[00:00:01] Speaker 00:
Face number 23-7061, Andrew Hanson et al.

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at balance versus District of Columbia and Pamela A. Smith.

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Mr. Wenger for the at balance, Mr. Patak for the appellate.

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Good morning.

[00:00:23] Speaker 04:
Good morning, your honors, and may it please the court.

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My name is Edward Wenger, and I represent the plaintiff's appellants in this matter.

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With the court's permission, I'd like to reserve four minutes for rebuttal.

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The case before this court begins and ends with Heller, as clarified and resuscitated by Bruin.

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In Heller, when the Supreme Court struck the district's categorical ban on operable pistols, it held that the handgun ban amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by the American society for that lawful purpose.

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Whatever the reason they are the most popular weapon,

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A complete prohibition of their use is invalid under the Second Amendment.

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This case before the court involves an arm, standard magazines that hold more than 10 rounds that this court 10 years ago in Hiller II observed were common.

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In fact, every circuit court to address this issue concluded that plus 10 magazines are common under any conceivable definition of that word.

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Are we bound by that determination in Hiller II?

[00:01:26] Speaker 04:
No, Your Honor, but I don't believe on this particular issue.

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Why wouldn't you be bound by that?

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If the court decides that... No, no, I'm not asking you to say what I want to hear.

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I'm asking you to... I would certainly... I would have no objection if... I'm asking you if you have an objection.

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I'm asking you analytically.

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Well, the Supreme Court certainly changed the intermediate scrutiny aspect of that decision.

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Common use is an issue that remains under Bruin and we found there on

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record that there was common use of magazine, large capacity weapons, larger capacity magazines.

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So does that if that, I'm just asking you to tell me whether under the law, under the law of the circuit, your honor, I would say that is binding on this court.

[00:02:19] Speaker 03:
So we don't have to wrestle with what on earth common use means, which many other courts have been

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That's correct, Your Honor.

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There's no reason to revisit that and under that, that really... That also answers the question of whether it's an arm?

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Absolutely it does, Your Honor.

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I think so.

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And to the extent... I think so.

[00:02:36] Speaker 03:
We didn't break that question out.

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I'm trying to figure out whether it's some kind of inherent in common use, but I could be wrong.

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I don't think it's inherent in common use, your honor, but I think it's common use is what will come in first common use for self defense.

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Nobody's reason to find is common use if you don't think it's an arm.

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That's exactly right, your honor.

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I think analytically and I think those aspects of color two are still binding on this.

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Absolutely.

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Analytical questions about usage and those are binding.

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It's just correct intermediate scrutiny stuff that we

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That is correct.

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And the only thing that was cut off under hell or two was the idea that you can means and scrutiny your way out of a fundamental right.

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So as I was saying,

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And as Judge Malek has recognized, these magazines are astoundingly common.

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I just said a question.

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I don't see whether I recognize the question.

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No problem, Your Honor.

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The test is this, though.

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Something is a bearable arm, which it is.

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It's presumptively protected by the Second Amendment from any flat prohibition.

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The only way that the government can overcome that presumption is by showing that the arm is both unusual and dangerous.

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Can I ask about another thing?

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It sounds like you have both of, as I read your, like you have both a facial and as applied challenge.

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Is that correct or are we really here focus for the P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P. I. P

[00:04:12] Speaker 03:
But my understanding also is that you agree that there's some level of magazine that could be prohibited as not in common use or not in common use for self-defense.

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If that magazine is not in common use for lawful purpose, then.

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For example, so you're more an expert, far more expert than me on this.

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So what would that be?

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Would that be a, I mean, I know your clients

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um range from sort of i know six or eight to eighteen i think the problem and you said and you say that's sort of within the standard issue range would thirty thirty around magazines are common for rifles your honor um i'd say that for for handguns for the best-selling handguns

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That is the focus of this, but we want to make established territory.

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Absolutely.

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But we want to make sure that we also recognize that 30 round magazines are in common use for rifles.

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We don't have anything in that record before us.

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No, no, no.

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But the best.

[00:05:05] Speaker 03:
OK, so we don't have anything on that for the PI.

[00:05:07] Speaker 04:
OK, so for the purposes of the handguns, though, some of the best selling handguns, we reference these in our briefs and put this before the district court, is that of the top five selling self-defense pistols, the Sig Sauer P320, the second best selling pistol, that'll come standard

[00:05:23] Speaker 04:
anywhere from a 17 to a 23 round magazine.

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So if you're looking at that range, the focus really is, and the test is, are these commonly chosen?

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by the American people for self-defense purposes.

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For a facial challenge, you have to show that there's no application of this law that could be constitutional.

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But if there is, and we're doing this through a preliminary injunction lens, so it's even more of a burden on you than it may be at the merits stage, and that is, if you haven't argued here and you haven't created a record for PI purposes, not talking about what you could do when you get to the merits, if you haven't shown

[00:05:58] Speaker 03:
that 25 or higher is common use for self-defense and meets all the other criteria for protection under the Second Amendment, then your facial claim fails.

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You're as applied one.

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That's correct, Your Honor.

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Only up to 18 for your clients.

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Correct, Your Honor.

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So facials off the table for PI purposes.

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Just for PI.

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The likelihood of success.

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So we really are talking about an as applied challenge.

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That's what this record has been for this preliminary injunction.

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Absolutely, Your Honor.

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And we acknowledge that.

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That range is kind of six to eight.

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I think the highest I saw for your clients was

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17 but I think you mentioned things come out with 18.

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We say 16 is the range for common use and you say for self-defense, at least common for standard issue is let's say 6 to 18.

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Is that correct?

[00:06:51] Speaker 04:
I'm not sure if I caught that question.

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He said six to eight, 18, six to 18.

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Okay.

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Just want to make sure.

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Yes, because that would be a different story.

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What your clients have here.

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The highest I have them in the record is 17, but we could say 18 because I thought you put evidence in about some standard issues at 18.

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The inquiry is limited only to these clients.

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The record suggested they want to correct for the as applied challenge.

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They're only focused the highest that any of my clients possess.

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They want to get in the district is 18.

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I want to make very clear though.

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You're telling me 18.

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17.

[00:07:22] Speaker 01:
Well, let me make very clear.

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17 is in the record.

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17 in the magazine or 18, including the one in the 17 in the magazine plus one additional in the chamber to be very that one you can have in the chamber either way.

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So that's 11.

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So 17 I think is for purposes of the these clients 17 is the number for purposes of the Second Amendment inquiry.

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Common use is the watchword and we would submit the common use goes.

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Roughly speaking to about 23 based on the record before the court, if this were a case about 50 round magazines.

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Again, I thought we got to the point where for the PI purposes, we're looking at.

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I agree.

[00:08:00] Speaker 06:
No, no, no, I'm agreeing.

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I'm saying yes.

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For PI purposes, yes, I agree with your honor.

[00:08:05] Speaker 01:
In your colloquy in the district court, I recall you said 20.

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You would have a hard time defending more than 20 for a handgun and 30 for a rifle.

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Isn't that correct?

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I believe it is, your honor.

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Like I said, whenever we actually looked in the record and we put into the statistics that are based on the sale of pistols.

[00:08:24] Speaker 01:
That is correct, your honor.

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Yes, the colloquy at the district court was focused on anything above 20 for pistols.

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For pistols would likely be harder to justify.

[00:08:34] Speaker 01:
I think anything more than that is you've given away.

[00:08:39] Speaker 04:
I'm not willing to suggest, Your Honor, that we've waived that.

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I think that that was perhaps one of the arguments.

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You know, we would like to clarify that a little bit if it were to go back down to, you know, for any additional evidence.

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I'm just talking about for this PI stage.

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Yeah.

[00:08:53] Speaker 03:
Yeah.

[00:08:53] Speaker 04:
Yeah.

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So for the PI stage, like I said, our clients have handguns with magazines at 17, and it was argued that anything over 20 would likely be a little bit harder to argue.

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But as applied, it's going to stop at 17.

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Correct.

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OK.

[00:09:08] Speaker 04:
All right.

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So back to what I was saying, the test is this, though.

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The only way that the government can overcome the presumption is by showing that the arm is both unusual and dangerous, and Bruin makes crystal clear that it's the government's burden at this step.

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The district court got it right, and I believe that this court will also, when it found that magazines are bearable arms under Bruin's definition, they plainly facilitate self-defense.

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On this record, there are no fewer than 100 million, perhaps as high as 500 million, higher capacity magazines that are in circulation in America today.

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That's the English declaration.

[00:09:42] Speaker 03:
Sorry.

[00:09:43] Speaker 03:
What I'm asking is, are you talking about ones in sort of the 6 to 17 range?

[00:09:50] Speaker 04:
No, no, no.

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These are the magazines that exceed.

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What does it mean in circulation?

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Does that include purchases by the military and law enforcement?

[00:10:00] Speaker 04:
No, these are civilian purchases, Your Honor.

[00:10:02] Speaker 03:
Okay, are these law-abiding civilian purchases or non-law-abiding civilian purchases?

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With the caveat that it's the district's burden to prove that these are not.

[00:10:11] Speaker 03:
You want a preliminary injunction.

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That's true, Your Honor.

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That changes the status quo.

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and will inflict irreparable harm on the district.

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I know you have your irreparable harm.

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I'm not overlooking that.

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But when you want to change the status quo preliminary injunction and as applied, and it will cause irreparable harm to the government and the public interest, you got some work to do.

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And so when you throw out statistics for your as applied challenge,

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it would help to have some more particularity.

[00:10:47] Speaker 03:
Because if that number you just threw out includes ones over 17 or even over 20, if it includes rifle magazines, which aren't for the PI, there's no record here that I've seen or arguments about that.

[00:11:02] Speaker 03:
If it includes criminal and non-criminal, law abiding, and that's not the right way to say it, law abiding and criminal or law abiding and not law abiding, then I'm not sure how

[00:11:15] Speaker 03:
That's what I'm supposed to do with that.

[00:11:17] Speaker 04:
So to clarify, those are pistol magazines that exceed the district's cap.

[00:11:22] Speaker 04:
I would look at it this way, even taking the bottom of that range, 100 million, there are at the peak, this is cited by the Brady brief, maybe 600, 700 mass shootings per year.

[00:11:37] Speaker 04:
Even if every single one of those are considered unlawful purposes, you're still talking about a fraction.

[00:11:43] Speaker 03:
Those are horrific.

[00:11:45] Speaker 04:
They are.

[00:11:45] Speaker 03:
But there's plenty of, I mean, that's, you know, I assume the flip side of your self-defense rationale is that there are

[00:11:55] Speaker 03:
people who seek to do harm to other people.

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And if all they had were bows and arrows, we wouldn't need this, right?

[00:12:02] Speaker 03:
So they have guns.

