[00:00:03] Speaker 00: Case number 16-7067, Matthew Grace Edel versus District of Columbia and Kathy L. Lanier and her official capacity as Chief of Police for the Metropolitan Police Department Appellants. [00:00:14] Speaker 00: Ms. [00:00:14] Speaker 00: Alakan for the Appellants, Mr. Thompson for the Appellees. [00:01:00] Speaker 01: Ms. [00:01:00] Speaker 04: Alec and Ms. [00:01:01] Speaker 01: Talz, Mr. Gurra. [00:01:02] Speaker 01: Good morning. [00:01:06] Speaker 01: Good morning, and may it please the court, Lauren Ali Khan for the District of Columbia. [00:01:09] Speaker 01: I would like to reserve three minutes for a bottle. [00:01:12] Speaker 01: I'd actually like to start where Mr. Agoura ended, which is to say the district acknowledges that bear means carry. [00:01:18] Speaker 01: That's what Heller says. [00:01:19] Speaker 01: But Heller, in the very next sentence, went on to say that the right was not to keep and carry any weapon for any purpose, and gave us its first example, first, before we got to felons, those who were mentally ill. [00:01:30] Speaker 01: But it's the first example that the majority of 19th century courts upheld bans on concealed carry. [00:01:36] Speaker 01: So we know that the scope would bear. [00:01:38] Speaker 03: But Mr. Gura's point, I think, was, at least in the briefing, was that in each of those instances, open carry was allowed, that you never had a complete ban on carry. [00:01:48] Speaker 03: You just, you had, you get your choice, open or concealed. [00:01:51] Speaker 03: And 19th century mores preferred open carry to concealed carry, so. [00:01:57] Speaker 01: So, I mean, two responses. [00:01:57] Speaker 01: As you discussed with my colleague, Ms. [00:01:59] Speaker 01: Johnson, we think there is a rich history, both in the statute of Northampton in England and how it carried over, [00:02:04] Speaker 01: that had complete prohibitions on carrying in densely populated urban areas, both on concealed and on open carry. [00:02:10] Speaker 01: We think that comes from Hawkins. [00:02:12] Speaker 01: We think that comes from Blackstone. [00:02:14] Speaker 01: But even if it is the case that it has to be one or the other... What about James Wilson? [00:02:17] Speaker 03: She never answered James Wilson. [00:02:19] Speaker 03: James Wilson's a pretty important figure for many of us. [00:02:23] Speaker 03: most I think without question that was highly regarded of the framers in terms of his knowledge of the law and he said it was you know dangerous and unusual and as opposed to common. [00:02:35] Speaker 01: You know if you're talking about the 1804 James Wilson treatise he says that a phrase or crimes against the personal safety of the citizens and goes on to say that it's you know because it's to the terror of the citizens these are considered common nuisances [00:02:47] Speaker 01: And he goes on to say, in some cases, there may be an affray where there is no actual violence, as where a man armed himself with the interests of unusual weapons in such a manner as will naturally terrify the people. [00:02:57] Speaker 01: And we think that that coincides with what Blackstone was talking about and what Hawkins was talking about, which is that the carrying of weapons in the public concourse in and of itself is what terrifies the people. [00:03:08] Speaker 04: In the language you read, it's exactly the opposite. [00:03:11] Speaker 04: It assumes this array of carrying that doesn't frighten people. [00:03:20] Speaker 04: people that are frightened nowadays are more easily frightened, but that's a different argument. [00:03:24] Speaker 01: I mean, I don't take it from the language. [00:03:25] Speaker 01: He says there may be an affray where there is no actual violence as where a man arms himself with dangerous, unusual weapons in such a manner as will naturally terrify the people. [00:03:33] Speaker 04: In such a manner as will naturally terrify. [00:03:36] Speaker 04: The premise of that is that there's lots of army that doesn't naturally terrify. [00:03:40] Speaker 01: Right, and that is arms that are carried not in the public concourse, arms that are within the home, arms that are within the countryside. [00:03:47] Speaker 04: That's your certification. [00:03:50] Speaker 04: You added an important edit to what he said. [00:03:53] Speaker 03: Densely populated. [00:03:54] Speaker 03: So give me, if you're relying on this so much, what