[00:00:04] Speaker 00:
Mr. Gura for the appellate.

[00:00:51] Speaker 01:
Good afternoon, Your Honor.

[00:00:54] Speaker 01:
To understand why Section 922G1 cannot be applied to Mr. Medina, we have to first understand why it can apply to most everyone else.

[00:01:07] Speaker 01:
By understanding the statute's plainly legitimate sweep, we can see the spaces where as-applied challenges are left to be available.

[00:01:16] Speaker 01:
We start with Congress's reason for enacting Section 922-G1.

[00:01:20] Speaker 01:
As the Supreme Court mentioned, and this is not particularly controversial, Congress meant to disarm, quote, risky people, unquote.

[00:01:28] Speaker 01:
And in Schrader, this court described the public safety concerns that underlay this interest in terms such as crime prevention, the prevention of future armed violence.

[00:01:39] Speaker 01:
Again, none of this is particularly usually mentioned.

[00:01:43] Speaker 05:
Is there a subset with which there might be a disagreement that is decided in Congress, and it's plain from your brief that you know this,

[00:01:50] Speaker 05:
that could it be dangerousness or could it be lawlessness, which is the reason for depriving certain persons right under the second amendment.

[00:02:00] Speaker 01:
The government does posit a theory in its brief which is that the touchstone is not dangerousness but what they consider virtuousness or the lack of virtue.

[00:02:09] Speaker 01:
There is no historical basis to suggest that lack of virtue was something that was understood traditionally as a basis for disarming people.

[00:02:18] Speaker 05:
More to the point, if virtue is what motivates... You do find language, including Supreme Court language, that refers to this.

[00:02:27] Speaker 05:
The second amendment rights is belonging to law-abiding persons or law-abiding people.

[00:02:32] Speaker 01:
That's right.

[00:02:32] Speaker 01:
Law-abiding responsible people is the language that Peller used.

[00:02:35] Speaker 01:
Law-abiding responsible citizens.

[00:02:37] Speaker 05:
And when we talk about... Doesn't that sound more like the virtuousness?

[00:02:41] Speaker 01:
That is not the same as virtuousness.

[00:02:42] Speaker 01:
For example, we know that people who suffer from mental illness

[00:02:46] Speaker 01:
are not necessarily going to be responsible people, but we would never say that they lack virtue because they suffer from that disability.

[00:02:53] Speaker 01:
Likewise, there might be people who suffer from drug addiction.

[00:02:56] Speaker 01:
Well, they're not going to be responsible citizens.

[00:02:58] Speaker 05:
That's quibbling over whether we call it virtuousness or call it something else.

[00:03:02] Speaker 05:
But there is a question whether the deprivation of Second Amendment rights is turning on

[00:03:12] Speaker 05:
dangerousness per se or on lawlessness per se, whether it's called virtuous or something else.

[00:03:18] Speaker 05:
I mean, the person who's not mentally responsible can be lawless.

[00:03:22] Speaker 01:
Your Honor, there are two parts to the answer.

[00:03:25] Speaker 01:
The first part that I would look at is what motivated Congress?

[00:03:28] Speaker 01:
What is the reason that Congress had, whether they thought about the second member or not?

[00:03:32] Speaker 01:
What is a statute intended to do?

[00:03:34] Speaker 01:
And on this point, the courts are uniform.

[00:03:36] Speaker 01:
Everybody, including this court in Schrader and Bass, the Supreme Court, we understand that it's meant to deal with things like crime prevention, heightened risk of future armed violence, the need to prevent crime violence, a wide variety of violent conduct, much of it quite egregious.

[00:03:50] Speaker 01:
These are the reasons that the courts have accepted for why the statute exists.

[00:03:54] Speaker 01:
Now, when we look at the Second Amendment as to what

[00:03:58] Speaker 01:
where the line is drawn between people who can have a gun and people who could not have a gun.

[00:04:03] Speaker 01:
Then we look at cases such as what this court decided in Wren.

[00:04:08] Speaker 01:
In Wren, this court explained what responsible means.

[00:04:11] Speaker 01:
It means that we're talking about people who are no more dangerous with a gun than law-abiding citizens generally are.

[00:04:18] Speaker 01:
The discussion ran about commonly situated citizens, those who possess common levels of need and pose only common levels of risk.

[00:04:26] Speaker 05:
Now that being the case, your brief speaks in terms of both the nature of your client's criminal record and of his lawful life since the entrance of the criminal record.