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I don't mean to put words in your mouth.

[00:12:05] Speaker 03:
That was my understanding of what the self-defense rationale is, especially in your reapply brief when you were talking about it.

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So to correct, I mean, I want to make sure that's- I have an idea what that statistic includes purchases or straw purchases.

[00:12:18] Speaker 03:
Or criminals to me.

[00:12:20] Speaker 04:
No, they're they're legitimate purchases and that's established legitimate sold to people who are allowed to purchase these.

[00:12:27] Speaker 04:
They can go and they can purchase these.

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So that's what a straw purchase is to really aren't even if you include and all the so let me be very clear.

[00:12:39] Speaker 04:
The rationale that the district not only in this case, but even the district's Committee on Public Safety

[00:12:44] Speaker 04:
gave for advancing this categorical ban was that they wanted to make sure that you could prevent people from shooting rapidly and hurting a lot of people without having to pause to reload.

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That's the reason why I gave the mass shooting statistic.

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Even if we look at all shootings, 115,000 is roughly the average over the course of one year in America.

[00:13:05] Speaker 04:
Even if every single one of those shootings included one of these higher capacity magazines, certainly do not, that would still be roughly two one hundredths of the number in circulation that are being used for demonstrably illicit purposes.

[00:13:20] Speaker 04:
There's nothing more that we need to show to show that these are overwhelmingly commonly used and overwhelmingly commonly used.

[00:13:26] Speaker 03:
Demonstrably illicit or illicit?

[00:13:29] Speaker 04:
They are demonstrably used for

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illicit purposes.

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They are demonstratively, they are plainly, calmly possessed and overwhelmingly possessed by law-abiding citizens for lawful purposes.

[00:13:43] Speaker 03:
And relevant lawful purposes, self-defense.

[00:13:46] Speaker 04:
The way that Heller phrased it was lawful purposes like self-defense, that would certainly include self-defense training.

[00:13:53] Speaker 03:
Well, the district court in this case said self-defense was the operative one, at least again for purposes of the preliminary injunction state.

[00:13:59] Speaker 03:
Correct.

[00:14:00] Speaker 04:
Everything's open on it there.

[00:14:01] Speaker 03:
So Heller is not- We're focused here on self-defense for the PI.

[00:14:04] Speaker 04:
That is correct.

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And even in those circumstances, even if we limit the lawful purposes of self-defense,

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We still win on this record because I believe 64% of the people who purchase these and want to carry these have said that they want to use those for self-defense.

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And it makes sense given the notion that, as the district has pointed out, there is an uptick in crime.

[00:14:23] Speaker 04:
There are problems out there.

[00:14:25] Speaker 04:
These are law-abiding American citizens who want to make sure that they can effectively meet force on force if the unthinkable occurs.

[00:14:32] Speaker 04:
So that's getting towards the... Absolutely.

[00:14:37] Speaker 06:
This goes to the balancing of the.

[00:14:40] Speaker 06:
Of the four factors.

[00:14:42] Speaker 06:
Why didn't why did you agree to a stay?

[00:14:47] Speaker 04:
We agreed to a state of the district court because we felt that the illegal issues in this case were probably clear enough that if we brought this up on this record.

[00:14:56] Speaker 04:
The decision is a matter of law about whether or not these are covered, protected, and categorical bans are off the limit would be clear enough for the court so that it would go back down.

[00:15:06] Speaker 04:
And that's the reason why we asked for entry.

[00:15:08] Speaker 04:
A lot of confidence in us.

[00:15:11] Speaker 04:
Well, we felt confident in our position, Your Honor.

[00:15:13] Speaker 04:
And for that reason, that's the reason why we've asked not only for entry of a preliminary injunction, but also the distinction between the

[00:15:20] Speaker 04:
facial challenge and the as applied challenge cuts in favor of not accepting your invitation to grant a permanent injunction period full stop in the case here if the court is inclined to say that we want to limit this on this record to these plaintiffs before we would certainly ask for a remand we would ask for you know in the finding of like success in the merits that as a matter of law the second amendment does not prohibit does not allow this sort of categorical ban if additional

[00:15:47] Speaker 04:
evidence needs to be taken to satisfy this court, that the record supports that this is unconstitutional as a facial challenge, we would certainly welcome the opportunity to argue that on remand.

[00:15:58] Speaker 01:
Let me take you back to Heller 2 for a moment.

[00:16:03] Speaker 01:
It seems to me that we didn't answer the common use question.

[00:16:08] Speaker 01:
What reserved

[00:16:10] Speaker 04:
I believe that the way that it was phrased was that it was a recognition that there is large, larger capacity magazines were common.

[00:16:18] Speaker 04:
I think the actual precise question that was reserved, it was assumed that they were used for common lawful purposes.

[00:16:24] Speaker 01:
Cannot be certain whether these weapons are commonly used or useful specifically for self-defense or hunting and therefore whether the prohibitions, et cetera.

[00:16:34] Speaker 04:
Correct.

[00:16:34] Speaker 04:
So it was assumed but not decided.

[00:16:36] Speaker 01:
We need not resolve that question.

[00:16:40] Speaker 01:
So we didn't.

[00:16:42] Speaker 04:
That's true, Your Honor, but on this record also, I believe that the record is relatively indisputable.

[00:16:48] Speaker 04:
The district, I don't think, disputes that as a matter of just pure numbers, these arms are astoundingly common.

[00:16:53] Speaker 01:
I take the distinction, but insofar as you were insisting that Heller to resolve the matter, I think that's erroneous.

[00:17:03] Speaker 04:
I think that the argument was that hell or two recognized that these were common.

[00:17:07] Speaker 04:
They reserve the question fully of whether or not they were commonly used for lawful purposes.

[00:17:12] Speaker 04:
That was how I read it.

[00:17:14] Speaker 04:
Obviously her honor wrote the opinion.

[00:17:15] Speaker 01:
So that is the key question.

[00:17:17] Speaker 01:
Correct.

[00:17:17] Speaker 01:
Yes.

[00:17:18] Speaker 01:
I mean, even if they're commonly used without commonly used for lawful purposes, it doesn't get you where you need to go.

[00:17:25] Speaker 04:
That's correct, your honor.

[00:17:26] Speaker 04:
And that goes back to our argument that with the numbers of these in circulation,

[00:17:30] Speaker 04:
and even taking as a given the highest number of laws that could be broken, shootings that could occur with these.

[00:17:36] Speaker 04:
These are still overwhelmingly not used for crime.

[00:17:40] Speaker 04:
These are overwhelmingly used for lawful purposes and of those lawful purposes, overwhelmingly used for self-defense.

[00:17:46] Speaker 01:
When they are used for crime, so they are unusually lethal.

[00:17:53] Speaker 04:
I would dispute that, Your Honor.

[00:17:56] Speaker 04:
Certainly the

[00:18:00] Speaker 04:
The concern about mass shootings in the focus on being able to shoot rapidly without reloading, to the extent that we're here and only talking about plus 10 pistol magazines, to judgment-less point that we're on the as applied level here, the ability to shoot that fast with a pistol is what I would suggest somewhat distinct from what I believe is happening with regard to mass shootings with the long-range guns and long rifles.

[00:18:28] Speaker 04:
That said, though,

[00:18:29] Speaker 04:
The fact that Heller considered that 70% of mass shootings were committed with pistols and still nonetheless found that that was not a good reason that could not overcome the second member protection for pistols in that case suggests that that sort of cost benefit analysis that's sort of bringing the pluses and minuses is something that legislators should not do and the court should not engage in.

[00:18:53] Speaker 04:
And Bruin really sort of reinvigorated that.

[00:18:56] Speaker 04:
They said that we've done, pardon me,

[00:18:58] Speaker 04:
means and balancing from Heller to Bruin and during that period of time they realized it made part of me means and balancing wasn't in accord with the history intrusion test that was set out.

[00:19:10] Speaker 04:
So those types of concerns the back and forth about whether or not these are too dangerous versus whether or not compensation should possess them is something that Bruin took off the table.

[00:19:21] Speaker 01:
So unless it can be fitted into a historical

[00:19:24] Speaker 04:
correct, but common use means that there is no historical tradition.

[00:19:28] Speaker 04:
If there was a historical tradition of a categorical ban on these arms, they would have never come into common use for lawful purposes.

[00:19:35] Speaker 04:
That's how the common use test fits into the historical tradition brewing test.

[00:19:46] Speaker 03:
Just a couple more questions.

[00:19:46] Speaker 03:
First, just a fact one.

[00:19:47] Speaker 03:
How long have your your clients been residents of D.C.?

[00:19:51] Speaker 03:
?

[00:19:51] Speaker 04:
Here's your honor.

[00:19:52] Speaker 04:
I don't have the precise number before me, but they've been here for a while.

[00:19:57] Speaker 03:
When you say years, does that mean 3, 5, 10?

[00:20:00] Speaker 04:
I can confirm that whenever I sit back down before rebuttal.

[00:20:02] Speaker 04:
I don't have that information directly before me.

[00:20:05] Speaker 03:
Well, I'm sorry.

[00:20:06] Speaker 03:
How long his clients have been, the as-applied clients here have been residents of DC.

[00:20:12] Speaker 04:
I'll give that information for you.

[00:20:13] Speaker 04:
It will be sent out in a revend.

[00:20:15] Speaker 03:
And then one thing I'm curious about is justices have said,

[00:20:21] Speaker 03:
many times that banning automatic weapons would be consistent with history and tradition.

[00:20:34] Speaker 03:
Given that those did not come on the scene in any significant number, any materially significant number until the 20th century, what tradition of regulation are they talking about?

[00:20:49] Speaker 04:
In that particular instance, your honor, I think that that actually is an example of the government getting regulation correct is a historical matter.

[00:20:57] Speaker 03:
When did that regulation by government start?

[00:21:00] Speaker 04:
So I believe if you actually look at it was in the 1930s and the reason why I want to make sure that.

[00:21:05] Speaker 03:
The 1930s don't count.

[00:21:07] Speaker 04:
Pardon me.

[00:21:07] Speaker 03:
I thought your brief said 1930s don't count.

[00:21:09] Speaker 04:
They don't.

[00:21:10] Speaker 04:
And for purposes of this, I want to make sure that the court gets the timeline correct because

[00:21:14] Speaker 04:
even granting that they're looking at this from the early 20th century perspective.

[00:21:21] Speaker 04:
Either way, the history and tradition, the citations need to somehow key back into the initial understanding of the American family.

[00:21:30] Speaker 04:
The reason why Tommy guns or machine guns in particular are different is that they hit the civilian market in 1921.

[00:21:35] Speaker 04:
Those guns, and this is actually recognized by now Justice Kavanaugh's dissent in Heller II, those guns were commercial failure.

[00:21:44] Speaker 04:
They did not sell.

