[00:00:17] Speaker 00:
May it please the court.

[00:00:18] Speaker 00:
I'm Lauren Powell, arguing on behalf of repellent Rodney Klass.

[00:00:22] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:00:25] Speaker 00:
The Second Amendment requires vacatur of Mr. Klass's conviction for two reasons.

[00:00:29] Speaker 00:
First, Maryland Avenue is not a sensitive place.

[00:00:32] Speaker 04:
But the Capitol, how about the Capitol of the United States?

[00:00:36] Speaker 00:
Is that a sensitive place?

[00:00:38] Speaker 00:
The Capitol building itself is a sensitive place.

[00:00:40] Speaker 04:
Okay, so how far beyond the Capitol do you go?

[00:00:43] Speaker 04:
How about the, where the

[00:00:46] Speaker 04:
20 feet beyond the Capitol.

[00:00:47] Speaker 04:
Is that a sensitive point?

[00:00:49] Speaker 04:
There's a fair chance that would be, Your Honor, so... And we're a thousand feet here, but we're in this place where the people who work in the Capitol park.

[00:00:58] Speaker 04:
Yes, it is signs there permit parking only, right?

[00:01:03] Speaker 00:
Yes, the signs indicate permit parking only and the parking spots are reserved for house employees to park in at least during the time that Mr. Klass parked there.

[00:01:14] Speaker 00:
Okay.

[00:01:15] Speaker 04:
But again, your question is you're asking us to consider whether the parking place for the employees of the Capitol, a sensitive place, whether that

[00:01:27] Speaker 04:
extends to where the sensitivity of the capital extends to where the house employees work.

[00:01:36] Speaker 00:
I would say that the government is asking you to decide that it is.

[00:01:39] Speaker 00:
That's the issue.

[00:01:40] Speaker 03:
You would be saying that the regulation in question, the law in question, Your Honor, is invalid in the first instance under scrutiny under the second amendment.

[00:01:49] Speaker 03:
Yes, Your Honor.

[00:01:50] Speaker 03:
So you would not have us reach the exact question that the presiding judge is suggesting.

[00:01:57] Speaker 00:
Yes, your honor.

[00:01:57] Speaker 00:
We believe that the sensitive place question can be avoided entirely because this court recognized in Heller 2 that even when an area is a sensitive place, there is merely a presumption that a gun regulation is valid.

[00:02:11] Speaker 00:
That presumption can be overcome when the

[00:02:14] Speaker 04:
So it's not the end of the inquiry, it's the beginning of the inquiry.

[00:02:18] Speaker 04:
Under Heller, that's the first question we have to answer, is whether this is a sensitive place.

[00:02:23] Speaker 00:
Yes, it's a two-step inquiry.

[00:02:24] Speaker 00:
We start by asking whether it's a sensitive place, and then we look to tears of scrutiny.

[00:02:29] Speaker 00:
But again, in this instance, because there's more than a de minimis effect, even if the government could establish this as a sensitive place, any presumption would be overcome.

[00:02:37] Speaker 03:
There would still be a strict scrutiny question as to whether

[00:02:39] Speaker 03:
this was, assuming they meet the first step of strict scrutiny, that it is a compelling interest.

[00:02:45] Speaker 03:
But they would still have to say that this is narrowly tailored and that it is the least restrictive.

[00:02:51] Speaker 03:
Am I, am I carefully making your argument there, Councilor?

[00:02:54] Speaker 00:
Yes, you are.

[00:02:55] Speaker 00:
Yes, you are, Your Honor.

[00:02:56] Speaker 00:
And we do think that this is a substantial burden on- How is it a substantial burden?

[00:03:02] Speaker 00:
So, Heller 2,

[00:03:04] Speaker 00:
drew a distinction between regulations that merely govern the manner one can use a firearm from those that effectively disarm an individual.

[00:03:14] Speaker 04:
And here there's effective disarmament because Mr. Class... Right, it's a total ban, but after Wren, he can go in a lot of places in D.C.

[00:03:23] Speaker 04:
with his guns.

[00:03:24] Speaker 04:
He just can't go to the Capitol.

[00:03:26] Speaker 00:
So Wren, of course, does point out that a substantial burden is not that even a total ban is not a substantial burden when the regulation is limited to discrete parcels that can be avoided, allowing an individual to preserve his rights undiminished.

[00:03:44] Speaker 00:
But in this instance, there was no way for Mr. Klass to know.

[00:03:48] Speaker 03:
Well, that's whether he knew or not on this specific instance.

[00:03:51] Speaker 03:
Under the statute as it's written,

[00:03:54] Speaker 03:
the limits of capital grounds extend how far from the capital?

[00:04:00] Speaker 00:
Certainly over 1,000 feet.

[00:04:01] Speaker 00:
The entire area is nearly 300 acres.

[00:04:03] Speaker 00:
Some parts of the capital grounds are not even contiguous with the rest of the area.

[00:04:09] Speaker 03:
It includes major thoroughfares?

[00:04:13] Speaker 00:
It does.

[00:04:13] Speaker 00:
And in fact, this road is effectively a thoroughfare.

[00:04:17] Speaker 03:
There's a point in the... That road ends up there at the capital.

[00:04:20] Speaker 03:
You're not going to get far saying that one's a thoroughfare, are you?

[00:04:23] Speaker 03:
It does reach the Capitol, but then 1st Street.

[00:04:36] Speaker 00:
The government's briefing at one point notes that you actually can reach Constitution Avenue if you, if you, they don't know that it's 1st Street, but you can tell by reference to judicially noticeable maps that you don't reach a true dead end.