[00:04:41] Speaker 05:
Would you say that that second part is necessary to your case, or is it

[00:04:47] Speaker 01:
What we would say is this, that first of all, notwithstanding some of the descriptions by the government of our brief, there's no facial challenge to 922G1.

[00:04:58] Speaker 01:
As a categorical matter, Congress can legislate broadly for a nation of 330 million people, but as courts uphold, as a basic

[00:05:08] Speaker 01:
feature of our judicial system, there is room for as-applied challenges.

[00:05:11] Speaker 01:
And when it comes to as-applied challenges, when a person comes before the court and says, this generally applicable law should not be applied to me because in my case, it's not constitutional, the question then becomes, what is the fit?

[00:05:23] Speaker 01:
What is the constitutional interest?

[00:05:25] Speaker 04:
Does the person... You're getting out of the question I just asked.

[00:05:28] Speaker 04:
You're getting out of the question I just asked you.

[00:05:31] Speaker 01:
You're reaching it.

[00:05:32] Speaker 01:
So the question is, what is the constitutional interest?

[00:05:35] Speaker 01:
The constitutional interest is the interest by law abiding responsible citizens to defend themselves.

[00:05:40] Speaker 01:
And traditionally, it's been understood since the time of the framing.

[00:05:43] Speaker 01:
The framers understood the concept of disarming dangerous, risky people.

[00:05:47] Speaker 01:
And when people were, although they did not have felon dispossession laws at the time of the framing, that's actually a surprisingly more modern feature.

[00:05:56] Speaker 01:
Courts will accept and courts have accepted that you don't need a precise analog in the framing era to uphold a modern gun control law, but you do need some evidence of 1791 thinking.

[00:06:07] Speaker 01:
There has to be, it has to be something that would have been understood and known to the framers that there's a, that there's a governmental interest in it.

[00:06:15] Speaker 05:
In this applied, as applied challenge, is it based on the nature of his offense or on his law abiding life since this?

[00:06:25] Speaker 05:
You raise both in your brief.

[00:06:27] Speaker 01:
Yes.

[00:06:28] Speaker 05:
Now are they independently sufficient or is one of them sufficient only when coupled with the other?

[00:06:33] Speaker 01:
It's a holistic analysis of who Mr. McGinn is today.

[00:06:36] Speaker 01:
The man is before the court asking for his rights to be honored and so the question becomes is he a person entitled to the protection of the second man?

[00:06:45] Speaker 02:
So you're not saying that

[00:06:46] Speaker 02:
white collar felony fraud can't sustain, consistent with the Second Amendment, a deep disarmament.

[00:06:56] Speaker 02:
You're not arguing that.

[00:06:57] Speaker 01:
We're making a much narrower argument.

[00:06:58] Speaker 01:
That's correct, Your Honor.

[00:06:59] Speaker 02:
With respect to him in particular, you're taking into account the number of years that have passed, his record of law abidingness, the nonviolence of his offense, the fact that sentencing judge didn't believe that it was sufficiently serious even to sentence him to a term in prison.

[00:07:15] Speaker 02:
So that's the kind of analysis that you're looking at.

[00:07:17] Speaker 01:
That's correct, Your Honor.

[00:07:17] Speaker 01:
Now, the nature of the crime is a factor.

[00:07:19] Speaker 01:
Obviously, a person committed a murder is going to have a much harder, perhaps nearly impossible, road to travel in this kind of a case, whereas somebody who has felony jaywalking or some of the other examples given by other courts, stealing a lollipop, a book from a library, those are going to be easier to overcome.

[00:07:38] Speaker 02:
I hear you, and I read in your brief that you're focusing on dangerousness.

[00:07:44] Speaker 02:
I both you and the government highlight the minority report of the Pennsylvania ratifying convention which described you know as.

[00:07:56] Speaker 02:
propounded by individuals whose views, I gather, were minority at the time of the frame of the Constitution, but were persuasive in the adoption of the Second Amendment.

[00:08:07] Speaker 02:
The quote that everybody picks up on is, no law shall be passed for disarming the people or any of them unless for crimes committed or real danger of public injury from individuals.

[00:08:20] Speaker 02:
I was a little bit surprised at your reliance on it because it has the disjunctive, the danger on the one prong and then the other prong is for crimes committed.

[00:08:31] Speaker 02:
There is also in Heller discussion of not of danger, but of law abidingness, responsibility, the felon disenfranchisement.

[00:08:42] Speaker 02:
How can we think about the role of law abidingness in the history and in the precedence if you will just bear with me and accept the notion that maybe the constitutionally permissible disarmament is not limited to people who pose a danger?