[00:21:45] Speaker 04:
They were overly and prohibitively expensive.

[00:21:48] Speaker 04:
The people who bought those were the criminals, were the mafiosos, and they were using them for perhaps, you know, as an example, one of those infamous mass shootings that the world had seen, the St.

[00:21:59] Speaker 04:
Valentine's Day massacre.

[00:22:01] Speaker 04:
That happened in 1929.

[00:22:02] Speaker 04:
The bans

[00:22:04] Speaker 04:
that some states experimented with, which, to be certain, were very, very far between.

[00:22:09] Speaker 04:
There were four bans.

[00:22:10] Speaker 04:
And the federal government deciding not to ban but to regulate the sale of automatic weapons happened in 1934.

[00:22:17] Speaker 04:
So that was rapidly changing technology.

[00:22:18] Speaker 03:
They can't be banned.

[00:22:19] Speaker 03:
They can only be regulated.

[00:22:20] Speaker 04:
That's our position.

[00:22:22] Speaker 03:
We would do it as well.

[00:22:24] Speaker 04:
So let me, let me, let me.

[00:22:25] Speaker 03:
I'm still trying to answer my question.

[00:22:29] Speaker 03:
I understand the timing and the history, but then the language that has been used by justices has been they fit within tradition.

[00:22:38] Speaker 03:
And under Bruin tradition means that I go back to find something at the founding that has a sort of same how and why.

[00:22:46] Speaker 03:
So what is that tradition for automatic weapons?

[00:22:49] Speaker 04:
For automatic weapons, I think that the only wiggle room for the government to

[00:22:52] Speaker 04:
categorically ban those would have to be really stretching the dramatic technological change.

[00:22:59] Speaker 03:
What tradition were the justices referring to?

[00:23:01] Speaker 04:
for purposes of automatic weapons, it's not clear.

[00:23:03] Speaker 03:
The M16s and Heller, so maybe they're wrong, that it wouldn't be consistent with history and tradition to ban automatic weapons.

[00:23:11] Speaker 04:
No, not at all, because there is some wiggle room for dramatic technological changes in the precise when they speak of him.

[00:23:16] Speaker 04:
When Heller spoke about M16s, they underreported those were, and I quote, highly unusual in society at large.

[00:23:22] Speaker 04:
So to be able to actually key that back in, I haven't litigated myself in automatic weapons case.

[00:23:28] Speaker 04:
I don't know exactly.

[00:23:29] Speaker 03:
I'm just trying to figure out how this

[00:23:31] Speaker 03:
After Bruin, you can have a type of weapon that technologically wasn't even a twinkle in any gun owner's eye at the time of the founding or even Civil War.

[00:23:44] Speaker 03:
The technology just wasn't there.

[00:23:47] Speaker 03:
And that technology just materialized until 21st century.

[00:23:55] Speaker 03:
But everyone, other justices, I think,

[00:23:58] Speaker 03:
Heller was majority opinion feel pretty confident that prohibitions, of course, even for regulations, you're going to have to make the same type of showing right under ruin, all fit with this history and tradition.

[00:24:12] Speaker 03:
And so

[00:24:13] Speaker 03:
We have arguments here and arguments on both sides to be clear, but arguments on one side that is sort of the semi-automatic weapons, the rapid fire high capacity they have is a much more modern innovation.

[00:24:30] Speaker 03:
But yet they have to try to find, this is your argument, they have to try to find something back in time that parallels that.

[00:24:36] Speaker 03:
And so what I'm asking you is be aware of any back in time parallel that's relevant for automatic fire.

[00:24:43] Speaker 04:
I am not standing here, Your Honor.

[00:24:45] Speaker 04:
And I think that it really emphasizes also that even the categorical bans on automatic fire weapons are astoundingly, exceedingly rare.

[00:24:54] Speaker 04:
At this moment, to this day, if you're lucky.

[00:24:56] Speaker 03:
I'm just asking what the justices were, what history and tradition they were relying on.

[00:24:59] Speaker 04:
That part of it I don't have the answer to, Your Honor.

[00:25:01] Speaker 04:
But what I can say is, as a historical matter, automatic weapons are not categorically banned.

[00:25:06] Speaker 04:
You can get them.

[00:25:06] Speaker 04:
You can jump through a lot of hoops.

[00:25:07] Speaker 04:
They might be prohibitively expensive.

[00:25:10] Speaker 04:
The average citizen, the average law-abiding citizen, can still get those.

[00:25:13] Speaker 04:
For purposes of this case though, the one thing that we know for sure is that if something has come into common use for lawful purposes, that satisfies the second amendment inquiry.

[00:25:24] Speaker 04:
Because if there's not a historical tradition of banning these semi-automatic higher capacity magazines, that means that there is no history and tradition of making them lawful.

[00:25:36] Speaker 03:
But in fact, as we've discussed, for purposes of our as applied challenge,

[00:25:42] Speaker 03:
There's a range of these magazines from, shall we say six to, maybe it even goes less than six.

[00:25:49] Speaker 03:
Two, is there a two or a four?

[00:25:50] Speaker 03:
I don't know.

[00:25:52] Speaker 03:
Not that I'm aware of for self.

[00:25:54] Speaker 03:
Six to 17 is what we're thinking about for this preliminary injunction.

[00:25:57] Speaker 03:
There's a range.

[00:25:58] Speaker 04:
Correct.

[00:25:59] Speaker 03:
They have not banned.

[00:26:01] Speaker 03:
those.

[00:26:02] Speaker 03:
They have simply drawn a line that said, and draw a line and sort of said, we think over this amount is historically allowed for us to regulate is not common use for self-defense.

[00:26:16] Speaker 03:
Fits with our traditions and fits with the text of the Second Amendment.

[00:26:19] Speaker 03:
That's their argument that we have to draw the line somewhere.

[00:26:21] Speaker 03:
Now you agree

[00:26:22] Speaker 03:
that they get to draw a line somewhere they do and that line has to be drawn commonly used for self-defense they cannot carve out arms that are commonly used i'm just going here is this a ban or this is what legislators do all the time and that is due line drawing you're banned on high capacity magazines in the district you certainly are no you're not banned you can't have ones that are more than 10

[00:26:46] Speaker 03:
But 10 and one in the chamber, 11, that's a lot.

[00:26:50] Speaker 03:
And so the question is, it sounds like your argument is simply they had to draw, they did a line drawing.

[00:26:59] Speaker 03:
Not a ban.

[00:27:00] Speaker 03:
They did a line drawing, but you think the line should have been at 17 for purposes of the PI.

[00:27:07] Speaker 03:
You can do more and remand for the facts.

[00:27:10] Speaker 03:
You're likely to succeed for this status quo changing, replicably harm-inflicting preliminary injunction, because they should have drawn the line at 17 and not 11.

[00:27:23] Speaker 03:
We can have 10 so 11 so it's a it's that that's what this is about is legislative line drawing.

[00:27:31] Speaker 04:
It is, but that legislative line drawing is still a categorical prohibition on anything that falls above the line it's drawn in if that is a categorical prohibition.

[00:27:42] Speaker 04:
That line cannot be drawn consistent with the Second Amendment.

[00:27:45] Speaker 03:
It's not the same as a ban on handguns, or intense regulation of handguns.

[00:27:48] Speaker 03:
It's not the same as a ban on semi-automatic weapons.

[00:27:54] Speaker 03:
It is, we need to allow these under the Second Amendment.

[00:27:58] Speaker 03:
And the question is how much lethality we're required to allow by the Second Amendment.

[00:28:04] Speaker 04:
The reason why common use really has to be the watchword is Heller itself, Justice Scalia's opinion,

[00:28:09] Speaker 04:
Consider these types of arguments.

[00:28:11] Speaker 04:
Why do you need a pistol whenever experts say that your rifle might be better for home defense?

[00:28:16] Speaker 03:
And what Heller said.

[00:28:17] Speaker 03:
Categorically different in very, very many different ways.

[00:28:19] Speaker 03:
Here, we're just talking about number of bullets.

[00:28:21] Speaker 04:
But I reiterate.

[00:28:22] Speaker 03:
Do you agree that there's a number of bullets that they can ban?

[00:28:25] Speaker 04:
Well, certainly, those that are not in common use for lawful purposes.

[00:28:27] Speaker 04:
And that is their burden to show where that line lies.

[00:28:31] Speaker 03:
Self-defense today, this morning, for purposes of the PI.

[00:28:34] Speaker 03:
Correct.

[00:28:35] Speaker 01:
But I want to.

[00:28:36] Speaker 01:
If it's as simple as that, what role

[00:28:40] Speaker 01:
in Bruin does the passage about dramatic technological change or perhaps more important, unprecedented societal concerns.

[00:28:49] Speaker 01:
What role does that play in the analysis?

[00:28:51] Speaker 04:
I think part of the role in that analysis is keyed into the idea that Heller itself dealt with a categorical ban on a class of arms.

[00:29:00] Speaker 04:
The issue in, pardon me, in Bruin was where could you carry certain arms?

[00:29:05] Speaker 04:
So they had to go through things

[00:29:07] Speaker 04:
For example, the issue in the case was inside versus outside.

[00:29:11] Speaker 04:
An example of a dramatic technological advancement would be, okay, do we allow, does the Second Amendment protect people to carry firearms through TSA security?

[00:29:22] Speaker 04:
Certainly you have similar concerns.

[00:29:24] Speaker 04:
There might be an analogous history and tradition of banning arms and they recognize it in sensitive places.

[00:29:30] Speaker 04:
Taking Bruin, one of the four corners of the issue in that case,

[00:29:33] Speaker 04:
really sort of informs why it was that the court was so focused on dramatic technological changes, perhaps airplanes, and societal concerns, 9-11.

[00:29:44] Speaker 04:
So in those circumstances, the historical analysis becomes a little more acute.

[00:29:50] Speaker 04:
Heller, though, said that as soon as you have common use for purposes of today, self-defense... Well, Bruin comes after Heller.

[00:29:57] Speaker 04:
Correct, it does.

[00:29:58] Speaker 04:
But Bruin really clarifies, Heller.

[00:30:00] Speaker 01:
Of course, to clarify it, I'm not sure whether you can help me.

[00:30:06] Speaker 04:
The clarification there, and I think it really is this, is that when you're talking about categorical bans on arms, arms are in dispute to be used for self-defense.

[00:30:18] Speaker 04:
The government cannot satisfy, based on the history and tradition test articulated in Bruin,

[00:30:22] Speaker 01:
Suppose that unprecedented social concern, societal concern, arises after something is in common use.

[00:30:31] Speaker 04:
Under that circumstance, Your Honor, the Second Amendment is interpreted in ruins suggests that that is still protected under the Second Amendment.