[00:04:49] Speaker 03:
In any event, how many buildings are within that described area that the statute provides you as the capital grounds?

[00:04:57] Speaker 00:
I can't recall at this moment.

[00:04:58] Speaker 00:
I think it might be around 20.

[00:05:02] Speaker 03:
Are all of them legislative buildings to your knowledge?

[00:05:05] Speaker 00:
No, Your Honor.

[00:05:06] Speaker 00:
For instance, the Botanic Gardens are within the Capitol grounds, and they're not a legislative building.

[00:05:12] Speaker 02:
But would we have to decide the case based on the entire Capitol grounds?

[00:05:15] Speaker 02:
Or could we decide the case based on this stretch of Maryland Avenue?

[00:05:19] Speaker 00:
This is an as-applied challenge.

[00:05:21] Speaker 00:
So your inquiry should be focused on Maryland Avenue.

[00:05:24] Speaker 04:
And where he was parked, that was a parking space that was reserved for house staff.

[00:05:30] Speaker 04:
Is that right?

[00:05:31] Speaker 00:
That's right, Your Honor, but we don't think that is critical to the analysis.

[00:05:36] Speaker 00:
So, for instance, if Mr. Klass were bringing a First Amendment claim, he parked in the same spot and had a pickup truck rather than a Jeep.

[00:05:46] Speaker 00:
He was passing out pro-Second Amendment pamphlets, but the statute was one that said you specifically cannot pass out pro-Second Amendment propaganda.

[00:05:59] Speaker 00:
That statute would be invalid as a viewpoint

[00:06:02] Speaker 03:
as viewpoint discrimination, even though the government can prosecute him for not parking in that spot.

[00:06:19] Speaker 00:
It's an as-applied challenge.

[00:06:22] Speaker 03:
So this is an as-applied and not at all a safety check.

[00:06:25] Speaker 00:
That's correct, Your Honor.

[00:06:27] Speaker 02:
Right.

[00:06:27] Speaker 02:
And on the as-applied part of it, so it's as-applied and we could define as-applied in various ways, but one way to think about as-applied is as-applied to Maryland Avenue, which is a zone in which parking is restricted to Capitol staff.

[00:06:41] Speaker 00:
That is one feature of it, but there are many other features that are also... Right, that's one.

[00:06:46] Speaker 02:
Can I ask you a question just doctrinally about the setup?

[00:06:48] Speaker 02:
So in answer to the initial questions from my colleagues, you indicated that strict scrutiny would apply here, and would that be true?

[00:06:59] Speaker 02:
Would strict scrutiny also apply if we were talking about the Capitol building itself?

[00:07:03] Speaker 00:
No, Your Honor, so as we, of course, touched on earlier, even a total disarmament is not a substantial burden when an area is easily avoided and the Capitol building is easily avoided.

[00:07:16] Speaker 00:
You don't need a sign.

[00:07:17] Speaker 02:
Of course, there is a statute that says in any event the government... So put aside the sign because that has to do with notice and potentially your vagueness challenge, but in terms of

[00:07:28] Speaker 02:
the applicability of strict scrutiny.

[00:07:31] Speaker 02:
You say the Capitol building would not be an occasion for applying strict scrutiny, but this stretch of Maryland Avenue is an occasion for applying strict scrutiny.

[00:07:40] Speaker 02:
Yes, your element distinction is.

[00:07:43] Speaker 00:
I don't mean to fight your hypothetical, but the notice point is key because, as Ren noted, the question is whether an individual can avoid the area and preserve his rights.

[00:07:54] Speaker 00:
When a street is just like all the other streets in this district, there is no reason that an individual knows he has to stay away from this area, and that is, functionally speaking, an inability to avoid the area.

[00:08:06] Speaker 02:
Then let me ask you this.

[00:08:07] Speaker 02:
I don't mean to say that I necessarily disagree with your notice point, but

[00:08:11] Speaker 02:
Suppose I disregard the notice point.

[00:08:13] Speaker 02:
If I disregard the notice point, is there any basis for drawing a distinction between an as-applied challenge to this stretch of Maryland Avenue and an as-applied challenge to the Capitol building with respect to whether Shrick's scrutiny would apply?

[00:08:24] Speaker 00:
Yes, Your Honor, because Maryland Avenue is not a sensitive place.

[00:08:28] Speaker 00:
in the first instance, whereas the Capitol building is.

[00:08:31] Speaker 00:
So if it's not a sensitive place, but you can avoid the area, our read of the relevant cases is that intermediate scrutiny would still apply.

[00:08:39] Speaker 00:
And even under that standard, this regulation must fail.

[00:08:42] Speaker 02:
But what about with the Capitol building itself?

[00:08:44] Speaker 02:
It's because it's... So your reading of that stretch, that portion of Heller, is that if it qualifies as a sensitive place itself, then what?

[00:08:53] Speaker 00:
If it qualifies as a sensitive place itself, then there is a presumption that any gun regulation is valid.

[00:09:00] Speaker 02:
Right, so it's just a presumption, so why wouldn't strict scrutiny still apply?

[00:09:04] Speaker 00:
Because then you ask whether the presumption is overcome by looking at whether there's more than a de minimis burden.

[00:09:10] Speaker 00:
Initially, one would say yes, because there's a complete ban, but then one would say, well, but there's an exception for the fact that this Capitol building can be avoided.

[00:09:21] Speaker 00:
But so can Maryland F. Not in practice, because there's no indication that this street is any different from all the others.