were the population levels in the 1780s that justified Northampton-like statutes, and when did they not have? [00:04:10] Speaker 03: When were they too sparsely populated to? [00:04:13] Speaker 01: At the time of the framing, the majority of Americans lived outside of cities. [00:04:16] Speaker 01: And so when we look at how Northampton laws were defined, both in London, in the UK, and in America, it was cities and towns. [00:04:23] Speaker 01: You see that first in 1594 from the Queen Elizabeth Proclamation. [00:04:27] Speaker 01: And you see it also in Heller 1 itself. [00:04:29] Speaker 01: In footnote 10, Justice Scalia cites a 1704 ban on carrying in London and the suburbs. [00:04:35] Speaker 01: London and the suburbs. [00:04:36] Speaker 01: That's a definition. [00:04:37] Speaker 01: You see that carrying over into America in some of our good cause variants that we put into the statutory appendix. [00:04:43] Speaker 01: It was the corporate limits of Nebraska City, Nebraska, the corporate limits of Los Angeles City of Dallas, Texas. [00:04:49] Speaker 01: And neither set of plaintiffs here has argued that the district is not an exclusively urban jurisdiction. [00:04:55] Speaker 01: If they would like to raise that below or if someone would like to challenge that in another case, that may be very well appropriate. [00:05:00] Speaker 01: But here we are taking as conceded that the district is exclusively urban. [00:05:05] Speaker 01: And if London and the suburbs in 1704 was exclusively urban such that there could be a complete ban on carrying there, we think that is also the case here. [00:05:12] Speaker 01: And our law is less restrictive than the Northampton bans. [00:05:18] Speaker 01: As Ms. [00:05:18] Speaker 01: Johnson noted, in the 1800s, these complete bans. [00:05:22] Speaker 03: So your argument is that you could actually, you could have done more. [00:05:24] Speaker 03: You could have banned all carrying because it's urban, right? [00:05:29] Speaker 03: I think that that's your argument with Northampton. [00:05:31] Speaker 03: Go all the way with it. [00:05:32] Speaker 03: Take it all the way or not at all, right? [00:05:34] Speaker 03: You're arguing that under if we're looking at the meeting of the Second Amendment informed by Northampton statutes of Northampton that a complete ban is possible in urban areas. [00:05:45] Speaker 01: So it's not a complete ban. [00:05:46] Speaker 01: It's a complete restriction on carrying on this crowded city streets. [00:05:50] Speaker 01: It does not mean that one cannot have a weapon in their home, in their place of business, to transport it for lawful purposes. [00:05:55] Speaker 03: Carrying means outside the home. [00:05:56] Speaker 03: Carrying means outside the home. [00:05:59] Speaker 01: I do need to push back a little bit, because historically people had much larger properties, and so it was carrying on their grounds. [00:06:04] Speaker 01: You look at Thomas Jefferson comparing about his farm, or James Madison, or others. [00:06:08] Speaker 01: I thought you were talking about cities. [00:06:10] Speaker 01: Even in cities, people tended to have a barter like that. [00:06:12] Speaker 03: But your argument is the District of Columbia could ban [00:06:14] Speaker 03: all carry. [00:06:16] Speaker 01: My argument is that if the council went that route, we'd be here on a very different record. [00:06:22] Speaker 01: We'd be more into what we see more. [00:06:24] Speaker 03: Does the council have the authority to do that? [00:06:25] Speaker 03: We're trying to understand the scope of the right here. [00:06:28] Speaker 01: I think based on the statute of Northampton, the early American laws, yes, there is an argument to be made for a complete ban on public carrying because of the risks to public safety. [00:06:36] Speaker 04: However... [00:06:50] Speaker 04: people to carry arms outside the home will lead to violence and riotous scenarios. [00:06:59] Speaker 04: Is there any reason to think that that's more common for guns carried outside the home than for guns carried inside the home? [00:07:10] Speaker 04: So, Judge Williams, the... I mean, one I remember distinctly is the idea that [00:07:22] Speaker 04: is going to be armed are more likely themselves to bring arms. [00:07:26] Speaker 04: Now that, I would think, would be just as true in the homes on the sidewalk. [00:07:31] Speaker 01: Sure, but other things