[00:30:40] Speaker 01:
So the arising of some unprecedented societal concern just has to go unredressed or ignored

[00:30:52] Speaker 01:
if it involves something in common?

[00:30:54] Speaker 04:
Not at all, Your Honor, because the legislature has other tools.

[00:30:57] Speaker 04:
They have tools sure of a categorical man.

[00:31:00] Speaker 04:
I'm not going to prejudge.

[00:31:01] Speaker 03:
But why wouldn't your argument apply just as much to regulation if they couldn't find the analog?

[00:31:05] Speaker 03:
You've got common use, unregulated, at the time they act.

[00:31:11] Speaker 03:
They can't find some 1792 law that regulated this thing that did not exist remotely, probably.

[00:31:21] Speaker 03:
How are they going to do it?

[00:31:22] Speaker 03:
Well, for instance, in this case, if you're talking about a challenge, the regulations to pardon me, you're also going to challenge the regulations.

[00:31:29] Speaker 04:
They are here.

[00:31:29] Speaker 04:
But I think that if I were up here and if, for example, the district had said that's the only people who can possess plus 10 magazines or folks who have a concealed carry license and they've gone through the training and demonstrated be a very different case.

[00:31:42] Speaker 04:
We would have a much harder challenge.

[00:31:44] Speaker 03:
You'd still say it fails a Bruin test.

[00:31:46] Speaker 04:
Not necessarily, Your Honor.

[00:31:47] Speaker 04:
I'm not prepared to say that.

[00:31:48] Speaker 04:
I don't think that it would because concealed carry licenses, that's something that Bruin actually recognized are long standing.

[00:31:55] Speaker 04:
Bruin didn't throw out, for instance, the concealed carry license scheme and actually said that for as long as it's a shall issue scheme, we're not disturbing those findings.

[00:32:04] Speaker 04:
They didn't prejudge that at all.

[00:32:05] Speaker 04:
That would be an extraordinarily harder case.

[00:32:08] Speaker 03:
So Bruin would allow the district to say,

[00:32:11] Speaker 03:
Only those who have concealed carry licenses through let's just assume you're not challenging the regulatory scheme and records that of six magazine, that'd be perfectly fine.

[00:32:23] Speaker 03:
Can you repeat that your honor magazine would only be six, not more than 10 not not 10.

[00:32:30] Speaker 04:
They, I'm not sure if I completely follow your question.

[00:32:33] Speaker 03:
So I'm following up on yours.

[00:32:34] Speaker 03:
So you say if you had this case where they said concealed carry or sorry, high magazines, 10 plus magazines are banned except for individuals who have concealed carry permits have been through all our safety requirements, background checks, law abiding individuals.

[00:32:56] Speaker 03:
They're all banned, but as for those individuals, they may carry magazines up to six.

[00:33:02] Speaker 04:
Up to six or 16, Your Honor?

[00:33:04] Speaker 03:
Six.

[00:33:05] Speaker 04:
So individuals who have... Your best golden individuals... Can only carry six round magazines?

[00:33:12] Speaker 04:
No, Your Honor, that would not survive Second Amendment security because you're still categorically banning a wide swath of people from possessing commonly held arms for lawful purposes.

[00:33:22] Speaker 04:
That would absolutely, under our theory, fail the Second Amendment's test.

[00:33:28] Speaker 03:
Thank you very much.

[00:33:29] Speaker 03:
Thank you, ma'am.

[00:33:49] Speaker 05:
May it please the court, Ashwin Patak for the District of Columbia and Chief Pamela Smith.

[00:33:53] Speaker 05:
And let me start with some of the colloquies that Judge Ginsburg and Judge Millett had with my colleague about Heller 2, because I do think Heller 2 is quite important in this case.

[00:34:02] Speaker 05:
And I agree with you, Judge Ginsburg.

[00:34:04] Speaker 05:
I think what the court did in Heller 2

[00:34:05] Speaker 05:
Is that there were basically two paragraphs that talked about common use the first paragraph and in Heller to talked about whether or not they were simply numerous in society and everybody agreed in that case that of course large capacity magazines are numerous in society there are millions of them out there and then the court went.

[00:34:22] Speaker 05:
to the second paragraph, and it said basically that there wasn't enough evidence in the record to determine whether or not large capacity magazines are in common use or used specifically for self-defense.

[00:34:33] Speaker 05:
And it said that it would have to remand for that question to be more fully fleshed out with evidence, but then of course the court went on

[00:34:40] Speaker 05:
to apply means and scrutiny and analysis that has been repudiated by Bruin.

[00:34:44] Speaker 05:
And so I think it's very indicative that the court did that.

[00:34:47] Speaker 05:
And it's highly persuasive for this case that even Justice Kavanaugh in dissent in the footnote at the end of his opinion, he too said that he would have remanded on this question.

[00:34:57] Speaker 05:
Everybody acknowledged in that case that there were millions of large capacity magazines in circulation.

[00:35:03] Speaker 05:
But even he would have remanded this case to figure out whether or not they were actually in common use.

[00:35:09] Speaker 06:
Seems like sort of a dim view of the American public.

[00:35:13] Speaker 06:
This could be so popular, so common.

[00:35:18] Speaker 06:
Could be the standard magazine that comes with the quintessential self-defense gun, to quote the Supreme Court.

[00:35:26] Speaker 06:
And yet, even though it's standard for the standard gun,

[00:35:30] Speaker 06:
It might be only in common use for unlawful purposes.

[00:35:35] Speaker 05:
Well, I certainly wouldn't suggest that it's only in common use for unlawful purposes.

[00:35:39] Speaker 05:
But what I would say is that- In common use for lawful purposes?

[00:35:44] Speaker 05:
Well, I think it's in common use for all manner of reasons.

[00:35:46] Speaker 05:
Folks might like to collect them.

[00:35:47] Speaker 05:
They might like to have them.

[00:35:49] Speaker 05:
They might like to shoot them.

[00:35:50] Speaker 06:
It seems like it has to be in common use for lawful purposes.

[00:35:53] Speaker 06:
when it's the standard magazine for the standard gun.

[00:35:58] Speaker 06:
Unless you think the standard American is out for unlawful things.

[00:36:05] Speaker 05:
I don't agree with that, Judge Walker, because I think it proves too much.

[00:36:09] Speaker 05:
I think there are 700,000 machine guns out there.

[00:36:11] Speaker 05:
Folks have them as collectibles.

[00:36:13] Speaker 05:
They have them because they like to shoot them.

[00:36:15] Speaker 05:
They may even have them because they subjectively think that...

[00:36:19] Speaker 06:
Police departments and government, right?

[00:36:21] Speaker 05:
And many are owned by collectors and individual citizens.

[00:36:24] Speaker 06:
And how many are owned by?

[00:36:25] Speaker 05:
I don't think we have that specific number in the record, but I will just say hundred million high capacity magazines, a lot of magazines.

[00:36:34] Speaker 05:
I understand that, Judge Walker, but I think it can't just be a numerosity analysis.

[00:36:39] Speaker 05:
If the court in Heller and Bruin had thought that numerosity was the beginning and end of this test, those decisions would have been very short, because they're the same number of handguns out in circulation.

[00:36:49] Speaker 05:
But instead, the court went through in Bruin a two-part analysis, step one and step two of Bruin, which started with a threshold inquiry that, in our view, applied the common use for self-defense tests that is fully consistent

[00:37:01] Speaker 05:
with what this court believed was the test in Heller 2.

[00:37:04] Speaker 05:
And I point the court to 2134 of the Supreme Court Reporter that Section 3 of that opinion, applying the test that it had previously set out to carrying handguns, where the court said in that very first paragraph that everybody agreed in that case that handguns were commonly used today for self-defense.

[00:37:22] Speaker 05:
That's the language the court used there.

[00:37:24] Speaker 05:
And we think it has to be something more than numerosity, because if it's pure numerosity,

[00:37:29] Speaker 05:
that results in a circularity that is simply untenable.

[00:37:33] Speaker 05:
I don't understand how it could be the case that there are 700,000 machine guns in circulation, that more than the 200,000 stun guns that Justice Alito mentioned in Catano.

[00:37:43] Speaker 06:
You don't know how many machine guns are in private hands.

[00:37:46] Speaker 05:
It's certainly, they have not disputed that it's hundreds of thousands.

[00:37:49] Speaker 05:
Nobody has disputed that in this case.

[00:37:50] Speaker 06:
Take a step back and tell me, I'm going to walk through what I think is the test, and then you tell me where I'm going off the rails.

[00:37:57] Speaker 06:
So I think

[00:37:59] Speaker 06:
You start by asking, is it an arm?

[00:38:02] Speaker 06:
Is it an arm in common use?

[00:38:05] Speaker 06:
Maybe even, you can extend that to, is it an arm in common use for all the purposes?

[00:38:09] Speaker 06:
Maybe even, is it an arm in common use for self-defense?

[00:38:16] Speaker 06:
Correct.

[00:38:17] Speaker 06:
And I know you think you win already.

[00:38:20] Speaker 06:
But let's then say, I think the answer to those things are yes.

[00:38:23] Speaker 06:
Then I think there's a history and tradition inquiry that says,

[00:38:29] Speaker 06:
Is there a history and tradition of this regulation?

[00:38:35] Speaker 06:
And for example, one history and tradition I think the Supreme Court may tell us in a few months is for unusually irresponsible people, there is a history of keeping guns out of their hands.

[00:38:47] Speaker 06:
I think the history and tradition that you're relying on these exact guns weren't in existence at the time of the founding but you need not a twin but an analog is there's a there's arguably history tradition of banning unusual guns.

[00:39:05] Speaker 06:
We can add dangerous to that if you want dangerous and unusual guns and so.

[00:39:11] Speaker 06:
Then I think that means, OK, well, we need to find a history of that and a tradition of that history being we need to look to the founding era, or maybe if we're in 14th Amendment and Corporation World, 1868 era, but we're not here.

[00:39:25] Speaker 06:
Say, OK, do we see founding era, colonial era, bands of guns that are unusual?

[00:39:35] Speaker 06:
And if so, is there a tradition of it?

[00:39:37] Speaker 06:
Is it an outlier or is it kind of widespread?

[00:39:39] Speaker 06:
And let's say that I'm with you, that there is a history and tradition of banning guns for the purpose of preventing gun violence, a tradition of banning guns that are unusual, dangerous and unusual.

[00:39:54] Speaker 06:
Then you still have to show that this arm in question is unusual, right?

[00:40:02] Speaker 05:
Well, I think I would have a disagreement with how you're characterizing unusual.

[00:40:06] Speaker 05:
If you're using unusual in the colloquial sense, that is, is it numerous in society?

[00:40:10] Speaker 05:
Are there a lot of that weapon?

[00:40:11] Speaker 05:
Then I would disagree that that's the way that this standard has to apply.