[00:09:06] Speaker 01:
Well, first of all, that passage you honor from the Pennsylvania minority was also relied upon in Bindrup to support our position.

[00:09:13] Speaker 01:
In that case, of course, sustained two as-applied challenges by people who the court determined were not either unvirtuous or dangerous.

[00:09:24] Speaker 01:
I think that what everybody tends to agree on, and even we would agree with this,

[00:09:27] Speaker 01:
is that to the extent that law abiding is a factor, whether someone is violating the law or not, it can be a loose proxy of sorts for dangerousness.

[00:09:36] Speaker 01:
People who have a disrespect for the law, people who are scofflaws and who have disdain for the rules of society probably are not trustworthy with firearms.

[00:09:46] Speaker 01:
Everything goes back to dangerousness.

[00:09:48] Speaker 02:
Whereas, or responsibility, non-trustworthiness, judgment, adherence to the social compact.

[00:09:56] Speaker 02:
I mean, I guess one thing is the person himself could be very peaceable, but if he doesn't keep his firearms in a way that's responsible, others, children,

[00:10:10] Speaker 02:
outlaws might get their hands on them.

[00:10:12] Speaker 02:
So, I mean, I hear you pushing back toward dangerousness and saying all these other things are sort of proxies for or concerned with.

[00:10:20] Speaker 02:
Where do you, what makes you so confident that that's the only disabling

[00:10:28] Speaker 02:
condition given what we see in the precedent and in the history that is concerned with this separate law abidingness idea.

[00:10:35] Speaker 01:
Well first of all we start with the precedent to this court most recently in Wren where dangerousness was the touchstone of who had the right and who did not.

[00:10:43] Speaker 01:
Wren is law here and the court made numerous statements that talked about

[00:10:47] Speaker 01:
Those who are no more prone to misuse access to firearms, for example, that's on pages 665 and 66.

[00:10:53] Speaker 01:
So, dangerousness is the law and everything goes back to whether or not a person's access to firearms will cause harm.

[00:11:02] Speaker 02:
Well, Wren also says that the Supreme Court in Heller taught us, quote, that legal regulation of possession or carrying, legal regulations of possession or carrying that are longstanding, including bans on possession by felons or bans on carrying near sensitive sites, reflect limits of the amendment.

[00:11:25] Speaker 02:
So they're saying it's taken out of Second Amendment coverage altogether.

[00:11:30] Speaker 01:
No, Your Honor, the problem with going to that extreme is that if Congress can define anything that's a felony is therefore an exclusion from a fundamental constitutional right, then Congress at that point has the power to define the scope of a fundamental right, which is of course not possible otherwise.

[00:11:49] Speaker 02:
But it does.

[00:11:50] Speaker 02:
I mean, that's assuming a level of kind of capriciousness and bad faith on the part of Congress.

[00:11:56] Speaker 02:
A felony is a serious crime.

[00:12:00] Speaker 02:
If you had reason to believe that Congress was expanding the definition of felony to things that were trivial because they were trying to disarm the people, you might have claimed due process, disproportionality, what have you, but it's a pretty stable and over-determined category of what the legislature thinks is serious.

[00:12:23] Speaker 02:
So it doesn't seem as open to manipulation as you argue.

[00:12:28] Speaker 01:
Well, Your Honor, I would respectfully disagree that it's a stable category that's only... In the framing era, for example, felonies were few and very well defined.

[00:12:39] Speaker 01:
The traditional common law felonies, murder, arson, rape, burglary, those kinds of things.

[00:12:46] Speaker 01:
Today, of course, a felony, as our brief mentioned, could be something as simple as a man releasing helium balloons as an appreciation to his girlfriend on Valentine's Day.

[00:12:55] Speaker 01:
I mean, he was charged with a felony initially.

[00:12:57] Speaker 01:
That was a case of perhaps excessive overcharging, but all be it the same,

[00:13:03] Speaker 01:
What we come down to when a person comes before the court and says, this law cannot be applied to me because I have no right which is being infringed and there's no governmental interest that justifies infringing of my right, the courts have to ask, okay, what is the governmental interest?

[00:13:18] Speaker 05:
I'm not quite certain yet whether you're saying that it can't be applied to him because he

[00:13:24] Speaker 05:
had a non-violent, non-dangerous felony, or because he's had a virtuous life since then.

[00:13:31] Speaker 01:
The latter, Your Honor, and the fact that he did that.

[00:13:34] Speaker 05:
That is the ground issue going on then.

[00:13:37] Speaker 01:
Your Honor, it is a holistic analysis of whether or not this person fits the definition that Heller gave of people who are entitled to exercise Second Amendment rights.