[00:09:29] Speaker 00:
But that just gets back to the notice point.

[00:09:32] Speaker 03:
That is part of it, and I'd like to note that... Is it not consistent with the record to say that the parking there is perpendicular parking like a parking lot as opposed to being parallel parking that would be the norm on a simple street?

[00:09:47] Speaker 03:
It is true that this is... Isn't there also a sign that it says private parking?

[00:09:53] Speaker 00:
It says permit parking only.

[00:09:54] Speaker 03:
Permit parking, excuse me, permit parking.

[00:09:56] Speaker 03:
So isn't that distinguishable from other streets in the area?

[00:10:00] Speaker 00:
No, Your Honor, there are in fact many streets in this district where there is perpendicular parking and a very large number of streets in the district say permit parking only, whether it's for residents or for government employees, what have you.

[00:10:12] Speaker 00:
These are very common features.

[00:10:14] Speaker 00:
They don't give an individual any sort of sense.

[00:10:17] Speaker 03:
Suppose the court or I were to believe that this statute cannot survive a facial challenge as opposed to an as-applied challenge.

[00:10:28] Speaker 03:
Is this case before us one in which we could not decide that?

[00:10:32] Speaker 00:
Yes, Your Honor, there's only been an as-applied challenge here.

[00:10:37] Speaker 00:
So I'd also like to point out on the notice idea that this is not a novel approach to constitutional law.

[00:10:47] Speaker 00:
In the First Amendment context, in United States v. Grace, the Supreme Court considered whether the sidewalks around the Supreme Court building were a public forum or not, whether First Amendment

[00:11:03] Speaker 00:
rights extended there, and there wasn't a question that the statute made it clear that this was an area where the First Amendment activity was prohibited, but the Supreme Court looked to features like the fact that the sidewalks were the same material as all other sidewalks in the area, whereas the plaza of the Supreme Court is made of marble, and they looked to the fact that there were barriers, metal barriers that

[00:11:26] Speaker 00:
that sort of indicate one part of the Supreme Court grounds is special and another is not.

[00:11:31] Speaker 00:
The Capitol grounds have many of those sorts of features at other places.

[00:11:35] Speaker 00:
The Capitol grounds often have parking where you have to go through a gate before you can enter, but not this street.

[00:11:41] Speaker 00:
This street is really just like all the others in the district.

[00:11:45] Speaker 04:
to interrupt you and back you up a little bit.

[00:11:47] Speaker 04:
Help my thinking on this one.

[00:11:48] Speaker 04:
And I want to go back to the hypothetical of the capital, which is talking about capital.

[00:11:52] Speaker 04:
Capital is a sensitive place.

[00:11:54] Speaker 04:
No argument about that, right?

[00:11:56] Speaker 04:
Capital is a sensitive place.

[00:11:57] Speaker 04:
Is it not the case that from Heller that we learn that therefore there's no Second Amendment right at all in a sensitive place?

[00:12:06] Speaker 04:
So why do we engage in any inquiry about burdens when there's no right at all?

[00:12:14] Speaker 00:
In Heller 2, this court explored that language a little bit, and it did go along the lines of your thinking, that when there is historical regulation, there is a sense that there must not be second amendment rights in this area.

[00:12:29] Speaker 04:
Right.

[00:12:30] Speaker 04:
So what's wrong with that thinking?

[00:12:31] Speaker 00:
Well, the footnote in Heller 1 indicated that it was still just a presumption that the regulation was valid, that in fact,

[00:12:41] Speaker 04:
So you might have a Second Amendment right in the Capitol, according to the footnote.

[00:12:45] Speaker 04:
Is that what you're saying?

[00:12:46] Speaker 00:
Yes, yes, but in that instance, it's easy to get around the issue because, again, you know where the Capitol is.

[00:12:57] Speaker 00:
You have a clear sense that there are metal detectors, there are guards, there are signs.

[00:13:01] Speaker 00:
You shouldn't go in that area.

[00:13:02] Speaker 00:
You can avoid it.

[00:13:03] Speaker 00:
Not so in this area.

[00:13:05] Speaker 04:
My question is more about just the analysis that the Supreme Court has called upon us to make.

[00:13:11] Speaker 04:
If we find that a place is a sensitive place,

[00:13:15] Speaker 04:
Why do we then engage in any burden inquiry?

[00:13:19] Speaker 04:
Why isn't the result of that finding, that it's a sensitive place, that there is no Second Amendment right in that place?

[00:13:29] Speaker 04:
Don't get involved in any analysis of burden.

[00:13:33] Speaker 04:
There is no right there.

[00:13:34] Speaker 04:
What's wrong with that thinking?

[00:13:36] Speaker 00:
So on Heller 1, again,

[00:13:41] Speaker 00:
indicates that history can be a guide to determining whether Second Amendment rights exist in an area, but it's cautious to encourage courts to look further, and that is why Heller 1 said that there is a presumption of validity, not a guarantee of validity, and that's why this court in Heller 2

[00:13:58] Speaker 00:
specifically said, if there's more than a de minimis effect on Second Amendment rights, that we do continue to the scrutiny analysis.

[00:14:06] Speaker 02:
Can I ask you then, would your argument mean that for the Gun Free School Zones Act, which as you probably know, bars the possession of a firearm within 1,000 feet of a school zone, then would it mean that that law is subject to scrutiny and would be struck down as applied to areas that are 1,000 feet from a school zone?

[00:14:28] Speaker 00:
No, Your Honor.

[00:14:29] Speaker 00:
There, there's, of course, a mens rea requirement in the statute, which is quite different from this one.