[00:40:15] Speaker 05:
And I think the problem with that is, first of all, it doesn't comport with the historical tradition.

[00:40:20] Speaker 05:
Bowie knives, I think, were quite popular and numerous at the time that they started to be regulated in the 19th century.

[00:40:25] Speaker 05:
Nevertheless, nobody thought there was any Second Amendment issue there.

[00:40:29] Speaker 05:
They were eventually banned in a lot of jurisdictions by the end of the 19th century.

[00:40:33] Speaker 05:
I agree that some of the earlier restrictions are carry restrictions and other sort of severe regulations on those types of weapons.

[00:40:41] Speaker 05:
Dueling.

[00:40:42] Speaker 05:
Yes.

[00:40:43] Speaker 05:
Yes.

[00:40:44] Speaker 05:
No, that's right.

[00:40:45] Speaker 05:
But I think it cannot be that unusual is simply a sort of a redo of the numerosity analysis.

[00:40:51] Speaker 06:
It's not a redo if we're talking about something like

[00:40:54] Speaker 06:
banning unusually irresponsible people from having guns, because that's a, you know, we're not talking about whether the guns are usual or not.

[00:41:01] Speaker 06:
That's a separate, totally separate inquiry.

[00:41:02] Speaker 06:
But when the tradition that you're talking about is a tradition of banning dangerous and unusual guns, then I do think that that inquiry is going to be very similar to that first inquirer is the gun in common use.

[00:41:16] Speaker 05:
The problem with that, I think, Judge Walker, is that I point the court to the Seventh Circuit in its decision in Friedman, Kreebrew and admittedly, it noted that machine guns were all too common at the time in 1934 that the National Firearms Act passed.

[00:41:31] Speaker 05:
Nevertheless, the Supreme Court told us in Heller that it would be a startling, and that's a quote from the decision, proposition that those types of weapons, the same is true for short-barreled shotguns, that any of those types of more militaristic, offensive, high-fire power types of weapons or weapons accessories...

[00:41:49] Speaker 06:
take it to the Seventh Circuit, but my impression is that the machine gun was not the standard quintessential weapon of self-defense at the time it was banned.

[00:41:57] Speaker 06:
That it was actually Congress stepped in at a time when it was still pretty unusual, if you weren't a mobster, to have the machine.

[00:42:05] Speaker 05:
I understand that, Your Honor.

[00:42:06] Speaker 05:
I have two responses to that.

[00:42:08] Speaker 05:
The first is I think around that same time, there were actually a number of different bans on large capacity magazines that went into effect as well.

[00:42:17] Speaker 05:
You know, we obviously quibble with our friends on the other side about which one of those count as bans or not.

[00:42:21] Speaker 05:
But I think at the very least, which one do you think?

[00:42:23] Speaker 06:
What's your best example?

[00:42:24] Speaker 06:
I think not just a not not just a carry ban of a high capacity magazine, but a total possession ban of a high capacity magazine outside of DC.

[00:42:35] Speaker 05:
Rhode Island, Michigan, and Minnesota, all reading the plain text of them seemed to me to be bans on large capacity magazines.

[00:42:43] Speaker 05:
Ohio and Massachusetts and Virginia all had regulations of them in various ways.

[00:42:48] Speaker 06:
I saw that Rhode Island, Michigan, and Minnesota combined the magazine cap with the modifier.

[00:42:55] Speaker 06:
So for example, a high capacity Winchester, like lever action rifle,

[00:43:01] Speaker 06:
would not have been banned by those states, but they would be banned by DC today.

[00:43:06] Speaker 05:
I'm not sure that's right.

[00:43:07] Speaker 05:
I think there's an or in the Rhode Island provision that makes it seem like it's either or, either a certain capacity or automatic feature.

[00:43:14] Speaker 05:
So I don't think that's quite right.

[00:43:16] Speaker 05:
A couple other examples I'd point to would be that the model code for machine guns that was circulating at that time.

[00:43:22] Speaker 06:
Those aren't statutes.

[00:43:23] Speaker 06:
And even if I give you Rhode Island, Michigan, Minnesota,

[00:43:26] Speaker 06:
Didn't Bruin say three is not enough, probably four is not enough, five is not enough?

[00:43:30] Speaker 05:
Well, I think the problem here is that it would lead to really absurd consequences.

[00:43:34] Speaker 05:
It would mean that if the National Firearms Act had been passed in 1954, 20 years later, which could have been a reasonable response, you know, Congress might have thought, let's let this percolate, let's let states decide and then make a decision.

[00:43:46] Speaker 05:
In those 20 years, if a number of machine guns, far more machine guns had circulated, which I have no doubt that they would have,

[00:43:52] Speaker 05:
Suddenly, plaintiffs would be coming in and saying, hey, Second Amendment now comes in and the scope of the Second Amendment has now changed.

[00:43:59] Speaker 06:
It actually seems like a pretty decent proxy for what's dangerous and unusual.

[00:44:03] Speaker 06:
If it's dangerous and unusual, we would expect our legislators to step in and ban them before they become dangerous and usual.

[00:44:13] Speaker 05:
Again, I think I would just reject that type of circular argument.

[00:44:17] Speaker 05:
I think it means that it sort of puts the cart before the horse.

[00:44:20] Speaker 05:
And it incentivizes, in my view, overregulation by governments.

[00:44:23] Speaker 05:
I mean, it basically means that governments, if they want to try to ban a particular weapon but don't know the societal consequences of it at the time that it comes on the market, governments would really be incentivized to come in and say, you know what?

[00:44:35] Speaker 05:
We're going to just ban this now because we know if we let too many of those come out, if we let more than 200,000 or 700,000 enter into circulation,

[00:44:43] Speaker 05:
anywhere and in any state in any part of the country, we are going to be forever precluded from dealing that weapon from regulating it heavily or banning it down the road if we find that that weapon, you know, does lead to really serious consequences, which we would say, large capacity magazines have.

[00:44:58] Speaker 03:
And I'd add, I wonder if there's a singularity or catch 22 or whatever it is, if

[00:45:07] Speaker 03:
If something gets out and is, for example, like the automatic guns and used automatic machine guns used by criminals, is there not likely then to have a reaction?

[00:45:22] Speaker 03:
And let's say that when they come out, they're deemed to be quite dangerous in

[00:45:28] Speaker 03:
in a constitutionally relevant sense in a way that firearms otherwise normally in civilian use are not.

[00:45:34] Speaker 03:
But once the bad guys have them, people wanna have the same thing to protect themselves.

[00:45:40] Speaker 03:
Nobody wants to go up against a machine gun with a six shooter, right?

[00:45:44] Speaker 03:
So there's equal risk that the response by people is not that we only need these for self-defense because

[00:45:55] Speaker 03:
the government doesn't let them out there and the government doesn't let or at least enough that like criminals have them.

[00:46:00] Speaker 03:
And so it just, I don't, I don't know how any of this allows us to make analytical questions about what people really want for self defense or desire or need.

[00:46:13] Speaker 03:
If there's simply this endless response to someone else has something more, you know, manufacturers put out higher magazines.

[00:46:20] Speaker 03:
I need a higher magazine.

[00:46:21] Speaker 03:
New iPhone comes out, I gotta have a new iPhone.

[00:46:24] Speaker 03:
New magazine comes out, I gotta have a new magazine.

[00:46:27] Speaker 03:
And so as an inquiry, how do we do the inquiry then about whether they're used for facilitating self-defense without it turning into an endless well?

[00:46:39] Speaker 03:
If criminals have them, I should have them facilitating my self-defense too so that we now have automatic weapons and before long grenade launchers in everybody's house.

[00:46:50] Speaker 05:
I totally agree Judge Malette.

[00:46:51] Speaker 05:
I do think that there is an arms race that would develop if the only standard is what people sort of feel they need to respond to certain criminal activity.

[00:46:59] Speaker 05:
This is why we've put, you know, we've made the point that in our view, the standard is

[00:47:04] Speaker 05:
Essentially what is in fact commonly used for self-defense and I think you can look at that in a couple different ways you can look at it like heller looked at handguns what are the actual characteristics of handguns that make them useful for self-defense they can be grabbed quickly in a self-defense situation they can be held with one hand while you call the police.

[00:47:22] Speaker 05:
On the flip side, you can also look at how our large capacity magazines or any firearms actually use in self-defense situations.

[00:47:30] Speaker 05:
And on this, we've put evidence in the record that has been unrebutted by plaintiffs at this sort of preliminary stage without much evidence in total, that really in the average self-defense situation, two to three bullets are fired.

[00:47:44] Speaker 05:
It is rarely, if ever, that more than 10, more than 11 bullets are fired in a self-defense situation.

[00:47:50] Speaker 05:
Now, obviously, these are sort of proxies for trying to determine what is in lawful use for self-defense, but we think there are objective measures of that.

[00:47:58] Speaker 05:
It cannot be that it's just a subjective test, because subjectively,

[00:48:02] Speaker 05:
citizens may decide they want a machine gun for self-defense.

[00:48:06] Speaker 05:
They want a grenade launcher for self-defense.

[00:48:08] Speaker 05:
And they may really subjectively believe that that is making them safer, that having that in their home and having it at the ready is making them safer.

[00:48:16] Speaker 05:
That would sort of lead to a rudderless test that would just be whatever weapon is most popular.

[00:48:22] Speaker 03:
Is everyone talking about standard issues, standard issue, which I assume means that's what the manufacturer puts with it.

[00:48:29] Speaker 03:
When did manufacturers start selling magazines over 10 with the semi-automatic handguns?

[00:48:40] Speaker 05:
My understanding is that semi-automatic handguns were not equipped with large capacity magazines until at least the 1980s.

[00:48:47] Speaker 05:
And I don't think plaintiffs dispute that.

[00:48:49] Speaker 05:
So it is quite a recent development that semi-automatic handguns, not rifles,

[00:48:55] Speaker 05:
were sold with or generally could even take a large capacity magazine.

[00:49:00] Speaker 05:
And you really see when that happens in the 1980s, which is very recent vintage, that that leads almost immediately to sort of what has become the modern scourge of mass shootings.

[00:49:11] Speaker 05:
And very quickly thereafter in 1989, California imposes a large capacity magazine ban.

[00:49:16] Speaker 05:
Right after that, in 1994, the federal government imposes a nationwide large capacity magazine, which I might add,

[00:49:22] Speaker 05:
is the 10 round number that the district uses today.

[00:49:25] Speaker 05:
That was in effect for 10 years.

[00:49:27] Speaker 05:
The moment it went out of effect, a number of states have slowly sort of adopted those bans.

[00:49:32] Speaker 05:
As mass shootings have continued to happen across the country, usually using a large capacity magazine.