[00:13:46] Speaker 01:
Now, whatever criminal record Mr. Medina has, or may have, goes to that question.

[00:13:52] Speaker 01:
It's part of the analysis.

[00:13:54] Speaker 01:
And if we were to have discovery and if we were to have a process and the government were to turn up all kinds of information about Mr. Medina that showed that he is in fact irresponsible and dangerous and maybe he's done other things that we don't know about, then Mr. Medina would lose.

[00:14:07] Speaker 01:
But the question here is, can he access the courts?

[00:14:11] Speaker 01:
to at least make that claim.

[00:14:13] Speaker 01:
And I would submit to you that there's nothing magical or mystical about Section 922-G1.

[00:14:17] Speaker 01:
It's an act of Congress.

[00:14:18] Speaker 01:
It's constitutional on its face.

[00:14:20] Speaker 01:
But people should have the right, as with any act, to say, as applied to me, given the interest that Congress has, given the constitutional justification for disarming me or not,

[00:14:31] Speaker 01:
There's not enough here, and as applied to me, I need relief.

[00:14:36] Speaker 02:
What do you make, Mr. Greve, of the opinion of Justice Easterbrook writing for the Ambonk Seventh Circuit when he says in, is it Schoen?

[00:14:47] Speaker 02:
He responds to the lifetime disability argument by saying, you know, the avenues to deal with that are through pardon or expungement or restoration of civil rights.

[00:14:59] Speaker 02:
that your client who may in fact be able to make his case as a model citizen should seek a pardon.

[00:15:07] Speaker 01:
Well, Your Honor, while he should have access to seek a pardon, that's not the exclusive way to vindicate rights.

[00:15:14] Speaker 01:
People can come before a court and file a declaratory judgment under our legal system and say, I have a constitutional injuring fact, the government is enforcing a law against me, it's not constitutional, and get a judge who thinks about the constitutional issue to decide the case rather than

[00:15:30] Speaker 01:
a lawyer in a pardon office somewhere who's thinking about a very different range of interests to go into evaluating whether or not to issue these what the court in Bindrup called moonshots in one of the opinions.

[00:15:41] Speaker 01:
The Seventh Circuit of course also would later say that we should be able to have

[00:15:47] Speaker 01:
as applied challenges in Williams.

[00:15:50] Speaker 01:
The court said, Heller referred to felon disarmament bans only as presumptively lawful, which by implication means that there must exist the possibility that the ban could be unconstitutional in the face of an as applied challenge.

[00:16:01] Speaker 01:
Now, that is not an unusual decision.

[00:16:03] Speaker 01:
It's no different than what this court said in Schrader, where this court said,

[00:16:09] Speaker 01:
that the federal firearms ban will remain vulnerable to a properly raised as applied constitutional challenge brought by an individual who, despite a prior conviction, has become a law-abiding responsible citizen entitled, and I'm going to come back to that word entitled, to use arms in defense of hearth and home.

[00:16:27] Speaker 01:
Now, what Schrader tells us with this formulation, which is consistent with the formulations in the Seventh Circuit,

[00:16:33] Speaker 01:
the First, the Eighth, the Ninth Circuit, the Third Circuit, of course, the Unbonk Opinion, Bindrup, approved of as applied challenges.

[00:16:40] Speaker 01:
This court's usage of the word entitled, I think, is telling, because it tells us that this is a one-step holistic approach.

[00:16:48] Speaker 01:
If a person is dangerous, irresponsible, poses some risk that takes him or her outside of the Second Amendment, then the claim loses at step one.

[00:16:57] Speaker 01:
However, if at traditional step one,

[00:17:00] Speaker 01:
the person is a law-abiding responsible citizen, then there cannot be a step two because the government has no interest.

[00:17:06] Speaker 01:
There's no tailoring that's possible that would allow the government to disarm that person because at step one we've proven that there's no interest because

[00:17:15] Speaker 02:
I'm curious, Mr. Gura, in the cases that suggest that there is a right to a case by case as applied challenge and also in the Third Circuit which found merit in the challenge

[00:17:30] Speaker 02:
Am I right that all of those cases were in the situation of a state law misdemeanor?

[00:17:38] Speaker 02:
Are there any cases that have, and I'm just curious why this is, but it seemed to me that there's no cases where it's a federal felony conviction and the court said case by case, let's look at this person after the passage of, in your client's case, decades and peaceable life and no further offenses.

[00:17:59] Speaker 01:
Three aspects of that question.