[00:14:35] Speaker 00:
There's, again, that's sort of a functional way to avoid getting tripped up into losing your Second Amendment rights.

[00:14:40] Speaker 00:
Because if you don't have the knowledge, you are not going to be violating the statute.

[00:14:46] Speaker 02:
So then that's still predicated on your notice kind of understanding of where you are point, as opposed to a notice unrelated point about the scope of the Second Amendment?

[00:14:58] Speaker 02:
So in other words, the reason you're saying that the Gun Free Schools Zones Act wouldn't pose a constitutional problem is because of a mens rea requirement in the statute.

[00:15:10] Speaker 00:
That is part of the reason why.

[00:15:13] Speaker 00:
Also it's much more likely that statute would pass any level of scrutiny applied because their Congress made findings and of course the Supreme Court recognized that schoolyards are a sensitive place to start with.

[00:15:27] Speaker 02:
But they also said that about government buildings.

[00:15:30] Speaker 00:
Right, but in the school context, of course, we're already outside of the building.

[00:15:34] Speaker 02:
But so is the Gunfrey School Zones Act, because it's within 1,000 feet of a school zone.

[00:15:37] Speaker 02:
It's not within the school.

[00:15:38] Speaker 02:
It's within 1,000 feet of a school zone.

[00:15:40] Speaker 02:
So I assume you'd make the same argument that 1,000 feet from a school zone is not itself a sensitive place.

[00:15:46] Speaker 00:
But intermediate scrutiny would end up applying again because of the fact that it's an avoidable area.

[00:15:52] Speaker 00:
No further questions?

[00:15:54] Speaker 04:
No, no, I'm not certain.

[00:15:55] Speaker 00:
Oh, sorry.

[00:15:56] Speaker 04:
I'm curious why you didn't raise the mens rea requirement about the statute.

[00:16:02] Speaker 04:
This is a strict liability statute.

[00:16:04] Speaker 04:
Those are suspect.

[00:16:07] Speaker 00:
Yes, we also raise a vagueness challenge.

[00:16:11] Speaker 00:
The vagueness challenge, of course, turns on three main factors.

[00:16:16] Speaker 00:
First, it's the fact that this is a specially searching inquiry.

[00:16:21] Speaker 00:
The conduct at issue threatens to inhibit constitutional rights.

[00:16:24] Speaker 00:
In fact, we believe it does inhibit constitutional rights.

[00:16:27] Speaker 00:
and it does so through the imposition of criminal penalties.

[00:16:31] Speaker 04:
What I was getting at is that there is a mens rea inquiry here, but it hasn't been arrayed.

[00:16:36] Speaker 04:
Have you forfeited that?

[00:16:38] Speaker 00:
No, Your Honor.

[00:16:40] Speaker 00:
We raised the mens rea issue.

[00:16:43] Speaker 02:
I think maybe what Judge Griffith is getting at is the distinction between the statute, whether a mens rea

[00:16:50] Speaker 02:
whether a mens rea element is the proper way to construe the statute and whether there's a constitutional vagueness problem with it.

[00:16:57] Speaker 02:
And as to the former, I don't understand you to have alleged that the statute itself requires proving mens rea.

[00:17:04] Speaker 02:
Well, everybody agrees it requires proving mens rea with respect to carrying.

[00:17:08] Speaker 02:
The question is whether it requires proving mens rea with respect to where you are on the Capitol grounds.

[00:17:13] Speaker 02:
And as to that, I didn't understand you to have raised an argument that the statute should be construed to require mens rea with respect to being on the Capitol grounds as opposed to the constitutional vagueness challenge.

[00:17:24] Speaker 00:
That's correct, Your Honor.

[00:17:25] Speaker 00:
We have focused solely on the vagueness challenge.

[00:17:28] Speaker 00:
The government argued strenuously below that there is no mens rea requirement attached to knowledge of the Capitol grounds.

[00:17:35] Speaker 04:
And so this is a fight about... That's a tougher haul for us, isn't it, to say due process clause requires a mens rea requirement.

[00:17:46] Speaker 04:
We'd have to strike down a lot of statutes.

[00:17:48] Speaker 04:
Whereas, if we were just focusing on this statute, the strict liability statute, it would be a little easier for us to get there.

[00:17:57] Speaker 00:
Well, Your Honor, we think this is a truly exceptional statute.

[00:18:02] Speaker 03:
The statute begins by saying... Does that mean, in case, why didn't you make a facial challenge instead of just another flyer?

[00:18:09] Speaker 03:
I'm sorry, you're not the client, but why didn't your client?

[00:18:13] Speaker 00:
So, Your Honor, we acknowledge that large portions of the Capitol grounds are areas where the gun regulation is properly applied in the Capitol building.

[00:18:24] Speaker 03:
None of the issues, Your Honor, restrict scrutiny and regulate a whole lot more than those areas.

[00:18:29] Speaker 03:
Isn't there a problem with that?

[00:18:32] Speaker 00:
There could be, Your Honor.

[00:18:34] Speaker 03:
That being the case, why wasn't there a face-to-face discussion?

[00:18:36] Speaker 00:
Well, so we think that it's not necessary to consider a facial challenge, given that the question becomes harder when there are lots of... More of the same question of your proposing counsel, and it wasn't prompted just by your position here.

[00:18:50] Speaker 03:
I have looked for this, but is there any case that says that if a statute is facially unconstitutional, but an included statute would be constitutional, and this conduct falls within that included,

[00:19:06] Speaker 03:
What do we do then?

