[00:00:02] Speaker 00: Case number 16-7025, Brian Nguyen at L, Appellants versus District of Columbia, and Cathy L. Lanier. [00:00:09] Speaker 00: Mr. Gura for the appellants, Ms. [00:00:11] Speaker 00: Johnson for the appellees. [00:00:14] Speaker 00: Mr. Gura, good morning. [00:00:16] Speaker 02: Good morning, Your Honors. [00:00:17] Speaker 02: May it please the court, Alan Gerr, for the appellant to now reserve three minutes of time for rebuttal. [00:00:22] Speaker 02: Outside this courtroom, people can debate whether carrying guns for self-defense is a good idea or a bad idea. [00:00:28] Speaker 02: Here, the questions are thankfully much simpler. [00:00:31] Speaker 02: Does anyone need a good police-approved reason to speak, to worship, to vote, or to make family planning decisions? [00:00:39] Speaker 02: And what if the law precluded nearly everyone from demonstrating that they deserve to do those things? [00:00:44] Speaker 02: Is there such a thing as a fundamental right of the people that you can exercise only when the police chief thinks you have a good reason to do so, which, by law, almost no one may have? [00:00:54] Speaker 02: The answers to these questions must be no. [00:00:57] Speaker 02: The government cannot ration constitutionally. [00:00:59] Speaker 03: The answers to these questions are dictated by precedent here. [00:01:02] Speaker 03: We don't get the... that's a... that's a... [00:01:04] Speaker 03: A fine introduction, high-minded, but we have to follow precedent, right? [00:01:12] Speaker 03: And the Supreme Court tells us in Heller that the Second Amendment right is most acute in the home. [00:01:22] Speaker 03: Now, that suggests that it's less acute outside the home, and yet you're arguing for an extension of what was granted in Heller outside the home. [00:01:35] Speaker 02: Actually, Your Honor, we're not arguing for any extension beyond what Heller had already told us. [00:01:40] Speaker 02: But we would deal with the most acute language. [00:01:42] Speaker 02: That's the most obvious point about Heller that we have to deal with. [00:01:46] Speaker 02: The government has greater regulatory interests in all constitutional rights when we're talking about activity that extends outside the home. [00:01:53] Speaker 02: As the Seventh Circuit acknowledged that in the Morvey-Madigan case, for example, the right to intimate relations is one that's going to be less subject to regulations inside the home than outside the home. [00:02:04] Speaker 02: And we are not suggesting that there is some kind of absolute right to carry a gun that is beyond the government's reach. [00:02:11] Speaker 02: We acknowledge that the government can regulate. [00:02:14] Speaker 02: time, place, and manner when it comes to exercising Second Amendment rights outside the home. [00:02:19] Speaker 02: But here the question is not one of regulation. [00:02:21] Speaker 02: It's one of outright prohibition. [00:02:23] Speaker 02: Because what this law says is that although the right of the people is one that we're talking about, the right of the general community, by definition, very few people will ever be able to exercise it, and only when the police chief thinks they have a good reason to do so. [00:02:39] Speaker 02: The question is, what does it mean to have a right? [00:02:42] Speaker 02: Are rights something that the police chief gets to dispense when she believes you deserve to engage? [00:02:48] Speaker 03: It's not an outright prohibition. [00:02:49] Speaker 03: I mean, there are people who qualify for this, right? [00:02:53] Speaker 03: Why isn't it like a time, place, or manner? [00:02:57] Speaker 02: Because it is a prohibition for the people who do not get the permit. [00:03:00] Speaker 02: It's not a regulation. [00:03:01] Speaker 03: Well, that's always the case. [00:03:03] Speaker 03: If you set standards and you don't meet them, it's a prohibition. [00:03:06] Speaker 03: But it's not a total prohibition. [00:03:08] Speaker 03: There are many people who will [00:03:11] Speaker 03: who have. [00:03:13] Speaker 02: There are not many people who have obtained this permit, but more the point, Your Honor, this is something that precludes access to the right at all times, at all places, in all manners, and presumptively for the majority of the people in the District of Columbia. [00:03:27] Speaker 02: This is not [00:03:28] Speaker 03: This is not a law that tells people... But you recognize the government has a greater interest in regulating firearms outside the home than it does inside the home. [00:03:37] Speaker 03: Yes. [00:03:37] Speaker 03: See Heller, right? [00:03:39] Speaker 02: Sure. [00:03:39] Speaker 03: The question is, what is the extent of that? [00:03:41] Speaker 03: You claim that it's a total prohibition. [00:03:43] Speaker 03: That doesn't... That seems overblown. [00:03:45] Speaker 02: It amounts to a destruction of the right because the concept of a right is the concept that people have some sphere of autonomy that they get to exercise some activity [00:03:56] Speaker 02: as their prerogative without needing the government's approval for the activity. [00:04:02] Speaker 02: You only protect things as rights when the government would, in fact, tell people. [00:04:06] Speaker 03: There's a long history here of courts sustaining [00:04:12] Speaker 03: bans on concealed carry, right? [00:04:14] Speaker 03: There's a long history, and the court in Heller cited to some of those cases. [00:04:19] Speaker 02: And we do not challenge the concept that if the City Council wished to ban concealed carry, it could do so. [00:04:26] Speaker 02: But that's not what it did here. [00:04:27] Speaker 02: The City Council did not ban a manner of carrying, like concealed or open