[00:18:00] Speaker 02:
First of all... Am I just right as a factual matter and then I'd like to hear your further explanation, but is there any case that has said let's do an as applied analysis of an individual who was someone convicted of a federal felony?

[00:18:14] Speaker 01:
Of a felony?

[00:18:15] Speaker 01:
Of a federal felony.

[00:18:18] Speaker 02:
Or even a state felony for that matter.

[00:18:20] Speaker 01:
I believe there might be two, and if I could supplement this.

[00:18:24] Speaker 01:
The ones I'm thinking of, I think the Britt case out of North Carolina, which is a North Carolina state Supreme Court decision applying their Constitution's right to arms provision.

[00:18:36] Speaker 01:
I believe Mr. Britt was convicted of some felony drug offenses early in his past.

[00:18:43] Speaker 01:
I believe we cite that case somewhere.

[00:18:45] Speaker 01:
I don't think that was a misdemeanor case.

[00:18:47] Speaker 01:
And I think there was a more recent case out of a district court

[00:18:50] Speaker 01:
I would submit a letter on that.

[00:18:53] Speaker 01:
I don't have it on me.

[00:18:54] Speaker 01:
It was a very recent decision.

[00:18:56] Speaker 05:
Hasn't Congress itself exempted a whole category of felonies from the effect of this act?

[00:19:02] Speaker 01:
That's right.

[00:19:03] Speaker 01:
Well, Congress actually does not use the term felony in this law anywhere else.

[00:19:06] Speaker 05:
And I'm speaking in terms of 921A20A that the term crime punishable by imprisonment, which is the term Congress used,

[00:19:18] Speaker 05:
for a term exceeding one year does not include any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices.

[00:19:32] Speaker 05:
That's Congress itself taking the whole category of felonies out of the effectiveness of this act.

[00:19:37] Speaker 01:
That's correct, Your Honor, and that's a good point.

[00:19:39] Speaker 01:
There is actually, by statute, a categorical exclusion, which I believe is being litigated right now.

[00:19:43] Speaker 01:
There's a case in the district court.

[00:19:45] Speaker 01:
It's not one of my cases.

[00:19:46] Speaker 01:
One of my colleagues has it.

[00:19:47] Speaker 01:
So you might be seeing that come your way soon enough.

[00:19:51] Speaker 01:
But to go back to Judge Pollard's question, number one, it's still very early in the second amendment game.

[00:19:56] Speaker 01:
We've only had these cases now start to come up.

[00:19:59] Speaker 01:
Second, to the extent that we're not talking about, of course, the felonies that Judge Santel mentioned.

[00:20:04] Speaker 01:
You're talking about state-level misdemeanors punishable by over a year.

[00:20:09] Speaker 01:
The government takes the same position as it does in felony cases.

[00:20:14] Speaker 01:
They haven't fought any less hard in Binderup or in any of these other cases to try to get, to ensure that the analysis is the same and is just as restrictive.

[00:20:23] Speaker 04:
Why don't we hear from the government?

[00:20:24] Speaker 04:
We'll give you some time on revival.

[00:20:25] Speaker 01:
Fantastic.

[00:20:26] Speaker 01:
Thank you.

[00:20:35] Speaker 03:
Good afternoon, Your Honors.

[00:20:36] Speaker 03:
May it please the Court, Patrick Nemerov on behalf of the government.

[00:20:40] Speaker 03:
Plaintiff is prohibited from possessing firearms because he was convicted of a federal felony punishable by 30 years in prison.

[00:20:47] Speaker 03:
In Heller, the Supreme Court emphasized that nothing in its opinion cast doubt on long-standing prohibitions on the possession of firearms by felons.

[00:20:54] Speaker 03:
It identified the Second Amendment right as belonging to the law-abiding and responsible, and it described this prohibition as belonging within an exception to the right.

[00:21:05] Speaker 03:
Now, applying Heller, no federal court of appeals has held Section 922-G1 unconstitutional as applied to an individual convicted of a felony.

[00:21:16] Speaker 03:
much less a federal felony subject to 30 years imprisonment, and no court has adopted the sort of standardless, holistic, individualized approach that plaintiff asked this court to adopt here.

[00:21:28] Speaker 03:
To the contrary, several courts, for example, most recently the Fourth Circuit, while leaving the issue open in prior decisions, when actually confronted with the question,

[00:21:38] Speaker 03:
have rejected the approach.

[00:21:39] Speaker 03:
And so in Hamilton v. Pelosi, the Fourth Circuit held that an individual convicted of a felony offense permanently forfeits their Second Amendment right, and they're not entitled to an individualized inquiry to determine whether they're dangerous in the future.