[00:19:10] Speaker 03:
Can we uphold it as applied, even if the statute would be unconstitutional?

[00:19:15] Speaker 03:
That comes up in the vagueness context generally.

[00:19:19] Speaker 03:
This is not precisely in vagueness context here, but in a strict scrutiny context, it might well be held that a statute that outlaws gun possession in a sensitive place properly defines its constitution.

[00:19:35] Speaker 03:
However, if the statute is so over-broad that it does not survive street scrutiny, but you are nonetheless within the area that could have been regulated, what is the court supposed to do now?

[00:19:45] Speaker 03:
And I haven't found a case outside the vagueness that tells me that.

[00:19:53] Speaker 00:
I believe the answer is that it would be upheld, although this is not an issue I have looked into recently.

[00:20:03] Speaker 03:
I have looked and I have not found a case that says something one way or the other, honestly.

[00:20:08] Speaker 02:
But I thought, right, I think your instinct, is your instinct born of the idea that if there's not a facial challenge before the court, then the challenge that is before the court is the as-applied one, and then we just have an up or down vote on whether it's constitutional as-applied.

[00:20:23] Speaker 00:
That's correct, Your Honor, although there's also, of course, to consider that the point of over-breath challenges is to prevent chilling of conduct.

[00:20:33] Speaker 00:
And so there is a lot of latitude given to raise those sorts of challenges.

[00:20:38] Speaker 02:
When there's an over-breath challenge before the court?

[00:20:40] Speaker 00:
Yes, sir.

[00:20:41] Speaker 02:
If there's not one, then?

[00:20:43] Speaker 00:
We've not briefed an over-breath challenge.

[00:20:46] Speaker 00:
Thank you.

[00:20:46] Speaker 00:
Thank you very much.

[00:20:52] Speaker 04:
Good morning.

[00:20:53] Speaker 01:
May it please the court, Lauren Bates on behalf of Appellate United States.

[00:20:58] Speaker 01:
The challenge here before the court is an as applied challenge and that is because appellate concedes that they could not show that the capital ground statute was unconstitutional in all respects.

[00:21:08] Speaker 01:
They concede that it is constitutional because the government buildings, the capital building and the other government office buildings which include six congressional office buildings as well as other government owned buildings in that area are sensitive places.

[00:21:23] Speaker 01:
And they do not offer a compelling reason for this court to conclude that the area where Appellant was found with his guns, the Maryland Avenue parking area, is not similarly a sensitive place.

[00:21:37] Speaker 01:
And that is because it is an area that is within a government owned and controlled, strictly controlled, you know, grounds surrounding the Capitol.

[00:21:48] Speaker 01:
which is a unique area based on the fact that you have the United States Capitol, the seat of the federal legislature with 538 federally elected lawmakers there.

[00:21:59] Speaker 01:
with their staffs that are housed in six separate buildings, separated by distance, by open grounds.

[00:22:06] Speaker 01:
The United States Capitol in the center.

[00:22:09] Speaker 04:
Parking... How do you get to 538?

[00:22:11] Speaker 04:
I'm just curious.

[00:22:13] Speaker 04:
I think it's 535.

[00:22:14] Speaker 01:
535.

[00:22:14] Speaker 01:
I apologize.

[00:22:15] Speaker 04:
When the Vice President's up there, it's 536.

[00:22:18] Speaker 01:
Sorry.

[00:22:18] Speaker 01:
535.

[00:22:19] Speaker 01:
My argument remains the same.

[00:22:21] Speaker 03:
You realize the former Senate counsel would be laughing.

[00:22:26] Speaker 01:
And then the Maryland Avenue parking area itself is, as a parent can see, is within a hundred, a thousand feet of the Capitol building itself, is close to one of those office buildings, the Rayburn House Office buildings, is surrounded on different sides by the Botanic Gardens, another federally owned area.

[00:22:47] Speaker 01:
is a place that has been designated with signage for authorized permit parking only.

[00:22:53] Speaker 01:
So that is a place where the individuals who make the place sensitive, the employees, the congressional staff,

[00:23:01] Speaker 01:
park and would be found.

[00:23:03] Speaker 01:
It also abuts areas that are designated for protests and demonstrations, where there are other people, the citizens who come to the Capitol to express their views on the legislation and the questions that are before the federal legislature, where those individuals are found and where there is also a need to protect those individuals.

[00:23:24] Speaker 04:
I'm troubled by the due process part of this.

[00:23:27] Speaker 04:
It does seem unfair that

[00:23:30] Speaker 04:
that Mr. Clash will become a felon based on parking a car in an area that's a distance from the Capitol.

[00:23:40] Speaker 04:
There are a lot of other things here.

[00:23:41] Speaker 04:
The botanical gardens are there.

[00:23:44] Speaker 04:
And there's no sign other than permit parking required.

[00:23:49] Speaker 04:
As your friend pointed out, that's true for almost everywhere in Washington, D.C.

[00:23:56] Speaker 04:
we're going to make people like that felons?

[00:24:00] Speaker 01:
So what there is... How's he supposed to know?

[00:24:02] Speaker 01:
What there is and what is relevant to a vagueness challenge is that there is a law that has been passed and published that is clear as it is written.

[00:24:13] Speaker 04:
But we have the language from Lambert, right?

[00:24:16] Speaker 04:
That the fact that it's merely passed as law isn't always enough, right?