carry. [00:04:32] Speaker 02: The City Council has restricted all carrying. [00:04:34] Speaker 02: The law says that you may not carry it openly or concealed unless you have the license. [00:04:39] Speaker 02: The license happens to be reflective of the city council's choice that to the extent that they would even symbolically tolerate the right, they would tolerate it in a concealed fashion. [00:04:49] Speaker 02: So you're challenging the open carry? [00:04:51] Speaker 02: No, we're not challenging [00:04:53] Speaker 02: any manner of carry regulation here at all. [00:04:56] Speaker 02: We acknowledge that the city can regulate the manner of carrying guns. [00:04:59] Speaker 02: Heller made this very clear, as does a great wealth of precedent that it's cited. [00:05:04] Speaker 02: The city can say, we don't like concealed carrying or we don't like open carrying. [00:05:08] Speaker 02: What they cannot do is, as Heller also reflected, they cannot destroy the right entirely by saying you can't carry openly or concealed, [00:05:17] Speaker 02: That amounts to a destruction of the right. [00:05:19] Speaker 02: Now, here we have the city making its choice as to how people can carry. [00:05:23] Speaker 02: That's not in dispute. [00:05:25] Speaker 03: If they wanted to change their mind and... There's a lot of ink poured in the briefs on the empirical studies and the reliability of them, and I don't want to... [00:05:35] Speaker 03: We'll use our time here to wade into that. [00:05:37] Speaker 03: I think it's very well briefed. [00:05:38] Speaker 03: But let me give you a hypothetical. [00:05:40] Speaker 03: Let's imagine there was ironclad empirical evidence that showed that allowing more carry, either concealed or open, inexorably led to an increase in violence. [00:05:56] Speaker 03: It's a hypothetical. [00:05:57] Speaker 03: I realize that's a contested. [00:05:58] Speaker 03: Play with me on the hypothetical. [00:06:00] Speaker 03: Let's imagine that the social science data showed, no, absolutely, if a jurisdiction allows open carry or concealed carry more broadly than the district does here, it will, it does and it will lead to an increase in gun violence. [00:06:15] Speaker 03: That's the hypothetical. [00:06:16] Speaker 03: Sure. [00:06:17] Speaker 03: What would we do with that information in analyzing the second amendment of right that you're claiming here? [00:06:24] Speaker 02: It wouldn't be for this Court to do anything. [00:06:25] Speaker 02: It would be for two-thirds of each House of Congress and three-quarters of the state legislatures to amend the Constitution at that point and remove this very dangerous and ill-conceived right from our Constitution. [00:06:35] Speaker 02: But we cannot say that the City Council can abrogate any constitutional right just because there's social science that tends to show that it is harmful. [00:06:45] Speaker 02: The Supreme Court in McDonald made this very clear. [00:06:47] Speaker 02: All constitutional rights are controversial. [00:06:50] Speaker 02: They all have some public [00:06:51] Speaker 02: safety implications. [00:06:53] Speaker 02: And we've seen many articles that have said the exclusionary rule is a terrible idea, free speech has a cost. [00:06:59] Speaker 02: There's really nothing that limits the government's action that one can't say, well, there's a social science study here that says that the city council really should get its way in the interest of public safety, and therefore, we're going to skip over the constitutional right. [00:07:12] Speaker 02: If that's the approach that we were to take, then we wouldn't have any rights left. [00:07:16] Speaker 01: And I only have... Can you imagine circumstances under which [00:07:20] Speaker 01: under which the district's law might not survive strict scrutiny. [00:07:32] Speaker 01: I don't believe that the district's law survives any level of scrutiny, including- Yeah, but that's on, at least I suspect that's on your understanding of the factual situation in terms of the risks posed. [00:07:45] Speaker 01: So- Oh, yes. [00:07:46] Speaker 01: Take Judge Griffith's hypothetical further. [00:07:50] Speaker 01: Suppose that the [00:07:54] Speaker 01: invalidation of the district's law would cause, would clearly cause 10,000 deaths of innocent people in the district each year. [00:08:07] Speaker 01: Well, if that were, that would survive strict scrutiny? [00:08:10] Speaker 02: uh... the law was still not survive street scrutiny your honor because you would still be engaging in a situation where the city has defined the interest here the city's defined its interest not as uh... anything more than rationing the right itself they've defined the right as the thing to be rationed and while the city has a public safety interest in reducing deaths and reducing injuries and accidents that much is granted there cannot be a governmental interest in suppressing a right [00:08:38] Speaker 02: just because the right itself is inherently thought to be a social evil. [00:08:46] Speaker 01: If the district's law were simply the total number of guns must be reduced by 90%, I would see your point. [00:08:54] Speaker 01: But the law, in fact, does have categories. [00:08:59] Speaker 01: And some carrying it regards as OK, and some most of it not OK. [00:09:06] Speaker 01: So I don't think you're in the category of a restriction that depends entirely on the [00:09:15] Speaker 01: the danger from the right itself. [00:09:18] Speaker 02: While the law does not specify a numerical quota, the law does state that good reason will only exist for a substantial minority. [00:09:26] Speaker 01: I understand that, but all the rules under which rights get constrained involve something like that, it seems to me. [00:09:35] Speaker 