like averting confusion by a third person in a situation where the police are interacting with a citizen and there's a third person who's armed, we tend to see that outside of the home. [00:07:40] Speaker 04: The same thing with- What about the particular thing that you raised, which I then raised with you, which is different from the three-parting [00:07:52] Speaker 01: that people tend to have their guns stolen because they're targeted? [00:07:55] Speaker 04: No, no. [00:07:56] Speaker 04: It's a matter of stolen. [00:07:58] Speaker 04: The argument in your brief, one of the district briefs here, is that if a thug, simply, if a thug knows that a potential target is armed, he or she is much more likely to arm himself. [00:08:21] Speaker 04: violence. [00:08:22] Speaker 04: Why is it that true for the home as well as the sidewalk? [00:08:26] Speaker 01: So it is very well true in the home, but the public safety concerns are different in the home. [00:08:31] Speaker 01: The people that are susceptible to the public safety concerns of being shot, being the conflicts escalating into something with lethal weapons. [00:08:38] Speaker 01: Those are born by the people in the home, the family and those that are righted in. [00:08:42] Speaker 01: But on the crowded city streets of the district, the bystanders are everywhere. [00:08:45] Speaker 01: People do not [00:08:46] Speaker 01: say, do you have a weapon in your home? [00:08:48] Speaker 01: OK, I'm going to choose not to go there because of the public safety risks. [00:08:50] Speaker 01: It's because they are in the public concourse that public safety has always required more circumscribed gun regulations than in the home. [00:08:58] Speaker 01: And I think that comes from a longstanding distinction with the Castle Doctrine. [00:09:02] Speaker 01: When we're talking about the treatises, Blackstone and others talk about how, well, you may not carry outside the home. [00:09:07] Speaker 01: I mean, Hawkins gives an example of someone who carried concealed for purposes of self-defense who was found to be violating the statute of Northampton. [00:09:14] Speaker 01: Well, that is the case. [00:09:16] Speaker 01: long-standing exceptions for the ability to defend yourselves with arms within your home or on your property. [00:09:21] Speaker 01: And the district here preserves that. [00:09:22] Speaker 01: We have laws that allow you to have a weapon in your home, to have it in your place of business, to lawfully transport it. [00:09:28] Speaker 01: The question is whether you can carry it openly on the crowded city streets of the district. [00:09:33] Speaker 04: It's not openly. [00:09:34] Speaker 04: As I understand it, the district is emphatic that neither open nor concealed carry is permitted, and the plaintiffs are equally emphatic [00:09:47] Speaker 04: They don't care whether it's open or closed. [00:09:49] Speaker 01: Sure, our law is concealed carry. [00:09:51] Speaker 01: But I think as the Peruta Court on bank held, there is no right within the Second Amendment to concealed carry. [00:09:56] Speaker 01: And that's all that the plaintiffs here are seeking. [00:09:58] Speaker 01: Both of them are seeking a license to concealed carry. [00:10:01] Speaker 01: And I believe the majority opinion Peruta addressed, if there is a right to carry, they think it's only openly. [00:10:07] Speaker 01: And so there needs to be a lawsuit to challenge a prescription on open carry. [00:10:10] Speaker 01: Here, all we have is a demand for them to be able to concealed carry. [00:10:13] Speaker 01: And we think there's a rich tradition of banning both open and concealed carry in urban areas [00:10:18] Speaker 01: precisely because of the public safety risks. [00:10:21] Speaker 01: But even if we're just looking at a ban on concealed carry, they do not allege that they have the ability or they should have the ability to open carry in the district. [00:10:28] Speaker 01: They merely ask for a concealed carry license. [00:10:30] Speaker 01: And that's something that Peruta says is foreclosed. [00:10:32] Speaker 01: But I'd also like to turn to the good cause laws on which the district's law was modeled, that of New York, of New Jersey, and Maryland, all of which were upheld by the Second, Third, and Fourth Circuits. [00:10:43] Speaker 01: Those were all on summary judgment records. [00:10:46] Speaker 01: As Ms. [00:10:46] Speaker 01: Johnson mentioned, we're