[00:49:37] Speaker 05:
I mean, that is in the vast majority of cases, maybe all of them, a large capacity magazine is used.

[00:49:43] Speaker 05:
And the reason for that is because it has a particular capability.

[00:49:47] Speaker 05:
I would agree with the colloquy with my friend that

[00:49:50] Speaker 05:
that basically it's not a ban on weapons per se.

[00:49:53] Speaker 05:
It really is just a limitation on the total firepower that somebody has before they need to reload.

[00:49:59] Speaker 05:
So after firing 11 rounds with a 10 round magazine, a person just needs to take a few seconds and switch out the magazine and they can fire 10 more rounds.

[00:50:09] Speaker 03:
Any limits on the number of come out of my handguns with 10 plus magazines that they can have?

[00:50:16] Speaker 05:
The number of magazines.

[00:50:18] Speaker 03:
The number of magazines and the number of handguns they can go with.

[00:50:20] Speaker 05:
No.

[00:50:21] Speaker 05:
No.

[00:50:21] Speaker 01:
There's no such restriction in the district.

[00:50:23] Speaker 01:
You can have... There is evidence here.

[00:50:26] Speaker 01:
It's in the declaration of Mr. Kleck that mass shootings with large capacity magazines are in fact a very small proportion of the mass shootings.

[00:50:43] Speaker 01:
That's fair enough, Judge Ginsburg.

[00:50:45] Speaker 01:
That's contrary to what you just suggested a moment ago.

[00:50:48] Speaker 05:
Oh, sorry.

[00:50:48] Speaker 05:
What I meant to say was that all mass shootings are conducted with large capacity magazines, or at least most of them.

[00:50:54] Speaker 01:
Well, that's what I'm saying.

[00:50:56] Speaker 01:
His numbers show that that's not true.

[00:50:58] Speaker 05:
Oh, all shootings where 10 or more people are killed.

[00:51:01] Speaker 05:
These are like situations where there's a mass casualty number are by and large used with large capacity magazines.

[00:51:10] Speaker 01:
The standard

[00:51:11] Speaker 01:
definition for mass shootings is four or more fatalities, or maybe it's victims.

[00:51:18] Speaker 05:
Certainly many of those are, there were not large capacity magazines used, but I do think that... I mean, it's not vanishingly rare, but it is certainly the unusual situation.

[00:51:31] Speaker 01:
In the most recent years, 21 going back, five of 28, zero of 21, four of 31, these are outliers.

[00:51:41] Speaker 05:
I think we certainly would dispute some of those numbers.

[00:51:44] Speaker 05:
I think many of those experts.

[00:51:46] Speaker 01:
Did you have anything contrary to that in the record?

[00:51:48] Speaker 05:
Not in the record, but all of their declarations came in attached to their reply brief below.

[00:51:53] Speaker 05:
So we actually didn't really have the time for the chance.

[00:51:56] Speaker 06:
Which numbers would you dispute that Judge Ginsburg read?

[00:51:58] Speaker 05:
My understanding is that many of the really mass shootings that have happened over the last few years were that large capacity magazines were used in those cases.

[00:52:09] Speaker 05:
But I'm not sure that that's

[00:52:10] Speaker 05:
sort of critical to our argument into the court.

[00:52:12] Speaker 03:
If you've got a gun that's got four to six in it and there's four fatalities but once you start as you said if your statistics or if you believe their statistics are so when there's more than 10 magazines there's more than 10 deaths.

[00:52:26] Speaker 05:
Well, I think that's exactly right, because it's much longer before a person needs to reload.

[00:52:31] Speaker 05:
And it's that moment where a person reloads that is a time when law enforcement or bystanders can come in and intervene.

[00:52:38] Speaker 05:
So that's really the purpose of this law.

[00:52:40] Speaker 05:
But I guess the basic point that I was trying to make here.

[00:52:42] Speaker 01:
You have that in the record.

[00:52:43] Speaker 01:
Wasn't that your evidence?

[00:52:45] Speaker 05:
Yes.

[00:52:46] Speaker 05:
And I think the basic point I'm just trying to make here is that at the end of the day, this is a judgment call.

[00:52:51] Speaker 05:
The legislature is trying to draw a line.

[00:52:53] Speaker 05:
And I took my friend on the other side to essentially be saying that the legislature can draw a line somewhere.

[00:52:58] Speaker 05:
They obviously want that line to be higher than the line that we've drawn.

[00:53:02] Speaker 05:
But they're not suggesting that we can't ban some large capacity magazines.

[00:53:06] Speaker 01:
They are offering a criterion, which is to say common use.

[00:53:11] Speaker 05:
That's absolutely correct, Judge Ginsburg.

[00:53:12] Speaker 05:
And we are also offering a criterion, which is common use for self-defense.

[00:53:16] Speaker 01:
Wait a minute.

[00:53:17] Speaker 01:
We also have a declaration showing that 65% or something like that of people who have large capacity magazines acquired them for purposes of self-defense.

[00:53:29] Speaker 05:
But again, I don't think that it can be a subjective inquiry.

[00:53:32] Speaker 05:
I don't think it can just be that people feel that they want to.

[00:53:35] Speaker 01:
Then you don't really accept the common use criterion.

[00:53:38] Speaker 05:
Well, I think it's common use for self-defense in an objective sense.

[00:53:41] Speaker 05:
I think the test has to be objective in looking at the real-world situations.

[00:53:45] Speaker 05:
Ken, is a large capacity magazine actually commonly used in self-defense situations?

[00:53:50] Speaker 05:
We say the average number of bullets fired is two.

[00:53:53] Speaker 05:
We also say that nobody needs the firepower where they can fire 11 rounds, and then all they have to do under our law is change out the magazine, which takes a few seconds.

[00:54:03] Speaker 05:
They have not put forward any coherent theory for why they need more than 11 rounds

[00:54:08] Speaker 05:
before simply having to change out the magazine in self-defense situations.

[00:54:11] Speaker 05:
And I just don't think that is consistent with the record.

[00:54:14] Speaker 06:
I mean, your argument is sort of that this law would go from being constitutional to unconstitutional once crime gets so bad that people start shooting more than two bullets self-defense a lot.

[00:54:32] Speaker 05:
Well, I don't think it's quite that.

[00:54:35] Speaker 05:
Well, first of all, two is obviously far less than 10.

[00:54:38] Speaker 05:
But in addition to that, I think we're just trying to sort of come up with proxies for trying to understand how to objectively ascertain whether a particularly lethal weapons accessory is actually useful for self-defense.

[00:54:49] Speaker 06:
What do you make of the civilian marksmanship program that I think started in the 60s?

[00:54:55] Speaker 06:
Congress, I think,

[00:54:58] Speaker 06:
through the program, the government gives away rifles with high capacity magazines.

[00:55:05] Speaker 06:
And I think it's been distributed to something like a quarter of a million high capacity magazines have been distributed.

[00:55:11] Speaker 06:
So it seems like that suggests not only is there not a tradition of banning high capacity magazines, there's actually a tradition of the government providing people with high capacity magazines.

[00:55:23] Speaker 05:
So I do think that there is some birth for governments to make different policy choices.

[00:55:28] Speaker 05:
The federal government in 1934 enacted the National Firearms Act, severely restricting a whole swath of particularly dangerous weapons.

[00:55:36] Speaker 05:
If it made a different choice for a different type of weapon a little bit later, that's their prerogative.

[00:55:42] Speaker 06:
Would you agree that there is a tradition of the government providing some high capacity magazines to people?

[00:55:49] Speaker 05:
There is some historical evidence, yes, but I think that's rifles.

[00:55:54] Speaker 05:
They were not.

[00:55:55] Speaker 06:
And your statute bans rifles, right?

[00:55:58] Speaker 06:
High capacity magazines for rifles.

[00:56:00] Speaker 05:
Correct, though, at this preliminary.

[00:56:01] Speaker 06:
Is it the only statute in history that bans high capacity magazines for lever action and bolt action rifles?

[00:56:09] Speaker 05:
I don't know the answer to that, Judge Walker.

[00:56:12] Speaker 06:
You know of any other statute that does?

[00:56:13] Speaker 05:
Not off the top of my head, no.

[00:56:15] Speaker 05:
I just wanted to say, I don't think it has been applied to a lever action rifle, as far as I'm aware.

[00:56:22] Speaker 05:
And that really hasn't come up before.

[00:56:25] Speaker 05:
So I'm not exactly sure in what ways it would apply to that.

[00:56:28] Speaker 05:
So I don't want to sort of overstep on that.

[00:56:30] Speaker 03:
We also have no record on rifle force for the PI stage.

[00:56:33] Speaker 03:
Correct.

[00:56:34] Speaker 05:
That's exactly right.

[00:56:35] Speaker 05:
And not only that, my friends on the other side have said it is unrebutted that all of the semi-automatic handguns that they possess do accept 10 round magazines and that they have 10 round magazines.

[00:56:49] Speaker 06:
My point on the rifle is a larger point.

[00:56:52] Speaker 06:
I think the really, really 10,000 foot test that comes out of Bruin is can't be an outlier.

[00:57:01] Speaker 06:
And you're

[00:57:03] Speaker 06:
your law seems like an outlier, right?

[00:57:07] Speaker 05:
I think I would just push back on the notion that whether or not a state is an outlier is the relevant standard.

[00:57:12] Speaker 05:
Because what that would mean is that the first state to act just can't do it under the Second Amendment.

[00:57:18] Speaker 05:
It has to be that states can sort of experiment within the bounds of the Second Amendment, of course.

[00:57:22] Speaker 05:
But McDonald made very clear that all experimentation was not off the table.

[00:57:26] Speaker 06:
And some responses- That would be a pretty good argument against the way the Supreme Court has done Eighth Amendment analysis, right?

[00:57:32] Speaker 05:
Fair enough, Judge Walker.

[00:57:33] Speaker 05:
But I do think that the idea here is that states get to respond to local needs and local circumstances.

[00:57:40] Speaker 05:
They have some birth to make these decisions.

[00:57:42] Speaker 05:
We take this 10 number as a policy decision that is based on a history stemming back to 1994 when the federal government imposed that restriction.

[00:57:50] Speaker 05:
Firearm manufacturers then responded

[00:57:52] Speaker 05:
by creating 10-round magazines for all of the semi-automatic handguns that are in widespread circulation today.

[00:57:58] Speaker 05:
So I do think there's sort of been a coalescing around that number.

[00:58:01] Speaker 03:
Unusual under the Eighth Amendment, the same as the Second Amendment?

[00:58:04] Speaker 03:
I thought they were different.

[00:58:05] Speaker 05:
No, they are different, Judge Millett.

[00:58:06] Speaker 05:
And we would sort of, the dangerous and unusual phrase, we really think is a term of art.

[00:58:13] Speaker 05:
It cannot just be that unusual.