01: I don't see how you've distinguished this from those cases. [00:09:39] Speaker 02: Well, Your Honor, it would seem to me that the city simply cannot declare that a right, they have redone the framers' balancing, and they have determined that this right will cause an amount of harm that they wish not to tolerate, and therefore, they're going to pick a number out of a habit. [00:09:54] Speaker 01: If you're saying that the approach under which the district argues the case, which is largely Heller 2, is inconsistent with Heller 1, that may well be. [00:10:07] Speaker 01: The train has left the station, at least in the District of Columbia, on that. [00:10:10] Speaker 02: Well, Your Honor, in Heller, too, the court did say that the means chosen may not be substantially broader than necessary to achieve the interest. [00:10:18] Speaker 02: So what's the interest? [00:10:20] Speaker 02: If the interest is we simply don't want to have guns because we don't like guns, that's not a valid interest. [00:10:25] Speaker 02: So there's nothing. [00:10:26] Speaker 02: We're not. [00:10:27] Speaker 02: Heller 2 is fine so long as we've identified the right, we've identified the interest, and we're balancing those two factors. [00:10:34] Speaker 02: But once the district says our interest is the negation of the right itself, it's not making sure that people... What if the D.C. [00:10:42] Speaker 03: regulation defined good reason in a way that you'd get the license if you lived in a dangerous neighborhood? [00:10:52] Speaker 02: That would still be irrational, Your Honor, because we don't know when danger might arise. [00:11:00] Speaker 02: People are hurt in so-called safe neighborhoods as well, and also people like to walk about the city. [00:11:04] Speaker 02: I might live in a great neighborhood and maybe I want to go out. [00:11:07] Speaker 02: and visit a friend who lives in a neighborhood, it's not so nice. [00:11:10] Speaker 02: I mean, the fact is that the Second Amendment is not limited to bad neighborhoods. [00:11:14] Speaker 02: Of course, people may want to exercise Second Amendment rights when they perceive that there's greater harm, but the constitutional rights we have, we had this in the Mills case in this very court, Your Honor. [00:11:25] Speaker 02: The city had checkpoints. [00:11:27] Speaker 02: uh... in northeast and uh... they felt that they could stop traffic and ask people at the security checkpoints going about their business whether or not uh... you know what they were doing there and this was all supposed to reduce violence in this court struck that down. [00:11:41] Speaker 02: The fourth amendment allows people to travel freely through accidents. [00:11:45] Speaker 03: What the hell to recognize is that there are long-standing regulations that ban weapons, the individual carry of weapons in various [00:11:54] Speaker 03: places, schools, government buildings, maybe churches. [00:11:58] Speaker 03: What's the principle behind that restriction? [00:12:04] Speaker 02: The Supreme Court has not told us the rationale for that, but one can be easily surmised. [00:12:12] Speaker 02: And I would imagine that there are two factors that might come into play. [00:12:16] Speaker 02: And of course, it's not an issue in this case, and it's not one that's been litigated reactively. [00:12:20] Speaker 02: But I would posit that there are two rationales for that. [00:12:23] Speaker 02: Number one, the use of firearms. [00:12:25] Speaker 02: in some of these areas would cause some impact on society that's vastly greater than even the terrible impact that ordinary misuse causes. [00:12:35] Speaker 02: And second, in a lot of these places, the government has taken some proactive step to assure people's security. [00:12:42] Speaker 02: If you go to the airport, you can't carry a gun. [00:12:44] Speaker 03: But why can't those same rationales be applied to safe neighborhoods, right? [00:12:49] Speaker 03: No history of serious crime here. [00:12:52] Speaker 03: Well, police brandishing the firearms there would upset the neighbors. [00:12:58] Speaker 03: But if you can show that you are in an unsafe neighborhood. [00:13:02] Speaker 03: You can have it. [00:13:03] Speaker 02: Well, by that measure, Your Honor, we could expect the city would resist the argument that people have some kind of constitutional right to expect police protection, or there's some kind of public duty under tort law to provide police protection. [00:13:15] Speaker 02: There are no such things under our system of law. [00:13:18] Speaker 03: If you get hurt and the police weren't there, that's... I'm just following your lead from saying what was significant about the places that we recognize. [00:13:25] Speaker 02: Those places are exceptions to the rule, and the exception proves the rule, Your Honor. [00:13:30] Speaker 02: The fact that the Supreme Court told us that there are going to be specifically delineated exceptions tells us that there is a rule there, and the general rule is if you're not in some place where we can think of a rationale, and they haven't explained the rationale, and we can all explore it, but the very fact that there's an exception means that there's a rule, and the rule must apply broadly in public, and the district has created exceptions, and none of those are an issue in this case. [00:13:53] Speaker 02: As far as I know many or perhaps even all those are fine. [00:13:56] Speaker 02: I don't know but but there are exceptions. [00:13:59] Speaker 02: They don't They don't swallow the rule. [00:14:01] Speaker 02: They prove the rule of yards. [00:14:02] Speaker 02: I'm I would Hopefully get my three minutes of right. [00:14:06] Speaker 02: Thanks. [00:14:06] Speaker 00: Thank you, mr. Johnson [00:14:26] Speaker 04: Morning. [00:14:26] Speaker 04: May it please the Court. [00:14:27] Speaker 04: Holly Johnson for the District of Columbia. [00:14:30] Speaker 04: There are a lot of really interesting issues regarding the history, and I would like to get to that in my time here today, but I want to begin by noting how other circuits have approached this question by assuming that the Good Reason standard implicates the Second Amendment, but holding that it's not close enough to the Court. [00:14:46] Speaker 03: How many states have used the Good Reason standard? [00:14:49] Speaker 04: The Good Reason standard in precisely the same iteration as the District, there are four. [00:14:53] Speaker 03: Four. [00:14:54] Speaker 03: And how many states are there in the Union? [00:14:56] Speaker 04: There are still 50. [00:14:58] Speaker 04: But they do make up a quarter of the population. [00:15:00] Speaker 04: It's not an outlier. [00:15:02] Speaker 04: And so it certainly is not as the Heller 1 ban on carrying was. [00:15:07] Speaker 03: That certainly undercuts your argument that it's necessary, right? [00:15:12] Speaker 03: If we get to levels of scrutiny, that it's necessary to do this, that you have to have a good reason standard. [00:15:19] Speaker 03: Maybe 47 of the jurisdictions have looked and said otherwise. [00:15:21] Speaker 03: Let me give you – ask you a question. [00:15:23] Speaker 03: Under your regulation, let's imagine a woman who comes home late each night to a dangerous neighborhood. [00:15:31] Speaker 03: She knows that it's dangerous. [00:15:32] Speaker 03: She fears an attack at any moment. [00:15:34] Speaker 03: And she has several neighbors who have been attacked. [00:15:38] Speaker 03: Under your regulation, she would have to wait until she was threatened or robbed or attacked before getting to carry. [00:15:47] Speaker 03: And you're saying that's not a substantial burden on her right to self-defense? [00:15:52] Speaker 03: Got to be attacked first. [00:15:54] Speaker 04: Oh, I have two responses to that. [00:15:55] Speaker 04: You don't have to get attacked first. [00:15:58] Speaker 04: You have to show a particularized need. [00:16:00] Speaker 04: And indeed, there is a standard for that. [00:16:02] Speaker 03: But living in a dangerous neighborhood is insufficient, right? [00:16:05] Speaker 03: Living in a dangerous neighborhood is standalone. [00:16:06] Speaker 03: You've got to show that either you've been attacked or you've been threatened. [00:16:09] Speaker 03: Something specific, right? [00:16:10] Speaker 03: You do have to show something specific to yourself. [00:16:11] Speaker 03: What about someone who's never been personally threatened? [00:16:14] Speaker 03: So they have no right of self-defense. [00:16:17] Speaker 03: You've got to be attacked the first time. [00:16:19] Speaker 03: And why the first time? [00:16:19] Speaker 03: Why didn't the D.C. [00:16:21] Speaker 03: Council decide you've got to be attacked twice? [00:16:24] Speaker 04: These are the kinds of questions that are appropriate when we get past the preliminary injunction stage and actually look at the evidence regarding the application of intermediate scrutiny. [00:16:32] Speaker 03: No, but the right here that they're claiming, as I understand it, is that every person in this country has a right to defend themselves against the first attack. [00:16:43] Speaker 04: And that is where their fallacy lies. [00:16:45] Speaker 04: That is where the fallacy lies, because the Second Amendment does not. [00:16:49] Speaker 03: So you're saying there is no right under the Second Amendment to defend yourself with arms from a first attack. [00:16:57] Speaker 04: The right? [00:16:58] Speaker 03: Is that it? [00:16:58] Speaker 03: Is that what you're saying? [00:17:00] Speaker 04: I can't – it depends on a lot of circumstances. [00:17:03] Speaker 04: There's no right under the – depending on where you are. [00:17:07] Speaker 04: So there might be a right to defend yourself from attack the first time in the home. [00:17:10] Speaker 04: There might be a right to defend yourself from a first time under attack in the countryside. [00:17:15] Speaker 03: And – But not in the city. [00:17:17] Speaker 04: That's absurd, excuse me. [00:17:19] Speaker 03: That's absurd. [00:17:21] Speaker 04: Judge Griffith, I understand your frustration with that, but we have to look at the history at the time the Second Amendment was codified. [00:17:26] Speaker 03: And Blackstone and James Wilson take a different view than you do of the statute of Northampton. [00:17:34] Speaker 03: That's a pretty compelling reason that maybe there's something missing in the history. [00:17:40] Speaker 04: To contest, Blackstone is directly on point with what we say. [00:17:43] Speaker 04: He says that the offense of riding or going armed with dangerous, unusual weapons is a crime against the public peace. [00:17:51] Speaker 01: Yeah, dangerous, unusual weapons. [00:17:53] Speaker 01: Are there any cases from colonial times involving the application of that statute? [00:17:59] Speaker 04: Not that we've found. [00:18:01] Speaker 04: I mean, not so far with the history. [00:18:03] Speaker 01: What would the natural difference from that be? [00:18:06] Speaker 04: that in colonial times, and indeed in the mid, up until the mid 1700s, precedent was not, the principle of stare decisis is not really. [00:18:14] Speaker 01: No, I mean, I've read the decisions of the political courts. [00:18:17] Speaker 01: They wrote a map of it. [00:18:19] Speaker 04: So the assumption at this point would be that people were not challenging those laws. [00:18:24] Speaker 04: I don't think public carrying was as common as plaintiffs want to suggest, and certainly not in