here on a preliminary injunction. [00:10:50] Speaker 01: This case is in its infancy. [00:10:51] Speaker 01: The grace plaintiffs filed their complaint, I think it was two days before Christmas last year. [00:10:56] Speaker 01: The parties are in the process now of marshaling the empirical evidence that we think would satisfy any level of scrutiny that could apply. [00:11:02] Speaker 01: So I think all this court needs to do now is to, for the preliminary injunction analysis, [00:11:07] Speaker 01: You can go to step twos, assume that intermediate scrutiny applies, and determine whether or not plaintiffs are so likely to prevail on their claim that they have a right to carry indiscriminately on the crowded city streets of the district that they should be entitled to that relief now before discovery closes, before summary judgment has been briefed. [00:11:25] Speaker 01: And I think Heller is a good analog. [00:11:27] Speaker 01: That case was remanded by this court for further proceedings. [00:11:30] Speaker 01: And so here, that's what we need as well. [00:11:33] Speaker 01: So we would ask that you [00:11:34] Speaker 01: affirm Judge Clark Attelli's decision denying the preliminary injunction as to the rent plaintiffs, and reverse Judge Leonce because he made significant legal errors and also because he erred in assessing the equities. [00:11:45] Speaker 01: I see I'm out of time, but I do hope you'll permit me a few minutes on rebuttal. [00:11:48] Speaker 01: All right. [00:11:48] Speaker 01: Thank you. [00:11:49] Speaker 01: All right. [00:11:49] Speaker 01: Thank you. [00:11:50] Speaker 01: Mr. Thompson. [00:11:51] Speaker 01: Morning. [00:11:54] Speaker 02: Good morning, Your Honors, and may it please the Court, David Thompson of Cooper and Kirk for Matthew Grace and the Pink Pistols. [00:12:00] Speaker 02: The key to this case is the Supreme Court's decision in Heller. [00:12:05] Speaker 02: There, the Supreme Court said that the text of the Second Amendment, quote, guarantees the individual right to possess and carry weapons in case of confrontation. [00:12:16] Speaker 02: It said that the, quote, central component of the right was self-defense and that the core lawful purpose [00:12:23] Speaker 02: was self-defense. [00:12:24] Speaker 03: What do you do with the language of Justice Scalia that the right is more acute at home? [00:12:30] Speaker 03: That suggests it's less acute outside the home. [00:12:33] Speaker 02: And we see that in Heller in a couple of different ways. [00:12:36] Speaker 02: Number one, in that there's an acknowledgement that in sensitive places, [00:12:40] Speaker 02: the state that that's a long-standing prohibition. [00:12:42] Speaker 02: The state can regulate that and in the manner of carriage, whether the state chooses concealed or open. [00:12:48] Speaker 02: So yes, we acknowledge that it is most acute in the home, but it is still acute outside of the home, and certainly we see that from the text and the history. [00:12:57] Speaker 02: We also, it's very interesting that in describing and justifying the categorical [00:13:01] Speaker 02: approach that Heller took. [00:13:03] Speaker 02: It said that there were, quote, few laws in the history of our nation have been close to the severe restriction of the district's handgun, and some of those few have been struck down. [00:13:14] Speaker 02: And it went and it pointed to a carriage law [00:13:17] Speaker 02: that like carriage ban. [00:13:19] Speaker 02: That was the law that heller pointed to as justifying the categorical approach. [00:13:24] Speaker 02: So I want to push back on the notion. [00:13:26] Speaker 03: How do you respond to your friends arguments that that that the the Northampton statutes were the norm in the United States? [00:13:34] Speaker 02: In 1820, your honor, [00:13:37] Speaker 02: there were 23 states and four of them, only four of them had a Northampton like analog. [00:13:44] Speaker 02: And of those four, Judge Williams, you asked if there were any cases. [00:13:47] Speaker 02: Two of those fours were interpreted by the state Supreme Court. [00:13:51] Speaker 02: Tennessee, [00:13:52] Speaker 02: in Simpson versus Tennessee, and Huntley versus State in North Carolina. [00:13:58] Speaker 02: And in both instances, the Supreme Courts of Tennessee and North Carolina said that simply carrying a firearm did not violate those statutes. [00:14:07] Speaker 02: They agreed with what Heller would subsequently say, that dangerous and unusual meant exactly that. [00:14:14] Speaker 02: It just didn't mean a firearm, and that it had to be to terrify the people. [00:14:19] Speaker 02: And there had to be an evil intent, which we see in Sir John Knight's case from 1686. [00:14:25] Speaker 02: So the notion that in America, early 19th century America, there were these Northampton analogs everywhere, first is false. [00:14:34] Speaker 02: And second of all, where they did apply, they had been interpreted to mean that carriage was all right, unless it was accompanied by conduct that would be terrifying to the people. [00:14:44] Speaker 03: And I also- What did dangerous and unusual mean? [00:14:47] Speaker 02: Well, in Heller, they said that weapons that were commonly possessed by law-abiding citizens were not dangerous, unusual. [00:14:57] Speaker 02: And it was on that basis that handguns, for example, were entitled to be protected under the Second Amendment. [00:15:04] Speaker 02: It did not just mean, oh, a firearm is dangerous. [00:15:06] Speaker 03: What about your friend's argument that we're on preliminary injunction here and we just ought to let this go along? [00:15:12] Speaker 03: There are dispositives? [00:15:14] Speaker 03: We don't have enough of a record here to know. [00:15:17] Speaker 02: There are dispos... This wolf comes as a wolf. [00:15:21] Speaker 02: The chairman of the D.C. [00:15:22] Speaker 02: Council said that everyone on this council wants to restrict the right to carry. [00:15:28] Speaker 02: The whole centerpiece of their argument is we need to restrict the right to carry. [00:15:33] Speaker 04: Usually we don't strike the law down on the basis of the motivations of the people who passed it. [00:15:40] Speaker 02: Well, Your Honor... [00:15:42] Speaker 02: Well, in the equal protection context, we certainly do in Washington. [00:15:47] Speaker 02: Washington versus Davis in the lemon context. [00:15:51] Speaker 02: But finally, we can look at the effect here. [00:15:53] Speaker 02: The effect is an absolute ban. [00:15:56] Speaker 02: And it's important to know. [00:15:57] Speaker 02: I think there was a suggestion that heller too, the train had left the station on whether we apply intermediate scrutiny. [00:16:03] Speaker 04: No, I meant the train had left the station, he said, being Judge Cavanaugh's dissent. [00:16:08] Speaker 02: And I want to push back on that, Your Honor, because the majority in Heller 2 said tears of scrutiny apply only, quote, where the restriction is, quote, significantly less restrictive than an outright ban. [00:16:23] Speaker 02: This law is not significantly less restrictive than an outright ban. [00:16:28] Speaker 02: So the notion that Heller 2 supports us [00:16:32] Speaker 02: that this is a categorical, this is not significantly less restrictive than an outright ban. [00:16:38] Speaker 02: And therefore, inconsistent with what the Supreme Court said. [00:16:42] Speaker 03: You don't think you win under strict scrutiny? [00:16:43] Speaker 02: Why would you do that? [00:16:45] Speaker 02: Well, we win, Your Honor, under either standard. [00:16:49] Speaker 02: But we did want to point out that Heller II does not require intermediate scrutiny to apply here. [00:16:57] Speaker 02: There was also a question about [00:17:01] Speaker 02: Judge Williams, you asked, well, is there empirical difference between public safety threat to home ownership and carriage? [00:17:08] Speaker 02: I wanted to point out that a lot of the empirical evidence, the majority of the empirical evidence that was cited to by the District of Columbia was cited to the United States Supreme Court. [00:17:19] Speaker 02: and the Supreme Court disregarded it and said it did not matter. [00:17:24] Speaker 02: And it did so because there's no deference to be given to legislative findings and to social science research where you have a constitutional right at stake. [00:17:37] Speaker 02: So take, for example, if the district were to come in with a ream of legislative findings and social science research showing the exclusionary rule. [00:17:44] Speaker 02: was really bad for public safety or that Miranda had negative consequences for public safety, this Court would disregard it and we would submit the Court should do the same here. [00:17:56] Speaker 02: With respect to the point, Your Honor, that [00:18:02] Speaker 