[00:24:21] Speaker 01:
No, but I think it may not always be enough, but when there is no challenge,

[00:24:27] Speaker 01:
to whether the words, as they are written in the law, whether the public law that states Maryland Avenue from first to third street is part of Capitol grounds, when there is no challenge as to whether that is vague, hard to understand, subject to arbitrary enforcement, which there is not a challenge here, and I don't think there could be.

[00:24:54] Speaker 02:
that's in the Botanical Gardens part of the statute?

[00:24:57] Speaker 01:
That is actually in the Public Law 96-432, which isn't in the text of the statute itself.

[00:25:05] Speaker 01:
It is not, but it is, I mean the statute itself says that it can be amended as amended by future laws and you know in

[00:25:13] Speaker 01:
looking at these laws, and I would proffer to the court that they are not that difficult to find, given that... Well, they're also in the notes to the staff.

[00:25:20] Speaker 01:
Correct, they're in the notes.

[00:25:21] Speaker 01:
I mean, depending on which resource you use.

[00:25:24] Speaker 01:
Even in Google, the first three sources of the text of the statute include it in one location, Westlaw in the notes.

[00:25:33] Speaker 01:
So it's there in writing, it is clear as written, and that is sufficient for purposes of the due process vagueness inquiry here, as this court in Braunstein most recently

[00:25:44] Speaker 01:
noted the inquiry, fair notice, is consonant with the longstanding principles of statutory construction.

[00:25:53] Speaker 01:
Citizens are charged with generally knowing the law and what the law means is a function of interpreting the statute.

[00:26:00] Speaker 01:
Here the law is clear and appellant has not made an argument that the words of the law is written are not clear.

[00:26:07] Speaker 02:
So just to be clear, I'm not talking about Westlaw.

[00:26:11] Speaker 02:
I'm talking about the United States Code.

[00:26:13] Speaker 02:
So the United States Code itself, and I know that we engage in some heroic assumptions about what citizens are supposed to know about the law, and I don't mean to suggest that these kind of distinctions between Westlaw and the US Code and the USCA and all that is dispositive, but in the number one source for the statutes, it's the United States Code and the United States Code itself.

[00:26:37] Speaker 02:
the notes to the statute that come right after the statute tell you that there's a public law that amended the statute that defines the capital grounds to include the stretch of Maryland habit?

[00:26:49] Speaker 01:
So, and I will say, I have reviewed looking at the code through a variety of resources, and the way that I have accessed that is I have not gone to the book, because many institutions no longer have the fiscal books.

[00:27:07] Speaker 01:
In all of the manners in which I individually have accessed the code, whether through a legal research tool or through its publication, Congress, it is listed immediately below the text of the statute.

[00:27:24] Speaker 01:
And the fact, even if it weren't, that you might have to go through another step to locate the amendments, again, does not make the statute vague.

[00:27:33] Speaker 03:
The examples... If that were a problem, all of the tax code would be... Correct.

[00:27:39] Speaker 01:
This Court has noted that you may need to consult legal dictionaries, even opinions interpreting the law.

[00:27:44] Speaker 01:
And the fact that you might have to go through those steps does not render clear, unambiguous statutory language vague.

[00:27:52] Speaker 01:
constitutionally void for vagueness.

[00:27:57] Speaker 01:
And appellant seems to argue that the fact that there's no mens rea requirement is what really renders this statute vague, but appellant has not cited, and I am not aware of a single case that holds that a mens rea requirement is required in all cases in order for a statute not to be vague.

[00:28:16] Speaker 04:
But in staples we read mens rea requirement in as a saving construction.

[00:28:21] Speaker 04:
Why shouldn't we do that?

[00:28:22] Speaker 01:
Because the language here is clear and I think the challenge here is not one of statutory construction of what, which would be a challenge that has been waived by the fact that this was a plea agreement.

[00:28:41] Speaker 01:
The challenge that has been made is a vagueness challenge about the... Let's imagine it hadn't been waived just for our education.

[00:28:48] Speaker 04:
What's your response to the argument that, like Staples, we should read a mens rea requirement into this?

[00:28:57] Speaker 04:
So my response is, I mean, this hasn't... And move from a strict liability statute to one where the government would have to prove that he knew that he was on capital grounds.

[00:29:06] Speaker 01:
So here, I think,

[00:29:07] Speaker 01:
where the statute requires knowledge, or some mens rea, which is the arguments that the parties have briefed here, assuming that that is correct.

[00:29:15] Speaker 01:
And again, this was not fully addressed in this case, and I think the government could take positions on this.

[00:29:23] Speaker 01:
But where there is some mens rea as to the conduct that is involved, and that conduct is carrying or possessing a firearm,

[00:29:32] Speaker 01:
I think in the context of firearms, which there is no inherent in every circumstance, the Second Amendment is clear that it does not cover the universe, that there are some types of conduct that falls outside the scope of the Second Amendment, that an individual would be tasked with understanding that when carrying firearms that is a heavily regulated area,

[00:29:54] Speaker 01:
that there are permissible regulations such as registration requirements, also designations as this court and the Supreme Court recognize about prohibitions in carrying in sensitive places or based on status such as felony status, and that there just aren't the same concerns here with this statute given that backdrop.

[00:30:16] Speaker 01:
But regardless, I think that is not the question that is before this court.

[00:30:21] Speaker 01:
The question before this court is whether

[00:30:23] Speaker 01:
the statute is vague and we're the boundaries.

[00:30:27] Speaker 03:
It's clear that the appellant himself as opposed to the amicus isn't raising a facial challenge.

[00:30:38] Speaker 01:
A facial challenge with respect to the second amendment challenge?

[00:30:42] Speaker 01:
Yes.