cities. [00:18:31] Speaker 04: The burden is on the plaintiffs to prove that the conduct. [00:18:34] Speaker 01: Here's the statutes, lasted 600 years, well only 450 from colonial times. [00:18:44] Speaker 01: And it's applicable all over the colonies. [00:18:48] Speaker 01: And it never generates a single case decision. [00:18:53] Speaker 01: It suggests it's not in very active employment. [00:18:58] Speaker 04: All I know is that it's not like it had just disappeared. [00:19:01] Speaker 04: This wasn't a blue law that was on the book for hundreds of years before. [00:19:05] Speaker 04: It was reenacted by colonial and in the framing area by the colonies and by the states. [00:19:13] Speaker 04: And it was very specific at the time. [00:19:15] Speaker 04: I mean, indeed, five years before he wrote the Second Amendment, James Madison presented one of these statutes written by Thomas Jefferson to the Virginia Assembly. [00:19:25] Speaker 04: And if you read that Virginia statute, [00:19:26] Speaker 04: It's really impossible to harmonize with plaintiffs' interpretation of what was barred, because it included exceptions for peacekeepers. [00:19:34] Speaker 03: The difference is over dangerous and unusual as opposed to common. [00:19:39] Speaker 03: But what do you do with Heller? [00:19:39] Speaker 03: Heller says, by the time of the founding, it was understood as an individual right protecting against both public and private violence. [00:19:50] Speaker 03: What do you do with that? [00:19:51] Speaker 03: You say, but not in cities. [00:19:53] Speaker 04: No, I don't. [00:19:53] Speaker 04: I say public and private rights has nothing to do with inside the home and outside of the home. [00:19:58] Speaker 04: Public and private rights have to do with a collective right and an individual right. [00:20:02] Speaker 03: Public violence, it says public and private violence. [00:20:05] Speaker 04: Yes, and it's referring to violence against the state in which there's a militia context and violence against the individual. [00:20:11] Speaker 03: No, no, no, that's not what it says. [00:20:12] Speaker 03: By the time of the founding, it was understood as an individual right protecting against both public and private violence. [00:20:19] Speaker 03: That's heller. [00:20:20] Speaker 04: But but heller one is not referring to carrying outside the home because and I'm sorry this was not an issue that was briefed but I've read the materials I've read materials from that time and I don't recall where it's from perhaps it's from. [00:20:33] Speaker 04: the early cases, the 1800s cases, the state cases involving whether it's a collective right or an individual right, but it specifically refers to public and private violence as collective versus individual right that is not referring to public being outside the home and private being inside the home. [00:20:52] Speaker 03: I think you've lost the collective individual distinction. [00:20:55] Speaker 04: Of course we have. [00:20:56] Speaker 04: We're not arguing the collective individual. [00:20:58] Speaker 04: What I'm saying is that that's what Heller was talking about. [00:21:01] Speaker 01: I'm responding to the Heller... [00:21:07] Speaker 01: bearing arms outside the home. [00:21:10] Speaker 04: That's precisely so. [00:21:11] Speaker 04: Yes. [00:21:12] Speaker 01: So in a fine rhetorical flourish, Justice Scalia referred to the most acute area for the need for the Second Amendment, which [00:21:26] Speaker 01: But there are a lot of places in the opinion where the key or core interest of the provision is expressed without any limitation at all. [00:21:38] Speaker 04: Yes, yes. [00:21:40] Speaker 04: Heller is not limited to the home. [00:21:43] Speaker 04: I mean, the Heller decision was limited to the home, but Heller does not foreclose a right to carry outside the home. [00:21:49] Speaker 04: It simply did not address a right to carry outside the home. [00:21:52] Speaker 04: And I have two responses. [00:21:53] Speaker 04: I do want to get back, Judge Griffith, to your comment about dangerous and unusual, because I think that's critically important. [00:21:58] Speaker 04: There is no question [00:22:00] Speaker 04: that the Northampton laws that came to America that were the law of the land at the time of the framing applied to handguns. [00:22:08] Speaker 04: These are not outside of the scope of Northampton and I do think that's critically important because Blackstone was talking about handguns as was every other treatise and in our brief we quote treatise after treatise that refers to guns. [00:22:22] Speaker 04: Indeed Blackstone refers to dangerous or unusual weapons and I don't believe anyone [00:22:26] Speaker 04: would suggest that guns were not dangerous in 1791, and then they're not dangerous today. [00:22:31] Speaker 04: But I would also like to address this question of the scope of carrying historically, because it is important to note that the framers were very practical people. [00:22:39] Speaker 04: And historically, public carrying, as Mr. Gura has acknowledged, was always treated differently than carrying inside the home. [00:22:48] Speaker 04: that Heller 1 instructs us that the Second Amendment codified an interest balancing by the people. [00:22:54] Speaker 04: They already balanced the interest. [00:22:56] Speaker 04: And public carrying has always been balanced with public safety. [00:23:00] Speaker 04: If you look at the three contexts that we have historical information about, we have the home, where the need, as Heller 1 states, is most acute, and where the public safety risks are lower. [00:23:11] Speaker 04: We have the countryside, where the need for self-defense was more acute because there was no police force. [00:23:15] Speaker 