[00:21:54] Speaker 03:
That's not a prerequisite for the statute's application.

[00:21:57] Speaker 03:
And indeed, such an approach would pose all kinds of problems as underscored by Congress's experience with Section 925C applications for relief from Section 922G1.

[00:22:08] Speaker 03:
There, Congress defunded the program after finding that despite ATF agents spending 40 man years annually to go out and investigate in the field these sorts of applications, it was still making mistakes and restoring firearms to people who went on to misuse them.

[00:22:24] Speaker 03:
So if ATF couldn't do it, despite those field investigations, there's no doubt that courts are not going to be able to do it at the appropriate level of accuracy.

[00:22:34] Speaker 03:
And it's simply not required.

[00:22:36] Speaker 03:
Historic understanding underpinning this is that firearms rights have historically been subject to categorical disarmament of individuals deemed outside of the virtuous citizenry and felons have historically forfeited certain rights permanently.

[00:22:53] Speaker 05:
Is that because of dangerousness or is that because of lack of virtuousness?

[00:22:58] Speaker 05:
Both.

[00:22:59] Speaker 03:
The fact that they're no longer considered law-abiding citizens, they fall outside the virtue of citizenry.

[00:23:07] Speaker 03:
And so it's certainly not the case that a felon who has been disenfranchised can come into court and say, you know, please evaluate my individual circumstances now such that I should be entitled to

[00:23:19] Speaker 03:
regained that right.

[00:23:21] Speaker 03:
And just in the same way, once someone has been convicted of a felony and they remain a felon, then they are outside of the scope of the Second Amendment.

[00:23:30] Speaker 02:
I'm a little confused about how if we held that some Second Amendment scrutiny applied here, we would conduct an intermediate scrutiny analysis, which your brief sort of hints at.

[00:23:48] Speaker 02:
If we're looking at the individual as applied, it just seems like that's, I don't see how that matches up with an intermediate scrutiny analysis, the very nature of which is to say, you know, that there doesn't have to be an exact fit between the class of regulated conduct and or persons and the government's objective.

[00:24:08] Speaker 03:
So if we get to the second step and this court has adopted intermediate scrutiny of the second step in dealing with challenges to section 922 G1, then it is not consistent with intermediate scrutiny to look at the individual because that would convert intermediate scrutiny to a narrow tailoring requirement and the Supreme Court

[00:24:27] Speaker 03:
has said as much in Edge Broadcasting Company in a case dealing with the First Amendment.

[00:24:32] Speaker 03:
So where intermediate scrutiny properly applies, and it properly applies, this Court has held that it applies here because we're dealing with individuals who are outside of the core of the Second Amendment.

[00:24:42] Speaker 02:
Are you talking about Schrader or what are you talking about?

[00:24:43] Speaker 03:
Yes, Schrader, Your Honor.

[00:24:45] Speaker 03:
Once you're applying intermediate scrutiny, then it would be inconsistent with that scrutiny to look at the individual in the way that plaintiff is asking you to do here.

[00:24:54] Speaker 03:
But of course, the court shouldn't even get to the second step because historically felons have fallen outside of the Second Amendment.

[00:25:02] Speaker 03:
You know, even if this court were to determine that an individual individually we're not dangerous that would not erase his felon status you would remain a felon.

[00:25:10] Speaker 03:
And I think, you know, Judge son's concurrence and Tyler be Hillsdale says this pretty clearly.

[00:25:17] Speaker 03:
And he talks about how the prohibition appropriately applies to felons, and you're a felon unless and until your crime is pardoned or expunged.

[00:25:25] Speaker 02:
So you're, and it seems like both sides here are taking the sort of on-off switch position.

[00:25:30] Speaker 02:
Either you're in the Second Amendment and in the Corps, so Medina wins, or out of the Second Amendment, no means and scrutiny, Medina loses permanently, no matter what an angel he becomes.

[00:25:45] Speaker 03:
I mean, this court in Trader definitely adopted the two-step approach, so if this court holds that plaintiff here is entitled to some second amendment protection despite the historical understanding of the right, then under this court's controlling precedent, it should proceed to the second step.

[00:26:01] Speaker 05:
Just for the record, state the two steps, please.

[00:26:04] Speaker 05:
Sorry?

[00:26:05] Speaker 05:
Just for the record, state the two steps, please.

[00:26:08] Speaker 05:
State the two steps.

[00:26:09] Speaker 03:
The first step is, is the individual, does the law implicate the Second Amendment?