[00:58:15] Speaker 05:
It's a standalone numerosity requirement, as I've already discussed.

[00:58:19] Speaker 06:
What about this?

[00:58:20] Speaker 06:
The 3 factors after likelihood of success.

[00:58:23] Speaker 06:
I know your brief says that even if you were not to prevail on likelihood of success that we should still deny the P I based on those factors.

[00:58:31] Speaker 06:
I wonder how the harm to the district should be thought of.

[00:58:36] Speaker 06:
If we.

[00:58:36] Speaker 06:
I think we will do this, but if we were to find likelihood of success for the plaintiffs and limit the P I to the 4 plaintiffs.

[00:58:46] Speaker 06:
It seems very unlikely the district is going to be injured by these four plaintiffs unless you have some reason to think they are, you know, perpetrators of gun violence.

[00:58:59] Speaker 05:
I agree, Judge Walker.

[00:59:00] Speaker 05:
If the court were to limit the P.I.

[00:59:02] Speaker 05:
to only these plaintiffs, the harm to the district would not be as significant as what we have said in our brief would happen if the court enjoined the law across the board.

[00:59:13] Speaker 05:
I think it would be minimal the only problem with that is I'm not sure why every other plaintiff would come in immediately thereafter it would just sort of result in the sea of litigation and then eventually you would get obviously to a place where we think large capacity magazines would flood into the district.

[00:59:28] Speaker 05:
And this really happened in California.

[00:59:30] Speaker 05:
I mean, the plaintiffs have put forward no contrary evidence or rebutted the fact that for the one week in California where a district court judge did enjoin their large capacity magazine, a million large capacity magazines flooded into California.

[00:59:42] Speaker 06:
It sounds like that means large capacity magazines are in pretty common use.

[00:59:46] Speaker 05:
Well, they're certainly popular, Judge Walker, but I think, you know, I've explained my history.

[00:59:51] Speaker 06:
Not necessarily one more, but can I ask a history?

[00:59:52] Speaker 06:
Can I go back to the history inquiry?

[00:59:54] Speaker 06:
Do you read the prohibition era laws to permit you to ban every semi-automatic firearm?

[01:00:03] Speaker 06:
No, I don't.

[01:00:04] Speaker 06:
I think you have to say no because of Heller.

[01:00:06] Speaker 06:
Correct.

[01:00:06] Speaker 06:
And then if not, why do those prohibition era laws permit you to ban every firearm with a magazine above 10 rounds?

[01:00:15] Speaker 05:
Well, so I think that is that sort of goes to the burden aspect, right?

[01:00:19] Speaker 05:
So when you're in this world where because of dramatic technological changes, you're looking for a historic analog and not a historic twin or a dead ringer.

[01:00:27] Speaker 05:
I think in that world, you're then looking to whether or not the prohibitions from earlier eras are have a similar burden on individuals right to self-defense and were enacted for similar reasons.

[01:00:38] Speaker 05:
And the similar inquiry, I think, is why you can sort of distinguish those two things.

[01:00:42] Speaker 05:
In our view, really, our law allows individuals to have semi-automatic handguns with magazines, with magazines up to 11 rounds, and as many magazines as they want, and as many handguns as they want.

[01:00:52] Speaker 05:
All it's saying is that when you get to the 11th round that you fired, you have to take a few seconds to change out the magazine, which I don't think affects self-defense minimally, if at all, but in an offensive situation where a person is trying to commit

[01:01:07] Speaker 05:
sort of mass murder, those seconds can be the difference between life and death.

[01:01:11] Speaker 05:
They're the time that a police officer can come in and intervene or a bystander.

[01:01:15] Speaker 05:
There's evidence of that happening in the real world.

[01:01:17] Speaker 06:
I think that is an eloquent way to frame the current regime.

[01:01:21] Speaker 06:
I think an alternative framing would be you didn't used to give citizens any of those rights.

[01:01:27] Speaker 06:
It took a lawsuit in the Supreme Court for them to get what you're saying you now sort of so generously give them.

[01:01:33] Speaker 06:
The reason the Supreme Court ruled against you then

[01:01:36] Speaker 06:
10,000 foot inquiry.

[01:01:37] Speaker 06:
You were an outlier.

[01:01:39] Speaker 06:
Look at it today.

[01:01:40] Speaker 06:
You're still an outlier.

[01:01:42] Speaker 05:
Well, I think I might push back that today were an outlier.

[01:01:45] Speaker 05:
There are actually a number of jurisdictions that have these requirements.

[01:01:47] Speaker 06:
In addition, the jurisdictions.

[01:01:49] Speaker 06:
and high capacity magazines for all guns.

[01:01:52] Speaker 05:
I think it's 14 these days, which covers actually close to, I think, maybe 40% of the American public.

[01:01:59] Speaker 05:
But in addition, the federal government banned these from 1994 to 2004.

[01:02:03] Speaker 05:
But even putting it, let's say we are an outlier on this to some extent.

[01:02:08] Speaker 05:
I don't think that what Heller said was simply

[01:02:11] Speaker 05:
look at the jurisdictions, the district is out of line with other jurisdictions, end of story.

[01:02:15] Speaker 05:
That would have been a very short decision.

[01:02:17] Speaker 05:
It is much more complicated than that.

[01:02:19] Speaker 05:
And I do think when you're looking at the historic justifications, you know, we haven't really talked about this too much and I know I'm over time.

[01:02:26] Speaker 06:
The national ban, did that apply to, for high capacity magazines, did it apply to handguns?

[01:02:30] Speaker 05:
My understanding is that it was all large capacity magazines, but I could be mistaken about that.

[01:02:35] Speaker 05:
And on the dramatic technological change, I do think this is just a substantial change from anything that existed in the 19th century.

[01:02:43] Speaker 05:
Even as late as the 1870s, you had 0.2% of all firearms being able to fire multiple rounds.

[01:02:50] Speaker 05:
It wasn't until the 20th century that machine guns came on the market, and it wasn't until the 1980s

[01:02:55] Speaker 05:
that semi-automatic handguns could take large capacity magazines and sort of that started to proliferate into society.

[01:03:02] Speaker 05:
So I do think there's really been substantial changes here that justify this kind of regulation and that the regulation minimally affects the Second Amendment, right?

[01:03:10] Speaker 05:
And we hope the court will affirm.

[01:03:12] Speaker 03:
I'm happy to address any other.

[01:03:15] Speaker 03:
I asked him in Heller too, he said,

[01:03:19] Speaker 03:
The prohibition of semi-automatic rifles and large capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves.

[01:03:28] Speaker 03:
Now we said that in the section of the opinion that was doing intermediate scrutiny, so that definitely would not work for the merits inquiry.

[01:03:37] Speaker 03:
But when we're in the preliminary injunction stage trying to determine irreparability of harm,

[01:03:44] Speaker 03:
does a decision by this court, including, it was on that record, but I don't know the material differences here, that the prohibition of large capacity magazines does not effectively disarm individuals or, more relevantly here, substantially affect their ability to defend themselves.

[01:04:01] Speaker 05:
That language is highly persuasive, I think.

[01:04:04] Speaker 05:
I don't think I can say that Heller 2 is binding on this court.

[01:04:07] Speaker 05:
It applied means and scrutiny at the end of the day.

[01:04:10] Speaker 03:
Correct.

[01:04:12] Speaker 03:
The front end part of it probably is still binding on this court.

[01:04:15] Speaker 04:
Correct, exactly, right.

[01:04:16] Speaker 03:
And then also part of the back end, so definitely not right for the merits, but said on that record, at least, there was hardly any evidence that these magazines holding more than 10 rounds are well-suited or preferred for self-defense or sport, but we're only talking about self-defense here.

[01:04:35] Speaker 03:
Is the record different in this case?

[01:04:41] Speaker 03:
Uh, that that, uh, that they are preferred for well suited to or preferred for self defense.

[01:04:49] Speaker 05:
Well, on the preferred standard, uh, as to preferred, I think that is sort of like a popularity type test.

[01:04:56] Speaker 05:
And so I think we certainly don't dispute that there are many of them out there and they are popular on the well suited.

[01:05:01] Speaker 05:
We certainly believe that they are not well suited to self defense because their popularity.

[01:05:06] Speaker 03:
And so this was 2011.

[01:05:07] Speaker 03:
So that's, you know,

[01:05:09] Speaker 05:
I don't think it's.

[01:05:10] Speaker 03:
The popularity changed between 2011 and 2020.

[01:05:13] Speaker 05:
There are more of them, but I don't think that as a legal, I don't think there's a legally.

[01:05:18] Speaker 03:
I'm trying to read what preferred meant.

[01:05:20] Speaker 03:
I should ask him, I know.

[01:05:24] Speaker 05:
Yes, Judge Ginsburg might have a better sense of what that meant.

[01:05:29] Speaker 05:
I sort of read that to be more of a popularity type standard.

[01:05:33] Speaker 05:
But I do think that the well-suited for is sort of a good way to think about what Heller said about handguns and contrasting that with large capacity magazines, which we think are quite ill-suited for self-defense purposes.

[01:05:51] Speaker 03:
Thank you very much.

[01:05:54] Speaker 03:
OK, Mr. Wenger, we will give you three minutes.

[01:06:02] Speaker 03:
Sorry, I know you want to, we have other.

[01:06:05] Speaker 04:
I can totally understand that Judge Millett.

[01:06:07] Speaker 04:
So a few points that I want to make.

[01:06:10] Speaker 03:
Before you do that, do you have an answer on how long they've been residents?

[01:06:13] Speaker 04:
Oh, I actually did not correct that.

[01:06:14] Speaker 04:
I'm so sorry about that.

[01:06:16] Speaker 04:
So I just want to whisper it to you.

[01:06:20] Speaker 06:
Yeah.

[01:06:21] Speaker 04:
I heard 1987.

[01:06:28] Speaker 03:
Since 1988.

[01:06:28] Speaker 03:
Since 1988.

[01:06:29] Speaker 03:
Okay, sorry, go ahead.

[01:06:31] Speaker 04:
So going back to the start, quoting Heller, the Second Amendment, whatever the reason, the American people choose to put something in common use, whatever the reason, a categorical ban on a commonly used arm cannot withstand Second Amendment scrutiny.

[01:06:51] Speaker 04:
The Americans do get to decide what's useful.

[01:06:54] Speaker 04:
It's not a subjective test, and the objective inquiry is whether or not.

[01:06:58] Speaker 04:
They say whatever.

[01:06:59] Speaker 03:
I'm really struggling.

[01:07:00] Speaker 04:
It's not a popularity test because objectively you can look and see what it is that America decides to arm themselves with for purposes of their self-defense.

[01:07:08] Speaker 03:
How do we?

[01:07:08] Speaker 03:
This is just a fact question.