04: and the public safety risks were smaller. [00:23:18] Speaker 04: And then you had the cities and there's this rich history of regulating public carrying, indeed banning public carrying in cities because of the risks to public safety. [00:23:28] Speaker 04: But I see my time is winding down and I do want to take a step back and look at the big picture because I think that's critically important here. [00:23:39] Speaker 04: This is a preliminary injunction appeal. [00:23:42] Speaker 04: So the question here is whether the plaintiffs are likely to prevail on the merits and whether they are so likely to prevail and have demonstrated such a great risk of harm to themselves to justify banning enforcement of this important public safety law for everyone. [00:24:00] Speaker 01: Get your position clear. [00:24:03] Speaker 01: Are you saying that the district interprets this statute and the regulations under it as allowing someone who isn't in the business of transporting money around the city, in those few explicit exceptions, to get a permit by showing what exactly? [00:24:21] Speaker 01: What's the [00:24:22] Speaker 01: minimum showing that would assure getting a permit. [00:24:26] Speaker 01: Since he's in very clearly an answer to Judge Griffith's hypothetical, not enough. [00:24:32] Speaker 01: So what would he [00:24:36] Speaker 01: We need a clear threat by an actual perpetrator to the applicant. [00:24:43] Speaker 04: I don't know if it would have to be a specific perpetrator. [00:24:46] Speaker 04: It needs to be a special need for self-protection, distinguishable from the general community, as supported by evidence. [00:24:55] Speaker 04: Well, I could give you a hypothetical. [00:24:57] Speaker 04: Of course, someone who's being stalked. [00:24:59] Speaker 04: Of course, somebody who has had threats. [00:25:02] Speaker 01: What about stalked by a rather mild-mannered person who showed no evidence of readiness to inflict violence? [00:25:11] Speaker 04: We don't know yet. [00:25:13] Speaker 04: We're coming up with our first challenge in the DC Court of Appeals as a judicial process to address this. [00:25:19] Speaker 04: And they will apply the standards that are applicable [00:25:22] Speaker 01: here but what's important [00:25:32] Speaker 01: of building up a sort of common law of when it's to be granted and when not. [00:25:40] Speaker 04: I don't know whether the police force does. [00:25:42] Speaker 04: I'm sure the concealed board licensing, the concealed permit licensing board keeps its own records. [00:25:47] Speaker 04: Obviously they're not public for public safety reasons. [00:25:49] Speaker 03: Is there any evidence of how many attacks, physical attacks in the district [00:25:54] Speaker 03: are actually first time attacks as opposed to second time attacks. [00:25:58] Speaker 03: Apparently that's a legally significant distinction for the District of Columbia. [00:26:03] Speaker 03: I wonder what sort of evidence [00:26:05] Speaker 03: they relied on to know if someone gets attacked is that? [00:26:09] Speaker 04: I don't know. [00:26:09] Speaker 04: The plaintiffs have offered, again, no evidence as to the risks that are posed to them. [00:26:14] Speaker 04: And again, we are at the preliminary injunction appeal stage. [00:26:17] Speaker 04: The district has defended us as a challenge. [00:26:19] Speaker 03: The district requires one of the things that you can show is that you have been attacked before. [00:26:26] Speaker 04: Or threatened, yes. [00:26:27] Speaker 03: Or threatened. [00:26:28] Speaker 03: I'm just wondering what the data is on that in terms of how many attacks that occur in the district [00:26:35] Speaker 03: last week were first time attacks as opposed to were repeated attacks. [00:26:40] Speaker 04: I don't know and that may well come out on a full record again this is a preliminary injunction appeal the district has already actually proffered quite a bit of evidence in comparison to basically no evidence on the side of the plaintiffs [00:26:51] Speaker 04: And I would note that this court need not and should not rule on the scope of the right today. [00:26:57] Speaker 04: Indeed, it should not even rule definitively on the level of scrutiny. [00:27:02] Speaker 04: In Gordon v. Holder, this court held that premature resolution of difficult constitutional questions is undesirable. [00:27:09] Speaker 03: And at this point... Well, no, but in a hundred or two, we have a roadmap here, right? [00:27:15] Speaker 03: If we think this is a core constitutional right and it's substantially [00:27:21] Speaker 03: burdened by the regulation, then there's irreparable harm when someone's core constitutional rights being substantially burdened. [00:27:30] Speaker 04: That's kind of what our job is. [00:27:32] Speaker 04: Okay, so core constitutional right is one of the ways of looking at it. [00:27:35] Speaker 04: Substantially burdened is another way of looking at it. [00:27:37] Speaker 04: If you look at Schrader... I'm looking at Heller 2. [00:27:40] Speaker 04: Absolutely, but Heller 2 talks... I mean, there's different ways [00:27:44] Speaker 04: that you look at different restrictions. [00:27:47] Speaker 04: So Heller too dealt with the core, already the core right of home possession. [00:27:51] Speaker 04: That was already in play. [00:27:52] Speaker 04: The court didn't even need to look at that. [00:27:54] Speaker 04: So it looked at how heavily that was burdened. [00:27:56] Speaker 04: That's definitely one way of looking at it. [00:27:58] Speaker 04: Traitor on the other hand, [00:28:00] Speaker 04: Definitely, there was a substantial burden on the core right, but this court held that the individuals were unlikely to be in the core of the Second Amendment because