[00:26:15] Speaker 03:
So here is of individual convicted of a federal felony entitled to Second Amendment protection.

[00:26:20] Speaker 03:
The second step is, even if the individual is entitled to some protection, does the statute, does the application of the statute survive means and scrutiny and what this court held in traitor was because... State what that scrutiny is, please.

[00:26:33] Speaker 03:
This court adopted intermediate scrutiny.

[00:26:37] Speaker 05:
So the government has to, you know... What I'm trying to get you to do is say for the record what you mean by intermediate scrutiny.

[00:26:43] Speaker 03:
Right.

[00:26:44] Speaker 03:
So the law has to be appropriately tailored to a compelling interest.

[00:26:48] Speaker 03:
It doesn't have to be narrowly tailored, but it has to serve the interest.

[00:26:51] Speaker 03:
And what the court held in Schrader, of course, was that the law satisfies intermediate scrutiny.

[00:26:56] Speaker 03:
You said a compelling interest.

[00:26:58] Speaker 03:
an important interest, Your Honor.

[00:27:01] Speaker 03:
But there's no doubt that the government has a sufficiently important interest here, and indeed this court upheld the statute as applied to common law misdemeanance and traitor.

[00:27:11] Speaker 03:
So that conclusion, of course, also follows

[00:27:15] Speaker 03:
For felons, the real question then that Planoff is presenting here is whether he's entitled to an individualized determination of his own dangerousness.

[00:27:24] Speaker 05:
At this point, it would seem to me that we are looking, in part at least, at whether it's appropriately tailored.

[00:27:29] Speaker 05:
I don't think you get on too far trying to get us to get off at the first tick.

[00:27:35] Speaker 05:
That depends on us saying that he's not entitled to protecting the second amendment, right?

[00:27:41] Speaker 05:
You're right that the first step depends on... You're saying that we should stop at the first step because you're saying he's not entitled to the protection of the Second Amendment.

[00:27:50] Speaker 05:
That's right.

[00:27:50] Speaker 05:
That strikes me as rather circuitous reasoning.

[00:27:53] Speaker 05:
He's not entitled because he's not entitled is not the most convincing rationale I ever heard.

[00:28:00] Speaker 05:
I don't think it's... If we get that far then to the second step, is this appropriately tailored?

[00:28:07] Speaker 03:
Yes, Your Honor.

[00:28:08] Speaker 03:
And to answer both parts of your question, Congress didn't pick an arbitrary category here.

[00:28:15] Speaker 03:
It chose felons.

[00:28:16] Speaker 03:
And felons— No, it didn't say felony.

[00:28:19] Speaker 05:
Sorry?

[00:28:19] Speaker 05:
Congress never said felony in this Act.

[00:28:22] Speaker 05:
That's true, Your Honor, but the definition— It didn't pick felony.

[00:28:24] Speaker 05:
It picked a crime punishable by a certain so-forth sentence.

[00:28:27] Speaker 03:
which tracks the common law definition of felony and for individuals convicted of misdemeanors that actually made the crime, that required that the crime be punishable by more than two years.

[00:28:37] Speaker 03:
And of course, here we're dealing with someone convicted of a federal felony.

[00:28:42] Speaker 05:
So that's not- If Congress is being non-arbitrary, if that's a word, if they're not being arbitrary, can you explain that antitrust exemption from the definition?

[00:28:54] Speaker 03:
I can, and just before I get into it, I just want to say none of this is in the briefing because this argument... Nobody talked about, to my surprise, nobody talked about the antitrust.

[00:29:05] Speaker 03:
Sure.

[00:29:06] Speaker 03:
But I think what's useful to do is to go back to look at the legislative history for why the antitrust exemption was included in the first place, and the reasons don't track for the crime here or felonies more generally.

[00:29:18] Speaker 03:
So if you look back,

[00:29:20] Speaker 03:
The relevant report is SREP number 89-1866.

[00:29:23] Speaker 03:
That's from 1966.

[00:29:26] Speaker 03:
It's at page 77.

[00:29:27] Speaker 03:
And what's explained there is that at the time that the Gun Control Act was enacted, antitrust, which was traditionally always treated civilly, was not made a felony crime under federal law.

[00:29:42] Speaker 03:
There were a handful of states that had made it a felony crime, but under federal law... At the time I was defending persons charged with it, it was...

[00:29:49] Speaker 05:
Punishable by more than a year in prison, I assure you.

[00:29:53] Speaker 03:
My understanding from reading that Senate report, Your Honor, is that at the time that this provision was enacted, it would not have been punishable by more than a year under federal law.

