] Speaker ?: Yeah. [01:01:05] Speaker 04: They don't say anything about that in a brief, at least that I recall. [01:01:08] Speaker 04: That's right. [01:01:08] Speaker 04: On the statute, the statutory argument, it looks like it might be a good argument, but I didn't see any reference to the regulations, which [01:01:14] Speaker 01: But the fact of the matter is, even when everything is said and done about this logic of getting firearms from some other country, the law does not allow Americans to bring back the firearm unless they have a lawful sporting purpose. [01:01:26] Speaker 01: And there's also reference to a shooting activity that has to take place. [01:01:29] Speaker 01: Right. [01:01:29] Speaker 04: They've got to give it back when it's over. [01:01:31] Speaker 01: As soon as the shooting activity is over, you've got to give it back. [01:01:34] Speaker 01: There's no room for self-defense at all. [01:01:36] Speaker 01: Thank you very much.