02: Judge Griffith, you asked whether this was akin to a time, place, and manner restriction, and it's really not in the sense of, for Mr. Grace, my client, there is no time, and there is no manner, and there is no place in which he can carry his firearm. [00:18:18] Speaker 02: So for the typical law-abiding citizen who's not been subjected to a specific threat, this is, in fact, a ban. [00:18:25] Speaker 02: They have made the point that they've tried to say that [00:18:29] Speaker 02: that the history suggests that firearms should only be allowed and carried in the countryside. [00:18:36] Speaker 02: But if we looked at the text of the amendment, we know from Heller that KEEP applied in urban areas. [00:18:43] Speaker 02: They made this argument in Heller that the district special, it's unique, it's an urban area, and it was rejected. [00:18:49] Speaker 02: So there's no way in which KEEP can apply to urban areas and [00:18:54] Speaker 02: to and bear would not. [00:18:58] Speaker 02: We also know from the President that there isn't a single case, there is not one case they can point to that has adopted this distinction between a right to carry in the countryside but not a right to carry in the cities. [00:19:12] Speaker 02: And if we look at the practice, we can see John Adams talking about the Boston Massacre and perhaps the most urban setting of the time, State Street, Boston, saying that [00:19:23] Speaker 02: The colonists had a right to carry their firearms there. [00:19:27] Speaker 04: Insofar as you're talking about the other circuits, doesn't your point show that they were willing to accept anything? [00:19:34] Speaker 02: Well, the other circuits went wrong. [00:19:38] Speaker 02: Those cases should be distinguished on three grounds. [00:19:41] Speaker 02: Number one, they were not faithful to the teaching of Heller with all respect to those circuits about the importance. [00:19:47] Speaker 04: That is a distinction. [00:19:48] Speaker 04: That's just saying they're wrong. [00:19:49] Speaker 02: They're wrong. [00:19:49] Speaker 02: So here, thank you, Your Honor. [00:19:51] Speaker 02: Good point. [00:19:52] Speaker 02: Good point. [00:19:52] Speaker 02: Two distinctions then, not three. [00:19:55] Speaker 02: The legal distinction is Heller 3. [00:19:58] Speaker 02: In Heller 3, this court said that a law that is animated and justified by a purpose to suppress the right, to limit the right, is impermissible. [00:20:09] Speaker 02: There it was a one gun per month purchase limitation, and Heller 3 said, [00:20:15] Speaker 02: If we accept this rationale, that would justify a ban if they're just trying to limit the number of guns. [00:20:21] Speaker 02: Here they are trying to limit the amount of carriage. [00:20:24] Speaker 02: So this circuit has precedent that is faithful to Heller, the Supreme Court Heller, and that is different from the precedent in those other circuits. [00:20:33] Speaker 02: We also have a factual distinction. [00:20:34] Speaker 02: We have Chief of Police Lanier, the top law enforcement official in the district saying, quote, law abiding citizens that register firearms are not our worry. [00:20:50] Speaker 02: And how could they be? [00:20:51] Speaker 02: As Judge Leon said, there is a veritable gauntlet [00:20:55] Speaker 02: of restrictions and rules that someone has to go through to get one of these permits. [00:21:01] Speaker 02: Chief Lanier has laid a factual predicate saying, we're not concerned about public carriage by law-abiding citizens. [00:21:09] Speaker 02: And we can look at state after state, and over 99% of people who get these concealed carry permits are law-abiding, never have a revocation, and there simply isn't an issue. [00:21:21] Speaker 02: So for all of those reasons, we ask the court to affirm. [00:21:24] Speaker 04: All right, thank you. [00:21:26] Speaker 04: Okay, why don't you take three minutes. [00:21:33] Speaker 03: Could I ask you to respond to the reference to, I think it was Mr. Wells' comment in the City Council about, I can't get the quote exactly right, but there was no one in the City Council who, we all want to restrict handguns. [00:21:46] Speaker 03: There's something like that. [00:21:47] Speaker 03: What are we to make of that? [00:21:49] Speaker 01: I think two responses. [00:21:50] Speaker 01: The council was trying to limit the public safety risks that are inherent in carrying a firearm