[01:07:10] Speaker 03:
I really don't know how this works.

[01:07:13] Speaker 03:
I get that we know handguns are used for self-defense.

[01:07:17] Speaker 03:
That's just easier for a lot of reasons.

[01:07:20] Speaker 03:
Your friend on the other side even mentioned it's accessibility, usability.

[01:07:23] Speaker 03:
How do we know

[01:07:28] Speaker 03:
that when folks are buying 10 plus magazines, that was for self-defense.

[01:07:34] Speaker 03:
That is that say they had before, they had a 10 number magazine, 10 bullet magazine or an eight.

[01:07:43] Speaker 03:
And then now they've purchased 16.

[01:07:48] Speaker 03:
How do we know they did that to facilitate their self-defense?

[01:07:53] Speaker 04:
We've put in the record that 64% of the people who own these plus 10 magazines have bought them for the purposes of self-defense.

[01:07:59] Speaker 03:
Was there a survey?

[01:08:01] Speaker 04:
There was a survey, Your Honor.

[01:08:02] Speaker 03:
And that survey was done when?

[01:08:05] Speaker 04:
Recently, I think it was 2021, I believe.

[01:08:07] Speaker 04:
So this is recent.

[01:08:08] Speaker 01:
The totals in that survey are well over 100% because people had multiple reasons.

[01:08:13] Speaker 04:
Correct, yes.

[01:08:13] Speaker 04:
They have multiple reasons to do that.

[01:08:15] Speaker 04:
But of the highest, 64% of the people who have owned this

[01:08:19] Speaker 04:
that survey said that they own it for purposes of self-defense and these are these are they own the magazine or they own the handgun they own the they specifically owns the higher capacity magazine the ones that are made by the district smaller magazines i don't know no weapon at all and then

[01:08:34] Speaker 03:
Because if the manufacturers are pushing these things out with the higher magazines so that when you go to the store, that's just sort of what's on the shelf.

[01:08:42] Speaker 03:
It's hard to understand these.

[01:08:44] Speaker 03:
Respectfully, there's too much factual stuff.

[01:08:46] Speaker 04:
I mean, respectfully, there are, in some jurisdictions, you can legally buy 50 round magazines.

[01:08:51] Speaker 04:
Those are not in common use for lawful purposes because the American people have decided they don't use those for common purposes.

[01:08:56] Speaker 03:
But they decided prior to the 1980s that they didn't use magazine number 10 for self-defense.

[01:09:02] Speaker 04:
No, Your Honor, as soon as they became available.

[01:09:06] Speaker 03:
But that's like the iPhone.

[01:09:08] Speaker 03:
As soon as it's available, I want the newest one.

[01:09:10] Speaker 03:
But I didn't see anything in the record where your client said or you had any evidence that someone wasn't able to defend themselves with 11 or less bullets.

[01:09:22] Speaker 04:
That, I think.

[01:09:23] Speaker 04:
So there is evidence in the record.

[01:09:24] Speaker 04:
And this is the Warner Declaration, paragraph 10.

[01:09:27] Speaker 04:
I've got the app site here.

[01:09:29] Speaker 04:
I can pull it up in a moment.

[01:09:30] Speaker 04:
But they basically said that these, even though they're not the typical self-defense, not that there's any typical self-defense incident,

[01:09:36] Speaker 03:
But they have occurred with people.

[01:09:38] Speaker 04:
Okay, go ahead.

[01:09:39] Speaker 04:
These have occurred.

[01:09:40] Speaker 04:
There is a record that these actually have occurred where people have needed more than 10 rounds.

[01:09:44] Speaker 04:
Where's that?

[01:09:45] Speaker 04:
It's the Warner Declaration.

[01:09:48] Speaker 04:
It is at appendix site 746 and it's paragraph 10.

[01:09:56] Speaker 03:
But is that common use or has it just been a few times?

[01:10:01] Speaker 04:
I want to make sure that I answered that question in the context of the Second Amendment.

[01:10:06] Speaker 04:
In the context of the Second Amendment, limiting the rights of self-defense to the very act of pulling the trigger cuts the protections of the self-defendant basically down to 25%.

[01:10:19] Speaker 04:
Heller itself defined the term bearing arms as not only pulling a trigger, but wearing, carrying,

[01:10:28] Speaker 04:
making sure that you are prepared for whatever happens, no matter how rare.

[01:10:32] Speaker 04:
It didn't say it prepared for whatever happens in the common situation based on the statistics.

[01:10:37] Speaker 03:
Where is it on page 746?

[01:10:39] Speaker 04:
Paragraph 10, I believe.

[01:10:41] Speaker 03:
Paragraph 10.

[01:10:46] Speaker 03:
Well, the average citizen defensive gun use involves no rounds fired.

[01:10:53] Speaker 03:
Where does it say?

[01:10:55] Speaker 03:
It just says there were situations where citizens fired more than 10 rounds and needed to reload their firearms.

[01:11:02] Speaker 03:
We don't have any sense of how many that is.

[01:11:04] Speaker 03:
We don't have any sense of.

[01:11:05] Speaker 04:
No, we would.

[01:11:06] Speaker 04:
We can see that it's more rare than the evidence that's in there, but it does happen.

[01:11:11] Speaker 04:
And the right to bear arms is to be ready for the unusual situation.

[01:11:16] Speaker 04:
The point about most self-defense use is not involving a shot at all really emphasizes the inappropriateness.

[01:11:24] Speaker 04:
of that particular study.

[01:11:28] Speaker 04:
In most self-defense circumstances, pulling out a weapon and brandishing it will scare off somebody else.

[01:11:34] Speaker 01:
Regardless of the magazines.

[01:11:36] Speaker 04:
So based on that alone, if that reasoning tracks, you could ban

[01:11:42] Speaker 03:
all guns, you can ban all magazines because they are quote unquote not commonly used preliminary injunction inquiry here and reprobable harm on their right to self defense.

[01:11:52] Speaker 03:
That's that's the only context in which at least I'm asking these questions.

[01:11:55] Speaker 04:
Correct.

[01:11:56] Speaker 04:
Yes.

[01:11:56] Speaker 04:
And their harm on self defense is that they are not allowed to bear a weapon to be prepared for that unthinkable circumstance where they might need to use more than 17 rounds.

[01:12:07] Speaker 04:
We're pausing to reload

[01:12:09] Speaker 03:
More than 17 now?

[01:12:10] Speaker 04:
I'm sorry, that was a mistake.

[01:12:12] Speaker 04:
More than 10 rounds, because pausing to reload for even those few seconds could mean a difference between life and death.

[01:12:20] Speaker 04:
That's the decision that the Second Amendment allows them to make.

[01:12:23] Speaker 04:
And I think that the really important quote from, pardon me, from Bruin about that.

[01:12:29] Speaker 06:
I should have asked you to see this, but this is along the lines of your discussion about

[01:12:35] Speaker 06:
when it's, how many shots are fired and how often that is for self, but the, like the military serves a national defense purpose, even when we're not at war, right?

[01:12:49] Speaker 06:
Correct.

[01:12:50] Speaker 04:
Yeah.

[01:12:50] Speaker 06:
Is there an analogy there?

[01:12:52] Speaker 04:
Absolutely.

[01:12:52] Speaker 04:
There is the ability to be prepared for the rare circumstance is covered in the very definition of what it means to bear an arm.

[01:12:59] Speaker 04:
It certainly is covered.

[01:13:01] Speaker 04:
by the separate protection, the ability to keep an arm.

[01:13:04] Speaker 04:
And Heller made very clear that those are two distinct protections.

[01:13:07] Speaker 04:
So limiting the inquiry to the very act of pulling a trigger basically wipes out 75% of the plain text of the Second Amendment.

[01:13:16] Speaker 01:
There's... But in so far as we're looking at balances of hardship in the PI context,

[01:13:27] Speaker 01:
The imposition on the burden, I should say, on the Second Amendment right as you're claiming it would seem to be quite minimal because of the rarity, because of specific point about the rarity with which a person in a defensive situation actually uses more than 11 ways.

[01:13:51] Speaker 04:
I still think that what we're talking about when we're talking about life and death situations and the ability to prevent those on the very facts of it, that risk is irreparable.

[01:13:59] Speaker 04:
And I would submit to the court also that even on a PI, this court has held that the invasion of a protected constitutional rights is itself a reparable injury.

[01:14:09] Speaker 04:
I believe that's one Catholic church versus Cuomo.

[01:14:12] Speaker 01:
One important- But there is, I mean, we are instructed to take account ordinarily of the

[01:14:21] Speaker 01:
burden, but even more specifically under Bruin.

[01:14:27] Speaker 04:
Oh, correct.

[01:14:28] Speaker 04:
So the imposition, the actual threat to the right here is the ability for my clients to bear an arm that they've decided is necessary for their self-defense purposes.

[01:14:39] Speaker 04:
Again, I'll emphasize, this is a right that pre-exists the Constitution.

[01:14:42] Speaker 04:
This is something that's part and parcel of being a United States citizen.

[01:14:46] Speaker 04:
Heller stands for the proposition that the American people, to Judge Walker's question, my friend on the other side, they are the ones, they are trusted to make these decisions.

[01:14:54] Speaker 04:
They have decided that these particular semi-automatic, higher capacity magazines are useful for self-defense.

[01:15:03] Speaker 04:
In the 1920s, they decided automatic weapons were not.

[01:15:06] Speaker 04:
They do make these decisions and they make them responsibly.

[01:15:10] Speaker 04:
One thing about that that I really want to emphasize, I think that my friend on the other side is really arguing that we should defer to the judgment of the district about what is and what is not most useful.

[01:15:22] Speaker 04:
Bruin squarely foreclosed that, and I'll quote the language, while judicial deference to legislative interest balancing is understandable and elsewhere appropriate, it is not deference that the Constitution demands here.

[01:15:36] Speaker 04:
To the question that Judge Walker asked,

[01:15:38] Speaker 04:
The test itself from Heller, pardon me, from Bruin, which they reaffirmed, is when the Second Amendment's plain text covers an individual's conducts, it presumptively protects that conduct.

[01:15:50] Speaker 04:
So that means that the very first thing is, if the protection is to keep and bear an arm, if you have an arm, it is presumptively protected.

[01:16:00] Speaker 04:
If the government cannot prove... Can you wrap up here?

[01:16:03] Speaker 03:
We actually gave you more than your four minutes.

[01:16:04] Speaker 03:
Certainly.

[01:16:05] Speaker 04:
If the government can't prove a history and tradition,

[01:16:07] Speaker 04:
It can't categorically ban that arm.

[01:16:10] Speaker 04:
And the fact that something is commonly used for lawful purposes means that there is no history and tradition of banning that arm.

[01:16:15] Speaker 03:
Thank you very much.