[00:30:04] Speaker 03:
And so what Congress wanted to do was, for that specific area, because only a handful of states had made it a felony at that time,

[00:30:11] Speaker 03:
provide for a uniform treatment.

[00:30:12] Speaker 03:
Now that's entirely different when you're dealing here with fraud.

[00:30:15] Speaker 03:
That has been a federal felony since at least 1948.

[00:30:19] Speaker 03:
Certainly has been treated seriously getting back to the founding.

[00:30:22] Speaker 03:
It's punishable by 30 years in prison now.

[00:30:24] Speaker 03:
So the reasoning underlying that exception does not apply whatsoever in this case.

[00:30:29] Speaker 03:
And indeed, TANF hasn't argued that it does.

[00:30:33] Speaker 03:
And again, really, plaintiff's ultimate argument is that he's entitled to, no matter what crime anyone is convicted of, they're entitled to come into court five years later, 10 years later, and say, look, I'm no longer dangerous.

[00:30:48] Speaker 03:
The statute should no longer apply to me.

[00:30:50] Speaker 03:
But that has no basis in the historical understanding of the right.

[00:30:53] Speaker 03:
It's not required by intermediary scrutiny.

[00:30:55] Speaker 03:
And it would create all kinds of problems of administrability that really courts have no reason to engage in.

[00:31:04] Speaker 03:
Now, if there are no further questions.

[00:31:06] Speaker 04:
Thank you.

[00:31:09] Speaker 04:
Thank you.

[00:31:10] Speaker 04:
All right, Councilor Figueroa, I'll give you a couple of minutes.

[00:31:12] Speaker 01:
Thank you, Your Honor.

[00:31:12] Speaker 01:
When we argued Binderup, and when we argued Schrader, and every time we pointed out that those people were only convicted of misdemeanors, even a common law misdemeanor, Mr. Nemiroff, I believe it was, or one of his colleagues said, well, who cares?

[00:31:23] Speaker 01:
Congress made the category for misdemeanors, felons, they're all the same.

[00:31:26] Speaker 01:
This is Congress's judgment as to who's dangerous.

[00:31:29] Speaker 01:
And so now, if you have a misdemeanor,

[00:31:32] Speaker 01:
plaintiff, they say, well, it doesn't matter if he's only a misdemeanant, and if you have a felon plaintiff, well, then suddenly it's really very important as to what the classification is.

[00:31:40] Speaker 01:
But the bottom line is that you're talking about the desire by the Congress to disarm people.

[00:31:47] Speaker 01:
And if the person is a law-abiding, at the end of the day, law-abiding, responsible person who's not dangerous, and there is no interest at all involved in disarming that person, then there is no possible tailoring.

[00:32:00] Speaker 01:
It's why Schrader used the word entitled in that second part.

[00:32:04] Speaker 01:
That was not a two-step analysis.

[00:32:06] Speaker 01:
Schrader had a two-step analysis with respect to the categorical challenge.

[00:32:10] Speaker 01:
The first part of Schrader asserted a challenge that said, as a category, people convicted of common law misdemeanors should be exempt from 922G1 because there isn't any sort of statutory definition of their crime at all.

[00:32:23] Speaker 01:
And the court rejected that on a two-step analysis.

[00:32:25] Speaker 01:
But then when it came time to the potential of the individualized, holistic, personalized as-applied challenge that every American can come to court and argue against the application of any criminal law,

[00:32:36] Speaker 01:
Then the court said, well, if he's entitled to the protection of the Second Amendment, then the case has to end there.

[00:32:42] Speaker 01:
So the question becomes, is this person before the court a law-abiding responsible citizen?

[00:32:48] Speaker 01:
And it's not simply for Congress to decree the bounds of a fundamental constitutional right.

[00:32:52] Speaker 01:
It requires a court, in the first instance,

[00:32:54] Speaker 01:
to analyze the question and make that determination.

[00:32:57] Speaker 01:
And that's what Mr. Medina is entitled to.

[00:33:00] Speaker 01:
Even if it's expensive, even if it's uncertain, courts make decisions about people every single day in a myriad of contexts.

[00:33:06] Speaker 01:
And we're talking here about a fundamental constitutional right.

[00:33:09] Speaker 01:
There should be access to the courts to see whether or not the Congress can simply decree that away.

[00:33:15] Speaker 01:
Thank you very much, Your Honor.

[00:33:15] Speaker 00:
Thank you.

[00:33:16] Speaker 00:
We'll take the case under advice.