outside the home. [00:21:56] Speaker 01: Plaintiffs, no one in the council was able to point to any other alternative but these good reason laws, which had been upheld in the second, third, and fourth circuits. [00:22:02] Speaker 03: That raises a question. [00:22:03] Speaker 03: Were there less restrictive [00:22:06] Speaker 01: Proposals that were rejected. [00:22:24] Speaker 01: These kinds of suitability, are you mentally ill? [00:22:26] Speaker 01: Do you have a conviction? [00:22:27] Speaker 01: Are you eligible to carry under federal law? [00:22:29] Speaker 01: Those still have higher rates of aggravated assault, rape, robbery, and so they felt that suitability standards alone were not sufficient. [00:22:36] Speaker 04: So they looked to... You recognize the data, and that is very complex and complicated. [00:22:42] Speaker 01: The data is complex and conflicting, but that's why this court defers to the judgments of the legislature. [00:22:47] Speaker 01: That comes clearly from Turner 1 and Turner 2. [00:22:49] Speaker 01: I believe that – well, first of all, I would argue that intermediate scrutiny is what applies. [00:22:54] Speaker 01: Nothing more than intermediate scrutiny, certainly given that we're in the preliminary injunction stage, and certainly because every court had considered this question on the good reason laws. [00:23:02] Speaker 01: Second Circuit, Third Circuit, Fourth Circuit, found not only that intermediate scrutiny applied, but that these laws withstood intermediate scrutiny. [00:23:09] Speaker 01: But as to the record, I mean, again, we're on a preliminary injunction. [00:23:12] Speaker 01: We believe that the council record, which was relying on the most relevant and contemporary and sophisticated statistical modeling, showed that right to carry jurisdictions. [00:23:20] Speaker 01: Jurisdictions without a good reason requirement had higher rates. [00:23:23] Speaker 03: So if we applied strict scrutiny, you think that's the winning argument for you? [00:23:27] Speaker 01: So no one disputes that the interest in public safety is compelling. [00:23:30] Speaker 01: So the only difference between strict and intermediate scrutiny here would be the level of fit. [00:23:34] Speaker 01: And we think that the fit does survive. [00:23:35] Speaker 01: We think it survives for the same reasons that were articulated in the Second, Third, and Fourth Circuits. [00:23:40] Speaker 01: That this was the, there's no other least restrictive alternative that anyone has pointed to to suggest that we could reduce the ill effects. [00:23:47] Speaker 03: How about I live in a dangerous neighborhood? [00:23:48] Speaker 03: How about being allowed to show that I live in a dangerous neighborhood? [00:23:52] Speaker 03: I live in a dangerous workplace. [00:23:54] Speaker 03: That's not waste restrictive. [00:23:55] Speaker 01: If you have an interest workplace, you're allowed to carry in your home, you're allowed to carry it at work. [00:24:00] Speaker 01: But I also, this I think comes back to your hypothetical. [00:24:02] Speaker 03: I live in a dangerous neighborhood. [00:24:03] Speaker 01: Yes, so. [00:24:04] Speaker 03: See, we actually work in a very safe building. [00:24:06] Speaker 03: We have wonderful marshals who are protecting us. [00:24:08] Speaker 03: But there are a lot of people in our country who don't have the benefit of what we judges have. [00:24:13] Speaker 03: They live in very dangerous neighborhoods. [00:24:15] Speaker 03: And you're saying. [00:24:17] Speaker 03: that the D.C. [00:24:18] Speaker 03: Council did not consider that as an alternative to what they came up with? [00:24:22] Speaker 03: That someone could say, oh my gosh, I live in a really dangerous neighborhood. [00:24:26] Speaker 03: Hear all those statistics that show that. [00:24:29] Speaker 03: We do that for college students. [00:24:31] Speaker 03: College students get the benefit of knowing if they're in a dangerous neighborhood. [00:24:37] Speaker 03: Do citizens get the benefit of that? [00:24:39] Speaker 03: I live in a dangerous neighborhood. [00:24:40] Speaker 03: That's not a sufficient showing that I ought to be able to defend myself against the first attack. [00:24:44] Speaker 01: I have three responses to that, Your Honor. [00:24:47] Speaker 01: First, the living in a dangerous neighborhood alone is not sufficient. [00:24:51] Speaker 01: That was an issue in the New