they were not considered law-abiding people. [00:28:12] Speaker 01: I will note, by the way, that the Second Amendment only says- That seems to exclude the core, which I think is an extent core and non-core critical. [00:28:22] Speaker 01: I think that's a suitable reading. [00:28:24] Speaker 04: I believe that is a suitable reading of Schrader and what every court who has looked at this question has done. [00:28:28] Speaker 04: Unanimously, what every court has done is held that the right to carry outside the home was so heavily regulated in 1791 that it cannot be considered the court. [00:28:40] Speaker 04: It was banned outright in some places. [00:28:42] Speaker 01: I don't know where your unanimity comes from. [00:28:44] Speaker 01: Certainly not the Seventh Circuit. [00:28:46] Speaker 04: No, dealing with the good reason standard. [00:28:48] Speaker 04: I apologize. [00:28:49] Speaker 04: Certainly. [00:28:49] Speaker 01: The difference between a good reason standard and an absolute bad exists. [00:28:58] Speaker 04: Well, I would actually – I would contest that it's not that subtle. [00:29:01] Speaker 04: I want to point this court to an analogy, if you'll bear with me, to Humanitarian Law Project, because that was a strict scrutiny case. [00:29:08] Speaker 04: And in that case, the court looked at the exceptions to the ban on providing material support to foreign terrorist organizations in the form of speech. [00:29:16] Speaker 04: And the Congress had made exceptions for medical information and for religious information. [00:29:22] Speaker 04: And it did not hold that those exceptions created narrow tear lowering because that information was less likely to cause injury than other humanitarian information. [00:29:32] Speaker 04: It held that that created the tailoring because those exceptions were geared towards trying to protect the value at the heart of the First Amendment. [00:29:41] Speaker 04: Well, the value at the heart of the Second Amendment is self-defense. [00:29:44] Speaker 04: I mean, that's what's valued. [00:29:46] Speaker 04: Now, this doesn't mean the founders always put self-defense ahead of public safety. [00:29:50] Speaker 04: They clearly didn't. [00:29:51] Speaker 04: But what the good reason standard does is, like the exceptions in humanitarian law project, it creates an exception to a ban on carrying that is geared towards those who most need self-defense. [00:30:03] Speaker 04: It is very different from a flat ban on carrying. [00:30:09] Speaker 03: I'm sorry, you said most. [00:30:11] Speaker 03: Why should one, following the plaintiff's argument here, [00:30:15] Speaker 03: Why should someone show a need for self-defense? [00:30:20] Speaker 03: Isn't the idea that that's an inherent right, that I have an inherent right to self-defense, isn't that the core of Heller? [00:30:31] Speaker 03: And therefore, why should I have to show a need for that before [00:30:37] Speaker 03: before exercising that right. [00:30:39] Speaker 04: Because self-defense is the value. [00:30:43] Speaker 04: The core right is the right to bear arms, and that right is subject to nuance. [00:30:48] Speaker 04: That right is subject to the exceptions that existed in 1791. [00:30:51] Speaker 03: So you're saying I have a right to defend myself just maybe not with a gun. [00:30:55] Speaker 04: The natural right of self-defense, if that's what Blackstone talks about, is not a right to carry a gun. [00:31:00] Speaker 04: That's the natural right to use force against someone, to hurt someone if they're trying to hurt you. [00:31:04] Speaker 04: That is different. [00:31:05] Speaker 04: That's the right to self-defense. [00:31:07] Speaker 04: And we know the right to self-defense does not trump public safety always, because Heller says that felons in the mentally ill can be disarmed. [00:31:15] Speaker 04: They might have a need for self-defense. [00:31:17] Speaker 03: What about the woman in my hypothetical, though? [00:31:20] Speaker 03: Well, depending on... She was in a dangerous neighborhood. [00:31:23] Speaker 03: She's never been directly threatened. [00:31:24] Speaker 03: She's scared. [00:31:26] Speaker 03: And she can't get a permit in D.C. [00:31:31] Speaker 03: Her right to self-defense then is limited to running, maybe? [00:31:37] Speaker 03: Or maybe she learns martial arts? [00:31:40] Speaker 03: But you're saying her right to self-defense does not include carrying a handgun in her purse. [00:31:48] Speaker 04: What I am saying is that the plaintiffs have not met their burden at this stage of the litigation. [00:31:52] Speaker 03: I'm asking you. [00:31:53] Speaker 03: Yes, I think that's right. [00:31:54] Speaker 03: We're trying to understand the scope of the right. [00:31:56] Speaker 04: Yes, if she can't show a special need, just like in 1791, 1791 by the way, a special need wouldn't have even given her a right to carry in the city. [00:32:04] Speaker 04: In the 1800s, a lot of the public, almost a third of the population, recognized that there was a reasonable exception that could be made for people who had a most acute need for self-defense. [00:32:16] Speaker 04: And that's where these good cause laws began. [00:32:19] Speaker 04: They are, in fact, long-standing. [00:32:21] Speaker 04: And again, Heller instructs [00:32:22] Speaker 04: that long-standing laws are presumptively lawful. [00:32:26] Speaker 04: The plaintiffs would then have to come and prove that those infringed substantially on a right that existed under the Second Amendment. [00:32:33] Speaker 04: That is their burden, and they haven't proven that. [00:32:36] Speaker 04: We have shown, what, 10, 12 different treatises, and the treatises where the law lay at the time, that cannot be most naturally read to