[00:30:44] Speaker 01:
I mean I think that the

[00:30:46] Speaker 01:
concessions and statements of position stand for themselves, but I don't think that appellant could raise an as-applied challenge here.

[00:30:55] Speaker 03:
Because you could- Well, I'm sorry.

[00:30:58] Speaker 03:
I understand you'd be raising that.

[00:30:59] Speaker 01:
To be the position- I'm sorry.

[00:31:01] Speaker 01:
A facial challenge.

[00:31:02] Speaker 01:
Because to raise a facial challenge, I'm not aware of any cases that have adopted the First Amendment concept of overbreath and applied that in a Second Amendment question.

[00:31:15] Speaker 03:
Well, the strict scrutiny

[00:31:16] Speaker 03:
If it applies to the Second Amendment, and I understand that's at least an open question, if it applies to the first step of it, of course, who's going to give an answer?

[00:31:25] Speaker 03:
You've got that.

[00:31:26] Speaker 03:
Second step is that it is narrowly tailored.

[00:31:31] Speaker 03:
And the third step is that it doesn't act over broadly or it doesn't.

[00:31:37] Speaker 03:
There is a better and narrower way of dealing with and more targeted way of dealing with the government interest.

[00:31:45] Speaker 03:
I don't think why he could not raise that kind of challenge.

[00:31:50] Speaker 01:
My position is to be able to raise a challenge that this statute is facially unconstitutional, that is unconstitutional in all respects in which it may be applied.

[00:32:00] Speaker 01:
Appellant would have to be able to argue, which has been conceded, for example, that it would be unconstitutional to

[00:32:12] Speaker 01:
have the firearms prohibition inside the Capitol building itself.

[00:32:15] Speaker 03:
And Ms.

[00:32:16] Speaker 03:
Scalia wrote that we do say that it has to be unconstitutional, but we don't really mean that.

[00:32:23] Speaker 03:
I'm inclined to agree with him.

[00:32:26] Speaker 03:
If a statute is unconstitutional, the fact that you could write a narrower statute that would be constitutional

[00:32:32] Speaker 03:
would seem to me not to defeat a facial challenge.

[00:32:36] Speaker 03:
I don't know of a case, and I've conceded that to your opposing counsel that deals with the question I'm asking you.

[00:32:44] Speaker 03:
supposing the statute would fail, the strict scrutiny analysis, but an error where the statute could be drawn, that is to say one with a different definition of capital grounds, even though you have to go to tax type analysis to get there, the fact that it could be constitutionally regulated, does that save the statute where it

[00:33:10] Speaker 03:
would have unconstitutional ethics, or be unconstitutional under this fix, please.

[00:33:16] Speaker 01:
And I may not be fully understanding your Honor's question, but I think yes.

[00:33:23] Speaker 01:
It would save the statute, because that would render the statute not facially, as in all applications, unconstitutional.

[00:33:31] Speaker 01:
And again, this court is here with the backdrop of presuming that statutes are constitutional and recognizing that it would be here appellant's burden to demonstrate that it was not unconstitutional.

[00:33:43] Speaker 03:
Here, I don't think a pellet can meet that burden, even as it applies with respect to the location in which his car was parked.

[00:34:03] Speaker 01:
And I would just submit that that means that the statute is not, would not be facially unconstitutional here.

[00:34:10] Speaker 02:
And I think with respect- And for your purposes of the government, I mean, you have, there's no issue with an as applied challenge.

[00:34:18] Speaker 02:
And if, for your purposes, if it's constitutional as applied to the relevant scope of conduct, which is the possession, the carrying of firearms on this stretch of Maryland Avenue, that's all, from your perspective, we need to decide.

[00:34:32] Speaker 01:
That ends the inquiry as it relates to this case.

[00:34:35] Speaker 02:
Yes.

[00:34:36] Speaker 01:
And we submit that this court can decide that first by determining that the Capitol grounds, specifically the Maryland Avenue parking area, where appellant's car was and the firearms were, is a sensitive place.

[00:34:49] Speaker 01:
and therefore regulation in that area does not regulate conduct that falls within the scope of the conduct that the Second Amendment protects, and that's what the Supreme Court in this court recognized, and that appellant couldn't show that there was more than a de minimis infringement on.

[00:35:06] Speaker 04:
Can you help me understand why we engage, I know we engage in that inquiry because the Supreme Court's told us to, but why do we engage in the de minimis burden inquiry if we've identified an area where the Second Amendment doesn't apply?

[00:35:17] Speaker 01:
So I'm not aware of a case that has found a sensitive place and then found that the appellant or defendant had overcome that presumption, but I think it should be very difficult to overcome that presumption.

[00:35:31] Speaker 01:
But I could

[00:35:33] Speaker 01:
imagine hypothetically a government building that the top three floors of it were not owned by, not used by the government, instead have been leased out as private apartments and homes, and that there would be a question then as to whether the sensitive place designation, which is a long-standing, well-accepted designation of government buildings.

[00:35:55] Speaker 04:
Yeah, but I'm saying, why isn't the end of the inquiry the sensitive place designation?

[00:35:59] Speaker 04:
And once you've found a sensitive place, there is no second amendment right there.

[00:36:02] Speaker 04:
you don't then engage in inquiry about what type of burden, whether it's de minimis or not.

[00:36:11] Speaker 01:
I'm here with the backdrop of what the Supreme Court said in Heller and this court has said in Heller, but I think here it is a sensitive place based on the use that is made of that place and the type of place it is, and specifically its proximity and location within the Capitol grounds, which I think are unique

[00:36:29] Speaker 01:
as compared to almost any other government building.