York, Maryland, and New Jersey laws, all of which were upheld. [00:24:55] Speaker 01: But secondly, these plaintiffs have not come forward to show, I live in a dangerous neighborhood. [00:24:59] Speaker 01: When I leave, I'm worried about my public safety. [00:25:01] Speaker 01: They had the ability in their preliminary injunction briefing to say why they thought they needed a weapon. [00:25:07] Speaker 01: They chose not to, so they've not carried their burden for purposes of a preliminary injunction. [00:25:11] Speaker 01: And third, the question of whether, as you hypothetical. [00:25:14] Speaker 03: That's interesting. [00:25:14] Speaker 03: So the process asks that of them? [00:25:19] Speaker 03: Yes. [00:25:19] Speaker 03: The process identifies the nature of their neighborhood is a relevant. [00:25:23] Speaker 04: I thought the statute excluded. [00:25:24] Speaker 03: No, it says that. [00:25:25] Speaker 04: It's a mere fact of danger. [00:25:26] Speaker 01: near once you'll demonstrate, um, risk of fear or injury by showing special need for self effect for self protection, distinguishable from the general community as supported by evidence of specific threats, previous attacks. [00:25:38] Speaker 01: And let's look if you look at J. A. I don't think you're reading. [00:25:43] Speaker 04: Yeah. [00:25:43] Speaker 01: No, so they do then go on to say, yes, that living in a high crime area itself. [00:25:47] Speaker 01: But take Judge Griffith's hypothetical. [00:25:50] Speaker 01: If you're a woman who lives alone, who lives in a high crime area, and you put those forward to... I thought his... Oh, okay, no. [00:25:57] Speaker 01: Right? [00:25:57] Speaker 01: Living in a high crime area alone, yes, is not sufficient. [00:26:00] Speaker 01: But if you have reason to believe that you may be subject to an attack or that you have been threatened, and I would recommend this court to look at JA442-444. [00:26:07] Speaker 03: And what would that sort of reason be? [00:26:09] Speaker 03: So she's now making applications. [00:26:11] Speaker 03: She says, I live in a dangerous neighborhood, and I'm afraid. [00:26:14] Speaker 01: I'm afraid my neighbor has been robbed. [00:26:17] Speaker 01: I worry that as a smaller woman, I'm not able to defend myself. [00:26:20] Speaker 01: I come home late at night because I have a type of job. [00:26:23] Speaker 01: She gets the? [00:26:23] Speaker 01: I don't know. [00:26:24] Speaker 01: We haven't seen someone bring that case. [00:26:26] Speaker 04: How close does the neighbor have to be in that hypothetical? [00:26:29] Speaker 01: These are questions that are. [00:26:30] Speaker 04: If the neighbor can be three blocks away, [00:26:35] Speaker 04: Then it's not so restrictive. [00:26:37] Speaker 01: So there are a couple of responses to that, Judge Williams. [00:26:40] Speaker 04: First, that is a question for first the Chief of Police, then with a right of review to the Concealed Carry Licensing Pistol Law, Pistol Licensing Board, and there's ultimately... It seems to drive a hole in the statute's preclusion of a permit for people just on the basis of dangerous neighborhood. [00:26:57] Speaker 01: I'm neither the Chief of Police nor the Concealed Pistol Licensing Board nor the D.C. [00:27:00] Speaker 01: Court of Appeals, so I don't know how we draw those lines. [00:27:02] Speaker 01: I can look to New Jersey and New York, which have a 90- and 100-year respective tradition of applying these good reason laws and have significant case law, a common law tradition that does give us what we think the boundaries of good reason are. [00:27:16] Speaker 01: To be sure, plaintiffs here have not come forward with any evidence. [00:27:19] Speaker 01: They haven't alleged, I live in a dangerous neighborhood. [00:27:21] Speaker 01: I live alone. [00:27:22] Speaker 01: I come home late at night. [00:27:23] Speaker 01: I have valuable objects in my home. [00:27:25] Speaker 01: They had their opportunity to do so, and they didn't. [00:27:29] Speaker 01: If, at the end of the day, they can prove this law unconstitutional, and we don't believe they can, they'll be entitled to an injunction then. [00:27:35] Speaker 01: But now, at the infancy of this litigation on a preliminary injunction, they simply have not carried their burden. [00:27:41] Speaker 01: So we would ask that you affirm Judge Clark Atelli and reverse Judge Leon. [00:27:44] Speaker 01: Thank you.