only prohibit carrying when you were doing it with menacing conduct. [00:32:49] Speaker 04: We know that because those laws prohibited concealed carrying. [00:32:52] Speaker 04: Plaintiffs concede that. [00:32:54] Speaker 04: So we know menacing conduct wasn't required and it doesn't make any sense to say that you could only not carry with evil intent because the laws included all of these exceptions for peacekeepers. [00:33:06] Speaker 04: In fact, these treatises, these same treatises, [00:33:09] Speaker 04: say that there is no right at that time to publicly carry for self-defense. [00:33:16] Speaker 04: And if they're saying you can't publicly carry for self-defense, how can you read these laws as saying that there was an evil intent requirement before the law applied? [00:33:24] Speaker 04: Again, this is the historical backdrop. [00:33:27] Speaker 04: You need to wind it up. [00:33:28] Speaker 04: I will wind up right now. [00:33:29] Speaker 04: Thank you, and I appreciate your indulgence. [00:33:32] Speaker 04: This is the historical backdrop, but this court [00:33:34] Speaker 04: History is young, it's still being developed. [00:33:37] Speaker 04: If you look at the difference between our briefs in Ren 1 and Ren 2, you can see what we ask is that this Court look to the plaintiff's proof now and consider that they have not made the high showing for the extraordinary relief they are seeking. [00:33:50] Speaker 04: And we ask you to affirm Judge Caller-Catelli's ruling. [00:33:52] Speaker 04: All right, thank you. [00:33:54] Speaker 00: Why don't you take three minutes. [00:33:59] Speaker 03: What about the treatises, Mr. Gura? [00:34:02] Speaker 02: There is absolutely no historical evidence supporting this type of law at the time of the framing or until any time until the 20th century. [00:34:10] Speaker 02: The fact of the matter is that, yes, concealed carrying might have been prohibited, but that's because the society at the time preferred open carrying. [00:34:18] Speaker 02: The one time where a court considered a complete ban on carrying, that ban was struck down in State v. Nunn under the Second Amendment. [00:34:26] Speaker 02: Even before the Civil War, the Second Amendment was used to strike down a state law that forbade the carrying of arms. [00:34:34] Speaker 02: Now, the one thing I've not seen in the briefing from the district, aside from this rich history of supposed urban arms carrying prohibitions, it simply does not exist. [00:34:42] Speaker 02: I mean, you can say it, but that doesn't make it so. [00:34:45] Speaker 02: The other thing that's curiously missing, and I've searched for this, and I didn't hear it today either, is what exactly does it mean, according to the district, [00:34:52] Speaker 02: to bear arms. [00:34:53] Speaker 02: I mean, right, this is the constitutional text we're supposed to be understanding here. [00:34:57] Speaker 02: The Supreme Court has a definition. [00:34:59] Speaker 02: It has a definition that it had to give because the district in Heller 1 had a meaning of bear arms. [00:35:04] Speaker 02: They said bear arms was militaristic conduct. [00:35:07] Speaker 02: that only pertained to militia activity and therefore it had this collectivist hue to it. [00:35:13] Speaker 02: And the Supreme Court had to decide the case. [00:35:15] Speaker 02: And in deciding the case, the Supreme Court gave us the following definition of what it means to bear arms. [00:35:20] Speaker 02: And this is actually by Justice Ginsburg in an earlier case, Muscarello versus U.S. [00:35:25] Speaker 02: To bear arms in the Second Amendment per the court is to wear, bear, or carry upon the person or in the clothing or in a pocket. [00:35:32] Speaker 02: So it includes concealment as a manner. [00:35:34] Speaker 02: For the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person," close quote. [00:35:42] Speaker 02: That is binding, controlling precedent here. [00:35:45] Speaker 02: And so long as you have the right to be armed and ready in case of a conflict with another person, the law that says you may not be armed and ready because we think that's a bad idea unless the police chief happens to give you a dispensation cannot possibly be constitutional. [00:36:01] Speaker 02: And I'd like to address this other [00:36:02] Speaker 02: argument we sometimes see, we didn't see so much here about this alleged distinction between the core right and the non-core right. [00:36:10] Speaker 02: I think we have to look at McDonald and how McDonald opens in explaining Heller and this is the Supreme Court's language. [00:36:16] Speaker 02: In Heller we held [00:36:17] Speaker 02: that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense. [00:36:22] Speaker 02: And we struck down a DC law that banned the possession of handguns in the home. [00:36:27] Speaker 02: The syntax is very clear. [00:36:28] Speaker 02: There is a right to carry a gun for self-defense, as Heller tells us. [00:36:32] Speaker 02: It was applied in the home context. [00:36:35] Speaker 02: But that's not to mean that it was limited to the home or that it can't be conceived of applying. [00:36:39] Speaker 01: I think the DC Council acknowledged that. [00:36:42] Speaker 02: The DC Council. [00:36:43] Speaker 01: That Heller 1 did nothing to. [00:36:46] Speaker 02: Yes, but then they go on in practice to say that you don't really have that right, as we understand, rights to exist because the police chief gets to tell you whether you can do it. [00:37:00] Speaker 02: And by the way, the people don't actually have this as a prerogative within their sphere of action. [00:37:05] Speaker 02: Thank you, Your Honors. [00:37:07] Speaker 02: I submit. [00:37:07] Speaker 00: All right. [00:37:07] Speaker 00: Thank you.