[00:36:33] Speaker 01:
and that a time and place limitation on the right to carry or possess firearms is just not the type of regulation that imposes more than a de minimis restriction on your right to bear and carry arms or if this court were to find the need to move to a level of scrutiny that would require anything more than intermediate scrutiny because it is not a complete ban on your ability to

[00:37:02] Speaker 01:
carry firearms in self-defense.

[00:37:04] Speaker 01:
It is a ban in a very specific location.

[00:37:07] Speaker 04:
If it's using intermediate street, isn't there a bit of a fit problem here?

[00:37:13] Speaker 04:
Because there are seemingly identical streets nearby that are, and parking lots nearby that aren't covered.

[00:37:23] Speaker 01:
that aren't covered?

[00:37:24] Speaker 01:
Well, so the fact that the legislature might not have chosen to regulate something that it could regulate doesn't mean that what it has chosen to regulate is not narrowly tailored and wouldn't survive intermediate scrutiny.

[00:37:40] Speaker 02:
That's true, and at least under the laws, I understand it, but is it also true that there are similar streets nearby and that there are also streets that are reserved for capital staff parking?

[00:37:50] Speaker 01:
So I am not aware of all of the, and I don't think our record includes that of all of the areas that are reserved for parking, but here it's undisputed that this area was, and that it is within close proximity not only to the Capitol buildings themselves and the office buildings, but also areas that have been designated as places where large numbers of members of the public

[00:38:13] Speaker 01:
come to exercise their First Amendment rights, to be present at this government site, to gather, to demonstrate, and the need to protect not only the people who work and do business at the Capitol, which is staff, but also the dignitaries, the cabinet members who attend hearings there and travel between the different buildings of the Capitol, but also the citizens who go there.

[00:38:39] Speaker 01:
means that this regulation, especially with respect to Maryland Avenue, survives scrutiny.

[00:38:44] Speaker 04:
Unless my problems have further questions, we have your argument.

[00:38:46] Speaker 01:
Thank you.

[00:38:46] Speaker 04:
Thank you very much.

[00:38:50] Speaker ?:
Mr. Powell.

[00:39:00] Speaker 02:
Mr. Peay.

[00:39:00] Speaker 02:
Can I just, one point of clarification, I'll start to start you off on the rebuttal with this, but just to clarify, you represent

[00:39:08] Speaker 02:
Mr. Klass at this point, right?

[00:39:09] Speaker 02:
Even though we've characterized you as an amicus curad before, at this point, you actually represent.

[00:39:15] Speaker 02:
That's correct, Your Honor.

[00:39:19] Speaker 00:
So we have three quick points to make in rebuttal.

[00:39:21] Speaker 00:
First, regarding the vagueness challenge, that one is both as applied and facial.

[00:39:27] Speaker 00:
And I encourage, Your Honors, to actually try to Google the capital grounds boundaries.

[00:39:34] Speaker 00:
Try, as if you were,

[00:39:35] Speaker 00:
an ordinary person of reasonable diligence to figure out where these boundaries lie.

[00:39:39] Speaker 00:
You'll find a confusing set of maps and you will have, I think you'll find it essentially impossible to determine, to define public law 96-432.

[00:39:50] Speaker 00:
But even if it were sufficient that you can look to the public laws, we think that's actually quite unusual.

[00:39:58] Speaker 00:
That alone is not what drives this vagueness challenge.

[00:40:02] Speaker 00:
There's also the fact that the statute begins by referring to a 1946 map that excludes Maryland Avenue Southwest and is then further confused by the fact that

[00:40:14] Speaker 00:
The same section that refers you to the 1946 map, although it does say there can be additions to it, includes a reference to the botanic gardens that excludes the area where Mr. Class parked, creating the impression that the addition that has been made to the map is just the botanic gardens and that it is thus safe to park where Mr. Class parked with a weapon.

[00:40:34] Speaker 00:
Regarding the second amendment challenge, the government's whole position relies on essentially mischaracterizations of this area.

[00:40:42] Speaker 00:
It tries to describe this area as secure.

[00:40:45] Speaker 00:
It is not.

[00:40:45] Speaker 00:
There are areas that are secure that have guard posts, et cetera, but not this area.

[00:40:50] Speaker 04:
Finally, as this Court considers... The Capitol Police patrolled that area though, don't they?

[00:40:54] Speaker 04:
Obviously they did.

[00:40:55] Speaker 04:
They were patrolling it the time they found Mr. Glantz, right?

[00:40:58] Speaker 00:
They do patrol the area, but of course, police patrol the entire district.

[00:41:05] Speaker 00:
And there are no guard posts.

[00:41:06] Speaker 00:
There are no signs.

[00:41:07] Speaker 00:
This is a publicly accessible street.

[00:41:09] Speaker 00:
The one can drive on, just like all the other streets in the district.

[00:41:12] Speaker 00:
Finally, as this court goes to consider how to resolve this case, of course, as Judge Srinivasan noted at the beginning, Mr. Klass was pro se.

[00:41:23] Speaker 00:
before the district court and when this case was initially argued, and that means, of course, that his claims have to be construed liberally.

[00:41:32] Speaker 04:
Thank you.

[00:41:32] Speaker 04:
Thank you very much.

[00:41:33] Speaker 04:
The case is submitted.

[00:41:33] Speaker 04:
Mr. Powell, you are appointed by the court to represent the appellant in this case, and we thank you for your excellent assistance.

[00:41:42] Speaker 03:
Stand, please.